                                              05-664

                      IN THE SUPREME COURT OF THE STATE OF MONTANA

                                            2007 MT 178



IN RE THE MARRIAGE OF

LOU RUDOLF,

               Petitioner and Appellant,

         and

JERI NAGEL RUDOLF,

               Respondent and Respondent.




APPEAL FROM:            District Court of the Fifth Judicial District,
                        In and For the County of Beaverhead, Cause No. DR 03-12600
                        Honorable Loren Tucker, Presiding Judge


COUNSEL OF RECORD:

                 For Appellant:

                        John S. Warren, Davis, Warren & Hritsco, Dillon, Montana

                 For Respondent:

                        Rienne H. McElyea, Berg, Lilly & Tollefsen, Bozeman, Montana



                                                          Submitted on Briefs: December 6, 2006

                                                                         Decided: July 25, 2007


Filed:

                        __________________________________________
                                          Clerk
Justice John Warner delivered the Opinion of the Court.

¶1    Lou Rudolph (Lou) appeals from an order of the Fifth Judicial District Court,

Beaverhead County, dissolving his marriage with Jeri Rudolph (Jeri) and awarding Jeri

maintenance. We reverse and remand for further proceedings consistent with this opinion.

¶2    Lou raises the following issues on appeal:

¶3    1.     Did the District Court err in the distribution of the marital estate because it did

not consider $255,000 in assets and $30,000 of debt?

¶4    2.     Did the District Court err in awarding maintenance to Jeri without considering

the factors of § 40-4-203(2), MCA?

¶5    3.     Did the District Court err by awarding Jeri maintenance for a term equal to the

length of the marriage?

¶6    4.     Did the District Court err by awarding Jeri retroactive maintenance?

                                     BACKGROUND

¶7    Lou and Jeri were married in 1980. Lou was employed as a diagnostic radiologist and

Jeri worked as a registered nurse until 1985, when the couple’s first child was born. They

eventually had three children, one of whom was still a minor when this proceeding was

commenced.

¶8    Because of the decision to cease working outside the home in order to care for their

children, Jeri allowed her nursing license to lapse. In 1994 the family moved to Dillon,

Montana, where Lou opened a radiology clinic.

¶9    The parties separated in January, 2000. Jeri and the children moved to Bozeman,

while Lou stayed in Dillon. Jeri testified that Lou encouraged her not to seek employment

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while they were separated. At the beginning of their separation, the couple paid for the

household expenses out of their joint checking account. Lou also continued to pay for Jeri

and the children’s car insurance and some medical and school-related expenses.

¶10    In March, 2003, Lou filed this action. Three months later Jeri moved for temporary

child support and maintenance. In an interim order issued in February, 2004, the District

Court ordered Lou to pay Jeri a total of $4,200 per month – $3,200 as child support and

$1,000 as maintenance. The court ordered these amounts be paid retroactively to July, 2003.

Lou was also required to continue paying the children’s school tuition, health insurance,

uninsured medical expenses, and Jeri’s car insurance. Later Lou opted to postpone the date

set for trial, resulting in an increase in interim maintenance of $500 per month.

¶11    A few months prior to commencement of this action, while the parties were separated,

Jeri secured a part-time retail job at a Bozeman bookstore. A year later, in September, 2003,

Jeri found a part-time nursing position with Montana State University, but she was laid off in

May, 2004, when the position was eliminated. A few months later Jeri secured another part-

time nursing position.

¶12    Trial was held March 22, 2005. On cross-examination, when questioned about his

income, Lou agreed that his taxable income for the previous four years “may” have averaged

$260,000. Lou’s accountant, however, testified that while his income for 2004 was

$245,384, after paying his various obligations, Lou had only $7,455 for his own living

expenses. The accountant further testified that in 2004, by relying on inheritance, loan

proceeds and other sources, Lou had actually spent $22,553 more than he made.



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¶13    The District Court issued its decree dissolving the marriage, distributing the marital

estate and awarding Jeri maintenance in September, 2005. The court found there were

significant differences in earning potential between Lou and Jeri, that Jeri lacked sufficient

property to provide for her reasonable needs, and that she was unable to support herself

through appropriate employment due to her limited experience and dated skills. The court

determined that $3,450 per month was a reasonable amount of maintenance for Lou to pay

for ten years, retroactively commencing on the date the parties separated, January 28, 2000,

and including arrearages in the amount of $500. Then, beginning on January 28, 2010, Lou’s

maintenance payments to Jeri would decrease to $2,500 per month for an additional seven

years. Finally, on January 28, 2017, maintenance would further decrease to $1,500 per

month for an additional two years before ending entirely on January 28, 2019.

¶14    From this order, Lou appeals.

                                STANDARD OF REVIEW

¶15    Our standard of review for marriage dissolution cases is set forth in In re Marriage of

Crilly, 2005 MT 311, ¶ 10, 329 Mont. 479, ¶ 10, 124 P.3d 1151, ¶ 10:

       We review the district court’s findings of fact in a dissolution proceeding to
       determine whether they are clearly erroneous. A finding is clearly erroneous if
       it is not supported by substantial evidence, the district court misapprehended
       the effect of the evidence or our review of the record convinces us that the
       district court made a mistake. Bock v. Smith, 2005 MT 40, ¶ 14, 326 Mont.
       123, ¶ 14, 107 P.3d 488, ¶ 14 (citations omitted). 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
       Payer, 2005 MT 89, ¶ 9, 326 Mont. 459, ¶ 9, 110 P.3d 460, ¶ 9 (citation
       omitted). A district court abuses its discretion if it acts arbitrarily without
       conscientious judgment or exceeds the bounds of reason, resulting in
       substantial injustice. In re Marriage of Kotecki, 2000 MT 254, ¶ 9, 301 Mont.
       460, ¶ 9, 10 P.3d 828, ¶ 9.

                                              4
¶16    Our standard of review of a district court’s conclusions of law is whether the court’s

interpretation of the law is correct. Seubert v. Seubert, 2000 MT 241, ¶ 12, 301 Mont. 382, ¶

12, 13 P.3d 365, ¶ 12 (citation omitted). As a general rule, pursuant to § 40-4-202, MCA, a

district court has broad discretion to distribute the marital estate equitably. In re Marriage of

Killpack, 2004 MT 55, ¶ 8, 320 Mont. 186, ¶ 8, 87 P.3d 393, ¶ 8.

                                          ISSUE ONE

¶17    Did the District Court err in the distribution of the marital estate because it did not

consider $255,000 in assets and $30,000 of debt?

¶18    Lou argues that the District Court erred because the distribution of the marital estate

neither valued nor distributed $240,402 of life insurance Lou had paid for as part of his

defined benefit retirement plan, a $15,000 IRA, and more than $30,000 of debt.

¶19    Jeri responds that the District Court’s failure to separately list Lou’s insurance as an

asset is harmless error, because the court distributed to her a percentage of the overall value

of the defined benefit plan. Thus, according to Jeri, because it is part of the defined benefit

plan, she should be distributed the same percentage of the insurance as she received in the

rest of the plan. Jeri also claims the failure to consider the $15,000 IRA is harmless error in

light of the overall value of the parties’ assets. Finally, Jeri argues the $30,000 in debt should

be attributed to Lou because a significant portion of it was incurred by him in paying Jeri

pursuant to the District Court’s interim order for maintenance.

¶20    We have previously held that the true net worth of the marital estate must be

accurately determined before the issues of equitable apportionment and maintenance can be


                                                5
resolved. In re Hanni, 2000 MT 59, ¶ 37, 299 Mont. 20, ¶ 37, 997 P.2d 760, ¶ 37 (citing In

re Marriage of Lundvall, 241 Mont. 172, 175, 786 P.2d 10, 12 (1990)).

¶21    Our review of the record supports Lou’s claim that three insurance policies with a

value of $240,402 were not considered by the District Court when it valued and divided the

marital estate. The court’s distribution of the defined benefit plan – of which the insurance

was a part – nowhere includes the cash value of these insurance policies. Because these

significant assets were not mentioned by the District Court in its decree, both the parties and

this Court are forced to guess whether the District Court considered them in distributing the

marital estate, and if they were considered in the maintenance award. Nor will we simply

assume, as Jeri urges, that the value of the insurance should be distributed in the same

percentages that the District Court allocated the other portions of the defined benefit plan.

¶22    Also, both parties make reference to a $15,000 IRA belonging to Jeri as well as

$30,000 of debt owed by Lou. Although Jeri and Lou disagree how this asset and this debt

should be distributed, they agree that the $15,000 IRA in Jeri’s name and the $30,000 debt

both, in fact, exist. It is undisputed that neither of these items was distributed by the District

Court. Once again, we are left to guess at how these amounts were accounted for – if they

were accounted for at all – and how they may have affected the equitable distribution of the

marital estate and maintenance.

¶23    The District Court’s findings of fact and conclusions of law do not conform to the

evidence because $255,000 in assets and $30,000 in debt are omitted. Thus, the true net

worth of the marital estate was not accurately determined. Before issues of equitable

apportionment and maintenance can be resolved, the District Court must consider the entire

                                                6
marital estate. See Hanni, ¶ 37. Therefore, we must remand this case to the District Court

for additional consideration of the equitable distribution of the marital estate and, after such

distribution, how any award of maintenance is affected.

                                        ISSUE TWO

¶24    Did the District Court err by awarding Jeri maintenance without considering the

factors found in § 40-4-203(2), MCA?

¶25    Lou claims the District Court erred in awarding Jeri maintenance without considering

the factors in § 40-4-203(2), MCA. Specifically, Lou claims the District Court: (1) failed to

address Jeri’s ability to meet her needs independently; (2) made no finding of how much time

was necessary for Jeri to acquire additional training to find employment as a registered nurse;

(3) made no finding as to just what the parties’ standard of living was; (4) determined

maintenance as if the parties had been married 19 years when, in fact, the marriage had lasted

more than 24 years; (5) gave no indication as to whether Jeri’s physical and emotional

condition played a part in its maintenance award; and (6) evaluated Lou’s ability to pay

maintenance with only a conclusory statement that he could “afford to pay $3,450 for

maintenance,” without a specific explanation as to how this fact was determined.

¶26    Section 40-4-203(2) provides:

       (2) The maintenance order shall be in such amounts and for such periods of
       time as the court deems just, without regard to marital misconduct, and after
       considering 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;
              (b) the time necessary to acquire sufficient education or training to
              enable the party seeking maintenance to find appropriate employment;

                                               7
              (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.

¶27    Although a district court must consider each factor in § 40-4-203, MCA, it need not

make a specific finding relating to each, provided that this Court can determine the trial judge

actually considered each factor. In re Marriage of Payer, 2005 MT 89, ¶ 12, 326 Mont. 459,

¶ 12, 110 P.3d 460, ¶ 12 (citing In re Marriage of Grende, 2004 MT 36, ¶ 38, 320 Mont. 38,

¶ 38, 85 P.3d 788, ¶ 38). These factors must be considered by the district court as a whole in

the determination of a final maintenance award. In re Marriage of Ernst, 243 Mont. 114,

118, 793 P.2d 777, 780 (1990). Because district courts face a difficult task in awarding

maintenance, our final analysis is not whether we would reach a different conclusion after

considering the same evidence, but rather whether there is sufficient evidence to support its

conclusion. Payer, ¶ 15 (in part quoting In re Marriage of Haines, 2002 MT 182, ¶ 23, 311

Mont. 70, ¶ 23, 53 P.3d 378, ¶ 23).

¶28    As we noted in Issue One, a final award of maintenance, if any, and the amount and

duration of such an award, must ultimately await a correct computation of the net value and

an equitable distribution of the marital estate. Upon remand, the District Court shall

reconsider both the distribution of the marital estate and the need for maintenance and enter

further findings of fact and conclusions of law. Thus, we need not further address this issue.

                                       ISSUE THREE




                                               8
¶29    Did the District Court err by awarding Jeri maintenance for a term equal to the length

of the marriage?

¶30    The court found that, “A reasonable period of time for Husband to pay maintenance is

a term equal to the length of the marriage….” According to Lou, the District Court erred in

determining maintenance because it essentially looked to the duration of the marriage as the

overriding factor in setting the amount of maintenance and the time during which it must be

paid. Lou also notes that the parties were married for more than 24 years, not the 19 years

the District Court relied upon in fixing maintenance.

¶31    Jeri argues that the District Court has broad discretion in awarding maintenance and

that this award was well within that discretion.

¶32    Section 40-4-203(2)(d), MCA, as noted above, requires a district court to consider the

“duration of the marriage” in a maintenance order. Maintenance is interrelated with and

supplements a property division. If, after an equitable division of the marital assets, one

party lacks sufficient property to fulfill his or her reasonable financial needs, maintenance

may be appropriate. In re Marriage of Cole, 234 Mont. 352, 356, 763 P.2d 39, 42 (1988).

The duration of the marriage is one of the factors to be considered in fixing the duration of

maintenance. During the course of a marriage, a spouse, by contributing to the marriage over

time, may have lost the ability to support himself or herself independently. If the marriage

ends, maintenance may be necessary to allow that spouse to acquire and develop skills to

support himself or herself in the accustomed manner and, perhaps, even to acquire an estate.

¶33    Consideration of the length of marriage in fixing maintenance, however, is not

payback for time spent in a bad marriage. The purpose of considering the length of a

                                             9
marriage is to equitably fix an amount of time necessary for a spouse to get into a position

where he or she should reasonably be able to support himself or herself. Yet, at the same

time, the length of the marriage is not the overriding factor precluding consideration of the

other factors in § 40-4-203(2), MCA. See Lundvall, 241 Mont. at 175-76, 786 P.2d at 12-13.

¶34    The District Court awarded Jeri maintenance to be paid in decreasing amounts over 19

years. For the first 10 years, Lou is to pay Jeri $3,450 per month. This amount then

decreases to $2,500 per month over the next seven years, then to $1,500 per month for two

more years, before eventually coming to an end in the year 2019. The District Court

nowhere addresses why 19 years of maintenance is economically necessary. Thus, we are

left no choice but to conclude that the court fixed this term only because, as it said, “A

reasonable period of time for Husband to pay maintenance is a term equal to the length of the

marriage….” However, tying the amount of time that maintenance must be paid solely to the

time the marriage lasted, without considering the length of time that maintenance is

economically necessary, is improper. The duration of the marriage cannot preclude

consideration of other factors listed in § 40-4-203(2) in fixing the term during which

maintenance must be paid. Lundvall, 241 Mont. at 175-76, 786 P.2d at 12-13.

¶35    We also remand to the District Court for further consideration of the term during

which maintenance is to be paid.

                                       ISSUE FOUR

¶36    Did the District Court err by awarding Jeri retroactive maintenance?

¶37    Lou argues the District Court erred when it awarded Jeri maintenance retroactive to

more than three years before the commencement of the parties’ dissolution action.

                                             10
According to Lou, although a district court has statutory authority to order temporary

retroactive maintenance during the dissolution proceedings, there is no corresponding

authority to award permanent retroactive maintenance as the court did in the present case.

¶38    Jeri responds by arguing that the statutory requirements for maintenance under an

interim order differ from those of a final order. According to Jeri, while temporary

maintenance may commence no sooner than the filing of the motion for temporary

maintenance, no such limitation exists for maintenance ordered to be paid after the decree is

entered.

¶39    There is statutory authority for a district court to award temporary maintenance

retroactive to the time a petition for such is filed. Section 40-4-121(1), MCA. However, §

40-4-203, MCA, makes no reference to an award of maintenance commencing before a

petition is filed. Nor is there Montana precedent stating that retroactive maintenance may be

awarded in a final decree.

¶40    Title 40, chapter 4 of the Montana Code Annotated is based on the Uniform Marriage

and Divorce Act. See In re Parenting of D.A.H., 2005 MT 68, ¶ 8, 326 Mont. 296, ¶ 8, 109

P.3d 247, ¶ 8; In re Marriage of Harris, 2006 MT 63, ¶ 21, 331 Mont. 368, ¶ 21, 132 P.3d

502, ¶ 21. Missouri Revised Statute § 452.335 is also modeled after the Uniform Marriage

and Divorce Act and sets forth essentially the same requirements for an award of

maintenance as § 40-4-203, MCA. Missouri appeals courts have held that “as a matter of

law, a maintenance award entered pursuant to section 452.335 cannot be made retroactive.”

Anderson v. Anderson, 55 S.W.3d 444, 445 (Mo. App. E.D. 2001) (citation omitted); see also

In re Marriage of Lindeman, 140 S.W.3d 266, 276 (Mo. App. S.D. 2004) (citation omitted).

                                             11
This is because Missouri’s statute, “speaks prospectively, not retrospectively; therefore, a

maintenance award ordered in the judgment of dissolution cannot be made retroactive.”

Lindeman, 140 S.W.3d at 276 (quoting Colquitt v. Muhammad, 86 S.W.3d 144, 148 (Mo.

App. 2002). Thus, Missouri courts have concluded that maintenance ordered in the judgment

of dissolution cannot be made retroactive. See Lindeman, 140 S.W.3d at 276. Like

Missouri’s statute, § 40-4-203, MCA, speaks prospectively, not retrospectively. We

conclude that the Missouri courts’ analysis is well reasoned and logical.

¶41    Furthermore, this Court will not read into a statute something that is not there.

Strzelczyk v. Jett, 264 Mont. 153, 157, 870 P.2d 730, 732 (1994) (citing State ex rel.

Neuhausen v. Nachtsheim, 253 Mont. 296, 833 P.2d 201 (1992)). Our function as an

appellate court is to ascertain and carry out the Legislature’s intent by looking at the plain

meaning of the words in the statute. Strzelczyk, 264 Mont. at 157, 870 P.2d at 732-33, citing

State ex rel. Roberts v. Pub. Serv. Commn., 242 Mont. 242, 790 P.2d 489 (1990). Nothing in

§ 40-4-203, MCA, contemplates maintenance which is ordered to commence over three years

before the petition is filed. The District Court erred in ordering maintenance to commence

prior to the time the petition was filed.

                                       CONCLUSION

¶42    We reverse the District Court and remand for further consideration consistent with this

Opinion.


                                                  /S/ JOHN WARNER




                                             12
We Concur:


/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS
/S/ JIM RICE




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