                               No. 89-077
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                     1989



IN RE THE MARRIAGE OF
ELAINE HARLAN RUDIO,
                Petitioner and Appellant,
         and
WILLIAM HARLAN,
                Respondent and Respondent.




APPEAL FROM:    District Court of the Fourth Judicial District, .
                In and for the County of Missoula,
                The Honorable John S. Henson, Judge presiding. \
                                                                              ,   -
COUNSEL OF RECORD:                                                           C. I
                                                               .     I


                                                                   --7
         For Appellant:
                Darla J. Keck; Datsopoulos, MacDonald & Lind, Missoula,
                Montana
                David B. Cotner; Boone, Karlberg & Haddon, Missoula,
                Montana
         For Respondent :
                Kerry N. Newcomer; Geiszler, Taylor, Newcomer            &   ~cClain,
                Missoula, Montana



                                     Submitted on Briefs:   July 7, 1989
                                      Decided: Augast 24, 1989
Filed:


                                 I   Clerk
Justice John Conway Harrison delivered the Opinion of the
Court.

      This is an appeal from a judgment issued on the
findings of fact and conclusions of law in the parties'
marriage dissolution action in the Fourth Judicial District
Court, Missoula County, Montana.   Petitioner/appellant wife
argues the court abused its discretion when it arbitrarily
valued   the   husband's   pension  plan,   awarded   minimal
maintenance to the wife for a limited period of time, and
required the wife to pay her own attorney's fees.         The
findings and judgment of the District Court are reversed and
remanded for a new trial.
      Appellant Elaine Harlan (Elaine) and respondent William
Harlan (Bill) were married March 10, 1962. At the time of
the marriage, Elaine had just graduated from high school and
Bill was a laborer for the predecessor of Stone Container
Corporation. Bill has continued to work for the same company
for the past 27 years.
      Elaine was a housewife throughout the marriage.     She
raised the parties1 two children, both of whom had reached
the age of emancipation at the time of the parties'
separation.    Elaine also did the cooking, cleaning and
shopping for the family. Elaine's work experience outside of
the home was very limited, consisting of temporary part time
work as a day care attendant, election judge, and home care
attendant.
      Bill completed an apprenticeship program with Stone
Container and is now an industrial electrician. At the time
of the trial, Bill's hourly wage was $17.65 per hour, or
approximately $38,300 per year.
      After 24 years of marriage, the parties separated in
March of 1986.      When Bill left the parties' home, no
arrangements were made for Elaine's financial maintenance.
Consequently, during the 29 months between the time of
separation and trial, Elaine spent all of the money from one
of the parties' savings accounts, approximately $17,000, in
order to live.    During this same time, Bill consumed his
regular take-home pay of more than $500 per week, and $175
per month which he received from a contract receivable.
Additionally, Bill depleted all of the funds from another of
the parties' savings accounts, which also amounted to
approximately $17,000.    All told, Bill spent over $71,750
during this period of time. He could not account for this
money at trial.
       Elaine was not informed by her original counsel that
she could receive financial support from Bill during the
period of separation. It was not until Elaine retained new
counsel in 1988 that she sought an award of temporary
maintenance. After notice of a hearing to set maintenance,
the parties stipulated to a maintenance amount of $800 per
month.
       In March of 1988, Bill was "married" to Bonnie Lucier
in Hawaii. Although Bill concedes the marriage is invalid,
he and Bonnie Lucier live together, share monthly expenses,
and expect to "remarry." Bonnie Lucier presently has assets
of nearly $230,000, and earns between $600 and $800 per month
from investments.      Additionally, Bill's $175 per month
contract receivable is payable through August, 2002.
       Elaine requested an award of permanent maintenance
because she had no income producing property, and no
employment skills which would provide her with sufficient
funds to cover her monthly expenses.
       During   trial,    Kathy    Kleinkopf,  a    certified
rehabilitation counselor, described Elaine as fragile,
nonassertive, extremely      frightened, directionless, and
possessing a weak self-presentation. Kleinkopf stated that
she did not believe Elaine had the skills to seek or get
employment, in part because Elaine's work history was
"non-existent for practical purposes." Kleinkopf recommended
that Elaine enter a five-week pre-vocational program at the
Missoula Vocational Technical Center, to be followed by six
quarters of clerical training from the Vo-Tech Center which
would take at least two years to complete. Kleinkopf stated
that it would be more advantageous for Elaine to obtain a
bachelor's degree from the University of Montana, a course of
study which would last through June, 1993.
      The parties did not dispute the value of most of their
assets.   At trial, however, Bill disagreed with Elaine's
expert's evaluation that the Stone Container pension plan was
worth $20,600. Bill stated the pension plan was only worth
$10,000. He offered this round figure because he believed he
had been exposed to asbestos at his work place. He concluded
that since he is a smoker, he does not expect to live as long
as the expert calculated. Elaine's counsel objected to this
testimony because it was speculative and without foundation.
The trial judge sustained the objection.
      Bill also disagreed with Elaine's valuation of her
automobile, a 1977 Pontiac. Elaine testified that the car
got an average of ten miles per gallon and would soon need to
be replaced. The Pontiac was appraised for purposes of the
trial at $450.    Bill disagreed and gave this unqualified
opinion:
           [Direct examination by Bill's counsel:]
           Q. Did you have a chance to review the
           appraisal  ... for the '77 Pontiac?
          A. Yes. I viewed it in your office the
          other night.
           Q.   Do you agree with      that appraisal?
          A.    No, I do not.
           Q.   What do you think the car is worth?


          A. Well, I know the car two and a half
          years ago was in excellent shape, the
          motor was taken care of extremely well by
          my father, the interior was spotless.
          That's why it was valued at that time
          --the lawyer that I had handling my
          father's estate --he said let's just slap
          three thousand dollars on it. I think it
          was worth more than that if we would have
          valued then.
          Q. What do you think it's worth now?
          Just what do you think--
          A. I would say        it's   worth   at   least
          fifteen hundred.
      Elaine testified that her repairman found a leak in the
24-year-old roof of her house and that she obtained an
estimate for its repair. The estimate presented at trial,
for $1,470, was to lay new shingles over the old.         She
testified that she had since leaned the old shingles would
have to be removed at an additional cost of $550.
      Bill also disagreed with the estimate for the roofing
job, however, he did not disagree that a repair was
necessary. At trial, Bill gave his opinion that "I know that
I could have it done cheaper    ... I think I can get it done
for nine hundred."
      In its findings of fact, conclusions of law, and decree
of dissolution, the District Court divided the property
essentially as the parties agreed:
               Pro~ertvto Elaine Harlan
Residence at 316 Dearborn (unencumbered)   $47,000.00
Household furnishings (including player
  piano & other property in her
  possession except the property
  awarded Respondent below, presently
  in Petitioner's   possession)              3,500.00
Dain Bosworth
  Apache oil                                   350.00
  WIN cash account                           3,584.11
  Great Falls municipal bond                 5,583.15
Jones' Cable interest     (approx.:) 9,000- 15,000.00
Elaine's IRA                                 1,683.78
1977 Pontiac                                   700.00
1975 Dodge pickup                              500.00
WFS&L checking                                 313.84
4 1987 tax year refund                         665.50
                                $72,880.38--78,880.38
                Property to Bill Harlan
Luptak Harlan Escrow
   (remains of father's estate)              17,117.00
Champion/Stone retirement                    10,000.00
Dain Bosworth-IRA account                    11,573.00
Personal Property (including all items in
  Bill Harlan's possession)
  one kerosene decorator lamp
  Grandmother's musical instrument
  Grandfather's diamond willow cane
  All father's tools, equipment and miscellaneous
  items (trunk with estate papers)
  Remainder of Bill's hand and power tools
  Other items from garage, i.e. battery charger
  Grandmother's .32 cal. H & R revolver and cartridges
  Ruger 10-22 cal. rifle
  Firepoof box and contents, purchased by father
  Tax returns and supporting documents for 1980-87
  3 h.p. Evinrude outboard and remote tank with oil
  4 h.p. motor and fan blade
  Items purchased from Bill's Aunt Mary Lay
  Father's golf clubs
  Grandmother's coffee table from living room
  3 remaining silver coins or medallions      2,000.00
1988 Ford pickup (subject to encumbrance)     6,200.00
3 1987 tax year refund                          665.50
                                            $47,555.50
      Although the court sustained counsel's objection to
Bill's testimony regarding the value of the pension plan, it
nonetheless accepted Bill's valuation and reasoning. In its
opinion and order, the court made the following statement:
                 Petitioner requests that the Court
           amend its Findings of Fact Nos. 19, 20
           and 24 relating to the Court's valuation
           of Respondent's pension.      Underpinning
           Michael    Duffield' s   present     value
           calculation for this pension is the
           assumption that Respondent has a life
           expectancy equal to that of other
           American males.    Respondent's place - of
           employment exposes him to toxic or
           harmful substances. ~ o s t American males
           do - - - - - - type of environment.
           -  not work in this
           Duffield's assumption - this
                                    disregards
           exposure - renders - value
                      and             present
           calculations unreliable.    The Court has
           rejected Duffield's testimony in this
           instance as not credible because his
           analysis disregards the environmental
           factors   of   Respondent's    employment.
           (Emphasis added.)
      The court ruled that Bill would pay Elaine $100 per
week only while she is enrolled in the Missoula Vo-Tech
program.   The payments were not to exceed two years. The
court reasoned:
                 In the over two years between
           separation and trial Petitioner had
           access to savings, cash and in kind
           support    from   Respondent    exceeding
           $26,000.00. Petitioner also received all
           the marital assets except Respondent's
           retirement, Respondent's IRA account,
           personal possessions and half of the 1987
           tax year income tax refund.


                The Court considered the expenses
          that Petitioner claimed at trial, her
          spending after the separation, the ass=
          she was awarded and the factors set out
           in 55 40-4-202 and 40-4-203, MCA.   The
           Court's award of short term educational
           maintenance was designed to require
           Petitioner - responsibly marshal her
                       to
           resources - - choices - - - -
                     and make         as to how to
           apply her assets - achieve her goals.
                             to



                 - - unfortunate, but true, - - a
                  It is                         that
           substantial portion - - marital estate
                                of the
           was dissipated between separation and
           trial a   Petitioner. The opportunity-
           put those funds to more constructive use
           is forever gone.       Petitioner's track
           record is such that it appears to the
           Court that her "needs" will always exceed
           the funds available to her. There was no
           convincing testimony at this trial to
           show why Petitioner should not be
           required to make the same choices about
           allocation    of   resources    as    other
           non-handicapped    people.        (Emphasis
           added. )
      The court valued the 1977 Pontiac at $700 because Bill
"thought" the car was worth more than the written appraisal
and because of the "parties' respective biases regardinq
valuation. "     However, when Elaine valued the personal
property remaining in her possession at $2,500 to $3,000, and
Bill valued the same property at $3,500, the court valued the
property at $3,500. Additionally, the court refused to award
Elaine any funds for the repair of the roof because "[nlo
necessity for immediate replacement was shown by Petitioner."
      The District Court also accepted Bill's unsupported
suggestion that Elaine could inherit property from her
parents. In Finding of Fact No. 15, the court stated:
                   Petitioner's parents are in their
             seventies and are presently in good
             health.      Petitioner's parents
                                       -
                                                 live
             comfortably.    Petitioner can expect a
            modest - substantial inheritance when
                     to
           - parents
           her              die,
                            -     barring unforeseen
           circumstances.    (Emphasis added. )
      The District Court disallowed any award of attorney's
fees to Elaine because it concluded "Petitioner has
sufficient property, cash and short term assistance to pay
her own attorney's fees and costs."
      Elaine raises the following issues for review:
      1. Did the District Court abuse its discretion in its
valuation of Bill's pension plan?
      2. Did the District Court abuse its discretion when it
awarded only $100 per week in financial assistance, and when
it ruled the assistance was not to exceed two years?
      3. Did the District Court abuse its discretion when it
required Elaine to pay her own attorney's fees?

Issue No. 1
      Did the District Court abuse its discretion in its
valuation of Bill's pension plan? There can be no question
but that the court did abuse its discretion.        There is
absolutely no evidence in the record to support the court's
valuation of the pension plan.        Bill does not contest
Elaine's expert's methodology in valuing the pension plan.
He merely thinks the mortality table used by the expert does
not apply to him.    No doubt it would be helpful to such
valuations if it were possible to determine exactly how long
a person will live.    However, such necessarily speculative
devices must be utilized in order to make a reasonable
calculation. As we held in In re Marriage of Bowman (Mont.
1987), 734 P.2d 197, 44 St.Rep. 488, it is an abuse of
discretion to arbitrarily pick a method of calculation which
enjoys no support from the record. Likewise, it is an abuse
of discretion to arbitrarily value a pension plan through the
use of no calculation whatsoever.
      Bill had full opportunity to produce expert testimony
or other reliable evidence which would illustrate that he has
a shorter life expectancy than that used by the expert.
However, Bill presented no evidence that his health was poor,
no evidence that he was ever exposed to any toxic substances,
no evidence that all other workers at Bill's place of
employment died before reaching age 76, no evidence that
Bill's life expectancy was anything other than age 76, and
absolutely no evidence supporting the rough figure valuation
of $10,000. That valuation was clearly in error.



Issue No. 2
      Did the District Court abuse its discretion when it
awarded only $100 per week in financial assistance, and when
it ruled the assistance was not to exceed two years? When
the marital property is properly considered and valued, it is
clear the maintenance award was an abuse of discretion.
      From the record it is apparent that the District Court
was convinced of two things: 1) that Elaine was receiving the
vast majority of the marital property; and 2) that Elaine
spent too much money between the time of separation and
trial. In spite of this, however, the court concluded Elaine
was entitled to an award of maintenance.
      If all of the marital property is properly valued, the
difference between what each party will receive is not great.
When the valuation of the car is recalculated, and the value
of the pension is properly established, the property
distribution will be much closer:
                     Property to Elaine
  Residence
  Household furnishings
  Dain Bosworth
     Apache oil
     WIN cash account
      Great Falls Municipal Bond
  Jones' Cable interest
  Elaine's IRA
  1 9 7 7 Pontiac
  1 9 7 5 Dodge pickup
  WFS&L checking
  3 1 9 8 7 tax year refund

                      Property to Bill
  Luptak Harlan Escrow
  Champion/Stone retirement
  Dain Bosworth-IRA account
  Personal Property
  1 9 8 8 Ford pickup
  4 1 9 8 7 tax year refund

      Section 40-4-203, MCA, provides that the court may
award maintenance if the spouse seeking maintenance:


                (a) lacks sufficient property to
          provide for his reasonable needs; and
                (b) is unable to support himself
          through appropriate employment  ...
          (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 . .   .
                              ;
                 (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;
                 (dl   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.
There is no evidence in the record that the District Court
adequately considered the factors of 5 40-4-203, MCA.   Even
though the marital property was not properly valued, it is
evident that the court did not consider the nature of the
majority of the assets awarded Elaine. In re Marriage of Tow
(Mont. 1987), 748 P.2d 440, 44 St.Rep. 2154. By far the most
valuable asset awarded to ~ l a i n e , the residence, is not
income producing, but rather income consuming property.
       The income producing property awarded to Elaine
included :
   Dain Bosworth
      Apache Oil
      WIN cash account
       Great Falls Municipal Bond
   Jones' Cable
   WFS&L checking
   3 1 9 8 7 tax year refund
            Total Income Producing Assets:
Even a 10% annual return on this amount of money would only
generate $1,949.96 per year before state and federal taxes
are deducted.     Elaine listed her monthly expenses as
exceeding $800 per month, exclusive of any costs for
education and retraining. Additionally, Kleinkopf testified
that the pre-vocational program would cost $199, and the
Vo-Tech programs would cost $1,504 per year.
      We conclude the court erred in awarding temporary
maintenance of $100 per week in light of Elaine's financial
resources, education and employment skills, age, physical and
emotional condition, the duration of the marriage, the
standard of living established during the marriage, and
Rill's ability to provide Elaine with maintenance in an
amount which is fair and just. In view of these factors, the
temporary award of $100 per week was unjustified. There was
no evidence which established what Elaine's income and
expenses would be after she obtains employment.            An
assumption of self-reliance after that time is not supported
by the record.     Nor was there any evidence which would
support a conclusion that Elaine would inherit anything from
her parents. Further, an award of permanent maintenance may
be modified    or terminated to reflect a change of
circumstances, such as these assumed by the court. Section
40-4-208, MCA.
      Finally, there is no evidence to support a conclusion
that Elaine spent too much money from the time of the
separation to the date of the trial. While Elaine may have
spent over $26,000, this amounts to less than $900 per month
for the 29 month period. Still, while there was nothing more
than Bill's insinuation that this amount was excessive, the
$26,000 figure pales when compared to the nearly $72,000
spent by Bill during this same time period, an amount the
court failed to consider in its distribution of the marital
property.
Issue No. 3
      Did the District Court abuse its discretion when it
required Elaine to pay her own attorney's fees? We conclude
it did.    The District Court denied Elaine's request for
attorney's fees and costs because it concluded she had
sufficient property, cash and short-term assistance to pay
them herself. However, as we have concluded above, the court
incorrectly valued the marital property and erred in awarding
limited maintenance. Therefore, and because we are returning
this cause for a new trial, this issue must be re-examined by
the court in light of a new property distribution or
valuation, and award of maintenance.
      Reversed and remanded for a new trial.




We concur:        .'I
         */   *
   A




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