                                            No. 02-019

                IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2002 MT 281



IN RE THE MARRIAGE OF

PATRICK B. HAYES,

               Petitioner and Respondent,

         and

EILEEN A. HAYES,

               Respondent and Appellant.



APPEAL FROM:          District Court of the Fourth Judicial District,
                      In and For the County of Missoula,
                      Honorable Douglas G. Harkin, Judge Presiding


COUNSEL OF RECORD:

               For Appellant:

                      Dennis E. Lind and Cynthia L. Cate, Datsopoulos, MacDonald & Lind,
                      Missoula, Montana

               For Respondent:

                      Shelly F. Brander, Kaufman, Vidal & Hileman, Kalispell, Montana



                                                    Submitted on Briefs: May 23, 2002

                                                               Decided: December 10, 2002

Filed:

                      __________________________________________
                                        Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1    The Petitioner, Eileen Hayes, n/k/a Eileen Larkin, appeals

from an Order issued by the District Court for the Fourth Judicial

District in Missoula County which distributed the marital estate

between her and the Respondent, Patrick Hayes.                     We affirm.

¶2    The following issues are presented on appeal:

1.    Did the District Court err by not determining the net worth of

      the marital estate prior to its distribution?

2.    Did    the   District      Court    err    by   not   considering    the   tax

      consequences arising from the court-ordered sale of marital

      properties?
3.    Did    the    District     Court    err    by   not    including    Patrick’s

      disability income in the marital estate or by not considering

      the disability income in determining whether or not to                    award

      maintenance to Eileen?

                     Factual and Procedural Background

¶ 3   Eileen and Patrick were married in Houston, Texas, on January

22, 1982, and       have two children from the marriage.              Both received

their chiropractic degrees; however, Eileen practiced                  for only one

year because of a knee injury.                  In 1984, the parties moved to

Colorado and opened a chiropractic clinic where Patrick practiced

as    a   chiropractor        and    Eileen      handled     the    administrative

responsibilities.          The clinic flourished; in 1989 Patrick had

20,000 patient visits.          Patrick and Eileen were equal shareholders

in the clinic.       In 1989, the parties acquired full ownership of the

office complex in which the clinic was located.

                                           2
¶ 4   The   parties       acquired   various      other     assets,   including   an

upscale home, an 80-acre ranch, a cabin, a motor home, and several

vehicles.     In addition, the couple purchased a deluxe tax-free

disability    insurance       policy     with    all   available      future   income

options and riders to protect the parties’ substantial income from

the clinic should Patrick become disabled.

¶ 5   In 1990, after suffering unexplained weight loss, heartburn

and fatigue, Patrick was diagnosed with Gastroesophageal Reflex

Disease.     Patrick discontinued working as a chiropractor at that

time and began receiving private disability benefits.                   Patrick also

applied for and was awarded workers’ compensation benefits from the

State of Colorado.         Patrick’s health continued to deteriorate.              In

1992, Patrick was diagnosed with a terminal condition known as

Scleroderma, a progressive vascular autoimmune disease which will

shorten     his    life   span.      Although      Patrick’s    anticipated      life

expectancy        is   unknown,    one   of     Patrick’s    treating    physicians

testified that 80 percent of white males do not live ten years past

their diagnosis date.             Patrick underwent esophagus surgery and

continues to receive periodic treatment related to the disease.

Patrick currently receives approximately $12,000 per month in tax-

free disability insurance benefits.
¶ 6   In 1990, Eileen and Patrick moved to Montana to further their

education.        Both Patrick and Eileen enrolled at the University of

Montana and obtained their bachelor’s degrees.                 Eileen is currently

attending law school at the University of Montana where she will

receive her juris doctorate in 2003.               After they moved to Montana,


                                          3
the parties purchased property on Reserve Street in Missoula and

built a business complex known as the “Towne Court” for the purpose

of relocating Eileen’s quilting business.                   Eileen was responsible

for managing and operating the store.

¶ 7   The    couple     separated    in       the    fall     of    1998.      Patrick

subsequently filed a Petition for Dissolution of Marriage with the

Montana     Fourth    Judicial   District           Court    on    April    28,   1999.

Following two unsuccessful settlement conferences, the parties

proceeded to a bench trial in June 2001.
¶ 8   The District Court issued its Findings of Fact, Conclusions of

Law, and Order on July 19, 200l.                     The District Court awarded

Eileen her retirement account, personal stocks and bonds, and a

1996 Aerostar.        The value of the assets awarded to Eileen total

approximately $55,000.       Eileen was also awarded the $500,000 life

insurance policy on Patrick with a cash out value of $25,500.                       The

District Court denied her request for maintenance.

¶ 9   The District Court awarded Patrick his retirement account,

property    on   Lake    Inez,   a   motor      home,       two    vehicles,   various

recreational and sporting goods,              and a bank account.          The value of

the assets awarded to Patrick total approximately $157,000.                        The

District Court also awarded Patrick the entirety of his disability

and social security benefits totaling                 approximately $13,500 per

month.

¶ 10 To address the disproportionate distribution of the estate,

the court ordered the immediate sale of various assets, including

the Towne Court property, the office complex in Colorado, and


                                          4
certain life insurance policies.          The Order also provided that, in

the event the parties could not agree on a reasonable sales price

for the properties, the District Court              would set a price which

would be reduced    5 percent monthly until they sold.             The court

ordered that the net proceeds from the sale of these assets be

placed into an account and applied against the marital estate’s

debts.   According to the District Court’s order, after the marital

debts were satisfied, Eileen was to receive a $100,000 cash payment

“as partial adjustment for the property distributed to Patrick.”

Eileen then would receive three-quarters of the remaining marital

estate and Patrick would receive one-quarter.
¶ 11 Thereafter, Eileen filed a motion for clarification and to

alter or amend the judgment in which she requested the following:

temporary family support pending sale of the marital property; that

Patrick continue to be responsible for the marital credit card

debt; that the court set forth a procedure for the sale of the

property; and that Patrick pay the taxes on the Towne Court.              The

District Court issued an order on September 6, 2001, in response to

Eileen’s motion, denying her request for temporary family support

and addressing her other    requests.        ¶ 12      Subsequently, Eileen

filed a timely notice of appeal with respect to the District

Court’s Findings of Fact, Conclusions of Law, and Order and its

September   6,   2001,   Order   in       response    to   her   motion   for

clarification and to alter or amend judgment.




                                      5
                                         Discussion

¶ 13 The distribution of marital property in a dissolution proceeding is governed by §

40-4-202, MCA. Under this statute, a district court is vested with broad discretion to

distribute the marital estate in a manner which is equitable to both parties. Marriage of

Lee (1997), 282 Mont. 410, 421, 938 P.2d 650, 657. In dividing a marital estate, the

district court must reach an equitable distribution, not necessarily an equal

distribution. Marriage of Wells (1996), 278 Mont. 413, 416, 925 P.2d 483, 485. We

review a district court’s division of marital property to determine whether the findings

on which it relied are clearly erroneous. Marriage of DeBuff, 2002 MT 159, ¶ 14, 310

Mont. 382, ¶ 14, 50 P.3d 1070, ¶14; Marriage of Engen, 1998 MT 153, ¶ 26, 289 Mont.

299, ¶ 26, 961 P.2d 738, ¶ 26. If the findings are not clearly erroneous, we will affirm the

distribution of property unless the district court abused its discretion. Marriage of Engen, ¶

26. The standard for abuse of discretion in a dissolution proceeding is whether the trial court

acted arbitrarily without employment of conscientious judgment or exceeded the bounds of

reason resulting in substantial injustice. Marriage of Engen, ¶ 26.

                                           Issue 1

¶ 14 Did the District Court err by not determining the net worth of the marital estate?

¶ 15   Eileen argues that the District Court erred by not establishing the marital estate’s net

worth thereby abusing its discretion. In support of her argument, Eileen cites Marriage of

Dirnberger (1989), 237 Mont. 398, 773 P.2d 330, in which we ruled that a district court’s

failure to make a specific finding as to liabilities, thereby precluding a determination of net

                                              6
worth, was an abuse of discretion. Dirnberger, 237 Mont. at 402, 773 P.2d at 332. We

vacated the property division in that case and remanded it for a redetermination.

¶ 16   Patrick points out that several cases since Dirnberger have held that a specific finding

of net worth is not mandatory if the findings as a whole are sufficient to determine the

equitable nature of the division. In Marriage of Harkin, 2000 MT 105, 299 Mont. 298, 999

P.2d 969, we concluded that a district court did not abuse its discretion by not making a

specific finding of fact regarding the total assets and liabilities of the marital estate, and that

“a net valuation by the district court . . . is not always mandatory.” Harkin, ¶ 31 (quoting

Marriage of Walls (1996), 278 Mont. 413, 417, 925 P.2d 483, 485). In determining whether

a finding of net worth is necessary, we have stated that “the test is whether the findings as a

whole are sufficient to determine the net worth and to decide whether the distribution is

equitable.” Harkin, ¶ 31; Walls, 278 Mont. at 417, 925 P.2d at 485 (quoting Marriage of

Stephenson (1989), 237 Mont. 157, 160, 772 P.2d 846, 848).

¶ 17   Applying the test mentioned above, this Court must first determine whether the

findings as a whole are sufficient to determine the net worth of the marital estate. Naturally,

until the marital properties ordered sold are sold, it is impossible to calculate the net value of

the marital estate; however, the District Court’s inability to calculate the exact net worth does

not render its distribution of the marital estate inequitable.      Except for the properties it

ordered the parties to sell, the District Court made specific findings regarding the valuation of

all the marital assets. Then, at trial, the parties agreed on the values of the properties ordered

sold except for the family residence. The District Court stated in its findings that in

                                                7
distributing the estate it had “estimated the net sums likely to be received upon the sale of

marital estate,” although it did not state what those estimations were. The District Court also

ordered that if the parties were unable to agree on a reasonable sale price for any of the

properties, the court would then set the sale price. We believe that these findings are

sufficient to determine the net worth of the marital estate, given that the value of a portion of

the estate is unknown and subject to the market’s determination.

¶ 18   Next, we consider whether the marital estate was equitably distributed. In distributing

the marital assets, the District Court considered the factors set forth in § 40-4-202(1), MCA.

Under this statute, the District Court may consider, among other factors, the age, health, and

opportunity of each spouse to acquire future capital assets and income. In the case at bar, a

significant disparity exists in the parties’ health and opportunity for future acquisition of

capital assets and income. Patrick, who was 44 at the time the petition for dissolution was

filed, has a terminal disease which substantially impairs the quality of his life and precludes

him from performing any gainful activity. The assets awarded to him, along with the

disability benefits to be discussed below, are his sole means to accumulate wealth and pay for

medical treatment. Eileen, on the other hand, is due to graduate from law school in 2003 and

will have the opportunity to earn income in the future.

¶ 19    These facts were properly considered by the District Court in its distribution of the

estate. The District Court did not abuse its discretion in finding that the disparity in the

parties’ health and future income potential weigh in favor of Patrick receiving his share of the

marital estate first in time, while his health is at its best, and Eileen receiving her share later

                                                8
on, when the sales of the properties are concluded and the marital debts are satisfied.

Although the District Court could not make a specific finding of the estate’s net worth, the

findings of fact taken as a whole are sufficient to determine that the property distribution was

equitable. The District Court did not act arbitrarily nor did it fail to employ conscientious

judgment in its division of the marital estate. Indeed, “the emphasis placed on the parties’

needs and their relative financial situations indicates a careful exercise of the court’s

discretion.” Marriage of Stephenson (1989), 237 Mont. 157, 160, 772 P.2d 846, 848

(quoting Bailey v. Bailey (1979), 184 Mont. 418, 420, 603 P.2d 259, 260). Accordingly, we

hold the District Court did not err in failing to determine the net worth of the marital estate

nor abuse its discretion in distributing the marital estate.

                                            Issue 2

¶ 20   Did the District Court err by not considering the tax consequences which would result

from the sale of property ordered by the District Court?

¶ 21   The District Court ordered Eileen and Patrick to sell various properties, including the

Towne Court and office complex in Colorado, as well as the parties’ residence. The District

Court recognized in its findings that “[t]he sales expenses and tax consequences will diminish

the marital assets, but the need to disengage the parties recommends no other alternative.”

While the District Court did not calculate the specific tax consequences to be realized from

the sale, it stated that it had “estimated the net sums to be received upon the sale of the

marital property.”



                                               9
¶ 22   Eileen argues that the court should have, but did not and could not estimate the tax

consequences of the sale of those properties. At trial, neither Eileen nor Patrick requested

that the properties be sold, and thus did not present any evidence relating to the tax

consequences of such a sale. Eileen contends that by not considering the tax consequences of

those sales, the District Court abused its discretion.

¶ 23   In support of her argument, Eileen cites Marriage of Lee (1991), 249 Mont. 516, 519-

20, 816 P.2d 1076, 1078, where this Court held that a district court abused its discretion by

failing to address tax consequences associated with the distribution of a marital estate. In

Lee, a district court directed one spouse to liquidate his personal stock to satisfy the court-

ordered cash payment to the other spouse. In reversing the lower court this Court stated

“where a property distribution ordered by a court includes a taxable event precipitating a

concrete and immediate tax liability, such tax liability should be considered by the court

before entering its final judgment.” Lee, 249 Mont. at 519, 816 P.2d at 1078 (quoting

Marriage of Beck (1981), 193 Mont. 166, 171, 631 P.2d 282, 285).

¶ 24   Patrick contends that Lee does not control in this case because the tax liabilities

arising from the sale of the properties are to be paid from the marital estate prior to

distribution and will not be borne by an individual spouse. Patrick points out that in Lee, the

tax consequences of the court-ordered sale directly reduced one spouse’s share of the marital

estate. Here, the tax consequences will reduce both parties’ portions of the estate. Because

the tax consequences of the court-ordered sale are to be borne by the marital estate and not an

individual party, and because neither party offered evidence regarding those consequences,

                                              10
we believe that the District Court did not err by not considering the specific tax implications

of the sale.

                                            Issue 3

¶ 25   Did the District Court abuse its discretion by not including Patrick’s disability income

in the marital estate or by not considering the disability income in determining whether or not

to award maintenance to Eileen?

¶ 26   While a court may consider the “opportunity of each for future acquisition of capital

assets and income,” under § 40-4-202, MCA, this does not mean that future income is

necessarily a part of the marital estate to be divided between the parties. Eileen states that

the disability insurance policy was part of the family’s retirement planning and was acquired

during the marriage with marital funds. Therefore, she maintains that the future benefits of

the policy, which total $12,000 monthly, should have been included in the marital estate or

considered in her request for maintenance. Patrick counters that the disability benefits

simply replace future income he would have earned if he did not have Scleroderma. He

further points out that the District Court correctly did not consider Eileen’s future income as

an attorney in its distribution of the marital estate. He also directs this Court to the District

Court’s findings “that the monthly income Patrick receives from his disability insurance

policy was considered when determining the distribution of the marital estate.” The District

Court, having considered Patrick’s disability benefits in its distribution of the marital estate,

did not abuse its discretion in awarding the entirety of the benefits to Patrick.



                                               11
¶ 27   As to whether the disability benefits were properly considered by the District Court

for determining whether to award maintenance to Eileen, § 40-4-203, MCA, prescribes the

circumstances under which maintenance can be awarded. A court can order maintenance for

either spouse only if it finds that the spouse seeking maintenance “lacks sufficient property to

provide for his reasonable needs,” and “is unable to support himself through appropriate

employment . . . .” Section 40-4-203, MCA. The District Court found that “[t]he property

distribution made herein to Eileen provides her with sufficient property and funds to provide

for her reasonable needs.” In reviewing the court’s findings, it is obvious that Eileen can

provide for her reasonable needs and that maintenance is not necessary in this case.

Therefore, we hold that the District Court did not abuse its discretion in awarding Patrick the

entirety of the disability benefits.

¶ 28   Today’s ruling underscores the principle that “[i]n dividing a marital estate, the district

court must reach an equitable distribution, not necessarily an equal distribution.” Marriage

of Wells (1996), 278 Mont. 413, 416, 925 P.2d 483, 485. The fact that a spouse’s quality and

length of life and future income potential is drastically reduced must be considered by the

court distributing the estate. We hold that given the facts of the case at bar, the District

Court divided the marital estate in an equitable fashion. Accordingly, we affirm the District

Court’s distribution of the marital estate.



                                                    /S/ W. WILLIAM LEAPHART




                                               12
We concur:


/S/ KARLA M. GRAY
/S/ TERRY N. TRIEWEILER
/S/ JIM REGNIER




                          13
Justice Patricia O. Cotter dissents.


¶3     I dissent from the Court's disposition of all three issues.                  I

would conclude the District Court's findings were not sufficient to

determine the net worth of the marital estate or to decide whether

the distribution was equitable.                    Moreover, I would conclude the

District Court abused its discretion when it failed to consider the

tax consequences arising from the court-ordered sale of the marital

properties, and failed to include Patrick's disability income in

the    marital      estate     or      in   the    alternative,   to   consider   the

disability income in determining if maintenance would be awarded to

Eileen.       I would reverse and remand to the District Court for

determination of an equitable apportionment of the marital estate,

and for re-evaluation of the maintenance question.

¶4     Under § 40-4-202(1), MCA, in a proceeding for dissolution of

marriage, a district court shall

       equitably apportion between the parties the property and
       assets belonging to either or both, however and whenever
       acquired and whether the title thereto is in the name of
       the husband or wife or both. In making apportionment,
       the court shall consider the duration of the marriage and
       prior marriage of either party; the age, health, station,
       occupation, amount and sources of income, vocational
       skills, employability, estate, liabilities, and needs of
       each of the parties; custodial provisions; whether the
       apportionment is in lieu of or in addition to
       maintenance; and the opportunity of each for future
       acquisition of capital assets and income. The court shall
       also consider the contribution or dissipation of value of
       the respective estates and the contribution of a spouse
       as a homemaker or to the family unit.

¶5     While we have previously held that a net valuation by the

district court is not always mandatory in order for this Court to

properly review marital distributions, a district court's findings

                                              14
as a whole still must be sufficient to determine the net worth of

the marital estate and to decide whether the estate was distributed

equitably.        See, Harkin, ¶ 31.              I would conclude the District

Court's Findings of Fact, Conclusions of Law and Order wholly

failed to satisfy this requirement.

¶6     The District Court provided values for only a select group of

marital assets, distributing them as set forth in ¶¶ 8-9 of the

Majority Opinion.          In addition, the court directed the parties to

sell three specified properties (Rolling Green residence, Towne

Court and Timeless Treasures Quilt Shop, and Woodland Park office

complex), and ordered payment of several debts out of the gross

sale proceeds.        Of the remaining net balance, Eileen was to receive

$100,000 as a partial adjustment for property distributed to

Patrick.      Finally, the court determined that 25 % of the remaining

net proceeds would be awarded to Patrick and 75 % to Eileen.

¶7     The Court concludes that even though a portion of the estate's

value is unknown (i.e., market values of the properties), the

findings are sufficient to determine the net worth of the estate

(See ¶ 17).       I disagree.        The District Court failed not only to assign an estimated

market value to each property, but also failed to provide values for the debts it ordered paid

from the gross proceeds. The Court notes that at trial the parties agreed on the values of the

properties ordered sold (See ¶ 17); however, the District Court failed to include those values

in its findings. Moreover, the record reflects the parties did not agree on the value of the

Rolling Green residence. Given these deficiencies in the District Court's order, it is

impossible for anyone to approximate what Eileen's portion of the marital estate will be.

                                             15
Moreover, it is also uncertain whether there would even be sufficient net proceeds to cover

the $100,000 due Eileen--which constitutes her adjustment for property distributed to

Patrick--let alone what would be left for the 25-75 distribution of the remaining balance.

¶8     The District Court's findings also fail to clarify the value

of various life insurance policies that it ordered cashed out or

put towards the proceeds of the properties' sale.                             There was

disputed testimony as to the actual value of the $500,000 policy

that was awarded to Eileen.              While the policy apparently had a cash

surrender value of $25,500, the District Court's findings failed to

take    into     account     the    undisputed      fact     that    the    policy     was

encumbered by a loan, and that to secure the policy, Eileen would

have to pay $9,000 in interest, or approximately $750 per month.

Moreover, the court also ordered Eileen's $500,000 life insurance

policy cashed out or canceled, but failed to include a cash-out

value for the policy.            Finally, the court ordered the parties to

either cancel or cash out the two remaining insurance policies and

directed any proceeds to be applied towards the income from the

properties' sale.          However, in its findings, the court indicated a

cash value for only one of these policies.

¶9     We   do   know     that     the   court    awarded      Patrick     all    of   the

disability benefits, which amounted to approximately $12,000 a

month, with an estimated increase of $500 per month every year.

Patrick also received approximately $1200 per month in social

security benefits.          Therefore, if Patrick lives 10 more years, to

age 56 (the District Court estimated his life span to be between 50

and 60), this amounts to roughly $2 million, tax free.                         Given the

                                            16
significant value of this award to Patrick, the court's failure to

ascertain the real property values, debt and tax consequences, or potential proceeds from

cashed-out insurance policies becomes even more troubling for Eileen, as it is the properties'

ultimate net value which will determine what Eileen receives from the marital estate.

¶10    The Court notes that neither party presented evidence concerning the tax conse-

quences attributable to the sales. However, neither party anticipated the District Court would

order the sale of the properties, with the exception of perhaps the Woodland Park complex,

and thus neither sought to introduce evidence of potential tax liabilities. Eileen sought an

opportunity to present evidence of the tax consequences in her motion for clarification

following the court's Findings of Fact, Conclusions of Law and Order; however, the court

failed to conduct a hearing on the matter. In remanding this matter to the District Court, I

would instruct the court to consider the tax consequences associated with selling the

properties and to reflect those liabilities in the net marital estate, in accordance with our

holding in Marriage of Lee. See, Lee, 249 Mont. at 519-20, 816 P.2d at 1078 (citation

omitted) ("[W]here a property distribution ordered by a court includes a taxable event

precipitating a concrete and immediate tax liability, such tax liability should be considered by

the court before entering its final judgment.").

¶11    Finally, because I would conclude the District Court failed to adequately determine

the value of the marital estate and hence had no adequate basis upon which to distribute it, I

must dissent from the Court’s disposition of Issue Three. The District Court’s finding that

the property distribution provides Eileen with sufficient property and funds to meet her


                                              17
needs, with which this Court agrees at ¶ 27 of its Opinion, is wholly unsupported by the

Findings of Fact and Conclusions of Law. There is simply no underpinning to support the

Court’s conclusion that the District Court did not err in failing to include Patrick’s significant

disability income either in the marital estate, or in a determination as to the propriety of

maintenance. As a consequence of the inadequacy of the court’s Findings and Conclusions,

there is no way to assess whether Eileen will end up with any property or funds, much less

whether they will be significant enough to meet her needs.

¶12    I would therefore remand this matter to the District Court for determination of

equitable apportionment of the marital estate, taking into consideration the value of the three

properties ordered sold, and the amount of debt associated with the properties, including tax

consequences from the court-ordered sale. I would further direct the court to reassess the

value of the insurance policies, taking into account all encumbrances and limitations on their

value. Finally, once these matters are determined, I would then direct the court to address

and resolve Issue 3, based upon an informed valuation of the marital estate. I dissent from

our refusal to do so


                                                            /S/ PATRICIA COTTER



Justice Jim Rice joins in the foregoing dissent.

                                                            /S/ JIM RICE




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