05-659

IN THE SUPREME COURT OF THE STATE OF MONTANA

2008 MT 25

IN RE THE MARRIAGE OF

PEGGY JOYCE JACKSON,

 Petitioner and Appellee,

 v.

DAVID CARTER JACKSON, 

 Respondent and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and For the County of Yellowstone, Cause No. DR 2005-0220

Honorable Ingrid Gustafson, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Kevin T. Sweeney, Attorney at Law, Billings, Montana

For Appellee:

George T. Radovich, Radovich Law Firm, Billings, Montana

Submitted on Briefs: July 6, 2006

 Decided: January 31, 2008

Filed:

__________________________________________

Clerk

January 31 2008
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Justice James C. Nelson delivered the Opinion of the Court.

¶1 On March 2, 2005, Peggy Joyce Jackson filed a petition for dissolution of her 

marriage to David Carter Jackson. The District Court for the Thirteenth Judicial District, 

Yellowstone County, entered an order on August 29, 2005, dissolving the marriage, 

distributing the parties’ marital property, and awarding maintenance to Peggy. David 

now appeals. We affirm in part and reverse in part.

¶2 We restate the issues on appeal as follows:

1. Did the District Court err by not accounting for Peggy’s destruction of a bed 

that David estimated was worth $2,000?

2. Did the District Court err by leaving David financially exposed to a Veterans 

Affairs loan foreclosure on a residence awarded to Peggy?

3. Did the District Court fail to make adequate findings in awarding maintenance?

4. Did the District Court err in making the maintenance award for the duration of 

Peggy’s lifetime or until she remarries, without making findings as to how this

maintenance award could be covered long-term?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 Peggy and David married on May 26, 1982, in Glenrock, Wyoming. They 

subsequently moved to Billings, Montana, in approximately 1985. At the time she filed 

the petition for dissolution, Peggy was 62 years old and David was 49 years old. Peggy

and David have one adopted son, Noah, who is an adult. Since 2001, Peggy has been 

employed as a lunch supervisor at Sodexho in Billings and earns an annual salary of 

approximately $6,900 per year. Peggy also receives $523 per month in social security 
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benefits. Prior to 2001, Peggy worked a series of jobs after she and David married, but

she was also unemployed for several years to be a stay-at-home mother. 

¶4 Although David did not graduate from high school, he later earned his GED, 

received a bachelor’s degree in business administration, and completed auctioneering 

school. At the time of the dissolution proceedings, David was employed as an apprentice 

electrician, earning approximately $42,000 per year. He was to receive incremental 

raises every six months until he completed all the units of his apprenticeship program. 

David also received $2,400 per month in VA benefits, but he expected this amount to 

decrease to $1,056 per month, as he was found to have only a 70% disability instead of 

the previously determined 100% disability and he would no longer receive a dependant 

benefit upon dissolution of his marriage. The District Court found that David’s earnings, 

overtime pay, and VA benefits combined for an income of approximately $60,000 per 

year.

¶5 Peggy and David’s assets included their family home, which the District Court 

determined had a fair market value of $150,000. A mortgage debt of approximately 

$135,400 encumbered the home on a VA home loan obtained through David’s eligibility 

as an Army veteran. The parties’ marital property also included a 1979 Ford Lariat 

pickup truck, a 1979 Ford Custom 100 pickup truck, a 1990 Ford Taurus, a 2004 Ford 

Explorer, a number of tools primarily used by David during the marriage, and household 

furnishings. The parties also had debts of approximately $54,700, excluding the home 

mortgage debt. 
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¶6 In her petition for dissolution, Peggy requested that David be required to pay her 

$1,500 per month in maintenance and that the assets and debts of the parties be equitably 

distributed. The District Court then issued a temporary restraining order prohibiting the 

parties from disposing of any real or personal property, without the consent of the other 

party or a court order. The court issued the temporary restraining order pursuant to 

§ 40-4-121(3), MCA, which mandates the issuance of such an order when the clerk of a 

district court issues a summons pursuant to Title 40, Chapter 4, MCA. The court also 

issued a separate order prohibiting David from entering the family residence.

¶7 The District Court held a nonjury trial on August 17, 2005, and heard testimony 

from Peggy and David. The court entered its Findings of Fact, Conclusions of Law, and 

Decree of Dissolution on August 29, 2005. The court awarded the family home solely to

Peggy, but ordered her to sell or refinance the property within 36 months so that David 

would not appear as an obligor on the mortgage. If Peggy failed to sell or refinance the 

property within 36 months, the court stated that the property would be sold and the net 

proceeds distributed equally between the parties. The court allocated other personal 

property between David and Peggy. The court also ordered David to pay Peggy $1,000 

per month in maintenance until her death or remarriage.

¶8 On September 12, 2005, David filed a Motion to Amend Findings of Fact/Motion 

for New Trial, Amendment of Judgment and Notice of Hearing. He requested that the 

court account for Peggy’s destruction of a bed worth, he claimed, $2,000. David also 

requested that the court add language to the judgment stating that maintenance would 

continue until the “death or remarriage of the petitioner or upon respondent’s change of 
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employment or his retirement.” The District Court entered an order and memorandum on 

September 29, 2005, denying David’s motion to amend. This appeal followed. 

STANDARD OF REVIEW

¶9 Section 40-4-202, MCA, governs the distribution of a marital estate and vests a 

district court with broad discretion to apportion the marital estate in a manner equitable to 

each party under the circumstances. In re Marriage of Bartsch, 2007 MT 136, ¶ 9, 337 

Mont. 386, ¶ 9, 162 P.3d 72, ¶ 9. We initially review a district court’s division of marital 

property and maintenance awards to determine whether the findings of fact upon which 

the division is based are clearly erroneous. In re Marriage of Swanson, 2004 MT 124, 

¶ 12, 321 Mont. 250, ¶ 12, 90 P.3d 418, ¶ 12. “A finding is clearly erroneous if it is not 

supported by substantial evidence, if the district court misapprehended the effect of the 

evidence, or if our review of the record convinces us that the district court made a 

mistake.” In re Marriage of Gerhart, 2003 MT 292, ¶ 15, 318 Mont. 94, ¶ 15, 78 P.3d 

1219, ¶ 15. Absent clearly erroneous findings, we will affirm a district court’s division 

of property and award of maintenance unless we identify an abuse of discretion. In re 

Marriage of Rudolf, 2007 MT 178, ¶ 15, 338 Mont. 226, ¶ 15, 164 P.3d 907, ¶ 15. In a 

dissolution proceeding, the test for an abuse of discretion is whether the district court 

acted arbitrarily without employment of conscientious judgment or exceeded the bounds 

of reason resulting in a substantial injustice. In re Marriage of Killpack, 2004 MT 55, 

¶ 8, 320 Mont. 186, ¶ 8, 87 P.3d 393, ¶ 8. We review a district court’s conclusions of law 

to determine if they are correct. In re Marriage of Olson, 2005 MT 57, ¶ 9, 326 Mont. 

224, ¶ 9, 108 P.3d 493, ¶ 9.
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DISCUSSION

¶10 Issue One. Did the District Court err by not accounting for Peggy’s destruction 

of a bed that David estimated was worth $2,000?

¶11 On March 24, 2003, David purchased an Eastman House Omega queen-sized bed 

from Mattress King in Billings, Montana, for $1,980. At trial, Peggy admitted that she 

had destroyed the bed. In her brief to this Court, Peggy explains that David had “defiled” 

the bed by “having intimate relations with his girlfriend in that bed,” and once she 

learned of this, she chopped the bed into pieces. In his motion to amend, David asked the 

District Court to account for Peggy’s destruction of the bed and to credit him with $2,000 

out of Peggy’s share of the marital estate. The District Court declined to do so, in its 

September 29, 2005 order and memorandum, stating that “there was insufficient evidence 

to determine the fair market value of the used bed was anything more than de minimus

[sic]” and that although Peggy admitted to destroying the bed, it was unclear if she had 

done so before or after service of the temporary restraining order. Accordingly, the court 

considered what remained of the bed to be part of the household furnishings equitably 

divided between the parties.

¶12 In support of his contention that the District Court erred in failing to credit him 

with $2,000 for the destruction of the bed, David claims that the destruction of the bed 

violated the temporary restraining order, thereby warranting the sanction, and that the 

District Court erred in finding that the bed had a de minimis value, given David testified 

that he purchased the bed one year earlier for $2,000 (although the record reveals that 
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David purchased the bed on March 24, 2003, over two years prior to the time of trial, for 

$1,980).

¶13 Peggy argues that the District Court’s decision should be upheld because the date 

of the bed’s destruction is unspecified and it is unknown whether it occurred before or 

after service of the temporary restraining order. She also argues that the bed was clearly 

not in existence as the time of trial and there was nothing for the court to divide under 

§ 40-4-202, MCA. 

¶14 We agree that the District Court did not err in declining to grant David a $2,000 

credit for the bed’s destruction. The court found that while Peggy admitted to the 

destruction, it was unclear if she destroyed the bed before or after service of the 

temporary restraining order. To prevail on appeal, David must demonstrate that this 

finding is clearly erroneous, but he has failed to present any evidence that Peggy 

destroyed the bed after service of the temporary restraining order. As such, he has not 

established clear error on the part of the District Court.

¶15 Furthermore, even assuming, arguendo, that Peggy destroyed the bed after service 

of the temporary restraining order, David has failed to establish that the District Court’s 

finding as to the fair market value of the bed—namely, that it is nothing more than “de 

minimis”—is clearly erroneous. Although David has produced evidence that the bed had 

a purchase price of $1,980, we have held that there are three essential principles in 

determining valuation of marital property subject to dissolution: “(1) proper valuation is 

not tied to a specific event, (2) there may be more than one valuation point, depending on 

the kind of property involved, and (3) preferably, valuation should occur at the time of 
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distribution, or, stated another way, present fair market values should be used.” In re 

Marriage of Pospisil, 2000 MT 132, ¶ 44, 299 Mont. 527, ¶ 44, 1 P.3d 364, ¶ 44 (citing 

In re Marriage of Krause, 200 Mont. 368, 379, 654 P.2d 963, 968 (1982)). Furthermore,

“these principles are tempered by the rule that a district court has broad discretion in 

property distribution.” Pospisil, ¶ 44. As long as the valuation of property in a 

dissolution is reasonable in light of all the evidence submitted, we will not disturb the 

finding on appeal. In re Marriage of Bartsch, 2004 MT 99, ¶ 24, 321 Mont. 28, ¶ 24, 88 

P.3d 1263, ¶ 24. The bed was over two years old at the time of dissolution, and no party 

presented any evidence on its fair market value immediately prior to destruction. 

Accordingly, David has not established clear error in the District Court’s finding that the 

bed’s value was de minimis, and we affirm the decision of the District Court denying 

David’s request for a $2,000 credit.

¶16 Issue Two. Did the District Court err by leaving David financially exposed to a 

VA loan foreclosure on a residence awarded to Peggy?

¶17 David argues that the District Court erred by leaving him financially exposed to a 

potential VA loan foreclosure on the family home, which the District Court awarded to 

Peggy. As an Army veteran, David qualified for a VA home loan, which he used to 

finance the family home. David claims that the terms of the loan require him to pay off 

the loan in full or face a post-foreclosure judgment entered against him. In awarding the 

home to Peggy, the District Court ordered her to sell or refinance the property within 36 

months so that David did not appear as an obligor on the mortgage. The court stated that 
9

if she failed to do this, the property would be sold and the net proceeds distributed 

equally between the parties.

¶18 David claims that the District Court’s action in awarding the home to Peggy under 

the provision that she sell or refinance the home within 36 months was “a failure of 

conscientious judgment that mandates reversal.” However, David fails to show how 

granting this period of time in which to sell or refinance the house constitutes “a failure 

of conscientious judgment” by the District Court. David cites no legal authority in 

support of this conclusory assertion, as required by M. R. App. P. 12(1)f.,

1

nor does he 

explain why granting this time period exceeds the bounds of reason resulting in a 

substantial injustice. Accordingly, we conclude that the District Court did not abuse its 

discretion in granting this time period.

¶19 Issue Three. Did the District Court fail to make adequate findings in awarding 

maintenance?

¶20 David next argues that the District Court failed to make any findings as to Peggy’s 

budget or necessary needs. As a result, David claims that there is “no recordation of the 

essential and determining facts upon which the District Court used to make its 

determination of maintenance.” He alleges that the District Court was merely “pulling a 

number out of the air” when it awarded maintenance to Peggy. David claims that the 

 

1

“The argument shall contain the contentions of the appellant with respect to the issues 

presented, and the reasons therefor, with citations to the authorities, statutes, and pages of the 

record relied on.” M. R. App. P. 12(1)f. “ ‘Under Rule 23, M.R.App.P. [now M. R. App. P. 

12(1)f.] it is not this Court’s obligation to conduct legal research on appellant’s behalf, to guess 

as to his precise position, or to develop legal analysis that may lend support to his position.’ ” 

State v. St. Germain, 2007 MT 28, ¶ 41 n. 1, 336 Mont. 17, ¶ 41 n. 1, 153 P.3d 591, ¶ 41 n. 1 

(quoting In re Estate of Bayers, 1999 MT 154, ¶ 19, 295 Mont. 89, ¶ 19, 983 P.2d 339, ¶ 19).
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District Court’s determination is “manifestly deficient” to justify the maintenance request 

under § 40-4-203, MCA.

¶21 Section 40-4-203, MCA, governs maintenance awards in a dissolution proceeding. 

Section 40-4-203(1) provides, in pertinent part, as follows:

(1) In a proceeding for dissolution of marriage . . . , the court may 

grant a maintenance order for either spouse only if it finds that the spouse 

seeking maintenance:

(a) lacks sufficient property to provide for his reasonable needs; and 

(b) is unable to support himself through appropriate employment . . . 

To grant a maintenance order under the statute, a district court needs to find: (1) that the 

spouse seeking maintenance lacks sufficient property to provide for his or her reasonable 

needs and (2) is unable to support himself or herself through appropriate employment. 

See In re Marriage of Bee, 2002 MT 49, ¶ 28, 309 Mont. 34, ¶ 28, 43 P.3d 903, ¶ 28.

¶22 Here, the District Court found that Peggy was unable to support herself and 

maintain her lifestyle through her employment, thus satisfying the finding required by 

§ 40-4-203(1)(b), MCA. However, the court failed to make any finding as to whether 

Peggy lacked sufficient property to provide for her reasonable needs, as required by 

§ 40-4-203(1)(a), MCA. We hold that the District Court erred in failing to make the 

required findings under § 40-4-203(1), MCA, to justify an award of maintenance.

¶23 Furthermore, in issuing an order of maintenance, § 40-4-203(2), MCA, requires a 

district court to “consider[] all relevant facts including”:

(a) the financial resources of the party seeking maintenance, 

including marital property apportioned to him, and his ability to meet his 

needs independently, including the extent to which a provision for support 

of a child living with the party includes a sum for that party as custodian; 
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(b) the time necessary to acquire sufficient education or training to 

enable the party seeking maintenance to find appropriate employment; 

(c) the standard of living established during the marriage; 

(d) the duration of the marriage; 

(e) the age and the physical and emotional condition of the spouse 

seeking maintenance; and 

(f) the ability of the spouse from whom maintenance is sought to 

meet his needs while meeting those of the spouse seeking maintenance.

Although a district court must consider each of these factors, “it need not make a specific 

finding relating to each, provided that this Court can determine the trial judge actually 

considered each factor.” Rudolf, ¶ 27; see e.g. In re Marriage of Haines, 2002 MT 182, 

¶ 18, 311 Mont. 70, ¶ 18, 53 P.3d 378, ¶ 18. “These factors must be considered by the 

district court as a whole in the determination of a final maintenance award.” Rudolf, 

¶ 27.

¶24 Here, David raises the subsection (2) factors only tangentially. He does not 

develop an argument with respect to these factors. Therefore, we will not consider them 

further. See ¶ 18 n.1, supra.

¶25 We hold that the award of maintenance to Peggy is unsupported, since the District 

Court failed to make both of the preliminary findings required by § 40-4-203(1), MCA.

¶26 Issue Four. Did the District Court err in making the maintenance award for the 

duration of Peggy’s lifetime or until she remarries, without making findings as 

to how this maintenance award could be covered long-term? 

¶27 David claims that the District Court erred in failing to address how the award of 

lifetime maintenance for Peggy could be funded in light of David’s age and the 

possibility of his retirement in the near future. David raised this issue in his motion to 

amend, but the District Court determined that § 40-4-208, MCA, provided him with 
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“adequate protection from an unconscionable maintenance obligation in the event there is 

a substantial and continuing change in his or [Peggy’s] circumstances.”

¶28 David contends that § 40-4-208, MCA, provides him with little comfort given the 

heavy burden of showing unconscionability that David claims the statute and this Court 

place on a party seeking modification of a maintenance award. Peggy argues that all the 

factors enumerated in § 40-4-203(2)(a)-(f), MCA, were met, and that the court 

specifically took David’s ability to pay into account in its findings. Peggy further argues 

that David presented no testimony indicating that his income would drop, and she agrees 

with the District Court in that § 40-4-208, MCA, provides him with an opportunity to 

petition for modification of maintenance.

¶29 Section 40-4-208, MCA, governs modification of maintenance. Most relevant to 

this appeal, § 40-4-208(2)(b)(i), MCA, provides: “Except as provided in 40-4-251 

through 40-4-258, whenever the decree proposed for modification contains provisions 

relating to maintenance or support, modification under subsection (1) may only be made: 

(i) upon a showing of changed circumstances so substantial and continuing as to make the 

terms unconscionable . . . .” We have declined to create a definition of unconscionability 

and our interpretation of what is unconscionable is made subject to the underlying facts 

on a case-by-case basis. Olson, ¶ 12. A trial court must find both substantial and 

continuing changes and unconscionability before modifying a previous order of support. 

In re Marriage of Schmieding, 2003 MT 246, ¶ 36, 317 Mont. 320, ¶ 36, 77 P.3d 216, 

¶ 36.
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¶30 We agree with David that the District Court erred in making an award of lifetime 

maintenance for Peggy. Section 40-4-203(2)(f), MCA, requires a District Court to 

consider “the ability of the spouse from whom maintenance is sought to meet his needs 

while meeting those of the spouse seeking maintenance.” While the District Court 

entered findings as to David’s ability to pay maintenance at the present time based on his 

income as an apprentice electrician and his VA benefits, the court did not enter any 

findings as to how the maintenance award could be funded long-term. David testified in 

this regard that he is approaching retirement age and that he has degenerative health 

problems. Furthermore, he stated that he would have to work over twenty years to 

receive federal government retirement benefits; however, due to his health condition, he 

predicted he might work only five or six more years. This testimony indicates that 

David’s financial situation is likely to change in the near future due to retirement or an 

inability to work—a fact which bears on his “ability . . . to meet his needs while meeting 

those of [Peggy]” over the long-term and which, therefore, must be considered in 

evaluating Peggy’s request for lifetime maintenance. Section 40-4-203(2)(f), MCA. 

Given his testimony, the fact that David may later return to court and seek relief under 

§ 40-4-208, MCA, on the ground of “changed circumstances so substantial and 

continuing as to make the terms [of the decree] unconscionable” does not supplant the 

requirement that his ability to meet his needs while meeting those of Peggy over the longterm be considered before Peggy’s request for lifetime maintenance is granted.

2

 

2

In reaching this holding, we emphasize that we are not introducing a new requisite for 

awarding maintenance under § 40-4-203, MCA. The necessity of considering David’s ability to 
14

¶31 Because the District Court did not consider David’s ability to meet his needs and 

those of Peggy over the long-term, relying instead on his ability to seek relief under § 40-

4-208, MCA, we hold that the District Court erred in making an award of lifetime 

maintenance for Peggy.

CONCLUSION

¶32 David has failed to demonstrate that the District Court erred in not granting him a 

$2,000 credit for the destruction of the bed. Likewise, David has failed to show how 

granting Peggy 36 months to refinance or sell the family home was an abuse of discretion

by the District Court. However, because the District Court failed to make both of the 

preliminary findings required by § 40-4-203(1), MCA, the award of lifetime maintenance 

to Peggy is unsupported. We vacate that award and remand the matter to the District 

Court for reconsideration of Peggy’s maintenance request under a proper and complete

application of § 40-4-203, MCA, including consideration of David’s ability to fund the 

maintenance long-term.

¶33 Affirmed in part and reversed in part.

/S/ JAMES C. NELSON

We Concur:

/S/ KARLA M. GRAY

/S/ W. WILLIAM LEAPHART

/S/ PATRICIA COTTER

/S/ JOHN WARNER

 

pay over the long-term is based squarely on the facts presented here.