No. 86-298 IN THE SUPREME COURT OF THE STATE OF MONTANA 1987

IN RE THEMARRIAGE OF DOROTHYAYJNE JONES, Petitionerand R.espondent, and ALFRED LEROY JONES, Respondent andAppellant.

APPEAL FROM: District Court of the Eighteenth ~udicial District, In and for the County of Gallatin, The Honorable JosephB. Gary,Judgepresiding.

COUNSELOF RECORD:

ForAppellant: Morrow, Sedivy & Bennett; J. H. Morrow, Rozeman, Montana

For Respondent: Landoe, Brown, Planalp,Komrners & Johnstone; JamesA. Johnstone, Bozeman,Montana

Submitted onBriefs: Oct. 23, 1986 Decided: 

### January 8, 1987

Filed: 

## JAN6

## -1:3'3Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of the Court. RespondentAlfred Jones appeals the judgment entered by the Eighteenth Judicial District Court in the dissolution action between respondent and petitioner Dorothy Jones. Respondent appeals the property distribution. and maintenance award in favor ofpetitioner. We affirm. Thepartiesweremarried on September 27, 1964,inReno, Nevada. Alfred is now 48 years of age; Dorothy is 42. The children of themarriage have reached the age ofmajority and.

are self-supporting. Alfred has been employed as a store manager of tire shops throughout thepacific northwest during the duration of the marriage. The past eight years he has been the store manager for Whalen Tire Shop in Bozeman, Montana. Alfred's salary is $2500 a month, plus he is covered by health and life insurance, and the company supplies him with a car for personal and business use. In addition, he has received yearly bonuses ranging from $4000 to $8000,and has a vested interest in a profit sharingplan and a retirement pensionplanwith Whalen Tire Shop. Dorothy has experience in light bookkeeping and secretarialwork. Dorothy's most recent employmentwas with the GallatinCounty Health Department at a netmonthly salary of $769. Dorothy filed apetition fordissolutiononMay 8,1985, and moved out of the family home. On July 8, 1985, the District Court entered the decree of dissolution, reserving property distribution and maintenance award until a later date. Alfred was ordered to make Dorothy's monthly car payment and provide $100 monthly maintenance pending finalresolution of the case. The parties' home was sold, with Dorothy and Alfred each taking $1500 and the remainder, approximately $45,000,being placed in an account. Dorothy quit her secretarial job in November, 1985, desiring to move to Spokane. She filed a motion for distributionof funds, requesting $4500be distributed to her from the home sale proceeds to fund her move to Spokane and provide living expenses while she searched for employment. The court granted Dorothy'smotion fordistributionof funds. On December 2, 1985, the issues of maintenance and property distribution were heard. The District Court entered its findings of fact and conclusions of law on thesematters January 8, 1986. Dorothy was awarded $400 monthly maintenance for a period of 5 years,half of which was to be placed in an individual retirement account (IRA). After five years maintenance would be reduced to $200 with all amounts to be placed in an IRA. Theproperty was divided as follows: ASSETS:

Furniture Furniture Blazer Riviera Trailer Tractor Insurance Stock Pension Plan Profit Sharing Plan Cash from sale ofhome Inheritance Balance ofhome sale Leroy IRA Dorothy IRA Home furniture P.E.R.S. VALUE

4,500.00 Undetermined

GROSS TOWHOM DISTRIBUTED HUSBAND WIFE

4,500.00 UndeterminedLIABILITIES VALUE --- TOWHOM DISTRIBUTED HUSBAND WIFE FirstBank $ 3,766.00 $ 3,766.00 First Security 1,578.00 1,578.00 First Bank 3,480.00 3,480.00 Visa 2,800.00 2,800.00 TOTALDEBT $ 11,624.00 ($ 11,624.00) NET ASSET $102,272.15 NET DISTRIBUTION

Both parties filedmotions to amend the court's findings of fact and conclusions of law. Alfred objected to the property valuations adopted by the court and also requested that the maintenance award be eliminated. Dorothy objected to the $4500 furniture award believing such furniture was listed twice as an asset thereby overstating her actual. award. Dorothy also requested that themaintenance award be amended to eliminate the requirement that $200 be invested in

an IRA eachmonth. Following oral argument on the motions to amend, the District Court entered its order amending the maintenance award to eliminate the IRA requirement, hut adding a provision that maintenance would terminate should Dorothy remarry or cohabit with a man for a period in excess of two months. The court affirmed. its judgment in all other respects. Alfred appeals and raises the following issues: 1) Did the District Court abuse its discretion in awarding Dorothymaintenance for a period of ten years? 2) Did the District Court abuse its discretion in making theproperty distribution? Alfred contends Dorothy is not entitled to maintenance because there are no minor children to support, she is ingood health and capable of working, and she received a substantial amount of property from the marital estate. Section 40-4-203,MCA, addresses the question ofmaintenance and provides for a maintenance award where the recipient spouse is unable to support herself and lacks sufficient property to provide for reasonable needs. Relevant factors in making a maintenance award are: 1) the financial resources of the recipient spouse; 2) the time necessary to acquire sufficient education to find appropriate employment; 3) the standard of living established during the marriage; 4) the duration of the marriage; 5) the age and physical and emotional condition of the recipient spouse; 6) the ability of the spouse providing the maintenance to meet his own needs. A reviewof the recordmakes it clearthe DistrictCourt considered all the relevant factors listed in S 40-4-203, MCA, in determining the maintenance award. Alfred has substantial income and is capable of paying $400 monthlv maintenance. Dorothy has moved to Spokane and is temporarily unemployed. Based upon her training and education, the job Dorothy obtains will not supply adequate income to meet the standard of living she enjoyed during the marriage. As noted by the District Court,Dorothyworked in the home and raised children for 20 years in addition to holding secretarial jobs to supplement the family income. The District Court has broad discretion in determining maintenance awards and this Court will not reverse the District Court unless clearly erroneous. In Re the Marriage of Schenck (Mont. 1984), 692 P.2d 6, 41 St.Fep. 2137. Wefind no abuse of discretion by the District Court in making the monthly maintenance award. The next issue is whether the property distributionwas equitable. Alfred contends the District Court erred in speculating as to the parties' future income and ability to acquireproperty. This is incorrect. Section 40-4-202,MCA, specifically states the court shall consider "theopportunity of each for future acquisition of capital assets and income." In this instance, the District Courtproperly considered the parties' potential future incomes, as well as insurance and IRAprotections. The District Court correctlyvalued Alfred's retirement and profit sharing plans based on the evidence before it. The court's computation placed an up to date value on these plans rather than the 1984 figure submitted by Alfred. We findno error. The District Court's findings of fact reveal that the factors listed in 5 40-4-202(I),MCA,were considered by the court inmaking the distribution. The property distribution awarded an identical net amount to each party. The record. clearly supports theproperty distribution. The valuations adopted by the District Court regarding the parties' furniture, vehicles, and other items,were those submitted by Dorothy in her proposed findings of fact. Alfred disputed severalofDorothy's valuationsyethe failed to place a value on these items in his proposed findings of fact. The District Court adopted Dorothy's valuations finding them to be more reasonable. We will not set aside the District Court's findings of fact unless clearlyerroneous. There is substantial credible evidence supporting the valuations listed in the property distribution. The record reveals the District Court judgment to be sound in all respects. Affirmed.

We Concur:

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