IN THE SUPREME COURT OF THE STATE OF MONTANA
IN RE THE MARRIAGE OF
Petitioner and Respondent,
HAROLD H. HARRISON,
Respondent and Appellant.
District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Jeffrey Sherlock, Judge presiding.
COUNSEL OF RECORD:
Gene A. Picotte, Attorney at Law, Helen
James P. Reynolds; Reynolds, Mot1
Submitted on Briefs: January 9, 1997
~mii '1 3
March 13, 1997
Justice Karla M. Gray delivered the Opinion of the Court
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1995 Internal Operating Rules, the following decision shall not be
cited as precedent and shall be published by its filing as a public
document with the Clerk of the Supreme Court and by a report of its
result to State Reporter Publishing Company and West Publishing
Harold H. Harrison appeals from the judgment entered by the
First Judicial District Court, Lewis and Clark County, on its
findings of facts, conclusions of law and decree of dissolution and
from its order on his motion to alter or amend.
We restate the issues as follows:
Are the District Court's findings of fact regarding the
valuation of the marital home and land clearly erroneous?
Are the District Court's findings with regard to Sylvia
Harrison's entitlement to maintenance and the amount of maintenance
awarded clearly erroneous?
Is Sylvia entitled to attorney fees on appeal?
FACTS AND PROCEDURE
Harold and Sylvia Harrison married in 1963; both had been
At the time of the marriage, Harold was an
attorney, and Sylvia was a social worker, in Denver, Colorado.
They subsequently relocated to Helena, Montana, and Harold was
admitted to the practice of law in Montana in 1972.
On December 15, 1995, when Harold and Sylvia were 73 and 74
years old, respectively, the District
The primary disputes between Harold and Sylvia were
maintenance for Sylvia and the valuation and distribution of the
marital home and land.
The District Court ultimately valued the
home and land at $218,500 (after deducting $10,000 from its overall
valuation to cover needed repairs), determined that Sylvia was
entitled to a full one-half share and ordered Harold to pay Sylvia
$109,250 within 90 days or sell the home and land and pay her onehalf of the net proceeds.
The court also awarded Sylvia mainten-
ance in the amount of $1,000 per month until she received the onehalf interest in the value of the marital home and land and $300
per month thereafter until the death of either party or Harold's
cessation of his law practice.
Neither party was awarded attorney
Judgment was entered and notice of entry of judgment was
filed and served.
Thereafter, Harold timely filed a Rule 59, M.R.Civ.P., motion
to alter or amend or for a new trial relating primarily to the
District Court's findings on maintenance.
In pertinent part, the
court rejected Harold's contentions that Sylvia did not need
maintenance and that Harold was unable to pay it; it also deleted
the reference to payment of maintenance until Harold ceased
The maintenance award remained at $300 per month
until the death of either party.
Harold appeals, focusing on the
District Court's award of maintenance to Sylvia in the amount of
$300 per month.
Is the District Court's finding of fact regarding the
valuation of the marital home and land clearly erroneous?
the outset, we note that Harold does not state this
valuation question as a separate issue in his opening brief.
Moreover, the statements on this question in his reply brief are
He states that the "issue" is now moot,
since he has paid Sylvia the $109,250 awarded as her one-half
interest in the marital home and land, but also states that he is
merely avoiding burdening the Court with "further" argument on the
issue and refers us to the valuation-related argument in his
In any event, since Harold's views on the valuation
question arise repeatedly in his opening brief, we address the
valuation issue separately.
The District Court found that the total value of the parties'
marital home and 120 acres of land is $228,500; the court then
deducted $10,000 from that value for the cost of repairing the log
portion of the home, based on Harold's evidence regarding the
necessity and cost of such repairs.
Harold asserts error in the
overall valuation, but his assertion is entirely without merit.
We review a district court's findings of fact relating to the
marital estate to determine whether they are clearly erroneous. In
re Marriage of Lopez (1992), 255 Mont. 238, 241-42, 841 P.2d 1122,
1124 (citation omitted). Moreover, in a dispute over the value of
property, the district court often must weigh conflicting evidence
and determine which is more credible. Marriase of Lowez, 841 P.2d
at 1125. The court may accept any value within the range of values
presented in evidence. Marriase of Lopez, 841 P.2d at 1125.
Here, two appraisers and a sales person for a real estate
agency testified to the value of Harold and Sylvia's marital home
The values provided were
$133,920, $228,500 and
$244,000. The District Court chose the middle figure, specifically
finding "Dr. Diehl's estimate to be the most credible estimate of
the value of the property and it is hereby valued at $228,500.
This amount is supported by substantial evidence which the District
Court specifically determined to be the most credible evidence
before it on the question of valuation; the $228,500 valuation also
is within the range of values contained in the record. We conclude
that the District Court's finding regarding the value of the
marital home and land is not clearly erroneous.
Are the District Court's findings regarding Sylvia's
entitlement to maintenance and the amount of maintenance awarded
40-4-203(11, MCA, and set the amount of that
maintenance--subsequent to the time Harold paid her the $109,250
one-half interest in the marital home and land--at $300 per month.
Harold contends that the District Court erred in both regards but,
again, his position is without merit.
maintenance award to determine whether they are clearly erroneous.
In re Marriage of D.F.D. (1993), 261 Mont. 186, 201, 862 P.2d 368,
377 (citing In re Marriage of Eschenbacher (1992), 253 Mont. 139,
142, 831 P.2d 1353, 1355). In doing so, we first determine whether
the findings are supported by substantial evidence; if so, we
determine whether the trial court misapprehended the effect of the
evidence; and, finally, we may determine that a finding is clearly
erroneous if we are left with a definite and firm conviction that
a mistake has occurred. Marriase of Eschenbacher, 831 P.2d at 1355
circumscribed. The so-called a-b test contained in
MCA, authorizes an award of maintenance only when the district
court finds that the spouse seeking it lacks sufficient property to
provide for her reasonable needs and is unable to support herself
through appropriate employment.
Here, the District Court found
that Sylvia is not employed or employable and that she lacks
sufficient property to provide for her reasonable needs.
to the record to ascertain whether these findings are supported by
The record reflects that, at the time of the parties' marriage
in 1963, Sylvia ceased working as a social worker at Harold's
request. During the parties' 30-year marriage, Sylvia's only work
outside the home consisted of helping Harold out in his Denver and,
later, Helena law offices. That help decreased over the final five
years or so of the time the parties continued to live together and
ceased altogether when Sylvia and Harold separated totally in the
early 1990s. Sylvia has had medical problems off and on since that
time, including vascular surgery. As noted above, she was 74 years
old at the time the marriage was dissolved. We conclude that the
District Court's finding that Sylvia is not employed or employable
is supported by substantial evidence.
With regard to the court's finding that Sylvia does not have
sufficient property to provide for her reasonable needs, Sylvia's
total cash assets at the time of the dissolution proceedings were
approximately $65,000. Her monthly income was approximately $550,
$407 in Social Security benefits and
dividends and interest earned on the cash assets.
increased her monthly income to about $790 by imputing additional
interest income on the grounds that she could be earning 7%, rather
than 3%, interest on her cash assets.
On the expense side, Sylvia presented an exhibit establishing
that her reasonable monthly expenses would be about $2,000 per
month when she had reestablished a settled life for herself, to
include a residence of some sort and an automobile.
Sylvia's monthly income of less than $800 from her reasonable
monthly expenses leaves a shortfall of approximately $1,200.
The District Court also took into account that Sylvia would be
receiving her share of the marital home in cash.
It did so by
decreasing the original $1,000 per month maintenance award to $300
per month at the time Sylvia received the $109,250 from Harold.
While the court did not explain the basis for the $700 per month
decrease in maintenance, that amount approximates the additional
monthly interest income Sylvia could earn on the $109,250, applying
the court's 7% interest figure.
Indeed, this seems to be the
import of the District Court's determination that Sylvia would
"have a pretty good amount of money set aside" at such time as she
received the cash for her share of the marital home.
$700 additional monthly interest income earned on the $109,250 to
Sylvia's current (and imputed) income would give her a monthly
income of approximately $1,500, still $500 short of the amount
necessary to provide for her reasonable needs.
Thus, we conclude
that the record contains substantial evidence to support the
District Court's finding that Sylvia does not have sufficient
property to provide for her reasonable needs.
Harold's attempts to establish error in the District Court's
findings with regard to Sylvia's entitlement to maintenance are
contends, for example, that the parties' total monthly living
expenses during the marriage were modest and never approached the
$2,000 in monthly expenses, including rent, which Sylvia's evidence
indicated was necessary to provide for her reasonable needs.
contention is irrelevant to the issue of whether the a-b test for
entitlement to maintenance under 5 40-4-203(I), MCA, has been met.
In addition, it ignores Harold's estimate of his own expenses in
the amount of nearly $1,700 per month, which did not include any
rent or house payment because he continued to reside in the marital
Harold also suggests generally, and repeatedly, that Sylvia is
not entitled to maintenance because her assets are sufficient to
provide for her own needs.
He does not establish how this is so
and, indeed, his suggestions in this regard amount to a request
that this Court search the record for evidence supporting findings
contrary to those made by the District Court.
standard in reviewing a trial court's findings.
That is not our
D.F.D., 862 P.2d at 377. Here, even the District Court's careful
imputation of additional interest income to Sylvia, and our
interpretation of the basis for the court's decreasing maintenance
from $1,000 to $300 per month when Sylvia received her cash share
of the marital home, do not bring her income near the level
necessary to meet her reasonable needs.
Nor does Harold's general assertion that Sylvia is being
permitted to retain, untouched, capital sufficient to support
herself bear out.
As explained above, the $65,000 in total cash
assets held by Sylvia prior to receiving her share of the marital
home contributes $380 in interest (as imputed) to her monthly income
and decreases--but does not eliminate--the shortfall between her
income and her expenses. Moreover, even assuming a court properly
could deduct the $750 to $800 rent expense included in Sylvia's
anticipated monthly expenses by imputing to her the purchase of a
suitable residence with the $109,250 received as her share of the
marital home, Sylvia's expenses would total $1,200 to $1,250 per
month and her monthly income would total approximately $790 ($407
in Social Security benefits and $380 in monthly interest on the
$65,000 cash assets), leaving a substantial shortfall.
matter how Sylvia's assets are viewed, substantial evidence of
record supports the District Court's finding that she does not have
sufficient property to provide for her reasonable needs.
Having concluded that the District Court's findings that
Sylvia is not employed or employable and lacks sufficient property
to provide for her reasonable needs are supported by substantial
credible evidence, we further conclude that those findings are not
otherwise clearly erroneous.
On that basis, we hold that the
District Court did not err in determining that Sylvia is entitled
t o maintenance pursuant to
The remaining issue raised by Harold is whether the District
Court erred in awarding Sylvia $300 maintenance per month pursuant
40-4-203(2), MCA, which sets forth the factors a district
court must consider in determining the amount and duration of
maintenance to be awarded.
Harold's primary contention in this
regard is that he is unable to meet his own needs while paying the
$300 per month awarded as maintenance to Sylvia and that, in
requiring him to pay the maintenance, the District Court ignored
the "ability to pay" consideration set forth in
At the outset of our discussion of this issue, we address and
grant Sylvia's motion to strike matters not of record which are
contained in Harold's opening brief, both generally and with
specific regard to this issue, and express our strong disapproval
of the inclusion of such matters in the brief.
In several places,
Harold suggests that it is appropriate to take "judicial notice" of
certain matters relevant to the case.
These appear to be fact-
based matters not readily susceptible to judicial notice.
event, the record contains neither a timely request by Harold that
the District Court take judicial notice of the matters pursuant to
Rule 201, M.R.Evid., nor an indication that the District Court did
so as a matter of discretion under that Rule.
More troubling is the nonrecord "factual" material set forth
over several pages of Harold's brief.
It is axiomatic that this
Court will not consider evidence not contained in the record on
appeal. Johnson v. Killingsworth (1995), 271. Mont. 1, 3, 894 P.2d
contained in his motion to alter or amend or for a new trial.
should not be necessary for this Court to explain to either counsel
on appeal or Harold, an attorney admitted to the practice of law in
Montana, that factual matter is not "evidence of record" merely
because it is referenced in a motion.
Factual matter is "evidence
of record" when testimony or other evidence establishing the fact
has been admitted in evidence during a trial or hearing. A party's
mere reference to factual matters in a motion neither renders such
matters "evidence" nor incorporates it as "evidence" into the
See Johnson, 894 P.2d at 273.
Harold also asserts that a hearing was held on his motion and
that he was sworn and testified briefly at that hearing.
record before us contains a notice of hearing of Harold's motion,
scheduled for March 5, 1996. The record on appeal does not contain
a transcript of such a hearing and, as a result, we are unable to
ascertain whether, or the extent to which, Harold testified as to
the nonrecord matters asserted in his opening brief on appeal.
addition, we observe that Harold does not represent to this Court
that he testified at the postjudgment hearing as to all or any of
the nonrecord factual matter contained in his brief.
offers, in his reply brief, to supplement the record by providing
a transcript of the postjudgment hearing, Rule 9 (a), M.R.App.P.,
requires the party seeking review to provide a record sufficient to
enable this Court to determine the issues raised on appeal. We are
not inclined to permit a party to "piecemeal" the record on appeal,
in derogation of its Rule 9 (a) duty and associated time limits
contained in Rules 9(b) and 10(a), M.R.App.P., in order to respond
to an opposing party's legitimate challenge to nonrecord matters.
Furthermore, we observe that this dissolution proceeding
commenced on March 3 , 1995. A hearing was held on the question of
temporary maintenance in May and June of 1995.
hearing itself occurred over two days in August and October of
Thus, all of Harold's evidence should have been--and
presumably was--presented prior to the time the District Court
entered its findings of fact, conclusions of law and decree on
December 15, 1995, and its judgment on December 20, 1995.
general rule, a party cannot advance additional evidence in support
of its position after the trial court has determined all pending
Finally, in this regard, Harold contends that "much of the
matter objected to was considered argument on the various findings
and conclusions" of the District Court and apologizes to this Court
for any error in the presentation of such matters in his opening
brief. Both counsel and Harold should have been aware, long before
this case, of the difference between proper argument based on
evidence of record and argument based on so-called "facts" not of
While we accept the apology and the assertion that no
disrespect to this Court was intended, we caution both counsel and
Harold that the type of practice represented by the nonrecord
factual matter in Harold's opening brief is not acceptable to this
We turn now to the merits of Harold's argument that the
District Court ignored his inability to pay maintenance and, as a
result, did not properly apply
40-4-203(2), MCA, sets forth six specific factors which
must be considered by a district court in determining the amount
and duration of maintenance once it has determined that a spouse is
entitled to maintenance under
It is clear from
both the statutory language and our cases that, while all the
factors must be considered, none is determinative.
203(2), MCA; In re Marriage of Cole (1988), 234 Mont. 352, 358, 763
P.2d 39, 4 3 .
It is equally clear, however, that a district court
ordinarily may not award maintenance in such amounts as will render
it impossible, on the facts of the case, for the paying spouse to
meet his own needs and also pay the maintenance ordered.
e q ,In re Marriage of Tow (l987), 229 Mont. 483, 4 8 9 ,
748 P . 2 d
440, 443; In re Marriage of Keel (198G), 223 Mont. 305, 309, 726
726 P.2d 812, 814. Harold contends that the District Court did so
The court made extensive findings, both in its order awarding
temporary maintenance and in its later findings, conclusions and
decree with regard to Harold's ability to pay maintenance.
District Court found that Harold has Social Security income of
approximately $860 per month and that he took an average of about
$570 per month in cash from his checking account, which is a
combined office and personal account, over the year and a half from
mid-December of 1993 until mid-July of 1995. While no explanation
was offered for where those monies had gone, they can be fairly
attributed to personal expenditures by Harold. These findings are
not challenged by Harold and, having scrutinized the record, we
conclude that they are supported by substantial evidence.
The District Court also made a number of findings relating to
expenditures by Harold.
For example, it found that Harold had run
approximately $300,000 in proceeds from a land sale through his
checking account in recent years, that only $97,000 remained of
that amount and that no explanation was offered for where the
expenditures had gone. The court expressed alarm over this failure
to account for large sums.
In this regard, Harold contends that the court overlooked an
exhibit which details the disposition of the $100,000 down payment
on the land sale.
We observe that the exhibit does reflect that,
after closing costs and payment by IIarold of certain taxes and
other debts, approximately $47,000 remained of the down payment as
of January 24, 1994; nothing on the exhibit relates to, or accounts
in any manner for, the approximately $200,000 in additional land
sale payments received by Harold in 1994 and 1995.
Harold also argues that he testified repeatedly that the
purpose of the land sale was to have sufficient funds to "settle
up" with Sylvia and to continue to pay court costs and other costs
of suit in several ongoing cases in which he is engaged as counsel.
Whatever the purpose of the sale, however, it does not constitute
an accounting for the large sums of money to which the District
Court's findings related.
The court also discussed at some length, in both its order on
temporary maintenance and its findings, conclusions and decree, the
state of Harold's law practice and his reliance--in contending that
he is unable to pay maintenance--on the fact that he had been
losing between $2,500 and $3,000 per month in the practice through
the first ten months of 1995.
In pertinent part, the court found
that the staff expenses and client advances Harold continued to pay
were substantiated, but unreasonable under the circumstances, and
that they amounted to choices to continue to lose money which could
not be used as a basis for avoiding the ability to pay maintenance.
"Reasonableness" is a question of fact
(see In re Marriage of
Bryant (l996), 276 Mont. 317, 323, 916 P.2d 115, 119) and Harold
cites to no case, and we know of none, where we have required a
trial court to accept, for purposes of determining ability to pay
maintenance, whatever numbers a self-employed person advances
insofar as they relate to ability to pay.
Harold points to his testimony at the final hearing in
contending that the amount of monthly loss in the practice had
decreased by that time because another lawyer was sharing the staff
expenses; he contends, as a result, that the District Court's
finding that he was losing $3,000 per month is not supported by
Harold is technically correct in this
regard, in that the District Court incorporated the cited amount
from its earlier findings on temporary maintenance without taking
note of Harold's later testimony that his staff expenses had
decreased. At best, however, this is harmless--and not reversible-error since taking the decrease in losses into account would have
bettered, rather than worsened, Harold's financial picture with
regard to ability to pay maintenance. Moreover, Harold's testimony
actually buttresses the District Court's finding that it was not
reasonable for Harold to incur all of the practice-related losses
to which he had testified, at least insofar as such losses impacted
on his ability to pay maintenance.
The District Court also found that approximately $78,000 in
accounts receivable were due the law practice.
evidence of record supports this finding.
Indeed, a listing of
receivables (not including costs advanced to clients and subject to
Harold's direction, categorized
receivables as uncollectible or highly doubtful. The court clearly
based its finding regarding the amount of receivables on Harold's
opinion--reflected on the listing--as to collectible amounts and,
in doing so, also accepted Harold's testimony that--as a general
rule--only 60% to 70% of total receivables ultimately would be
Harold argues that even the collectible amounts are paid in
such small amounts over such long periods that they have little
economic effect. He cites to no record evidence in support of this
generalization and his own testimony at the final hearing was that
he had received about $6,100 of the receivables in the three months
since the exhibit had been prepared.
This testimony does not
support Harold's "little economic effect" generalization and,
indeed, provides further support for the court's determination that
Harold was able to pay maintenance.
The District Court also found that Harold has outstanding
advanced costs of approximately $25,000.
supported by the record.
This finding is fully
Harold argues that "one does well to
recover one-half the costs advanced." While this may be true, it
is not supported by any evidence of record.
In any event, the
court's finding was related to the question of Harold's overall
financial picture at the law practice, and his decisions about how
to spend available funds, with regard to his ability to pay
We observe in this regard that Harold testified that
most of his time and effort is directed toward several contingent
fee cases and that those cases account for both the short-term
losses in the practice and the large amount of advanced costs. We
also observe, however, that Harold's amended proposed findings and
conclusions in the District Court stated that his law practice was
losing substantial amounts because he was devoting much time and
money to some contingent fee cases which "do not appear very
hopeful at this time."
Again, this proposed finding merely
buttresses the District Court's concerns and findings about how
Harold expends his available resources insofar as those decisions
relate to his ability to pay maintenance.
We conclude that the District Court clearly, and extensively,
considered Harold's ability to pay maintenance and, therefore, that
Harold's argument to the contrary is without merit.
conclude that the District Court's findings with regard to Harold's
ability to pay maintenance are supported by substantial evidence
and are not otherwise clearly erroneous.
Is Sylvia entitled to attorney fees on appeal?
As discussed at length above, the District Court correctly
determined that Sylvia was entitled to maintenance because she is
not employed or employable and lacks sufficient property to provide
for her reasonable needs. The court also concluded that Harold and
Sylvia should pay their own attorney fees.
Sylvia requests attorney fees on appeal on two grounds.
First, she contends that we should award her the attorney fees she
incurred in responding to the matters improperly included in
Harold's brief as a sanction; and second, she argues that we should
award her attorney fees in defending Harold's appeal pursuant to In
re Marriage of Cole (1988), 234 Mont. 352, 7 6 3 P.2d 39.
With regard to the request for attorney fees incurred in
responding to matters improperly included in Harold's brief as
sanction, Sylvia cites to no authority under which a sanction of
this type has been awarded based on counsel's inclusion of
nonrecord matters in a brief and the corresponding need for a
relatively limited motion to strike.
Moreover, while Rule 3 2 ,
M.R.App.P.,authorizes an award of damages as a sanction on appeal
in certain circumstances, Sylvia does not rely on that Rule and we
have applied it sparingly.
We decline to do so under the
circumstances presently before us.
With regard to an award of attorney fees on appeal under
Marriage of Cole, it is true that we awarded such fees pursuant to
1 40-4-110, MCA, in that case. Marriaae of Cole, 763 P.2d at 43.
We have been unable to locate any other cases specifically awarding
attorney fees on appeal under the referenced statute.
our decision in Marriaae of Cole is not clear with regard to the
necessity for such fees; that is, the opinion does not state
whether the wife had been awarded attorney fees at the district
court level under 5 40-4-110,MCA.
Our cases are legion that the
first criterion for a discretionary award of fees under the statute
is a showing of necessity.
Marriage of Barnard
(1990), 241 Mont. 147, 154, 785 P.2d 1387, 1391.
Here, Sylvia contends that the District Court's award of
maintenance constitutes a sufficient showing of need to support an
award of attorney fees by this Court on appeal.
however, that the District Court determined that Sylvia would have
sufficient property to pay her attorney fees and denied her request
for those fees under 5 40-4-110, MCA.
Thus, it is clear that the
District Court concluded that Sylvia had not made the required
showing of necessity for attorney fees.
Sylvia did not cross-
appeal on that issue and, as a result, we cannot conclude here that
the record establishes the necessity on which an award of attorney
fees under 5 40-4-110, MCA, must be premised.
propriety of a maintenance award to substantially equalize Sylvia's
necessarily equate to necessity for attorney fees. As the District
Court stated, Sylvia has "a pretty good amount of money set aside"
now that she has been able to add her $109,250 share of the marital
home and land to her previous cash assets of approximately $65,000.
We conclude that Sylvia is not entitled to an award of
attorney fees on appeal on either of the bases she asserts.
March 13, 1997
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
Gene A. Picotte
Attorney at Law
1066 Helena Ave.
Helena, MT 59601
James P. Reynolds
Reynolds, Mot1 and Shenvood
401 No. Last Chance Gulch
Helena, MT 59601
CLERK OF THE SUPPREME COURT
STATE OF MONTANA