No. 91-548 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

IN RE THE MARRIAGE OF 

NORMAN R. SILVERMAN, 

Petitioner and Appellant, 

and 

MARCIA M. SILVERMAN, CLERK OF SUPREME COURT 

STATE OF IWJNTANA Respondent and Respondent. 

APPEAL FROM: District Court of the Tenth Judicial District, 

In and for the County of Fergus, 

The Honorable Roy Rodeghiero, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Craig R. Buehler, Attorney at Law, Lewistown, 

Montana 

For Respondent: 

Torger S. Oaas, Attorney at Law, Lewistown, Montana 

Filed: 

Submitted on Briefs: April 23, 1992 

Decided: August 20, 1992 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

Norman Silverman appeals the decree of the Tenth Judicial 

District Court, Fergus County, which divided the marital estate and 

awarded maintenance to Marcia Silverman. We affirm in part and 

reverse in part. 

The issues on appeal are: 

1. Did the District Court err in its determination of the 

value of the marital estate? 

2. Did the District Court err when it awarded maintenance to 

Marcia? 

3. Did the District Court err it when refused to enforce a 

property settlement agreed to by the parties prior to the hearing? 

The parties were married on June 28, 1986. At the time of the 

marriage, Norman was a physician employed as a consultant in 

radiology development in Reno, Nevada. Marcia was employed in the 

sales of radiological and other diagnostic equipment. 

The parties separated in July 1990, and a petition for 

dissolution was filed. During the marriage, the parties acquired 

numerous assets. At the time that the dissolution hearing took 

place, the parties owned three houses in Montana and one in 

Phoenix, Arizona. The court, in its order, determined that the 

gross value of the estate was $903,000, and the estate's debt was 

$728,000, leaving a net value of $175,000. Norman was ordered to 

give Marcia half of that amount, less the $15,000 she had already 

received, or $72,500. 
Norman disagrees with the evaluation of the debt. He claims 

that the debt on the Suburban, a garden tractor, and taxes, which 

was equal to $25,700, was not included in arriving at the net 

assets. He contends that by failing to include that $25,700 worth 

of debt, the District Court inaccurately calculated the parties1 

net worth, and thereafter, the rest of its analysis became clearly 

erroneous. 

Marcia does not disagree with Norman's contention that the 

lower court failed to include the debt on the Suburban and the 

tractor, but disagrees with Norman's contention that there was 

proof of additional tax debt. In its ruling, the District Court 

included $100,000 of unmatured 1990 federal and state income tax 

debt as part of the marital debt. She contends, and we agree, that 

because of the equivocal nature of the evidence, the court's 

estimation was not clearly erroneous. However, in light of her 

agreement that the District Court erred by failing to consider the 

debt on the Suburban and the tractor, we hereby modify Marcia's 

property settlement award, decreasing it by $7,850, or one-half of 

the debt owed for the vehicles. 

Norman further contends that the court included money which 

had been placed into the pension plan prior to the marriage in 

arriving at its value. However, the District Court's memorandum 

clearly states that it addressed the issue and concluded that all 

but a $16,000 contribution to the retirement plan was made during 

the marriage. The court included the $16,000 in the marital estate 
to offset equity in the Phoenix home that Marcia had acquired prior 

to the marriage. We conclude that there was no abuse of discretion 

when the court included the pension plan in the marital estate. 

Norman next contends that the court erred in holding that 

Marcia was entitled to maintenance. He states that maintenance was 

not even requested by Marcia in her proposed findings and 

conclusions and was not justified by the evidence presented. He 

claims it was error because the court failed to find that Marcia 

lacked sufficient property to provide for her reasonable needs, or 

that she was unable to support herself through her employment. He 

points out that the reasons given by the court, which were Marcia's 

moving expenses, repairs to the property in Phoenix, and reduced 

employment opportunities, are not provided for in 9 40-4-203, MCA, 

the statute pertaining to maintenance. He argues that maintenance 

is not favored in Montana, that the needs of the spouse are to be 

provided for by distribution of property, which he claims was done, 

and thus maintenance was not warranted in this case. 

Section 40-4-203, MCA, requires that the court find that a 

spouse lacks sufficient property to provide for her reasonable 

needs or is unable to support herself through appropriate 

employment. The court made no such finding in this case. At the 

time of the hearing, the court found that Marcia was earning 

approximately $28,000 per year, with additional commissions 

possible. In addition, she received $400 per month for auto 

expenses. It is not apparent from the findings that the threshold 
requirements of 3 40-4-203(1)(a) and (b), MCA, were considered in 

this case. Therefore, the award of maintenance is vacated and this 

case is remanded for consideration of those requirements. 

Norman next contends that the court erred in rejecting an 

alleged property settlement agreement signed by the parties prior 

to the hearing. That agreement stated that Marcia was to receive 

a single lump sum payment of $57,500, rather than the $72,500 the 

court ordered, and no maintenance was to be awarded. On January 7, 

1991, following an evidentiary hearing and submission of briefs, 

the District Court entered an order denying Norman's motion to 

enforce that agreement. Norman contends that the District Court 

erred in denying his motion to enforce the agreement. However, he 

has failed to include the transcript of the proceeding, as required 

under Rule 9(b), M.R.App.P. We decline to review the issue in the 

absence of a transcript. 

The judgment of the District Court is affirmed in part, 

reversed in part, and remanded for further proceedings consistent 

with this opinion. 

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 

1988 Internal Operating Rules, this decision shall not be cited as 

precedent and shall be published by its filing as a public document 

with the Clerk of the Supreme Court and by a report of its result 

to Montana Law Week, State Report 
We concur: 
August 20, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

Craig R. Buehler 

Attorney at Law 

505 W. Main St., Ste. 210 

Lewistown, MT 59457 

Torger S. Oaas 

Attorney at Law 

P.O. Box 76 

Lewistown, MT 59457 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE o OF MONTANA n P