                                                  NO.      96-097
                   IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                          1996

DANIEL        J.   ELLIS,
                   Respondent         and Appellant,
         v.
MILDRED A.          ELLIS,                                                  ii\&   2 2 .pj$$

                   Petitioner         and Respondent.




APPEAL FROM:                District  Court of the Thirteenth   Judicial                       District,
                            In and for the County of Yellowstone!
                            The Honorable   Diane Bars,   Judge presiding.


COUNSEL OF RECORD:
                   For   Appellant:
                            Gerald     J.     Neely,       Billings,     Montana
                   For   Respondent:
                            Joanne     M. Briese,            Billings,    Montana
                                         i

          me 3 g                            ,..            Submitted     on Briefs:                        1996
          “*,.$ L$ “?                       c.                                             May 3,
          h-.-     k f%d                                                   Decided:       August           22,    1996
Filed:             b,G$ 2 2 1996             1
                         ,-,  I)                    8-l



                                                        Cl&k
Justice         William                 E. Hunt,             Sr.       delivered                  the      Opinion              of       the     Court.

          Appellant,                Daniel             J. Ellis                (Daniel),             appeals              from        the       Findings
of     Fact         and Conclusions                         of      Law entered                    on September                      21,        1995,          by

the      Thirteenth                     Judicial                 District              Court             of       Yellowstone                    County,

awarding            his      former            wife,         Mildred                A. Ellis,            permanent                 maintenance.

          We affirm.

          The        sole          issue             raised              by         Daniel          is        whether                the        District

Court's             decision                  to     award             permanent                  maintenance                      was         based           on
substantial                 evidence.

                                                                           FACTS

          Daniel            and Mildred                    were        married               in     1977.               There        are        no minor
children             of      the        marriage.                   At        the      time         of        trial,          Mildred                was       47

years         old         and      in      good           health              except          for        a chronic                   back        problem

which         precludes                 her        from      standing                for      long         periods.                  For        the     past

8 years,            Mildred              has worked                  for       Herberger's                     Department                  Store.              In
1994      Mildred                earned            $13,761.98.                       Daniel             has       been        a federal                 meat

inspector             for        the past              23 years               for     the         United          States           Department                  of

Agriculture.                     He earned                  $39,194.21                  in        1994.            In      addition,                  Daniel

traditionally                    receives              a pay raise                    after         the         first         of      the       year       and

also      receives               overtime                 pay..
          Mildred                testified                 that          her          monthly              living             expenses                 total

$1,463.50.                  This          amount            includes                 payment             on debts               incurred               as of

1995        totalliny               $7,846.06.                       Mildred               testified                   that        her         estimated

monthly         expenses                 exceed           her net             monthly             income          by $581.90.                    Mildred

testified                 that          she        would          be        unable           to      find              additional                work          to

supplement                 her     current                income            because           her        employer               does           not     allow

                                                                                2
its      employees              to    work           for      its        competitors.                           Outside          of          a retail
position,              Mildred         testified                  that         it     would            be difficult                    for      her         to
coordinate              the      hours         of     an additional                          job.

          In      an affidavit                     supplied              prior             to       trial,           Daniel           listed           his

gross       pay as $2,697.60                        per month.                      In addition                 to     state      and federal
taxes,           Daniel          listed             several              other              itemized                 deductions                to      his

paycheck.               Daniel         stated              that      his        personal                 expenses            were       $2,111.42

per     month.

          Although             Daniel          was not              present                at      the       June       1995 hearing,                       he

offered          testimony            through               deposition                and was represented                              by counsel
during           the      proceedings.                       After             the         hearing,              the        District                Court

dissolved              the      marriage              and         distributed                      the       marital           assets.                 The

court       determined               Mildred               was eligible                      for       maintenance                and awarded

her      $500.00          per        month          from          the      date         of       entry          of     the       decree             until

she dies           or     remarries.

          Daniel          appeals.

                                                      STANDARD OF REVIEW

          This          Court        will           not       reverse                the        district               court's           award              of

maintenance               unless            the      court's             findings                  are       clearly           erroneous.                   In

re Marriage               of     Davies              (1994),             266 Mont.                  466,        478,         880 P.Zd               1368,

1376;       In     re Marriage                 of     Smith             (1995),             270 Mont.                263,      269,          891 P.2d

522,      526.
          When          determining                  whether               a        district                 court's            findings                are

clearly           erroneous,                this      Court          has adopted                     a three-part                test.              In re

Marriage           of Eschenbacher                         (1992),          253 Mont.                    139,        142,      831 P.2d             1353,

1355.

                                                                            3
            First,     the Court will             review      the record       to see if the
            findings       are supported          by substantial         evidence.       Second,
            if the findings          are supported          by substantial        evidence,     we
            will    determine       if the trial          court    has misapprehended         the
            effect     of the evidence.               Third,     if substantial        evidence
            exists      and the        effect       of the        evidence      has not     been
            misapprehended          the Court may still             find that a finding         is
            clearly     erroneous        when, although          the evidence       is there to
            support      it,   a review       of the record          leaves    the court    with
            the definite        and firm        conviction        that a mistake        has been
            committed.        (citations         omitted).


Eschenbacher,                    831       P.2d          at     1355            (citing           Interstate               Prod.          Credit

Ass'n         v.     DeSaye            (1991),           250 Mont.                   320,       323,     820 P.2d           1285,         1287).

                                                                DISCUSSION

            On appeal,             Daniel             argues         there           was not           substantial              evidence           to

support          the      District              Court's             decision            to award Mildred                    maintenance.

First,           he contends                   that       Mildred               is     not       entitled            to     maintenance.
Second,            he contends                 that      he is         financially                 unable         to pay the              amount

ordered            by the         District               Court.

            When determining                      whether              to    award maintenance,                           the    court       must
initially              determine                  if          the       spouse              requesting                 maintenance                 is

eligible.                 In     making           this         determination,                      the      district            court        must

consider            the        statutory              provisions                of     § 40-4-203,               MCA, which             read       in

part        as follows:

            40-4-203.            Maintenance.          (1)    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
             [or her] reasonable            needs;   and
                     (b)    is    unable      to   support      himself     [or  herself1
            through      appropriate        employment      . . . .


            In Daniel's                first           argument,            he contends                  that     Mildred          will        only

be       short       on monthly                  funds         until            such        a    time       as    she       pays      off       her

                                                                            4
existing             debts.             After            paying          her debts,                  Mildred's              monthly              expenses
will     be reduced                    to     $1,x76.50.                   Furthermore,                      Daniel          argues              that        the
court       improperly                     considered                debts         incurred             by Mildred                  following                the

separation                  of         the         parties.                 Daniel               asserts              that              $4,399.41              of

Mildred's              current               debt         was payment                    for      a wedding                 for         her      son        from
a previous               marriage.                       This          leaves           only         $3,476.65               attributable                      to

Mildred's                living               expenses.                      In         addition,                  Daniel               asserts              the

$3,000.00              loan           from         her      other         son should                  not      be considered                         for     the

purpose          of determining                          maintenance                   because           the       loan       has no specific

due date,              repayment                    schedule,              or applicable                       interest.
           To award               maintenance                     the      court           must        find          the     eligible                 spouse

lacks       sufficient                      property              to     support               him     or      herself              and is            unable

to     support           him           or     herself             through               appropriate                   employment.                          Here,

Daniel          is      not           contesting                  the      fact          that         Mildred               lacks             sufficient
property             to support                    herself.              Daniel            argues           that       if     the         court            would

have properly                     considered                   the      duration               of Mildred's                   existing                debts,
Mildred              would            be     able         to       support               herself.                  Thus,           her          situation

would       not        satisfy               this        second          prong           of the         statute.                   It     is     Daniel's

position             that         the        disputed              personal               loans         add $159.00                     per      month         to

Mildred's              living               expenses,                "which           when that               amount          is         added        to      her

$153.17           per        month            deficient                  [sic]          found          by      the      Court,                Respondent

Wife       is     able           to    provide              for        herself."                 Contrary             to      this            assertion,

however,              no where                in      the       court's               findings           or      conclusions                     is        there

a reference                  to        Mildred's                $153.17               deficit.               Here,          the         court,             after

considering                  Mildred's                   tax      obligations,                       found       Mildred's                     net     income

was      $881.60                 per        month.                The      court           then         found          Mildred's                     monthly


                                                                                  5
living       expenses                   to be $1,463.50.                        This       leaves             Mildred             $581.90               short
every      month.                 Even          if    the        court        had chosen                not     to        consider                amounts
Mildred       is        currently                    spending            to discharge               her debts,                    including                 the

$159.00           in        payments                 disputed             by        Daniel,             Mildred's                    income             still

falls       short            of      her        monthly             expenses.

          Upon         review              of        the        record,          the       evidence                 supports                a finding

that       Mildred                both           lacks           sufficient               property              to        provide                 for       her

needs       and         that            she          would         be     unable           to       support                   herself             through

employment.                         Therefore,                     the        District              Court             was             not         clearly

erroneous              in     determining                       that     Mildred           is     eligible                for        maintenance.

          Next,              after              determining                   that         a       spouse                is       eligible                      for

maintenance,                      the      trial            court         must       then         engage             in        an analysis                       to

determine              the        amount             and duration                   of maintenance                    pursuant                   to     S 40-

4-203(2).              On appeal,                    Daniel's             second          argument             is        that         the        District

Court       erred            in      failing               to     consider           his        ability             to        pay       the       ordered

maintenance.                       Daniel             asserts            that        he is         already                $18.12             short          per

month,       and therefore                           he would            be unable                to pay maintenance                              awarded

by the       court.

          Under             the      statute,               Daniel's            ability            to     pay        is        only         one of              the

several        relevant                  factors                that      a court          will         consider                in      determining

an award           of        maintenance.                         The applicable                    statute               reads             in    part           as

follows:

            (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,
           including       the extent      to which a provision         for support       of
                                                                                6
          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         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.


Section          40-4-203(2),                   MCA.

          Here,         the         court      addressed                many of            the      above        listed           criteria            in

its      findings.                   The      court          considered                    Mildred's             limited             financial

resources,              finding              that      she had no income                           producing              property.                The
court          also      considered                  Mildred's                prospects                for      future           employment.

But,      the         court         determined               that           even         with      retraining               or     additional

education,               Mildred             would          face            the     prospect             of      taking           on a large

student           loan         debt         only       to        enter            the     job      market           after         she        was      50
years      old.          In addition,                  the        court            noted        that     Mildred's                standard            of

living          had diminished                      since         the        separation.

          The          court            also          considered                        Daniel's              ability              to        afford

maintenance                   for      Mildred.                  The        court          found        that        Daniel's            monthly

expenses              were      approximately                     $948.00               with      an additional                   $286.41          for

a car          payment.               After          expenses,                the         court        determined                that        Daniel

had      an excess                  monthly          income            of     $1,133.02.                     From       this,        the      court

determined               that         Daniel          was financially                           able     to pay           $500 per            month

as permanent                   maintenance                  to    Mildred.

          Daniel             asserts           that         the     court               was incorrect.                    He argues             that

his      net     pay is             closer          to $2,093               per     month.             He further                asserts        that
                                                                              7
his         monthly                 expenses                are            far          mc~re than                   the           court's               estimate,

averaging                 $2,111.42                  per         month.
             The disparity                         between            Daniel's                    numbers            and the               court's             numbers

is     explained                    in      part          by way of                     other            court          findings.                  In      Daniel's

estimation                     of          his           monthly                  expenses,                    he       includes                   substantial
payments                 he         is       making              on        various                  credit              cards.                    But,          as    the
District                Court            found           and as Daniel                           does not            dispute,               he charges                all

of     his     travel                expenses               as a.meat                       inspector               on his            credit             cards        and

is         subsequently                      reimbursed                     by          his        employer.                       On appeal,                   Daniel
extends                 this         argument               and            asserts                 that          the        court            is      implicitly

finding             that         his         travel             reimbursements                            exceed           his        credit             payments,
and that                 the        court           is      imputing                    to        him     non-existent                       income             in    its

determination.                             This          assertion                 misses               the     point.               Debts          incurred              in

the          course              and          scope              of         Daniel's                     employment                      which            are        then

subsequently                     assumed                 by his            employer                 cannot           be attributed                        to him as

monthly             expenses.                       Therefore,                     we conclude                      that          Daniel's                assertion

that         the        District                 Court       in       some way ignored                               his          ability           to meet           his

own needs                  and pay                 maintenance                     is        not        supported                 by the            record.

             Daniel's                    ability           to     pay             is        only         one        factor            to     be taken                into

consideration.                             As we have                 stated                 before,            the        ability            of         the    spouse

to     pay         is      not           a deciding               factor                    in     determining                     the      propriety                of     a

maintenance                    award,               "[wlhile                it         is        an element,                 it      is     not         always        the

determining                      factor."                   In        re         Marriage                of     Tahija               (1992),              253 Mont.

505,         510,          833 P.2d                 1095,         1098.                     Instead,             this         Court           has held               that

findings                  must            demonstrate                      that              the        court           considered                   the         proper

factors                 and      that              the     maintenance                           award          was based                   on      substantial


                                                                                            8




       -
credible        evidence.                In re Marriage              of   Corey    (1994),      266 Mont.          304,
309,      880 P.2d          824,     827.
          We conclude              that      the      District            Court    considered          the      proper

factors       and its           maintenance           award was based             on substantial             credible

evidence;        the    District            Court's       findings          were not     clearly       erroneous.

Therefore,             we       affirm        the      court's            calculations          and      award          of
maintenance.

          Affirmed.



                                                                                             Justlce
We Copcur:                  /




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