*1 336 OF, THE MARRIAGE
IN RE SCHMIEDING, JENNIFER L. Respondent, Petitioner/
v.
SCHMIEDING,
PETER
Aрpellant.
Respondent/
99-579.
No.
February
2000.
Submitted on Briefs
August
Decided
2000.
For Edmund P. Bozeman. the of the Court. Opinion
JUSTICE HUNT delivered (Jennifer), Schmieding May Respondent, On Jennifer Court, County, Judicial District Gallatin Eighteenth the petitioned (Pe- Schmieding her marriage Appellant, dissolution of for ter). 1, four-day to a trial held from October proceeded This matter 8, 1999, 1998, 6, District is- April until 1998. On the Court October equitably of Law distribut- Findings its of Fact and Conclusions sued liabilities, and determining child ing the marital assets and maintenance, attorney fees and costs. Fol- and Jennifer her lowing hearing, the District Court ordered Peter reimburse 25, $26,561.88. August On totaling fees and costs incorporat- its the Court entered Decree Dissolution appeals the costs. Peter now ing the and amount Affirm. fees to Jennifer. We on is: only appeal The issue awarding petitioner in its discretion Did the Distriсt Court abuse her fees and costs.
FACTUAL BACKGROUND Peter had Jennifer and been At the October time ages were parties’ teenage three sons eighteen years. The married and Michael being age and Matthew twins. and age Jennifer was During marriage, the primarily Jennifer worked as a home-
maker, caring raising for parties’ children the performing many tasks In the managing household. initial months of parties’ marriage, born, befоre twins were assisted in she receptionist dental as a dental assistant. Other than that, employed she was not outside home until winter 1997-98, she employment Big Sky pa- when took seasonal at as a ski troller, where she per $7.80 earned hour. She earned gross pay in being injured. and earned $286.42 before earning She will hour for winter season 1998-99. possibility Boyne summer Big exists for her to do work USA Sky. degree Psychology Michigan obtainеd a State
University in 1980. has degree any She never used the employ- ment. She is also a certified ex- emergency medical technician. She pects earn minimum initially to be able She wages. has no cler- ical opportunity skills. She has moderate as- acquire the future sets earnings living and income. standard during Her eighteen years marriage high. *3 in degree
¶6 Peter obtained a Natural Science John Hopkins from (Dental) 1978, University in D.M.D. degree University and a from the Florida, of operated practice Naples, Florida in 1981. He a dental in through 1982-1996. From 1990 Peter net profits earned $220,000.00 $257,576.00 per year. between and In addition to his dentistry profession, Peter also has construction and li- skills is a censed contractor in the of He a a State Florida. has been co-owner in Florida, construction business in as Building, known “Hardwood Inc.” He of its outstanding owns 50% stock. Florida, In June he sold his dental in practice
¶7 fam- ily Big Sky, moved to Montana. In 1996 he had of gross receipts $310,835.00, $177,862.00 profit and anet of from Florida practice. Big September He started dental at practice Sky, a Montana in 17,538.00 a working part-time gross $ and had of but claimed receipts, $27,633.00, expenses depreciation. net loss to start In up of due and 199.7, again part-time he and had of gross receipts worked $77,559.31. trial, approximately days At time of Peter two per worked Sky.
week to so that Big anticipated expanding Belgrade, at he will earnings of Considering statistics ofthe a full week work. have median, as a Montana, age, working his full-time in practices dental $91,500.00 year per at least reasonably expected can be earn Peter age He has earnings expected up through this level can be and earnings his and income. ability to assets acquire substantial years marriage was living during eighteen His standard of high. Montana, in Peter sold his den- family Upon moving $350,00.00 $100,000.00 in and for cash
tal in Florida with and in- $250,000.00 principal payments on contract. The $3,896.55, balance as of this total contract terest on contract $184,273.40. their Florida home parties oftrial sold the date was $800,190.00. million, net receiving proceeds in fоr over building in January 30,1998, Peter his dental office On sold $20,000.00 $180,00.00, down and the balance of for with Florida monthly pay- $160,000.00 plus paid interest at 8% annum be $1,529.04, $126,710.57 paid payment with a balloon to be ments 20,2002. September owing on December The balance on dentistry $156,213.54. condominium for purchased office $100,000.00, Big September acquired for Sky, officeat on $31,000.00. for equipment furniture and dental Sky, Big At the time of owned a house $690,000.00 is to a subject home listed for sale at Montana. This $1,385.00. $197,188.45 monthly mortgage payment is mortgage. The $1,300.00 They a currently rented for a month. also own The house Bozeman, purchased par- This after the Montana. house was home and the three and is the residence separated primary ties $280,000.00. The purchased children. The house was balance $178,206.38, monthly pay- as of with September owed Hayrake Lane, $1,243.22. purchased Peter also lot at 390 ment of Bozeman, Montana, $200,000.00. time he was build- At the oftrial 15,1998, the lot, had as June expended home on this and he ing a expected expenditure sum with the total $835,000.00. Fidelity In- invested with Keogh profit-sharing plan ahas
vestments, 31, 1998, the at January fund was valued and as $179,363.76. it the time of trial was valued At *4 January and as of Fidelity an invested Investments also has IRA with $26,212.00. its 1998, At trial value 28, it had a value of $26,313.14. Keogh January 1,1998, Jennifer also has a account and it as of $17,116.85. $18,694.23.
was valued its at At trial value was Jennifer Fidelity, 28, 1998, has IRA invested with January as of its $22,832.14. $22,358.61. value was At trial its value was The have an parties investment account with Brown & Com- pany drilling which has been invested Peter in oil sector stocks. On $596,412.50. By December it was at February valued $442,378.00. the account had dropped In June Peter sold all International, except Inc., 26,1998, the stock Vareo as of June $77,490.00. it only was valued аt At trial its value was 30,1997, shortly The District Court thus found that on October divorce, after Jennifer filed for and prior purchase to the of the Hayrake lot, parties $2,675,979.00 net had assets of with $1,247,552.00 being liquid. As a result of Peter’s decision to build the house, Hayrake huge drop exploration in the market for oil compa- stock, nies’ living expenses households, and substantial for two parties’ $77,490.00 assets at liquid dropped had trial. brokerаge also had an investment cash ¶ account val- $160,193.44 ued at January as of of the pre-trial the date or- der. September only Its value as of one month before trial was $356.78. had deposited withdrawn balance and it his into personal bank account. parties separated, After the all the withdrew funds from joint checking
their up account and set his account. He deposited own all of co-mingled funds, his incomes into his account. From these he paid expenses, personal expenses, mortgage payment his business home, home, Big Sky expenses building Hayrake and made $5,000.00 payments Jennifer. As Peter claims that he dentistry Big Sky, has made profits no his the mon- business nothing ies paid payment to Jennifer were more than a to her from $50,994.28 July marital assets. As of Peter had in his personal account. Peter testified at trial he now had $4,000.00 in the account. also own account has her which had in it at trial.. 18 The District Court distributed the assets as it found them in Oc-
¶ home, office, tober giving Jennifer her homes, each of them one-half of the interest so that each two they or sharing gains risks of losses if and when sold. The Inc., & Building, divided the Hardwood Court Brown account, Company Keogh and Peter’s account. The District Court was *5 fin- $135,000.00 an additional spend intention to of Peter’s aware findings by the date of the court’s house, and that Hayrake ish the money liquid likely no or law, would there facts and conclusions left the Florida property was producing income left. The assets Jennifer, and the building awarded to the office note from the sale of cre- to Peter. This would awarded practice note for sale of Florida $3,896.55 to Pe- per month Jennifer and $1,529.04 per mоnth to ate ter. assets, Court then the District distributing the marital After
¶19 The court con- support. and child of maintenance looked at the issue $8,836.25 for her and the per month required cluded that Jennifer It found that con- living. then maintain their standard children to her, im- plus can earn from assets awarded sidering the income she month, support child $1,300.00 plus a income to her of puted income for her and household $2,539.00, she would have that Peter $5,368.00. The court then determined three children of $3,000.00 she per month until maintenance of pay should to Jennifer deceased, receives her one-half share or is or when she remarries home, home, Hayrake Big Sky from the sale of proceeds Building, Inc. business. and the Hardwood Peter’s financial situation The District Court then considered $7,625.00 from monthly income of and found that Peter would have investments, $3,896.55 the sale of practice plus and/or other $11,521.55 He claimed per month. the Florida which totaled maintenance of With monthly personal expenses $2,539.00, him $3,000.00 this leaves month and child per undesignated. month with $449.00 Court, the financial having explored after Finally, the that Peter should reimburse in detail found
conditions of incurred, in an attorney fees and costs for her reasonable hearing. On June subsequent at a amount to be determined pay found that Peter should held. The District Court hearing decree of disso- and costs. The Jennifer’s thereafter, marriage August entered on lution of the court’s or- only appealing stating that he was appeal filed notice of costs. attorney fees and der him to requiring OF REVIEW STANDARD 40-4-110, MCA, is within attorney fees under An § judge’s trial determination judge, the trial sound discretion of of dis- absent an abuse attorney fees will nоt be disturbed regarding cretion. In re 207, 216, Cole 1276, 1282. The test for an abuse of discretion is whether the trial judge arbitrarily acted employment without judg conscientious ment or has exceeded the bounds of reason resulting in substantial injustice. In re Marriage Bell 552, 554.
DISCUSSION Did the District Court abuse its discretion in awarding peti- tioner her fees and costs? argument Peter’s that the District Court abused its discretion is First,
two fold. the award of fees was not based on neces- Second, sity. because Jennifer did not pretrial list fees in the *6 order, the District Court erred in allowing evidence on the issue of at- torney fees. 40-4-110, MCA,provides Section considering that after the
financial may resources of both a district party court order a pay to party’s attorney other maintaining reasonable fees for and defending specified dissolution, custody, procеed and child support ings. This tois ensure that both parties timely have ac equitable cess to marital before, financial resources for during, costs incurred types and after these of legal proceedings. 40-4-110(2), Section MCA. Weuse a three-prong approach to deciding whether an award of attor ney appropriate pursuant 40-4-110, fees was to MCA.An award of § (1) (2) (3) attorney fees must necеssity; reasonable; be: based on competent (1997), based on evidence. v. 282 Mont. Pfeifer Pfeifer 466, 938 684, 687.Here, P.2d requirement addresses of finding a necessity. of not does contest the reasonableness of the amount or that evidence in support competent. of the fees was finding necessity A supported by findings. of must be factual (district Pfeifer, 466, 938 282 Mont. at P.2d at 688 court abused its dis by summarily cretion concluding necessity еxisted without mak ing any findings contention); factual to support Marriage this In re of (no (1994), Gingerich 161, 168, 887 714, 718 269 Mont. necessity P.2d where the record not finding does contain evidence to ofne cessity); Marriage (1994), 306, 313, 871 In re Smith 264 Mont. P.2d of (remanded 884, 888 attorney on the issue of fees for a determination ofwhether the party showing necessity). awarded can make a argues that the court setting erred forth in more detail its rea why sons pаy attorney reviewing he should fees. When fact, sufficiency findings however, findings we as a review Bell, 220 finding. Marriage single on a whole, rather than isolate traditionally con have Facts that we 713 P.2d Mont. at (1) in party’s necessity requesting are: determining sidered in (2) ability pay to fees; part/s the other attorney ability pay to her own (3) parties. positions financial fees; the relative attorney inability an to must demonstratе First, party requesting (1996), 278 Mont. Marriage Walls attorney fees. In re pay her own (wife attorney fees be was not allowed ability pay to had the financial court found that she cause the district 188, 196, 849 fees); In Marriage Spence re her own (district attorney fees correct be 161, 166 denial of P.2d court’s fees); attorney her pay had a sufficient cash award cause the wife (district court Cole, at 1282 224 Mont. at Marriаge of it found she was with the wife fees where properly awarded fees). pay out means to her pay assets to that Jennifer awarded sufficient argues are earnings Jennifer’s estimated
her own that Jennifer was left year. The District Court calculated ex- compared all her to her estimated month short once income was not con- her and the three children. This calculation does pеnses for findings, it can be reason- outstanding fees. From these sider at- inadequate ability pay has an ably concluded that Jennifer torney fees. Second, ability party’s a district court should consider the other (1993), 262 Marriage fees. In re Zander (it 1225, 1233 re 215, 227, 864 proper party to hold each Mont. P.2d pay); attorney fees neither is better able
sponsible for his own when 222, 227, 848P.2d In re Welch (denial failed to demon attorney fеes was affirmed where wife *7 fees); attorney Burris v.Burris ability pay to her strate husband’s (district 265, 272, court did not (1993), 258 Mont. 852 P.2d 620 a de attorney upon her its discretion in the wife abuse them). reasonably pay afford to that the husband could termination afford to argue that he cannot attempt Peter makes no approximately receive attorney fees. did he Jennifer’s Not Jennifer, he has an extra assets than $19,898.00 more in marital against his income. are balanced expenses a month after his $449.00 From year. earning potential of Peter has an estimated that Peter can absorb to conclude findings, it is reasonable these attorney Jennifer’s fees.
344 Third, a district po court should consider the relative financial sitions ofthe parties deciding necessity. Marriage In re of Forsman (the (1987), 411, 416, Mont. 747 P.2d 864 fact that the hus band was in a much better economic situation than the wife was a compelling fees); reason attorney Marriage to award her In re (was (1987), 348, 360, 1081, 1088 Roullier 746 P.2d not an abuse of discretion to award the wife her fees where the hus band’s cash adequate pay); flow levels were more In re (was 1275, 1280 Manus not an abuse of discretion to award the wife her fees where the hus substantially higher band had earnings); Carr v. Carr (was Mont. abuse of discretion to award the wife her greater fees where the husband had a earning potential larger salary with a much and the wife in poor health). attempts distinguish this situation from the facts
Carr, Roullier, argues and Manus. He that the size of the marital es- tate, health, education, good college her and her em- better ployment substantially apart set this situation from the facts of Carr. argues financial distinguishable He that Rоullier is because the gap in Roullier allegedly greater. argues that the size of the marital distinguishes assets awarded in Manus that case. We are unconvinced. Peter misses that the salient fact
abovementioned cases is that in a one substantial position better financial than the other. The District Court found Pe- yearly ter’s earnings to be It found Jennifer’s to be $16,632.00. Peter’s annual earnings being more than five times greater than Jennifer’s. District Court found that while Peter has ability acquire assets, Further, substantial Jennifer does not. included, even maintenance and child are when Jennifer still meeting expenses. is short a month in Peter has an extra $468.00 past expenses. Peter will also be relieved from paying maintenance proceeds once receives one-half of the home, home, Big Sky Hayrake from the sale of the Hard- Inc., Building, bigger wood business. This will result in an even dis- Forsman, parity parties. between the As in Peter’s economic situation being much better than Jennifer’s is a reason to award compelling Jennifer her whole, findings As a the District adequately support Court’s it
its award of fees. While would be better for dis-
345 its factual reasons for one trict court to better delineate fees, find that Peter has failed to meet his bur- party attorney its we establishing den of that the District Court abused its discretion. Lastly, we will address Peter’s contention that the District awarding attorney they Court errs in fees when were not listed the trial pretrial During day copies order. the second Jennifer offered attorney objection, fee Court al- bills. Over Peter’s pretrial lowed the order to be amended on the issue of trial, stage Judge deciding At that of the not reim- was whether Rather, appropriate. Judge simply allowing bursement was equity. the issue to considered in his quest be argues showing injus- that Jennifer made no of manifest 16(e) M.R.Civ.P., required by modify tice as Rule pleadings. pertinent part following pretrial “[t]he of this rule states order a final conference prevent injustice.” shall be modified manifest Rule 16(e) Finalco, Leasing M.R.Civ.P. Peter cites Ltd. v. Inc. Naftco argument. of his however, 40-4-110, Naftco, MCA, f37 is not based on nor it a is dis- § Further, solution of marriage action. the facts of are distin- Naftco guishable from the case at In Naftco, bar. no fees evidence presented during thus the trial op- court did not have the portunity amending Here, to consider the pleadings. Jennifer entered evidence of her fees at trial. 16(e) argument Peter’s further misses its mark because Rule 15(b)
M.R.Civ.P., together should be read with Rule M.R.Civ.P. This rule states:
If objected ground evidence is to at the trial on the that it not by within made pleadings, may the issues the court allow the pleadings to amended and freely presenta- shall do so when the thereby tion of the merits of the action will he subserved objecting party satisfy fails to the court that the admission of such evidence ac- prejudice party maintaining party’s would may grant tion or defense the merits. The court a continuance uрon objecting party to enable the to meet such evidence. did not objected, any prejudice.
While Peter he failed to claim also seek a continuance to enable him to meet Jennifer’s fees evi issues, purposes pretrial simplify per dence. The orders are to surprise. mit the trial and to unfair In prepare prevent 179, 26, 295 MT Mont. of Lande, re Estate ¶ ¶ not contained (allowing an award of fees that were ¶ in the pretrial they order because were mandated to the winner statute). any If Peter suffered of this he prejudice surprise because should have so requested stated continuance. although goodpractice have held that it is attor plead We fees, 40-4-110, MCA,
ney require them to In re does be. § *9 544, 553, 572 902, 907; P.2d In re Mar of Johnsrud riage Taylor 478, 482. Section 40-4-110, MCA, gives authority the trial court the to order payment, time, considering “fromtime to after the financial the par resources of liabilities, ties.” When the distribution of marital assets and mainte nance, court, party and child are issues left to a trial neither any way knowing party gets has what will be ordered as to which Therefore, it what of the financial resources. makes sense to leave the issue of fees reimbursement until after the trial court makes parties’ its determination ofthe financial resources. Peter has failed to demonstrating meet his an of discretion. burden abuse The District Court is affirmed. TURNAGE, CHIEF JUSTICE JUSTICES NELSON and TRIEWEILER concur. dissenting.
JUSTICE REGNIER affirming I dissent from the Court’s respectfully opinion costs. In Jennifer’s for dissolution she an award of petition requested However, order, pretrial fees and costs. in the she abandoned party her claim for fees and costs and asserted that each was able to pretrial their fees and costs. The issues set forth in the order own do include a fees and costs. request reimbursement day changed again On the second course presented evidence for reimbursement of ob- attorney fees and jected grounds any regarding on the evidence order. The court beyond pretrial costs was the issues set forth sponte. order sua objection prеtrial overruled the and amended the 16(e), pertinent part pretrial M.R.Civ.P.states in that the Rule injustice.” my manifest In prevent order “shall modified view, injustice given procedural was not established this manifest by her contentions set history and Jennifer should have been bound I think the District Court abused its discre- pretrial forth in the order. attorney fees and allowing present Jennifer to evidence on tion make an award based on this evidence. costs and then join foregoing and LEAPHART in the dissent. JUSTICES GRAY