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                                                                 No. 99-012

                           IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                              1999 MT 242N




IN RE THE MARRIAGE OF

SCOTT E. MEYERS,

Petitioner and Appellant,

and

DIANA L. MEYERS,

Respondent and Respondent.




                                                           APPEAL FROM: District Court of the Twelfth Judicial
                                                           District,

In and for the County of Hill,

The Honorable John Warner, Judge presiding.




COUNSEL OF RECORD:

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For Appellant:

Daniel A. Boucher; Altman & Boucher, Havre, Montana

For Respondent:

Diana Lachman Meyers, Pro Se, Havre, Montana




                                                                                                 Submitted on Briefs: June 17, 1999

                                                                                                             Decided: October 14, 1999

Filed:




__________________________________________

Clerk

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




¶ 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.

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¶ Scott E. Meyers (Scott) appeals from the decision of the District Court for the
Twelfth Judicial District, Hill County, dissolving his marriage to Diana L. Meyers
(Diana), distributing the marital property, and awarding maintenance to Diana. This
Court dismissed Diana’s cross-appeal because notice of cross-appeal was not timely
filed. We affirm in part and reverse and remand in part.

                                                                    Issues

¶ 1. Did the District Court err in awarding Diana half of the equity in the Havre
house?

¶ 2. Did the District Court err in holding Scott responsible for the mortgage,
insurance, and tax payments while Diana occupies the Havre house until August
2000?

¶ 3. Did the District Court err in awarding maintenance to Diana until December
2000?

¶ Because Diana’s cross-appeal was dismissed, we are precluded from addressing the
issues she raises in her respondent’s brief to the extent they constitute a cross-appeal.



                                                        Standard of Review

¶ The standard of review of a district court's division of marital property is whether
the court's findings of fact are clearly erroneous. If substantial credible evidence
supports the court's findings and judgment, this Court will not change the district
court's decision unless the court abused its discretion. See In re Marriage of Smith
(1995), 270 Mont. 263, 267-68, 891 P.2d 522, 525 (citation omitted).

¶ The standard of review for maintenance awards is whether the district court's
findings are clearly erroneous. See In re Marriage of Smith (1995), 270 Mont. 263,
269, 891 P.2d 522, 526 (citations omitted).

                                                               Background


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¶ Scott and Diana were married in Havre, Montana in 1991. Shortly before the
marriage, Scott purchased a house in Havre (Havre house) with a $20,000
downpayment gifted to him by his family. Scott and Diana separated and Scott
petitioned for dissolution of their marriage in 1997. After a trial, the District Court
issued its findings of fact, conclusions of law, and decree. Scott appeals from the
portions of the District Court’s decree awarding Diana half of the equity in the
Havre house, holding Scott responsible for the mortgage, insurance, and tax
payments while Diana occupies the house until August 2000, and awarding
maintenance to Diana until December 2000.

                                                                Discussion

¶ 1. Did the District Court err in awarding Diana half of the equity in the Havre
house?

¶ The District Court found that the total equity in the Havre house amounted to
$25,000, which reflected Scott’s initial downpayment of $20,000 and the mortgage
payments made since the purchase of the house. The value of the house had not
increased during the parties’ marriage. The District Court awarded Diana $12,500 of
the equity in the Havre house.

¶ The distribution of property is governed by § 40-4-202, MCA, which provides in
pertinent part:

                   (1) In dividing property acquired prior to the marriage; property acquired by
                   gift, bequest, devise, or descent; . . . the court shall consider those
                   contributions of the other spouse to the marriage, including:

                   (a) the nonmonetary contribution of a homemaker; (b) the extent to which
                   such contributions have facilitated the maintenance of this property; and (c)
                   whether or not the property division serves as an alternative to maintenance
                   arrangements.

Interpreting this statute, we have held that "preacquired or gifted property need not be
included in the marital estate unless the nonacquiring spouse contributed to its
preservation or appreciation." In re Marriage of Engen, 1998 MT 153, ¶ 29, 289 Mont.
299, ¶ 29, 961 P.2d 738, ¶ 29. We have also held that if gifted or preacquired assets have


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not appreciated during a marriage, their value at the dissolution of the marriage cannot be
considered a contribution from the marital effort. See In re Marriage of Balsam (1979),
180 Mont. 129, 134, 589 P.2d 652, 654; In re Marriage of Goodman (1986), 222 Mont.
446, 449, 723 P.2d 219, 221.

¶ Here, the District Court found that Scott and Diana should share equally in the
equity of the Havre house because they had lived together as a family and therefore
had to have contributed to each other’s material needs. While that may be true,
$20,000 of the house’s equity is Scott’s separate property and cannot be considered a
product of Diana’s contribution to the marriage because the house did not appreciate
in value during the marriage. The $5,000 of additional equity, however, can be
considered a product of Diana’s contribution to the marriage to the extent it
accumulated during the marriage. Scott and Diana should thus share equally in that
portion of the house’s equity accumulated during their marriage.

¶ Under § 40-4-202, MCA, and our case law interpreting that statute, we determine
that Diana was only entitled to half of the $5,000 equity in the Havre house to the
extent it was accumulated during the marriage. We therefore hold that the District
Court erred in awarding Diana half of the entire $25,000 equity in the house. We
reverse on this issue.

¶ 2. Did the District Court err in holding Scott responsible for the mortgage,
insurance, and tax payments while Diana occupies the Havre house until August
2000?

¶ Scott argues that by holding him responsible for the mortgage, insurance, and tax
payments on the Havre house while Diana occupies it, the District Court
impermissibly created an interest in property where none existed and then
distributed the nonexistent property. Scott bases this argument on the assertion that
the court labeled this financial obligation a part of the disposition of the marital
estate. In actuality, the District Court labeled Diana’s two-year estate in the Havre
house a part of the disposition of the marital estate, distinguishing it from an award
of maintenance.

¶ Scott’s responsibility for the mortgage, insurance, and tax payments is not part of
the distribution of the marital estate, but merely his preexisting and continuing
obligation to maintain his property. Especially in light of our holding that Diana is


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only entitled to half of the house’s equity accumulated during the marriage, Scott’s
financial obligation does not constitute a division of property or payment for Diana’s
benefit. Scott is responsible for the mortgage, insurance, and tax payments to
preserve his interest in the property.

¶ We hold that the District Court properly determined and correctly concluded that
Scott should be responsible for the mortgage, insurance, and tax payments on the
Havre house while Diana resides therein until August 2000.

¶ 3. Did the District Court err in awarding maintenance to Diana until December
2000?

¶ Diana holds a Bachelor and a Master of Science in Nursing and had been steadily
employed in that field since 1974. In 1997 she was discharged from her most recent
position. She is licensed as a registered nurse in Montana. The District Court found
that Diana is capable of earning at least $35,000 per year. The District Court
nevertheless awarded Diana temporary maintenance until December 2000 because it
would take her "some time to find appropriate employment." The maintenance
payments were set to begin at $800 monthly, decrease to $600 in January 1998, and
further decrease to $300 in September 2000.

¶ Section 40-4-203, MCA, governing maintenance, provides in pertinent part:

                   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 or is the
                   custodian of a child whose condition or circumstances make it appropriate
                   that the custodian not be required to seek employment outside the home.

An award of maintenance is dependent upon satisfying the threshold requirements under
§ 40-4-203(1), MCA, that Diana lacks sufficient property to provide for her reasonable
needs and is unable to support herself through appropriate employment. See, e.g., In re
Marriage of Doolittle (1994), 265 Mont. 168, 172, 875 P.2d 331, 334.


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¶ In this case, the threshold requirement that Diana is unable to support herself
through appropriate employment has not been satisfied. The District Court found
that Diana would presently be able to work in the nursing profession. While Diana
may be reluctant to leave Havre, the record shows that Diana is highly qualified in
the field of nursing and is presently capable of obtaining appropriate employment.
The District Court’s award of temporary maintenance because it will take Diana
some time to find appropriate employment does not satisfy the threshold
requirements under § 40-4-203(1), MCA, and finds no support in the record. Diana
had been unemployed for fourteen months prior to the trial. She claims that she is
unable to obtain appropriate employment in Havre and the surrounding areas
because of the lack of jobs in the area and because she has been ostracized by the
employment community in response to a wrongful discharge suit she has filed against
a former employer. If Diana’s characterizations of her employability in Havre are
accurate, over two years of maintenance payments will not assist Diana in procuring
employment in Havre. The District Court found that Diana was presently capable of
working in the nursing profession and supporting herself. The court’s award of
maintenance was clearly erroneous because the threshold requirement under § 40-4-
203(1)(b), MCA, that Diana is unable to support herself through appropriate
employment, has not been satisfied.

¶ Under § 40-4-203, MCA, we determine that an award of maintenance is not
appropriate because Diana is able to support herself. We hold that the District Court
erred in ordering Scott to pay maintenance to Diana until December 2000.

¶ Affirmed in part, reversed in part and remanded to the District Court for further
proceedings consistent with this Opinion.



/S/ W. WILLIAM LEAPHART

We concur:

/S/ J. A. TURNAGE

/S/ JIM REGNIER



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/S/ WILLIAM E. HUNT, SR.

/S/ JAMES C. NELSON

/S/ TERRY N. TRIEWEILER

/S/ KARLA M. GRAY




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