                                            No. 02-463

                IN THE SUPREME COURT OF THE STATE OF MONTANA

                                            2003 MT 63


In Re the Marriage of:

HAROLD M. SMITH,

               Petitioner and Respondent,

         and

SUSAN A. SMITH,

               Respondent and Appellant.



APPEAL FROM:             District Court of the First Judicial District,
                         In and for the County of Lewis and Clark, Cause No. CDR-2001-96,
                         The Honorable Thomas C. Honzel, Judge presiding.


COUNSEL OF RECORD:

               For Appellant:

                         David N. Hull, Attorney at Law, Helena, Montana

               For Respondent:

                         Robert M. Cummins, Attorney at Law, Helena, Montana


                                                         Submitted on Briefs: December 5, 2002

                                                                   Decided: March 31, 2003
Filed:


                         __________________________________________
                                           Clerk
Justice Terry N. Trieweiler delivered the Opinion of the Court.

¶1     Harold Smith, the Petitioner, filed a petition for dissolution of his marriage to Susan

Smith in the District Court for the First Judicial District in Lewis and Clark County. The

District Court entered its Findings of Fact, Conclusions of Law and Decree of Dissolution

which dissolved the marriage and distributed the marital estate. The Respondent, Susan

Smith, appeals the District Court's distribution of the marital estate and denial of her claim

for maintenance. We affirm the judgment of the District Court.

¶2     The issue on appeal is whether the District Court abused its

discretion when it distributed the marital estate and denied

Susan's claim for maintenance.

                       FACTUAL AND PROCEDURAL BACKGROUND

¶3     Harold and Susan Smith married on September 9, 1966, in

Yellowstone County, Montana.                 Harold, who was born on April 1,

1948, is currently an aviator with the rank of Chief Warrant

Officer 4 in the Montana Army National Guard.                     Susan, who was born

on October 25, 1946, is currently a Purchasing Supervisor for the

State of Montana Department of Environmental Quality, and has

worked for the State of Montana for approximately 24 years.                          Harold

and Susan have lived separately since June 2, 2000.                         On March 22,

2001, Harold petitioned for dissolution of their marriage.

¶4     At trial, Harold testified that after 20 years of active

service for the National Guard, he is required by law to retire as

a pilot effective April 1, 2003, and that he has several medical

conditions which make a future career in aviation unlikely.                           These



                                              2
conditions include high blood pressure, high cholesterol, high

blood sugar, and Type II Diabetes.

¶5   Susan testified that she had worked for the State of Montana

for 24 years and that she anticipates that she will remain at her

position for an additional five to seven years.

¶6   Harold's annual salary at the time of trial was $76,944, but

was to be reduced to $75,288 subsequent to the final divorce

decree, and to $27,545 following his retirement on April 1, 2003.

Evidence at trial established that Susan's annual salary was

$30,629.
¶7   In its Findings of Fact and Conclusions of Law, the District

Court adopted Susan's suggested distribution of the personal and

real property, other than retirement income, and distributed it as

follows:

                                         Harold                Susan
     Checking Account–CU             $     1,200           $
                                                         250
     Checking Account–H&S Ent.           $         318

     Checking Account–AFSB               $         399
                                               h
                                               e
                                               c
                                               k
                                               i
                                               n
                                               g

                                               A
                                               c
                                               c
                                               o
                                               u
                                               n
                                               t
                                               –
                                               N
                                               W
                                               A

                                 3
                                                      $




                                                      8
                                                      8
                                                      1

      Savings Account                         $     13,677               $
                                                                 675
      Deferred Compensation–Harold            $       5,051
      Deferred Compensation–Susan                                 $     41,416
      Insurance Fund–Cash Value                                   $
                                                              5,207
      2000 Tax Return                                             $
                                                              6,200
      Real Property–5.0 acres                                     $
                                                             35,000
      Oppenheimer Fund
                                                                  $
                                                              1,029
      House Sale Proceeds                $   79,000               $
                                                             79,000
      Franklin Fund - Utility                                     $
                                                              6,749
      Franklin Fund - Government                                  $
                                                             12,390
      D.A. Davidson Money Market                                  $
                                                              5,074
      D.A. Davidson Securities
                                                                  $
                                                              3,517
      Trailer home                            $       1,750              $
                                         1,750
      Other Personal Property                  $    34,987        $
                                                        34,987
      Total                                   $ 137,263      $ 233,244

Accordingly, not counting retirement income, Harold received 37% of

the   marital   property   and   Susan   received   63%   of    the    marital

property.     The District Court's distribution of the above property



                                    4
is not challenged; however, Susan does dispute the District Court's

final distribution of the parties' retirement plans.

¶8   The District Court concluded that Harold was entitled to the

entire amount of his military retirement, which will pay him

$2,295.45 per month ($27,545 annually) beginning April 1, 2003,

until his death.    In its findings, the District Court noted that

the only valuation expert at the trial, Philip Bird, calculated the

present value of Harold's retirement to be $315,173 as of August 2,

2001.    The District Court also distributed to Harold his pension

plan with Northwest Airlines which would, according to Bird, pay

$118.89 per month for life at age 65.    Bird calculated the present

value of this pension plan to be $6,791.      Finally, the District

Court distributed to Susan her entire retirement plan from the

Montana Public Employee Retirement System.    The evidence was that

if Susan retired at age 55, she would receive monthly payments of

$747 per month, while if she retired at age 60, she would receive

$1,543 per month.    According to Bird, using the $747 per month

payment for calculation of her retirement plan's present value, the

present value of her retirement account was $126,686 as of October

18, 2001.   The District Court acknowledged all of Bird's valuations

with respect to the retirement accounts in its Findings of Fact.
¶9   The District Court's final distribution of the marital estate,

including retirement income, based on present value, is set forth

below:

                                      Harold         Susan
     Military Retirement                   $ 315,173
     Northwest Airlines Retirement         $     6,791
     State of Montana Retirement                          $   126,686


                                  5
      All other assets                            $ 137,263            $ 233,244
      Total Marital Assets                        $ 459,227            $ 359,930
           % Share of Present Value
           of the Marital Estate                            56.06%
                                                                 43.94%

                              STANDARD OF REVIEW

¶10   We review a district court's division of marital assets to

first determine whether the district court's findings are clearly

erroneous.     In re Marriage of Stufft (1996), 276 Mont. 454, 459,

916 P.2d 767, 770.      If the district court's findings of fact are

not clearly erroneous, we will not disturb the district court's

distribution of marital property unless the district court abused

its discretion.      In re Marriage of Smith (1995), 270 Mont. 263,

267-68, 891 P.2d 522, 525.        The standard for determining whether a

district court abused its discretion is "whether the trial court

acted arbitrarily without employment of conscientious judgment or

exceeded the bounds of reason resulting in substantial injustice."

In re Marriage of Rolfe (1985), 216 Mont. 39, 45, 699 P.2d 79, 83

(citation omitted).
                                  DISCUSSION

¶11   Did    the   District    Court     abuse   its      discretion    when    it

distributed    the   marital    estate     and   denied    Susan's     claim   for

maintenance?

¶12   There is no contention by either party that the District

Court's Findings of Fact were clearly erroneous.                Susan contends

that the District Court abused its discretion when it distributed

the marital estate because the District Court distributed 56% of

the marital estate to Harold, despite the length of their marriage

and the fact that Harold earned substantially more income as a

                                       6
pilot and would earn more in retirement.             She further contends that

the District Court abused its discretion by trying to forecast the

parties' future employment and financial situations, and that the

Court should have instead split the marital estate according to its

present value.          Lastly, Susan contends that in light of the

District Court's distribution of the marital estate, the District

Court abused its discretion by denying her claim for maintenance.

¶13   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 circumstances of the

case."     Smith, 270 Mont. at 268, 891 P.2d at 525.              It does not

require that the distribution be equal.              In re Marriage of Walls

(1996), 278 Mont. 413, 416, 925 P.2d 483, 485.                   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 . . . .

¶14   The District Court recognized that Harold faced mandatory

retirement by April 1, 2003.             In addition, Harold had several

health problems, some of which could preclude any future career as

a pilot.     Little testimony or evidence was provided regarding his

                                         7
future employability other than his testimony that he would likely

seek future employment outside the field of aviation.                 On the other

hand, the District Court found that Susan could continue her

employment with the State of Montana at $30,629 per year for

approximately 5 to 7 years, and that through continued employment

she could receive $1,543 per month at the age of 60 (October 25,

2006).         Susan testified that she did intend to remain employed for

5    to    7    years   and   that   she   had   no   current    health   problems.

Therefore, Susan's income in the immediate future will, in all

likelihood, exceed Harold's income.              While Harold will be required

effective April 1, 2003, to draw upon his portion of the marital

estate as his primary income source, Susan will continue to have

income from her salary with the State of Montana, continue to

contribute to her deferred compensation plan and add to the value

of    her       retirement    plan.        Furthermore,    the    District    Court

distributed a substantial majority of the remaining investment

accounts and real property to Susan.                  Based on these facts, we

conclude that the District Court did not abuse its discretion when

it distributed the marital estate pursuant to § 40-4-202(1), MCA.
¶15       We reach a similar conclusion with respect to the District

Court's refusal to award maintenance to Susan.                      Section 40-4-

203(1), MCA, provides:

          In a proceeding for dissolution of marriage . . . the
          court may grant a maintenance order for either spouse
          only if it finds that the spouse seeking maintenance:
          (a) lacks sufficient property to provide for his
          reasonable needs; and
          (b) is unable to support himself through appropriate
          employment . . . .

The record reflects Susan had sufficient property to provide for

her reasonable needs and was able to support herself through

                                            8
employment with the State of Montana.   While Harold, when employed

by the National Guard, earned more income than Susan, that fact

alone does not require a maintenance award.   Therefore, we conclude

the District Court did not abuse its discretion when it denied

maintenance payments pursuant to § 40-4-203(1), MCA.

¶16   For the foregoing reasons, we affirm the judgment of the

District Court.


                                    /S/ TERRY N. TRIEWEILER

We Concur:



/S/ JIM REGNIER
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ JIM RICE




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