                                           No. 05-371

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2006 MT 223N


IN RE THE MARRIAGE OF
DIANE C. CARLISLE,

              Petitioner and Appellant,

         v.

STEVEN J. CARLISLE,

              Respondent and Cross-Appellant.



APPEAL FROM:         The District Court of the Eleventh Judicial District,
                     In and For the County of Flathead, Cause No. DR-02-601A,
                     Honorable Ted O. Lympus, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     C. Mark Hash, Hash & O’Brien, PLLP, Kalispell, Montana

              For Respondent:

                     Bruce McEvoy, Johnson, Berg, McEvoy & Bostock, PLLP,
                     Kalispell, Montana


                                                         Submitted on Briefs: March 15, 2006

                                                                 Decided: September 6, 2006

Filed:

                     __________________________________________
                                        Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1     Pursuant to Section 1, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be

cited as precedent. Its case title, Supreme Court cause number and disposition shall be

included in this Court’s quarterly list of noncitable cases published in the Pacific

Reporter and Montana Reports.

¶2     Steven and Diane sought a divorce after approximately seven and one-half years

of marriage. It was the third marriage for each of them. Steven was 71 years old and

Diane was 62 years old at the time of the dissolution trial in February 2004. Both have

grown children from previous marriages.

¶3     Both parties were medical professionals at the time of their marriage. Steven

holds a medical degree and was a licensed psychiatrist. Diane has a Masters Degree in

social work and was a licensed psychotherapist and clinical social worker. After getting

married, they both closed their professional solo practices, and by mid-1997 were retired

with no employment income.

¶4     The District Court found that the parties enjoyed a lifestyle well beyond that of

their respective Social Security and pension incomes, and that they spent approximately

$2,000,000.00 during the course of their marriage. Of this total, the court found that

Steven’s financial contribution was approximately $1,674,000.00, most of which was

comprised of withdrawals from his IRA.          Diane’s contribution was approximately

$219,000.00, much of which came from the liquidation of pre-marital assets.

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¶5        The District Court ultimately concluded that the marital estate had a net negative

value. It distributed this negative value equally between the parties. Diane claims that

the manner of evaluation and distribution employed by the District Court constituted an

abuse of discretion and resulted in Steven receiving an unfair allocation of his premarital

assets.     Diane also appeals the District Court’s rejection of her request for spousal

maintenance and attorney fees. We affirm.

                                            ISSUES

¶6        A restatement of the issues on appeal is:

¶7     Did the District Court abuse its discretion when it determined and distributed the
marital estate?

¶8        Did the District Court err when it did not award spousal maintenance to Diane?

¶9    Did the District Court abuse its discretion when it did not award attorney fees to
Diane?

¶10       Steven raises the following issue on cross-appeal:

¶11 Did the District Court err when, after awarding Steven all of his premarital
Individual Retirement Account (IRA), it failed to allow an offset or other credit for
monies disbursed from that account to Diane post-trial, but prior to the date of the District
Court’s Decree?

                                  STANDARD OF REVIEW

¶12       In reviewing discretionary trial court rulings, such as marital estate distributions

pursuant to dissolution under § 40-4-202, MCA, we determine whether the district court

abused its discretion. Siefke v. Siefke, 2000 MT 281, ¶ 7, 302 Mont. 167, ¶ 7, 13 P.3d

937, ¶ 7 (citations omitted). Section 40-4-202, MCA, is flexible and vests a good deal of

discretion in the district court. As we have stated previously, each case must be looked at
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individually, with an eye to its unique circumstances. In re Marriage of Harris, 2006 MT

63, ¶ 17, 331 Mont. 368, ¶ 17, 132 P.3d 502, ¶ 17 (citations omitted). Additionally, we

employ the same standard of review of a trial court’s order granting or denying attorney

fees. Somont Oil Co. v. A & G Drilling, Inc., 2006 MT 90, ¶ 25, 332 Mont. 56, ¶ 25, 137

P.3d 536, ¶ 25.

¶13   The court may award maintenance only if it finds that the spouse seeking

maintenance lacks sufficient property to provide for her reasonable needs and is unable to

support herself through appropriate employment.        Section 40-4-203(1), MCA.       We

review a grant or refusal of maintenance to determine whether the district court’s findings

are clearly erroneous. In re Marriage of Dorville, 254 Mont. 111, 113, 836 P.2d 588, 589

(1992) (citations omitted). See also Harris, ¶ 16. A district court’s findings are clearly

erroneous if they are not supported by substantial evidence, if the court misapprehended

the effect of evidence, or if our review of the record convinces us that the court made a

mistake.

                     ISSUE ONE AND CROSS-APPEAL ISSUE

¶14 Did the District Court abuse its discretion when it determined and distributed the
marital estate?

¶15 Did the District Court err when, after awarding Steven all of his premarital
Individual Retirement Account (IRA), it failed to allow an offset or other credit for
monies disbursed from that account to Diane post-trial, but prior to the date of the
District Court’s Decree?

¶16   Section 40-4-202, MCA, vests the district court with “broad discretion to

distribute the marital estate in a manner which is equitable to each party according to the

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circumstances of the case.” In re Marriage of Smith, 270 Mont. 263, 267, 891 P.2d 522,

525 (1995). Section 40-4-202(1), MCA, further provides:

       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.
       ...

¶17    Equitable distribution does not necessarily mean equal distribution. Harris, ¶ 17.

Here, the parties had exhausted most of their marital assets as well as their premarital

assets. The District Court equitably and equally distributed the net losses to the marital

estate between the parties, and equitably distributed the limited remaining assets. It is

apparent from the District Court’s decision that it carefully assessed the circumstances of

the case and considered all of the evidence, together with the relevant factors set forth in

§ 40-4-202(1), MCA. We therefore resolve both the appeal and cross-appeal property

disposition issues by concluding that the District Court did not abuse its discretion in

determining and distributing the marital estate.

                                       ISSUE TWO

¶18    Did the District Court err when it did not award spousal maintenance to Diane?

¶19    Section 40-4-203, MCA, sets forth multiple factors to be considered by the district

court in determining whether to award maintenance. Diane asserts that she and her

psychiatrist presented substantial evidence from which the District Court could conclude

that she was unemployable for health reasons and therefore entitled to spousal

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maintenance. Diane argues that she met the initial threshold established in § 40-4-203(1),

MCA, in that she lacked sufficient property to provide for her reasonable needs and is

unable to support herself through appropriate employment.        She maintains that the

District Court should have so ruled and issued a maintenance order based on the factors

set forth in § 40-4-203(2), MCA.

¶20   The record reveals that Steven offered substantially different testimony regarding

Diane’s health prognosis, treatment and future employability. Additionally, the court

received evidence as to Diane’s monthly Social Security benefits, her annual pension

benefits, and her IRA.

¶21   As we have frequently noted, the trial court is in the best position to observe and

judge witness credibility, and we will not second-guess its determination regarding the

strength and weight of conflicting testimony. In re Marriage of Crilly, 2005 MT 311, ¶

25, 329 Mont. 479, ¶ 25, 124 P.3d 1151, ¶ 25. Additionally, in reviewing findings, we

determine if the findings reached by the district court are supported by the evidence; we

do not consider whether the evidence could support a different finding. In re V.F.A.,

2005 MT 76, ¶ 7, 326 Mont. 383, ¶ 7, 109 P.3d 749, ¶ 7 (citations omitted).

¶22   Here, the District Court exercised its prerogative in resolving the conflict in the

evidence concerning whether Diane satisfied the requisite elements for spousal

maintenance. The evidence supports the District Court’s findings and the findings are not

otherwise clearly erroneous.




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                                     ISSUE THREE

¶23 Did the District Court abuse its discretion when it did not award attorney fees to
Diane?

¶24    We conclude the District Court did not abuse its discretion when it declined to

award attorney fees to Diane.

¶25    We have decided this case pursuant to Section 1, Paragraph 3(d) of our 1996

Internal Operating Rules, as amended in 2003, which provides for memorandum

opinions. The record reveals that substantial credible evidence was presented to support

the District Court’s denial of spousal maintenance to Diane.           The evaluation and

distribution of a marital estate and the award or denial of attorney fees are both within the

sound discretion of the trial court and will not be overturned absent an abuse of that

discretion. It is manifest on the face of the briefs and the record that the appeal of these

issues is without merit because there was no abuse of judicial discretion.

¶26    We affirm the judgment of the District Court.



                                                                /S/ PATRICIA COTTER
We Concur:

/S/ KARLA M. GRAY
/S/ JOHN WARNER
/S/ BRIAN MORRIS
/S/ JIM RICE




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