*1 IN RE THE MARRIAGE OF MARGARET H. BOHARSKI,
Respondent-Petitioner, BOHARSKI,
GEORGE Appellant-Respondent. No. 92-055. January 7,
Submitted
Briefs
on
1993.
Rehearing Denied March
1993.
February
Decided
St.Rep.
JUSTICE McDONOUGH fact, findings appeals Boharski Appellant George law, marriage entered and decree dissolution conclusions District, County. Flathead Eleventh District Court of the Judicial We affirm. One review this Court. has presented five issues for
Appellant the balance the Court. We frame properly as not before been conceded as of the issues follows: of maintenance?
1. Did the District Court err its award finding appellant Court err in 2. Did the District days. his incarceration for 30 ordering court and 11, July were married on Margaret Boharski children, had all During marriage parties the course of the seven majority. reached the In the fall of age of whom have now diagnosed being totally permanently disabled. On George was Margaret petition filed a for dissolution of mar- October riage. 12,1989, during hearing request,
On December on conciliation Judge attorney the District Court advised to have her move temporary Margaret’s the court for maintenance. counsel sub- sequently awarding temporary moved the court for an order main- tenance. On March the District Court ordered temporary month, maintenance in the amount of retroactive to October $400 29, 1989.
George maintained all of his income was income pay which was and he refused to maintenance. monthly income consisted security disability pay- social $906, monthly $500.40, ments of workers’ benefits of *3 monthly pension disability and union at time payments of of final slightly temporary George decree and less at time of order. had other no sources of income. by Margaret, 19, 1990,
Pursuant to a motion September on George failing District Court found in of court for make to The payments. District Court ordered George jailed days, days for 40 suspended. with 10 order, Qualified
In this same the court also entered a Domestic (QDRO) pursuant Equity Relations Order to the Retirement Act of 1056(d)(3). 1984, QDRO 29 U.S.C. A intercepting is a method of payments intended for one then directing these QDRO spouse. pursuant existing to the other A must made QDRO state domestic relations laws. U.S.C. 1056. The in this pension disability paid case directed that union benefits be directly Margaret.
Following George’s jail, discharged attorney release from he his Judge. and made a This request disqualify request granted. Judge juris- was A second District Court assumed diction over this matter.
George previous then moved the District Court to terminate the 15, 1991, temporary maintenance order. On October the District Court denied this motion. began 12, 1991,
Trial in this matter on December and the court’s 3, January findings final decree was entered on 1992. In the fact dissolution, in the decree of the court found the net marital estate to $12,116 annually, which is the annual value of the workers’ ($7774), compensation the annual value of the union ($4362). pension disability payments District Court awarded all of the workers’ George. benefits to The District Court then the union pen- awarded QDRO Margaret, sion benefits to with the remain in place. Additionally, George to pay Margaret was the sum of$298.33 by him, month for 36 months out of income received as an equitable distribution of property as maintenance. The time period payment was made to coincide eligibility with her future for security George social benefits. The court also found that lifestyle could make all and maintain his and maintain his standard living. George brought appeal this from the District entry contending Court’s decree of dissolution that the District determining Court erred in maintenance.
I Did the District Court err in its award of maintenance?
Upon reviewing a District Court’s award of this Court will not reverse the determination of the District Court unless findings clearly Marriage of fact are erroneous. In re 1353, 1355, Rep. Eschenbacher 253 Mont. 831 P.2d 49 St. Upon reviewing relating conclusions of law to the maintenance award, this Court will determine the lower court’s simply Steer, Inc. v. interpretation Dep’t law was correct. Revenue 803 P.2d criteria appeal statutory applied contends on that the to be 40-4-203, MCA, at were determining maintenance awards found George argues satisfied in this case. in the alternative that even met, that maintenance was if the criteria of were income, and improper in that all of his income was still *4 in therefore, argues that the District Court erred exempt. George income. awarding only disability when his income was maintenance Court, from particular It the this and in is clear from record before Court, requirements the findings the of fact of the District that
75 MCA, Margaret need of and 40-4-203, in case. is in are satisfied this § to maintenance. is entitled George’s union
However, is whether question the before the Court uncon- purposes. The income for maintenance disability is available case the entire record ofthis throughout at trial and troverted evidence disability his income. pension income from union is that age only way of 65 the an reaching prior testified that by fund is may any pension of the monies in individual obtain demonstrating disability. disability payment Absent a there no from years 58 prior age George fund was old. pension any determina- The District Court in this case did not make factual are payments George pension receives from the fund tion that However, the Court ordered these funds disability payments. District Margaret together with the additional paid be payment question month. The before the Court is may an ordered from the union whether award maintenance disability question income. This is a of law.
Margaret argues may that Mar so ordered. Marriage garet Cooper relies on this Court’s decision ofIn re disability Mont. P.2d 810. In 243 793 we stated that Cooper, may by determining be included Court in benefits District However, Cooper, value of the marital estate. P.2d at Cooper disability spouse, benefits awarded to were not the other they simply Disability were included in the marital estate. determining equitable can be considered the District Court in Unfortunately, marital distribution estate. in this situation apart there is no marital disability payments. estate from the various 25-13-608, disability George argues pursuant MCA, that to § may exempt not be awarded as maintenance. payments 25-13-608, MCA, part dis- provides that debtor’s ability or illness benefits are from execution. 25-13-608, MCA, “any arguing counters that reliance on fund, pension prevent awarding Mar- disability income, Margaret misplaced.” it’s retirement case. argues applicable that is not in this garet Marriage In In re Castor Castor, In the husband this Court referred to MCA. part pay- that his alleged wife had been awarded his actually retire- The wife that were ments. contended ment and not benefits. by noting this began
This Court
the discussion of
issue
*5
pursuant
25-13-608(1)(d), MCA,
to
“[i]f the monthly
benefits Mr.
Castor is currently receiving
benefits,
qualify
‘disability’
such
payments
exempt....” Castor,
Castor,
are
however,
Are the union spouse applicable of a former payment of maintenance to the other former spouse? The obligation basis ofmaintenance is the natural a spouse support the other spouse and children. A decree for maintenance not, strictly therefore is speaking, legal a debt in the strict sense of term, judgment but a calling performance duty for the of a made specific by a Am.Jur.2d, decree of the court. See 24 Divorce and (1983). Separation 531§
One of the purposes
exemption
of an
from execution statute is to
foster and assist in performance
obligation
protect
of that
so as to
family
statutory
and home. The
exemption
protection
is for the
of the
family of the debtor as much as for the debtor. See Anaconda Fed.
(1971),
175, 179-80,
Credit Union # 4401 v. West
157 Mont.
483 P.2d
909,
It
in
protect
the interest of the state to
the homes of its
(1933),
542,
residents. In re
Estate
93 Mont.
II of court appellant contempt in in finding the District Court err Did days? ordering his incarceration orders issued contempt court Pursuant by this Court usually court are final and unreviewable district However, exception way of a writ of certiorari or review. except by marriage contempt of court orders made dissolution exists for Marriage In re 231 Mont. proceedings. Sessions 1306, 1308; Smith citing Marriage In re Therefore, 223, 225-26, 912, 914. of court order 686 P.2d for review. properly this case is before Court directing him to make tem- George argues that since order *6 law, as a the maintenance was incorrect matter porary failing obey of court order for the subsequent contempt previously order error. This Court has stated that maintenance was guilty doubt of court party “[t]here is no that a cannot be authority for had no to make.” disobeying order which court (1942), 113 State ex rel. Enochs v. District Court Mont. statute, being
Maintenance not a debt exemption within authority had for jurisdiction punish and con- failure to its tempt obey maintenance order.
Affirmed. TURNAGE,
CHIEF JUSTICE HARRISON and JUSTICES WEBER concur. dissenting.
JUSTICE HUNT I reaching holding today, majority dissent. In announced separate opinion disregards exemption provisions in two specific applica- precedent Clearly, as well as this Court. past statutes unpleasant in that tion of the law this situation leads to an result Margaret, it is clear property there is no other marital to award to but disability benefits, along with pension that under Montana law the compensation benefits, exempt workers’ awards. that marital in this case recognize the net estate important
It annually. the annual value 12,116 This amount a combination of $ ($7774), and the annual George’s compensation workers’ benefits ($4362). pension was disability value of his union benefits benefits, and was awarded an pension disability awarded all of per month, additional by necessity which must come from workers’ benefits. majority opinion, in determining George’s pension that dis- ability exempt, benefits were not held that disability benefits exemption 25-13-608, MCA, statute found at does apply not maintenance awards. This contrary prior conclusion is to our decision Castor, in Castor. In the issue was whether spouse’s disability one benefits could be awarded to the other in a proceed- dissolution Castor, In ing. this Court correctly recognized MCA, that § applied and stated that:
Under although security veterans’ and social subject they benefits are to execution if are levied for child spousal “disability exempt. or illness benefits” are 25-13-608(l)(d), monthly Section MCA. If the benefits Mr. Castor benefits, is currently receiving qualify “disability” pay- such exempt ments are from execution.
Castor, 817 P.2d at determining disability 668. After benefits exempt, were this Court in Castor held that the benefits in question actually benefits, could, therefore, were retirement be awarded. The majority opinion “[d]eciding states that in Castor the question of disability were exempt benefits from maintenance exemption under the statute was not necessary and therefore can be contrary, considered dicta.” Tothe in Castor it essential was that the addressed, issue of whether benefits were specifically may we held that are exempt awarded as maintenance. The statement in Castor referred to in dicta, majority opinion very was not mere but went to heart *7 analysis application interpretation of our and decision. Our and 25-13-608, MCA, in Castor was correct and should be followed § 25-13-608, MCA, provides entirety this case. in its that: (1) A judgment exemption debtor is entitled to from execution of following: the
(a) professionally prescribed judgment health aids for the debtor debtor; dependent judgment or a of the (b) judgment benefits the has or is entitled to debtor received security public receive under federal social or local assistance (2); legislation, except as in subsection provided (c) benefits, (2); except provided veterans’ in subsection (d) disability benefits', or illness (e) medical, surgical, hospital or care for paid payable or benefits care; for the pay used will be used they to the extent are or (f) support; and child and maintenance family. the and his (g) plot judgment for debtor a burial (2) upon security legislation based Veterans’and social benefits 662(f), in 42 are employment, as U.S.C. remuneration defined for debt which execution is levied not execution the for if is for:
(a) support; child or
(b) paid spouse spouse to be to a or maintenance former if is child whom spouse parent or the custodial a for former owing judgment child is and the debtor is owed [Emphasis added.] parent the child. not opinion
The that an award of maintenance is majority states debt, debtor, therefore, disability is a a not However, exemption apply. does benefits very explicitly provides of the statute that a maintenance language a against party owing award is “debt” and that party obligation a “judgment debtor.” The statute is clear case, have fol- unambiguous, governs in this and should been by majority. lowed provides exceptions general
The rales of statute several security exemption. exception One is that certain veterans’ and social not exempt benefits are from execution for maintenance awards circumstances. Legislature, considering under certain The while exceptions, provide did not for permitting wisdom of certain exception benefits and maintenance awards. relation It is well-settled that: statute, judge simply
In of a the construction the office the is in or in contained to ascertain and declare what terms substance has therein, not to what has been omitted or to omit what insert been inserted. 1-2-101, Additionally, long-standing rale that
Section MCA. it is to be legislature “the intention of the interpreting when statutes Legislature intention MCA.The pursued possible.” if — Notwithstanding, exempt. is manifest exception though Legislature a new even majority has created so. chose not to do Separa- opinion, citing to Am.Jur.2d Divorce majority refers to the common law basis
tion 531 *8 80
i.e., obligation of a spouse natural to other spouse. goes This same to section on state that in relation to enforcement of recipient awards “the spouse generally considered a obligor spouse creditor of the being to the extent of entitled given to all by remedies statute to such creditors.” Am.Jur.2d (1983). Separation Likewise, Divorce and obligor ajudgment protection debtor is entitled to all provided statute. The applicable provides Montana statute protection exempting execution all a judgment benefits of debtor. Even if 25-13-608, common law regarding contrary maintenance was to § MCA, governs. 1-2-103, MCA, provides statute that: derogation rule the common law that statutes in thereof strictly to be construed has no application to the statutes ofthe
state of Montana. The statutes establish the of this law state respecting subjects which they to relate .... policy arguments
There may in favor of the new exception by majority created opinion, but if additional exceptions are to be MCA, added Legislature appropriate body exceptions. create such new The majority opinion does not discuss District Court’s award month out of compen- workers’ sation provides benefits. in part pay- “[n]o chapter ments under this assignable, subject shall attachment garnishment, or any way be held liable in for debts ....” The disability-type benefits receives from his workers’ compensa- tion award are and the majority opinion fails to even address this issue.
Finally, directing George temporary since order to make main tenance out of his and workers’ law, the subsequent contempt was incorrect as a matter of failing obey court order for maintenance order was A party guilty disobeying error. cannot be an order authority which the had no to make. State ex rel. v. court Enochs 971; Phillips Loberg 113 Mont. 123 P.2d v. I would reverse. in the
JUSTICE TRIEWEILER JUSTICE GRAY concur dissent of JUSTICE HUNT.