97-437




                                                                          No. 97-437

                                           IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                                          1998 MT 69N



                                                             IN RE THE MARRIAGE OF

                                                                 LINDA LEE PULVER,

                                                                  Petitioner and Respondent,

                                                                                     and

                                                            STANLEY DELANO PULVER,

                                                                   Respondent and Appellant.




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


                                                                COUNSEL OF RECORD:

                                                                              For Appellant:

                                          George T. Radovich, Attorney at Law, Billings, Montana

                                                                             For Respondent:

                                          Jill Deann LaRance, Attorney at Law, Billings, Montana




                                                                           Submitted on Briefs: March 19, 1998

                                                                            Decided:               March 31, 1998
                                                                            Filed:


                                                      __________________________________________
                                                                        Clerk

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 97-437



                  Justice W. William Leaphart delivered the Opinion of the Court.


      ¶1   Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996
 Internal Operating Rules, the following decision shall not be cited as precedent
    but shall be filed as a public document with the Clerk of the Supreme Court
  and shall be reported by case title, Supreme Court cause number, and result to
     the State Reporter Publishing Company and to West Group in the quarterly
                  table of noncitable cases issued by this Court.

¶2   Stanley Delano Pulver (Stan) appeals from the decision of the
Thirteenth Judicial District Court, Yellowstone County, dissolving the parties'
marriage and distributing the marital property. Linda Lee Pulver (Linda)
petitioned for dissolution of the Pulvers' marriage. In distributing the marital
property, the District Court awarded the Pulvers' home to Linda in lieu of
maintenance and awarded Stan his retirement and workers' compensation
benefits. Stan appeals to this Court seeking sale of the home and a percentage
of the proceeds. We affirm.
                       Background

¶3   Linda and Stan married in Ranchester, Wyoming in 1986. There is no
issue of the marriage. The parties separated in 1996 and thereafter sought a
dissolution of their marriage. Linda works as a manager trainee at Holiday
Station Stores. Linda nets approximately $960 per month. Stan receives
retirement and workers' compensation benefits approximating $2,900 per
month. The Pulvers own a home and various other assets. The home, valued
at $78,000, constituted approximately 75% of the parties' assets which totaled
$100,531 and approximately 91% of their liabilities which totaled $47,748
($43,700 of which is represented by the home mortgage).

¶4   The District Court determined that Linda's monthly liabilities exceed
her income and thus, based on the marital standard of living and Stan's ability
to pay, awarded maintenance. In lieu of monthly maintenance payments, the
court awarded the home to Linda. Stan appeals to this Court asserting that the
District Court failed to consider Linda's ability to increase her income, and the
fact that Stan's permanent disability prohibits him from increasing his income.
In addition, Stan maintains that the court did not take into consideration his
monthly medical expenses. The sole issue on appeal is whether the District
Court erred in distributing the marital estate pursuant to   40-4-202, MCA.
                       Discussion

¶5   The standard of review of a District Court's division of marital property
is whether the District Court's findings are clearly erroneous. In re Marriage
of Hogstad (1996), 275 Mont. 489, 496, 914 P.2d 584, 588. If substantial
evidence supports the District Court's judgment, it will not be disturbed absent
an abuse of discretion. Marriage of Hogstad, 914 P.2d at 588. Section 40-4-202,
MCA, provides that the court apportion property based on a series of
factors. The factors include the age, health, station, occupation, amount and
sources of income, vocational skills, employability, estate, liabilities and needs

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of each of the parties. In addition, the court should consider 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. Section 40-4-202,
MCA. The District Court's findings regarding the distribution of property are
not clearly erroneous.


¶6   Stan asserts that the District Court failed to consider certain facts and
as a result, the property distribution is inequitable. However, the District
Court's findings of fact and conclusions of law clearly show that the court
considered all relevant factors in distributing the marital property.


¶7   The District Court considered the fact that Stan was not employable at
the time of trial and that, although Linda was employed in a manager training
program that could result in an advanced position and income, her current
income was insufficient for Linda to support herself. Thus, the District Court
considered the future opportunities of the parties in compliance with   40-4-202,
MCA. In addition, the District Court considered Stan's monthly medical
bills, which the court valued at approximately $400 per month. However, the
District Court determined that, despite the stagnate nature of Stan's income and
his monthly medical obligations, a disproportionate division of property was
appropriate in this case.

¶8   The District Court found that Stan was being dishonest with regard to
his income and had depleted the marital assets. In reviewing the financial
records of Stan, the court found that Stan had the ability to pay maintenance.
 In lieu of maintenance, the District Court awarded the home to Linda. The
District Court did not abuse its discretion in awarding the home in lieu of
maintenance. Affirmed.

                                                             /S/       W. WILLIAM LEAPHART


We concur:

/S/       J. A. TURNAGE
/S/       JIM REGNIER
/S/       JAMES C. NELSON
/S/       TERRY N. TRIEWEILER




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