                                           No. 04-770

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                       2006 MT 15N


IN RE THE MARRIAGE OF

JULIE J. KEITHLEY,

              Petitioner and Respondent,

         v.

NEAL O. KEITHLEY,

              Respondent and Appellant.




APPEAL FROM:         The District Court of the Thirteenth Judicial District,
                     In and For the County of Yellowstone, Cause No. DR 2003-462,
                     Honorable Ingrid G. Gustafson, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     George T. Radovich, Attorney at Law, Billings, Montana

              For Respondent:

                     Stephen C. Mackey, Towe, Ball, Enright, Mackey & Sommerfeld,
                     Billings, Montana



                                                        Submitted on Briefs: May 25, 2005

                                                                  Decided: January, 24. 2006

Filed:

                     __________________________________________
                                       Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1        Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal

Operating Rules, the following decision shall not be cited as precedent. It shall be filed as a

public document with the Clerk of the Supreme Court and shall be reported by case title,

Supreme Court cause number and result in this Court’s quarterly list of noncitable cases

published in the Pacific Reporter and Montana Reports.

¶2        On October 1, 2004, the Thirteenth Judicial District Court entered findings of fact,

conclusions of law, and a decree of dissolution, dissolving the marriage of Appellant Neal

O. Keithley and Respondent Julie J. Keithley. Neal Keithley appeals, challenging the

District Court’s distribution of assets and its award of maintenance to Respondent. We

affirm.

¶3        We consider the following issue on appeal:

¶4        Did the District Court err in its distribution of the marital estate and in awarding

maintenance to Respondent Julie J. Keithley?

                                      BACKGROUND

¶5        Neal Keithley (Appellant) and Julie Keithly (Respondent) were married on May 15,

1982; however, by the spring of 2003, their marriage was irretrievably broken. The parties

jointly filed for dissolution of the marriage on April 18, 2003, and there was a trial regarding

the distribution of assets on August 18, 2003.

¶6        The District Court entered its findings of fact, conclusions of law, and decree of

dissolution on October 1, 2004. That order divided and distributed all of the marital assets,

including a $5,060 tax refund the parties realized from their 2002 joint income tax return.
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Though the court in its findings of fact recognized that the parties split the 2002 tax refund

so that approximately $3,000 went to Appellant and $2,000 went to Respondent, it

transposed those figures in its final calculations, thereby awarding Appellant approximately

$1,000 more than followed from the court’s findings of fact. This clerical error was the

subject of a Rule 52(b), M.R.Civ.P., motion to amend the final judgment filed by

Respondent, which was pending in the District Court at the time this appeal was taken by

Appellant. The District Court, however, did not rule on the motion to amend within sixty

days, so the motion was effectively denied by operation of Rules 52(b), 59(d), and 59(g),

M.R.Civ.P. 1 Respondent did not cross-appeal regarding the clerical error.

¶7        Based on Appellant’s income as a miner and Respondent’s minimal training and

post-dissolution job prospects, the District Court awarded Respondent maintenance of $325

per month. Further, the court deemed the equity in the couple’s residential home a marital

asset, and divided it equally between Appellant and Respondent. The couple had purchased

the home in 2002, and had used $15,000 given to Appellant by his mother as a down-

payment. The $15,000 had previously been deposited into the couple’s joint checking

account. The court divided the home equity equally primarily because it found that

Respondent had spent




      1
         Though filed on October 6, 2004, Appellant’s notice of appeal was not properly
before this Court until Respondent’s Rule 52(b) motion to amend was denied by operation of
rule sixty days after it was filed. Rule 5(a)(4), M.R.App.P., reads in pertinent part, “[a]
notice of appeal filed before the disposition of any of the above motions [including a Rule
52(b) motion to amend], whether by entry of an order or deemed denial, shall be treated as
filed after such order or denial and on the day thereof.”
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considerable time maintaining and improving the home, specifically by painting and finishing

construction of the downstairs bathroom.

                                STANDARD OF REVIEW

¶8     “We review a district court’s division of marital property to determine whether the

findings on which the court relied are clearly erroneous.” In re Marriage of Rolf, 2000 MT

361, ¶ 39, 303 Mont. 349, ¶ 39, 16 P.3d 345, ¶ 39 (citations omitted). Assuming the

findings are not clearly erroneous, we will affirm the distribution of property unless the

district court abused its discretion. Rolf, ¶ 39. Finally, “[t]he test for an abuse of discretion

in a marital dissolution proceeding is whether the district court acted arbitrarily without

employment of conscientious judgment or exceeded the bounds of reason resulting in

substantial injustice.” Rolf, ¶ 39 (citations omitted).

                                       DISCUSSION

¶9     Did the District Court err in its distribution of the marital estate and in awarding

maintenance to Respondent Julie J. Keithley?

¶10    Appellant challenges the District Court’s findings and decree of dissolution on three

grounds: first, he challenges the inclusion of the parties’ 2002 tax refund in the final

distribution of assets worksheet created by the court; second, he challenges the court’s equal

division of the home equity; and third, he challenges the $325 maintenance payment

awarded to Respondent.

¶11    In its final evaluation and distribution of assets, the District Court generally valued

assets at the time of dissolution. However, the court made one exception. It included in the

distribution the 2002 federal tax refund as split by the parties—$3,060 to Appellant and
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$2,000 to Respondent—more than a year before the decree of dissolution. Appellant, whose

share of the distribution was thereby credited with the larger amount, asserts that the

inclusion of the tax refund amounts to reversible error because the refunds were long gone

and should have been valued at zero.

¶12    Appellant correctly notes the general rule that “the value of the marital estate should

be determined at or near the time of dissolution.” In re Marriage of Swanson (1986), 220

Mont. 490, 495, 716 P.2d 219, 222. However, as this Court has held many times, “when the

application of this rule would create an inequitable disposition, it is proper for the District

Court to utilize a differing valuation date.” In re Marriage of Halverson (1988), 230 Mont.

226, 230, 749 P.2d 518, 521; see also In re Marriage of Hunter (1982), 196 Mont. 235, 239,

639 P.2d 489, 491.

¶13    Here, the District Court was well within its discretion to include the 2002 tax refund

in the final distribution of assets. Not only was the refund received very near to the time

that Respondent filed this case in May of 2003, but it is also apparent from the record that

the court viewed Appellant as “less then forthright,” a fact which underscores the leeway

provided to the court by the law to ensure that its final distribution was equitable. For those

reasons, the court’s inclusion of the 2002 tax refund in the final asset distribution was proper

and does not rise to an abuse of discretion.

¶14    Appellant also challenges the District Court’s equal division of the equity in the

Keithleys’ home. As mentioned previously, the Keithleys purchased the home in 2002,

using, in part, funds given to Appellant by his mother and deposited into the Keithleys’ joint


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checking account. Appellant argues that these funds are completely traceable to him, and

therefore, should be awarded to him in full.

¶15     Property acquired by gift during marriage is, upon dissolution, distributed by the

court according to § 40-4-202, MCA. That section reads in pertinent part,

              In dividing property acquired . . . by gift, . . . the court shall consider
       those contributions of the other spouse to the marriage, including:
              (a) the nonmonetary contribution of a homemaker;
              (b) the extent to which such contributions have facilitated the
       maintenance of this property; and
              (c) whether or not the property division serves as an alternative to
       maintenance arrangements.

Section 40-4-202, MCA. This Court has construed that provision to mean that, “regardless of

who holds title, preacquired or gifted property need not be included in the marital estate

unless the nonacquiring spouse contributed to its preservation or appreciation.” Rolf, ¶ 46;

see also In re Marriage of Engen, 1998 MT 153, ¶ 29, 289 Mont. 299, ¶ 29, 961 P.2d 738,

¶ 9. Furthermore, “[i]n the event the nonacquiring spouse did contribute to the property’s

preservation or appreciation, we have held that the nonacquiring spouse is entitled to an

equitable share of the appreciated or preserved value which is attributable to his or her

efforts.” Rolf, ¶ 46.

¶16     Appellant argues that because $15,000 of the home equity distributed by the court is

traceable to his mother’s gift to him, he is entitled to the entire $15,000 and a one-half share

of the remaining equity. Appellant’s argument, however, ignores the District Court’s

finding that Respondent contributed to the preservation and appreciation of the home equity

by maintaining the home, painting, and working on a downstairs bathroom. Furthermore,


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the court notes that the $15,000 was co-mingled in a joint account, which makes tracing the

money directly back to Appellant more difficult. See In re Marriage of Steinbeisser, 2002

MT 309, ¶¶ 37-39, 313 Mont. 74, ¶¶ 37-39, 60 P.3d 441, ¶¶ 37-39. For those reasons, we

must conclude that the District Court’s equal division of the home equity was not an abuse

of discretion.

¶17    Finally, Appellant argues that the District Court erred in awarding maintenance in the

amount of $325 per month to Respondent. Specifically Appellant argues that the award is

both unwarranted and inadequately supported by the District Court’s findings of fact and

conclusions of law.

¶18    A court may only grant maintenance if 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(1), MCA. Assuming maintenance is

appropriate, the amount and period of the maintenance must be determined by the court in

accordance with § 40-4-203(2), MCA. See In re Marriage of Haines, 2002 MT 182, ¶ 15,

311 Mont. 70, ¶ 15, 53 P.3d 378, ¶ 15. In awarding maintenance, a court shall 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;
             (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 physical and emotional condition of the spouse seeking
      maintenance; and

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              (f) the ability of the spouse from whom maintenance is sought to meet
       his needs while meeting those of the spouse seeking maintenance.

Section 40-4-203(2), MCA. While a court must consider each of the factors in § 40-4-203,

MCA, “it is not necessary that the court make specific findings of fact regarding each factor,

so long as this Court can determine that the trial judge considered each factor.” In re

Marriage of Grende, 2004 MT 36, ¶ 38, 320 Mont. 38, ¶ 38, 85 P.3d 788, ¶ 38; citing In re

Marriage of Childers (1985), 216 Mont. 125, 127, 700 P.2d 594, 596.

¶19     In awarding maintenance to Respondent, the District Court found that Respondent’s

monthly expenses exceeded her net monthly income, and that her standard of living had

decreased substantially post separation. Further, the court found that given Respondent’s

age, education, and lack of specialized education, it was doubtful that she would be capable

of improving her income for some time. As a result of these facts, as well the court’s

finding that Appellant was capable of making monthly maintenance payments to

Respondent, the court awarded $325 per month in maintenance to Respondent. Based on

the record before us, including the District Court’s findings of fact and conclusions of law,

we conclude that the District Court considered all the facts it was required to consider

pursuant to § 40-4-203, MCA. Furthermore, we conclude that there was substantial

evidence to support the maintenance award. See Grende, ¶ 39.

¶20     Affirmed.

                                                  /S/ JIM RICE


We concur:


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/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS




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