                                           No. 02-182

                IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2002 MT 182


IN RE THE MARRIAGE OF

ANNETTE S. HAINES,

               Petitioner and Appellant,

         and

RICKY L. HAINES,

               Respondent and Respondent.



APPEAL FROM:          District Court of the Thirteenth Judicial District,
                      In and For the County of Yellowstone,
                      Honorable Russell C. Fagg, Judge Presiding


COUNSEL OF RECORD:

               For Appellant:

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

               For Respondent:

                      Christopher P. Thimsen, Attorney at Law, Billings, Montana



                                                     Submitted on Briefs: June 6, 2002

                                                                  Decided: August 27, 2002

Filed:

                      __________________________________________
                                        Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1      Annette     S.    Haines   (Annette)     appeals      from   the   Thirteenth

Judicial District Court’s decree of dissolution.                     We affirm.
¶2      We re-state the issue on appeal as follows:

¶3      Did   the    District      Court   err   when    it    granted     Annette   a

maintenance award of $1,500 per month for four years following

dissolution?

                         FACTUAL AND PROCEDURAL BACKGROUND
                                                                                         Comment [COMMENT1]: Tr 4
¶4      Annette and Ricky L. Haines (Ricky) were married on April 10,
1976.    At the time of the dissolution, the parties had been married

nearly 26 years.          Two children were born during the marriage, both
of whom had attained majority before these dissolution proceedings.



¶5      When Annette and Ricky were first married, they lived on a

ranch in Utica, Montana, where Annette was a homemaker for one year
until she obtained a minimum wage position at a grocery store.

Thereafter, the parties farmed together in White Sulphur Springs
and Forsyth. When the farm in Forsyth was sold, they moved to

Roundup where Annette worked part-time in a bar.
¶6      In 1984, the parties moved to Billings after Ricky was injured

working at a mine.            Ricky attended May Technical School where he
completed the broadcasting program and became employed at Northern

Broadcasting Systems.           While he attended school, Annette was the

primary caregiver for the children and worked part-time for an
inventory company earning $7.00 per hour to help support the




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family.      In the late 1980’s, she left this employment to attend May

Technical School for one year and obtain a certificate in business.

¶7    Upon completing her degree, Annette was employed at Billings

Livestock for three years.          Initially, she worked part-time and

earned    $6.00   per   hour.      She   was    later   hired   full-time,     and
ultimately she advanced to the position of office manager and was

compensated at $2,000 per month.               Annette left this position to

work as a computer trainer for Sale Time Systems, a computer

company which sells livestock auction programs.                  This position

paid, at most, $2,000 per month and required considerable travel.

Since Ricky’s position with Northern Broadcasting required him to
travel 65,000 to 75,000 miles per year, the parties decided that

Annette should terminate her employment to be available for their

children who were ages twelve and fourteen at the time.
¶8    Annette worked as a homemaker and worked part-time in various

office positions and in skin care product sales for approximately
$8.00 per hour.       She worked part-time for Millennium Engineering at

$9.50 per hour, or a monthly take home of $1,028, until she was

laid off a few months prior to the trial in this case.                  Through
Kelly Temporary Services, Annette obtained a temporary full-time

position as an accounts receivable clerk at a computer company.
She anticipated working for Kelly for six months during which time

the computer company had the option of permanently hiring her.                 The

job   paid    $7.00   per   hour   and   did    not   provide   any   health    or
retirement insurance benefits.




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¶9    At the time of trial, Ricky had been employed as the Western

Division Ad Director of Northern Broadcasting Systems in Billings

for fifteen years.        Ricky earned $51,000 in 1995 and steadily
increased his earnings to $86,000 in 2001.      Ricky had medical and

retirement benefits and bonuses through this employment.          He also

earned income from speaking engagements, including approximately

$4,000 in the year 2000, and he received approximately $8,000 from

the sale of a book that he authored.
¶10   In March 2001, Ricky moved to Twin Falls, Idaho, to develop a

market   for   Northern    Broadcasting   Systems.    As   part    of   a

compensation package, he was to earn a base salary of $54,000 plus
a guaranteed $32,000 in commissions for the first year.     Commencing
in March 2002, Ricky was to receive his base salary plus the

standard 15 percent sales commissions.        Ricky’s projected sales

commissions for the year 2002 were $22,500, for a total projected

income of $76,000.    Ricky’s speaking engagements dropped off in
Idaho due to his lack of name recognition in the area.

¶11   After trial, the District Court issued its Findings of Fact,

Conclusions of Law and Decree.         The court found that Annette’s
monthly expenses totaled $3,143, but that they would be reduced by

$400 per month after the sale of the family home.            The court
found that Ricky’s expenses totaled $2,485 per month. The court

valued the net marital estate at $71,717.       It awarded Annette an

estimated amount of $15,000 from the sale of the family home; a car

worth $6,000; Ricky’s Merrill Lynch retirement account valued at

$24,400; and half of the household goods for a total award of



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$52,400.    The court allotted no debt to Annette.                 With regard to

Ricky, the court awarded him $39,000 of the marital estate and

$27,583 in marital debt, for a total award of $11,417.
¶12   The District Court ordered Ricky to pay maintenance to Annette

in the amount of $1,500 per month for a period of four years.                  The

court found that Annette was 47 years old and in good health.                     It
found that she had considerable work experience and is capable of

working full time.         The court also found that she had recently

obtained employment in which she would earn $1,048 per month net.

The court stated that “after four years [Annette] should be self

supporting.”

¶13   Annette     does   not   contest       the   net   worth    valuation,   the

distribution of assets, or the amount of maintenance awarded.                  She
does contest, however, the District Court’s limitation on the

duration of maintenance.
                                 DISCUSSION

¶14   Did   the   District     Court   err     when      it   granted   Annette   a

maintenance award of $1,500 per month for four years following
dissolution?
¶15   The standard of review for maintenance awards is whether the

district court’s findings are clearly erroneous.                 In re Marriage of
Smith (1995), 270 Mont. 263, 269, 891 P.2d 522, 526.                    The amount

and period of maintenance must be determined in accordance with §

40-4-203(2), MCA.        The factors to be considered are:

           (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


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      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 the physical health 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.

¶16   On   appeal,   Annette   argues    that   the   District   Court’s

determination that she would be able to support herself in a manner

similar to that enjoyed during the marriage within four years from
the date of trial is not supported by the record.         She maintains

that any assumption that she would be able to replace the monthly

maintenance with earnings or return to a management position “was

based upon speculation and hope.”       Annette contends that Ricky has

a superior ability to acquire wealth in the future to meet his own
needs and provide permanent maintenance to her.          Citing several
cases in which permanent maintenance was awarded, including Bowman

v. Bowman (1981), 194 Mont. 233, 633 P.2d 1198, Annette insists

that the District Court should have awarded permanent maintenance

in this case.
¶17   Ricky disagrees.     While he concedes that maintenance is

necessary, he disputes that Annette requires permanent maintenance.
 He contends that the evidence showed that both parties had the

same level of education, were the same age and in good health.        He

claims that Annette, through her excellent job skills in computer

operation, office management and bookkeeping, had in the past



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accepted positions and rapidly advanced to management level.                       He

faults Annette for failing to give the District Court a plan for

further education or job training.                    He emphasizes that while
Annette left the marriage debt free, Ricky left the marriage with

all of the marital debt, very little equity, a good although

tenuous      job   and    a   maintenance       obligation.           Under     these

circumstances, Ricky claims that the District Court appropriately

determined that four years of maintenance would allow Annette to

become adequately employed to support herself.
¶18   After    considering     the   evidence     and       the   District    Court’s

written and oral findings, we conclude that the District Court
properly considered each of the factors under § 40-4-203(2), MCA,

and   that    substantial     evidence       exists    to   support    the    court’s
findings.      The court noted that the parties had a long-term

marriage.      The court reviewed Annette’s and Ricky’s financial

resources and found that Annette received the bulk of the marital

property, including the equity in the family home and Ricky’s
retirement account, and that she left the marriage with no debt.
Nevertheless, the court found that Annette’s current employment was

insufficient to meet her needs in light of the parties’ standard of

living    during    the   marriage    and,       consequently,        an   award   of

maintenance was appropriate.         Given the distribution of the marital
estate as well as Annette’s relatively young age, good health, work

history and skills and abilities, the court found that in four
years Annette could acquire sufficient job training and employment

to enable her to become self-supporting and increase her standard



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of living.    The court found that Ricky had the potential for higher

earnings in the new Idaho market and that he could, while living

frugally, meet his needs as well as the maintenance obligation.
¶19   Moreover, the cases Annette cites supporting the award of

permanent maintenance are inapposite.      In Bowman, the appellant

wife had primarily worked as a homemaker during the marriage.
Bowman, 194 Mont. at 235, 633 P.2d at 1199.     She attended college

courses to obtain a degree in economics but had not completed her

degree at the time of the dissolution.    The District Court awarded

her maintenance in the amount of $1,500 per month to terminate in

two years on her graduation date.      Bowman, 194 Mont. at 235, 633
P.2d at 1199.

¶20   We reversed.     In doing so, we quoted extensively from the

testimony of a career planning and placement counselor who stated
that the appellant, as an older woman with a college degree

entering the labor market for the first time, would face a very
competitive job market.     Bowman, 194 Mont. at 238-39, 633 P.2d at

1201-02.     In addition, we considered the fact that the parties had

achieved a relatively high standard of living during the marriage.

 Bowman, 194 Mont. at 239, 633 P.2d at 1202.
¶21   Here, there was no similar testimony that Annette would not be

able to obtain sufficient full-time employment.         In addition,
unlike the appellant in Bowman, Annette is not entering the labor

market for the first time.    Indeed, she has worked in several part-

time and full-time positions, including a management position at a

computer company.     Furthermore, unlike the situation in Bowman,



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Annette described the parties’ standard of living as middle class.

 Finally, we have approved awards of temporary maintenance where

petitioners received greater portions of the marital estate.           See
In re Marriage of Herman (1990), 245 Mont. 451, 802 P.2d 623.

Accordingly, under the facts of this case, we cannot conclude that

Bowman is controlling.

¶22     The other cases Annette relies upon are also distinguishable.

 See In re Marriage of Edwards (1985), 215 Mont. 512, 699 P.2d 67

(wife     awarded    permanent    maintenance   when   evidence   supported
conclusion that wife could earn only $200 per month); Marriage of

Cromwell (1979), 180 Mont. 40, 588 P.2d 1010 (wife trained as nurse

awarded permanent maintenance when she was not awarded any of

tenured professor’s substantial retirement account and testimony

established the competitiveness in the nursing field).
¶23     We have recognized that district courts face a considerable

task in determining a maintenance award.         Herman, 245 Mont. at 454,
802 P.2d at 625.      We have also stated     that, in the final analysis,

it is not a question of whether we could be persuaded to reach a

different conclusion after considering the same evidence.           Rather,
the test is whether the district court had adequate evidence to

support its conclusions.         In re Marriage of Bross (1993), 256 Mont.
174, 179, 845 P.2d 728, 730-31.            Here, we hold that the court’s

findings are supported by substantial evidence and are not clearly

erroneous.

¶24     We affirm.


                                                /S/ W. WILLIAM LEAPHART

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We concur:


/S/   KARLA M. GRAY
/S/   JIM REGNIER
/S/   TERRY N. TRIEWEILER
/S/   PATRICIA COTTER
/S/   JAMES C. NELSON
/S/   JIM RICE




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