*1
ERNST,
OF SUSAN RIDGEWAY
the MARRIAGE
re
ERNST,
and LENNIE RAY
Appellant,
Petitioner
Respondent
Appellant.
88-553.
No.
5,May
Submitted
1990.
May
Decided
Rehearing
on Denial of
June
As Modified
Joan Meyer Mickelson, Whitney, Billings, Jo & Dorsey respondent appellant. *3 HUNT delivered the of the Court. Opinion
JUSTICE action, Ernst, from in a Lennie Ray appeals The husband dissolution District, Judith of the District Court of the Tenth Judicial judgment to the him to maintenance Basin which ordered County, pay Ernst. We affirm and Susan Ridgeway wife and cross-appellant, dismiss the cross-appeal. are:
The issues raised on appeal Court with (1) Whether the District properly complied MCA, the wife 40-4-203(2), awarding of sec. by requirements educational expenses, in the form of monthly payments, maintenance costs. psychotherapy $30,000.00 of wife in the distribution (2) an award of to the Whether was a clear abuse of discretion. the District Court by Nos. findings the District Court’s (3) findings, particularly Whether 10, 15, are erroneous. 11 and over has the wife’s
(4) cross-appeal. Whether this Court jurisdiction Ernst, husband, Ernst, wife, Ray and Lennie Susan Ridgeway Stanford, were married 11 Montana, in in 1976 were married March, Two children were in 1987. to their prior years separation 29, Ernst, on July born Jean who was Ashley born of this marriage: 29, Ernst, At who was born on 1984. 1982, August Jacob and Brandon old and the wife was years and the husband separated, the time wife husband was old. years of their the wife and husband resided During majority marriage, on the Ernst farm located south of Stanford. The family husband has farm it into a worked family developed enterprise. profitable wife, class, The who had been of her high valedictorian school one obtained secretarial and had worked outside the year training home the first The wife her in during years marriage. quit job her first and has not worked since during outside home pregnancy that time. their
During there were times when the husband marriage, was abusive to the wife. physically The these incidents majority years occurred the first few It was during marriage. common that these incidents were alcohol use. husband’s precipitated husband has been as diagnosed from an alcohol suffering episodic abuse disorder and from intermittent explosive personality disorder.
The wife has been from recently diagnosed suffering a paranoid mental disorder. the wife was During marriage, suffering affects this disorder. 24,
The wife filed for dissolution A five trial April day 1988, held in on the February, issues of custody, division and maintenance. testimony both Expert presented regarding parties’ mental disorders. was also offered Expert testimony effects abuse May the wife’s syndrome. mental disorder resulted the District Court the wife to the committing Montana, Montana Deaconess Medical Center for a Billings, 1, 1988, evaluation. On 30-day the court entered its July findings fact and A conclusions law. motion of fact modify findings was filed the wife on July husband contested this and, therefore, motion to filed a modify upon jurisdictional grounds notice of 1988. The court ruled on the wife’s appeal August motion on day and the next entered-the final September Decree of Dissolution. decree, husband filed motion to the final amend pursuant *4 M.R.Civ.P., 26,
Rule Before the District 59(g), September 1988. motion, the Court had ruled on husband’s the filed a notice of wife 12, of This notice was filed on October 1988. The court appeal. appeal 7, the ruled husband’s motion on November 1988. subsequently upon The husband filed his notice second of on December appeal first issue whether District Court appeal properly MCA, 40-4-203, with the of sec. complied requirements by awarding 118 $800.00, monthly
the wife maintenance the form of payments to a educational bachelor’s expenses pursue degree, psychothera- costs. py an of maintenance is standard of review for award appropriate 40-4-203, at MCA. In re the Marriage
established statute sec. See Barnard, re 147,] (1990); Mont. P.2d 785 [241 Lundvall, 172,] (1990). 786 P.2d An Marriage [241 award of maintenance is court premised finding by upon “lacks sufficient to individual maintenance seeking property provide needs; to reasonable and is unable himself through his support 40-4-203(l)(a)(b), MCA. The Section appropriate employment.” District Court in this case made such a The court must then finding. award of determining consider all relevant facts in appropriate 40-4-203(2), MCA. Some of the relevant facts maintenance. Section to be considered include: maintenance,
“(a) seeking the financial resources party him, to to meet marital and his ability including property apportioned extent his to which a including needs independently, provision with the includes a sum for that as living party party of child support custodian;
“(b) sufficient education or necessary acquire training the time enable find seeking maintenance to employment; party appropriate
“(c) the marriage; the standard established living during “(d) the duration of marriage;
“(e) condition of the emotional age spouse maintenance; and seeking
“(f) the whom maintenance is ability sought meet mainten- his needs while those of meeting spouse seeking ance.” 40-4-203(2),
Section MCA. each of these relevant A the court finding by specific information considered required proper facts is not as the court long substantial upon these facts and based its decision addressing Cole, P.2d In re 234 Mont. Marriage credible evidence. relevant facts are to be court as a (1988). These considered Cole, final maintenance whole in the determination award. P.2d at credible evidence to the District
There is substantial $800.00 maintenance award to the wife. Court’s monthly Cole, division.” “Maintenance supplement payments income is produce at 42. ability *5 determination an of the essential consideration in the appropriateness Cole; In of a maintenance award. See re the generally Marriage of Bowman, [_Mont. _,] 38 St.Rep. (Mont. At the of both the husband was all 1981). request parties, given which included the farm and all of income-producing property, result, wife its assets and liabilities. As a accompanying given house, of a and a remaining primarily property consisting furnishings car. All of the wife’s is in that it income-consuming property property fact, will not be able to income for the wife. In produce property will or eventually require repair depleting replacement thereby wife’s settlement. $30,000.00 the wife was allotted court
Although by the which at some time could be invested the wife and become thereby this amount will not come due another six income-producing, for meantime, In years. wife has no means She has had support. little or in education the work she experience Additionally, force. is a mental suffering from disorder which could make reasonably it difficult for her to secure a at this time. The job only evidence submitted to court regarding an award appropriate monthly she, maintenance was the uncontradicted statement wife that $2,000.00 husband children spent approximately per month still living while with husband. In to the expenses living addition wife, the maintenance award must also when the support children facts, wife partakes her liberal visitation rights. these $800.00 month not an is unreasonable sum for the maintenance of per a household.
There is substantial credible evidence to the court’s award of educational It is expenses costs. psychotherapy undisputed the wife from suffers mental disorder. paranoid Expert testimony she would need two years revealed that approximately psychothera disorder. Following to overcome this the wife py psychotherapy, be education. This higher should education benefiting capable in enable the wife to continue her accustomed lifestyle. necessary that Bowman states that the maintenance argues husband be to decree an certain. should struck down failure amount we awarded and Although Bowman said that the type appropriate employment “establishing must evaluated in amounts maintenance,” and duration of does have amount established not Bowman, case, to be certain. 633 P.2d at it 1201. In this would However, to accurately determine the cost. impossible court concerned and therefore wife. placed conditional limitations for six for the wife’s years. husband responsible psychotherapy to cover this responsibili- The husband obtain medical insurance may within six The wife must her educational ty. degree years. complete Further, education must be obtained from a college university involved. sufficiently identify Montana. These conditions costs to meet these costs is has also that his argued ability husband We of maintenance award. determinative appropriateness but must be viewed in agree that this is consideration important has been all given with the facts of this case. The husband accordance *6 in the settlement. property the income-producing property that, continue to be in an business agricultural husband will engaged It is increasingly for the three has been years, profitable. past to that the will continue such track. reasonable assume husband in to that these maintenance suggest There is no information the record the husband. In of the facts of will payments financially deplete to the wife is case, the Court’s award of maintenance this District substantial, evidence. credible by supported $30,000.00 the the is whether award of by The second issue was a clear division of property District Court to wife as part abuse of discretion. District Court its discretion that the abused argues husband $30,000.00, interest, as plus part property the wife
awarding that is in light The husband this argues ruling inequitable distribution. has incurred. We husband also all the maintenance payments disagree. credible when based substantial
A “District Court’s
upon
judgment,
evidence,
unless
will not
altered
a clear abuse
discretion
Stewart,
40, 42,
In re
shown.”
the Marriage of
Watson,
227 Mont.
(1988),
In re the Marriage
citing
40-4-202, MCA,
the factors
(1987). Section
lists
equitable as $30,000.00 award reads follows: this finding herein to divide marital court’s was the original purpose “[I]t as stated. originally estate rather necessarily ‘equally,’ that ‘equitably’ means, as possible as generally, close Equity equality under the reasonable facts and case circumstances of particular in with the These keeping justice. principles parties originally married and set out to their share lives and all included therein. Both used their wits and their for the of their Each goods good family. contributed must in each share to his or her equally; proportion contribution if It possible. here.” possible
This indicates that the finding District Court did not abuse its $30,000.00. discretion the wife the awarding reviewing Upon case, facts this particular court concluded that each had party contributed essentially marriage and was entitled to as equally close to equal portions acquired property possible.
The District Court also a value placed all of the assets and upon distributed these assets in accordance with the wishes parties the farm keeping intact. Subsequently court found it necessary $30,000.00 award the wife in an attempt equalize division. Based the court’s upon and the findings facts of particular case, there is substantial credible evidence to $30,000.00 award to the wife.
The third issue raised is whether the District Court’s findings, Nos. particularly findings are clearly erroneous. The husband that the argues District Court’s are not findings substantial, and, supported therefore, credible evidence are erroneous. The particular findings that the husband are argues unsubstan tiated are: the finding the husband’s abuse of the wife during marriage was instrumental and causative of the wife’s mental and *7 psychological the that problems; finding on several boccasions the violence; children were witnesses to and the that the wife’s finding mental disorder had not affected either child. adversely We find that there is substantial, credible evidence to support findings District Court not, therefore, are they clearly erroneous. ‘ of erroneous, fact shall not be set ‘Findings aside unless and due shall be regard given to the of the trial opportunity court to judge credibility witnesses.” Rule 52(a), M.R.Civ.P. Evidence was at trial presented the wife’s of mental disorder and the effects of abuse It spouse syndrome. indicated at trial that abuse syndrome could cause the wife’s disorder. The husband’s expert, Tranel, Dr. testified that he had insufficient information at that time to determine the exact cause of wife’s mental disorder. Without evidence to the contrary, the District Court’s conclusion that the abuse by the husband may have been one of the known causes the wife’s mental disorder is is, therefore, supported by substantial credible evidence and not clearly erroneous. were on several occasions children
The District Court found that wife indicated Testimony witnesses to violence. primarily her against one when the husband threw that there was recent occasion testimony while she was Brandon. Additional holding the wall by at least twice indicated that had been Ashley disciplined may her the word “several” husband on the back. hitting Although that there is we hold not have been completely appropriate, conclu- substantial, evidence to the District Court’s credible support to violence. The use of the the children had been witnesses sion that several, error, if was harmless. word the effect concerning at trial evidence
Conflicting presented children, As Ashley. mental disorder had on the particularly the wife’s though the court’s are “substantial findings long supported See In re the will not be disturbed. findings evidence such conflicting” Johns, 256,] 46 St.Rep. Marriage [238 little 1980). very at trial (Mont. Expert testimony provided disorder had on children. evidence the effect the wife’s concerning to credibility The court was in the best position judge From this the court chose testimony. witnesses and their position had not the wife’s mental disorder testimony emphasize credible evidence affected either child. There substantial adversely finding. the District Court’s wife, issue, whether final raised cross-appeal fees to the Court erred by refusing attorney’s the District for failure to be raised properly wife. issue must dismissed This 5(a)(4), Rule accordance with appeal M.R.App.P. upon an is 30 from the Normally, filing days entry the time for appeal However, 5(a)(1), Rule exception judgment. M.R.App.P. states, 5(a)(4), rule in Rule filing exception exists M.R.App.P. that: pertinent part, of Civil Procedure
“(4) If motion under Montana Rules timely to alter (iii) under Rule 59 by any is filed in the district court party:... run for all shall parties or amend the .time for judgment;.. appeal a new trial or granting denying from the of the order entry denying appeal other such motion.. .A notice any before filed A no new shall have any above motions disposition effect. time measured prescribed notice must be within appeal filed above of the motion as from the of the order entry disposing provided added.) ...” (Emphasis *8 5(a)(4),
Rule M.R.App.P. case, on was filed September In this the final Decree Dissolution
123 result, 15, 16, As a the husband’s notice filed appeal August 1988, and invalid. The husband filed timely motion premature decree, M.R.Civ.P., alter or amend the to Rule pursuant 59(g), 26, court’s order on the motion was dated September 4, 1988, 7, November and was filed November 1988. The wife’s motion for filed on October appeal, was filed prior is, therefore, ruling court’s on the motion amend and pending invalid under Rule 5(a)(4), M.R.Civ.P. A notice of appeal 7, to be filed either required days from November party date of the entry court’s order of the motion amend. disposing Neneman, See In re the generally Marriage (1987). P.2d 164 The wife failed to with this requirement. comply AFFIRMED with dismissal of the cross-appeal.
CHIEF JUSTICE SHEEHY, TURNAGE and JUSTICES McDON- OUGH and WEBER concur. BARZ,
JUSTICE dissenting. I dissent and would remand this case to the District Court on several grounds. The District Court failed to or completely address consider MCA, sec. 40-4-203(2)(b), award of determining appropriate maintenance. That factor in maintenance award in this case is very important: namely ability from whom maintenance being to meet his needs while sought meeting those we spouse. Here have the $800 husband required to month pay per for maintenance plus wife’s for two psychotherapy years, including hospitalizations costs of her for six college years without addition, restriction. In the husband is to make house for the payments wife, completely children and for their provide counsel- ing, pay himself. There is no counseling evidence whatsoever where he is to find that kind of other than the money assertion that he is a she, “successful” farmer. wife testified that $2,000 husband and children spend month and approximately per the husband agreed but did out that point figure farming included $2,000 as well. month expenses Spending per having income or means to spend that much are significant differences on which the record is silent. of Fact No. Finding court found: Petitioner, another,
“10. to one degree suffers from paranoid disorder which will at least two require intensive years counseling. There is no evidence that this disorder has adversely affected either *9 and, hereto; at is purely it point, speculative children of parties an adverse effect in the future.” that said disorder will have five-year-old In the court’s and evidence on the finding condition, No. is not Finding disturbed” “emotionally daughter’s erroneous, it The wife’s mental illness is only clearly preposterous. than the her because of it cannot be ignored anymore bizarre behavior it disorder as related to the best interests husband’s personality of the children is a children. To there is no adverse effect either say in this District Court and to the evidence contrary naive opinion case.
In of Fact No. the District Court stated: Finding Petitioner’s health spring “15. The is unavoidable that finding problems result her and emotional from and are a extent large is She during marriage. abuse and humiliation the Respondent and to have been shown a intelligent, having pleasing personality degree her She was involved to a some marriage. very normal before some which caused during marriage, fundamentalist religious practices waves, Her in her condition. major but don’t force appear present to be coincidental or concurrent and health concerns appear religious rather than causal.” even her part problem, is to find the That is erroneous if court attempting finding is also of marital misconduct cause of her mental illness. Such finding law. to Montana’s no-fault dissolution contrary not the causes of the wife’s Dr. Tranel testified that one could know disorder, biological mental of a and data showing illness paranoid contribution, contributions to the factors and social psychological Dr. Tranel also all interact and need to be considered. pointed disorder that believes that out is school of in his thought profession there a strong it was his a biochemical malfunction but the mental disorder primarily addition, was no inconclusive. In there that that evidence alone is opinion would the trial which during or medical testimony presented psychiatric factor of the wife’s illness. Court to find the causative allow the District factor, causative it serves little find the actuality purpose particularly treatment Regardless, if it is in fact a condition which inherited. genetic is necessary. or at least No. 15 should be vacated Finding
Both No. 10 Finding that the District Court unfortunately, Judge It would modified. appear, event. family’s any not the last of this problems has seen JUSTICE dissent of foregoing HARRISON in the JUSTICE joins BARZ.