author: MR. CHIEF JUSTICE TURNAGE

text:
    PENNY L. KERR, Plaintiff and Respondent, v. GIBSON’S PRODUCTS COMPANY OF BOZEMAN, INC., a Montana corporation, Defendant and Appellant.
    No. 86-352.
    Submitted on Briefs dec. 3, 1986.
    Decided March 10, 1987.
    733 P.2d 1292.

      Landoe, Brown, Planalp, Kommers & Johnstone, Gene I. Brown, Bozeman, for defendant and appellant.
    Cok & Wheat, Michael D. Cok, Bozeman, for plaintiff and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Gibson’s Products Company of Bozeman, Inc., appeals a jury verdict entered by the District Court of the Eighteenth Judicial District of the State of Montana, in favor of respondent Penny Kerr, on her claims for relief from the termination of her employment.

We affirm.

Gibson’s raises two issues for our review:

1. Whether there was substantial credible evidence to support submission of respondent’s case to the jury based upon breach of implied covenant of good faith and fair dealing?

2. Whether the jury properly awarded compensatory damages to the respondent?

Kerr (respondent) was hired as a sales clerk and teller on June 14, 1978. She worked in various capacities until February 10, 1984, at which time Roy Hampton, Gibson’s manager, discharged her. Hampton testified that Kerr was not terminated for cause but as a necessary business decision.

The issues presented for review involve substantial credible evidence questions. We will examine the facts in a light favorable to respondent. First National Bank in Libby v. Twombly (Mont. 1984), [213 Mont. 66,] 689 P.2d 1276, 41 St. Rep. 1948; Jacques v. Montana National Guard (1982), 199 Mont. 493, 503, 644 P.2d 1319, 1325. Additionally, we will exercise restraint in interfering with the constitutionally-mandated process of jury decision. Barmeyer v. MPC (Mont. 1983), 202 Mont. 185, 657 P.2d 594, 40 St.Rep. 23.

During the five and one-half years of her employment, respondent performed her job in a satisfactory manner. She was promoted to the position of department head and supervised at least eight different departments. She also served as head cashier for two years. Kerr’s starting wage of $2.75 per hour was steadily increased by eleven merit pay raises to $7.25 per hour. Kerr was never the subject of disciplinary action. In 1983, she publicly received a bonus as a sign of Gibson’s appreciation for her five years of service.

Gibson’s Products Company of Bozeman, Inc., began to experience financial difficulties in 1980. Its financial difficulties continued until the store was sold to Chaffin, Inc., in May 1984. During 1983 and 1984, Kerr, along with other employees of Gibson’s, were assured by Charles Brooks, the store’s owner, that Gibson’s was not going bankrupt. Hampton and Brooks told the employees that Gibson’s would cut back employee hours before they would terminate employees. Despite Hampton’s and Brooks’ assurances, Kerr was discharged during her shift, without notice or severance pay, on February 10, 1984. Hampton refused to provide her with a reference letter. Gibson’s did not offer her a transfer, reduced hours or reduced pay.

Gibson’s contended that Kerr was terminated as part of a legitimate store-wide reduction in force during which Gibson’s also discharged or transferred thirteen other employees, some of whom were seasonal employees. However, within four months of Kerr’s termination, Gibson’s replaced the terminated employees with eleven lower paid employees.

Additionally, the Gibson’s employee handbook outlined its termination procedure. The handbook stated that a layoff due to lack of work would be termination without prejudice and the employee would retain recall rights. Kerr was not given recall rights. Further, her termination report indicated there was no chance for rehire.

Kerr filed the present action on November 8, 1984, alleging that she had been wrongfully discharged from her employment with Gibson’s Products Company and sought damages under several theories. Kerr alleged that Gibson’s breached the implied covenant of good faith and fair dealing. She further alleged that appellant acted negligently, maliciously and with reckless disregard of her rights, entitling her to exemplary damages. The complaint was amended to include a fourth count alleging negligent infliction of emotional distress. A jury trial was held on March 5, 1986. The jury found for Kerr and awarded her $59,026 in compensatory damages.

Issue One

Was there substantial credible evidence to support submission of respondent’s case based upon breach of the implied covenant of good faith and fair dealing?

The principal argument advanced by appellant is that Gibson’s was experiencing severe economic problems. Therefore, in an effort designed to cut costs, Gibson’s terminated the respondent. Appellant claims that bankruptcy of Gibson’s was imminent. Appellant did not recall the respondent, offer her a lower paid position or offer to transfer her to another Gibson’s store or department.

In a fashion similar to Flanigan v. Prudential Fed. S & L Assoc. (Mont. 1986), [221 Mont. 419,] 720 P.2d 257, 259, 43 St.Rep. 941, 943, appellant argues that a Montana jury should not be a silent partner in every decision to terminate an employee. However, here, as in Flanigan, there is evidence that the employer acted with other than purely economic motives when the respondent was terminated.

Kerr disputed that she was terminated as a necessary reduction-of-force. She cites her termination without notice and Gibson’s refusal to rehire her at a lower wage. Respondent points to the refusal of Gibson’s to offer a letter of recommendation and its hiring of eleven employees at lower wages. One of these newly-hired employees assumed respondent’s duties in the lawn and garden department.

Further, Kerr argues that Gibson’s failed to follow its own termination policy promulgated in its handbook. The Gibson’s employee handbook states as follows: “4. Layoff — A layoff due to lack of work will be considered a termination without prejudice and the employee will retain recall rights.” Respondent points to the fact that Gibson’s not only failed to recall her, but placed “No Rehire” in her termination report.

Appellant claims that because Gibson’s employee handbook was distributed after respondent began her employment, the handbook does not create contractual rights. Gates v. Life of Montana Ins. Co. (Gates I) (1982), 196 Mont. 178, 183, 638 P.2d 1063. The employee handbook was distributed in June 1979 and was in effect for the remaining four and one-half years of respondent’s employment. Gibson’s employee handbook contained rules of employee conduct and sanctions for employee misconduct. The handbook contained Gibson’s policy for employee benefits, promotions and terminations. As an employer, Gibson’s was freely able to enforce employee handbook rules of conduct. It likewise follows that Kerr, as an employee, could reasonably rely on the procedures outlined in Gibson’s employee handbook during employment termination.

“The circumstances of this case are that the employee entered into an employment contract terminable at the will of either party at any time. The employer later promulgated a handbook of personnel policies establishing certain procedures with regard to terminations. The employer need not have done so, but presumably sought to secure an orderly, cooperative and loyal work force by establishing uniform policies. The employee, having faith that she would be treated fairly, then developed the peace of mind associated with job security. If the employer has failed to follow its own policies, the peace of mind of its employees is shattered and an injustice is done. [Emphasis supplied.]”

Gates I, 196 Mont. at 184, 638 P.2d at 1067.

Implicit throughout the respondent’s case is the allegation that she was terminated because of her high wages. Kerr was one of Gibson’s most senior employees. Her work performance was satisfactory. However, testimony revealed that Gibson’s retained or hired less-experienced employees, who then occupied positions respondent had previously held.

The covenant of good faith and fair dealing is implied when objective manifestations by the employer give rise to the employee’s reasonable belief that he or she has job security and will be treated fairly. Dare v. Montana Petroleum Marketing Company (Mont. 1984), [212 Mont. 274,] 687 P.2d 1015, 1020, 41 St.Rep. 1735, 1739. Gibson’s repeatedly acknowledged respondent’s work as satisfactory through promotions and pay increases. It was reasonable for respondent to believe that she had job security and would be treated fairly.

We hold that sufficient evidence was presented rebutting appellant’s claim of economic necessity. Our holding does not foreclose an employer from engaging in legitimate reductions in force necessary to maintain economic vitality of the company. Flanigan, 720 P.2d at 261, 43 St.Rep. at 946.

Therefore, the trial court properly submitted this issue to the jury.

Issue Two

Whether the jury properly awarded compensatory damages to the respondent?

Respondent was awarded $50,995 in lost wages and $8,031 for her interest in the profit sharing plan. Extensive testimony of Kerr’s search for employment was presented. Testimony revealed that respondent held numerous temporary and part-time jobs before becoming employed in 1985 at First Security Bank in Bozeman. Kerr presently earns $3.67 per hour at First Security Bank.

Dominque Carestía, an economics expert, testified that respondent’s lost wages to July 1989, mitigated by her present income, is $50,995. Carestía projected Kerr’s lost wages to 1989, based on respondent’s testimony that she planned to quit Gibson’s and raise a family at that time. Additionally, Carestía determined that Kerr would have received $8,031 upon the sale of Gibson’s to Chaffin Corporation in May 1984.

Appellant argues that Kerr is not entitled to future damages after May 1984 when Gibson’s was sold to Chaffin Corporation. Appellant does not dispute that nearly all of Gibson’s employees were retained by Chaffin. Nor does appellant dispute that Chaffin disbursed Gibson’s profit sharing account in 1984. If respondent had been employed by Gibson’s in May 1984, less than four months after her discharge, clearly she would have received an additional $8,031.

In Gates v. Life of Montana Ins. Co. (Gates II) (Mont.1983), [205 Mont. 304,] 668 P.2d 213, 214, 40 St.Rep. 1287, 1289, this Court held that a breach of the implied covenant of good faith and fair dealing has its remedy in tort. Further, this Court has recognized expert testimony on future damages. Graham v. Clark Fork’s National Bank (Mont. 1981), 631 P.2d 718, 720, 721, 38 St.Rep. 1140, citing Frisnegger v. Gibson (1979), 183 Mont. 57, 598 P.2d 574, 582:

“. . . Section 27-1-203, MCA, provides that damages may be awarded in a judicial proceeding for detriment resulting after commencement thereof ‘or certain to result in the future.’ . . . [I]t has always been the practice in Montana to instruct juries that future damages need only be reasonably certain, and not absolutely certain as the statute seems to imply.”

A jury or an expert testifying on the subject must make assumptions to some degree. Frisnegger, 598 P.2d at 582. As an additional precaution, Judge Gary properly instructed the jury not to award speculative damages.

We find that evidence was properly presented to the jury of respondent’s future earnings reduced by her present wages under the standard of Graham and Section 27-1-203, MCA. The evidence was sufficient to uphold the jury’s finding of damages.

Affirmed.

MR. JUSTICES HARRISON, MORRISON, WEBER, SHEEHY, GULBRANDSON and HUNT concur.


source: Caselaw Access Project

author: MR. JUSTICE SHEEHY

license: Public Domain

text:
    CITIZENS STATE BANK, a Montana banking corporation, Plaintiff v. RICHARD C. BOSSARD, Floyd Bossard, James T. Maddux, Zane K. Sullivan, Kenneth A. High, Defendants. ZANE K. SULLIVAN, Third-Party Plaintiff, v. AMERICAN LAND TITLE CO. OF RAVALLI COUNTY, Third-Party Defendant.
    No. 86-484.
    Submitted on Briefs Jan. 8, 1987.
    Decided March 10, 1987.
    733 P.2d 1296.

      Boone, Karlberg & Haddon, William L. Crowley, Missoula, for Sullivan.
    Worden, Thane & Haines, Robert J. Phillips, Missoula, for American Land Title Co.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

This is an appeal from a judgment of the District Court, Fourth Judicial District, County of Ravalli, ordering appellant to contribute his pro rata share as a guarantor on a promissory note. We affirm.

Appellant Sullivan was a shareholder in the Title Company, a Montana corporation in the business of issuing title insurance on real estate. Sullivan and four other shareholders, the respondents in this action, each held one share of stock in the company. In January, 1979, the five shareholders executed guaranties for promissory notes to Citizens State Bank on behalf of the Title Company. The continuing guaranties stated that the obligations incurred were joint and several, and that the guarantors waived any right to require the bank to exhaust any security before proceeding against the borrowers.

Sullivan left the Title Company in December, 1979, at which time he signed away his share of stock and resigned his office as president and general counsel of the company.

In November, 1981, the Title Company was sold to a California title company. Richard Bossard, one of the respondents, negotiated the sale. None of the sale proceeds were applied toward the Title Company’s promissory notes to Citizens State Bank. The proceeds went instead to pay debts of the Title Company, including taxes, insurance, wages, underwriting fees, supplies, equipment, miscellaneous operational bills, and monies owed to Title Insurance of Montana, a management company.

The Title Company was not a profitable venture. The Company missed several payments on the notes, although several payments had been personally funded by respondents. In February, 1983, the bank accelerated the notes and demanded immediate payment.

Initially, the bank sued all five guarantors on the basis of their continuing guaranties, and respondents filed a cross-claim against Sullivan for contribution as a coguarantor. Subsequently, respondents agreed to pay off the notes, and the agreed payment schedule has since been completed. The bank was then dismissed from the action, leaving the cross-claim for contribution against Sullivan and Sullivan’s third-party complaint against the Title Company for reimbursement of any sums he would be required to pay. In August, 1986, the District Court entered its judgment ordering Sullivan to contribute his one-fifth share of the monies owed the bank, and ordered the Title Company to reimburse Sullivan for the sums he actually paid.

The issue raised by Sullivan on appeal is whether the District Court erred in concluding as a matter of law in an action for contribution between coguarantors, that Sullivan could not raise the equitable defense concerning the security for the underlying promissory notes. In particular, Sullivan specifies as error the District Court’s conclusion of law No. 5:

“The continuing guaranties that were executed by the parties created a joint and several obligation. The said continuing guaranty also provides that the guarantors waived any right to require the bank to proceed against the principal obligor, American Land Title of Ravalli County or to proceed or exhaust any security held by borrowers. Thus, the claimed defense by Sullivan that the bank failed to execute against its security is insufficient as a matter of law.” Sullivan contends this conclusion indicates the court did not allow or consider his equitable defense, the defense being that respondents personally profited from the sale of the Title Company.

We find no merit in Sullivan’s contention that the District Court failed to consider his equitable defense. Both parties filed briefs and supplemental briefs discussing the equitable nature of contribution and the equitable defense of unequal benefits. Sullivan argues that because respondents sold the Title Company, he was stripped of collateral which he had relied upon in giving his guaranty. This argument was clearly before the District Court, who rejected it.

The standard of review for a case in equity is that the judgment of the trial court is presumed correct, and all legitimate inferences will be drawn to support this presumption. This Court’s inquiry into the evidence is limited to whether the findings of the trial court are clearly erroneous. Rule 52, M.R.Civ.P. See In re Estate of Rudd (1962), 140 Mont. 170, 175-176, 369 P.2d 526, 529.

As we have previously stated, contribution among co-obligors is an equitable concept, and an obligor must be permitted to raise and present any equitable defense. Bossard v. Sullivan (Mont. 1983), [206 Mont. 392,] 670 P.2d 1389, 1391, 40 St.Rep. 1733, 1735. The general rule of contribution is that guarantors who pay more than their proportionate share of an obligation are entitled to contribution from other guarantors who are jointly and severally liable for the contribution. Stieben v. Korby (Colo. Ct. App. 1975), 533 P.2d 530, 531. “Contribution presumes the payment and extinguishment of the debt by one cosecurity for the benefit of all [Citation omitted]. The very foundation of the doctrine is that one had paid more and another less than his share, and where such is not the fact the right does not exist.” Worthington v. Keely (1917), 64 Colo. 91, 170 P.194, 197.

In this case all five coguarantors signed continuing guaranties which allowed the bank to forego its security and sue the coguarantors directly on the notes. This default remedy is authorized by Section 30-9-501, MCA. The bank pursued this option, and a settlement was reached whereby the obligation to the bank was completely paid off by four of the five guarantors. Under the general rule of contribution, the four guarantors were thus entitled to seek contribution from the fifth guarantor for his pro rata share of the obligation.

In Montana, where coguarantors do not receive equal benefits from the guaranty, the liability for the obligation is allocated according to the benefits received. Bossard v. Sullivan, 670 P.2d at 1391, 40 St.Rep. at 1735. In other words, guarantors in unequal positions should not be equally liable for payment of a debt. Id. Sullivan, however, does not appear to be asserting the equal benefits doctrine. Instead, he makes the general equitable argument that respondents have personally enriched themselves at the expense of his security for the guarantied obligation.

We do not find this to be the case. The evidence in the record clearly indicates Sullivan signed the continuing guaranty knowing that the bank could sue him directly on the notes, foregoing its security. This is in fact what the bank did. Further, the debts paid off by the sale of the Title Company (the company being the underlying security for the notes) were debts of the corporation, not personal debts of respondents. These debts included wages, withholding taxes and industrial accident benefits which the corporation was obligated by law to pay. We agree with the District Court that the evidence supports a finding that all five shareholders shared equal liability on the promissory notes, and that Sullivan was required to contribute his one-fifth pro rata share.

The judgment of the District Court is affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES MORRISON, WEBER and HUNT concur.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. EUDORA “CORKY” DANNELS, Defendant and Appellant.
    No. 86-87.
    Submitted Nov. 26, 1986.
    Decided March 11, 1987.
    Rehearing Denied April 7, 1987.
    734 P.2d 188.

      Mark A. Suagee argued, Havre, for defendant and appellant.
    Mike Greely, Atty. Gen., Clay Smith argued, Asst. Atty. Gen., Helena, Ronald W. Smith, Co. Atty., Havre, for plaintiff and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Eudora “Corky” Dannels, defendant and appellant, was charged by information filed August 20, 1984, in the District Court of the Twelfth Judicial District, Hill County, with committing the crimes of deliberate homicide and conspiracy to commit deliberate homicide in violation of Section 45-5-102 and 45-4-102, MCA. She pleaded not guilty to both charges. Trial began on March 4, 1985, and on March 11 the jury returned a verdict of guilty of deliberate homicide. Defendant was sentenced to fifty years imprisonment. She appeals from the verdict, and we affirm.

Defendant and Maurice Dannels were married in 1983. Defendant had two children by a previous marriage, John Wirtala and Jeni Moffit.

On July 20, 1984, defendant and her husband traveled to Havre, Montana, to attend the latter’s 50th reunion of his high school graduating class. They had initially planned to stay at the Duck Inn; however, after seeing that motel, they decided to stay at the LeHavre Inn. The next day defendant phoned Wirtala in Great Falls to inform him of the change. That evening, July 21, defendant and Maurice Dannels attended various functions at the reunion and then returned to their room at around 1:00 a.m.

Sometime after 2:00 a.m. on the morning of July 22, Maurice Dannels heard a knock at his motel room door. He opened the door and was hit by Melvin Wendell. Dannels staggered back and Wendell began beating him. At the same time, Dan Johnson proceeded to ransack the room after first turning up the volume on the TV. Wendell continued to beat Dannels and placed a pillow on his face. Wendell could not hold Dannels down by himself so he shouted to Johnson for help. Johnson grabbed Dannels’ wrists, and finally he went limp.

Wendell and Johnson next turned their attention to burglarizing the room. They scattered various objects over the room and went through defendant’s purse. Wendell removed the rings from Maurice Dannels’ fingers. Defendant was in the bathroom during this entire time and remained there until both men left.

At around 3:45 a.m., defendant staggered into the motel office and told the night clerk: “They’re after me.” Defendant’s gown was torn, and she was nervous and shaking. She asked the night clerk to call the police.

Officer Stevens of the Havre Police Department arrived at the LeHavre Inn shortly after receiving the night clerk’s call. After asking defendant some preliminary questions, he obtained a key to the motel room. The door was partially open. Upon entering the room, Officer Stevens noticed that the TV was blaring and saw Maurice Dannels on the far side of the room lying face down on the floor. The victim had a strip of white cloth tied around his neck and a piece of plastic covered his mouth. An autopsy later determined that the cause of death was asphyxia caused by the cloth which was tied around his neck. Maurice Dannels had other injuries indicating that he had been severely beaten.

Sergeant Ritz and Officer Magnuson were called in to investigate the crime. Officer Magnuson questioned defendant about what had happened. Defendant told him that she had been in the bathroom when she heard a knock on the motel room door and heard her husband calling her name. She opened the bathroom door and was immediately struck by someone. That person demanded that defendant give him her rings. After she complied, she was hit again. She then closed the door and remained in the bathroom until the men left. Magnuson left, and Officer Stevens continued the questioning.

Defendant told Stevens much the same story that she had told Officer Magnuson only moments before. However, there were a number of discrepancies. She stated that when the man asked her for her rings, she refused. The man then hit her again and forcibly removed the rings from her fingers. She was struck five more times and lost consciousness. Upon regaining consciousness, she remained in the bathroom for a while and then went to the motel office. While describing the blows she received, defendant pulled back her gown to reveal a bruise on the upper part of her left breast. During the questioning, which took place in the motel room office, defendant was wrapped in a blanket and smoked cigarettes and drank coffee.

After taking defendant’s statement, the officers suggested that she go to the hospital to see about her injuries. Defendant stated initially that she did not want to go to the hospital but later agreed to be taken there. Defendant was brought to the emergency room of Northern Montana Hospital and examined by Dr. Thomas Booth. He reported that the bruise on defendant’s chest was yellowish in color and could not have been sustained during the alleged burglary. Dr. Booth reached the same conclusion as to the bruise above her left eye and the abrasion on her nose. Dr. Booth told defendant of his conclusions. Defendant offered no explanation for the inconsistency.

After leaving the hospital, defendant went to the Havre Police Department headquarters. An interview with defendant, Sergeant Harada and Officer Stevens was recorded. Prior to the questioning, defendant was informed of her Miranda rights. She told the officers the same story that she had told Officer Stevens earlier. Defendant then left after two hours of questioning.

Dan Johnson testified at defendant’s trial pursuant to a plea bargain agreement. He testified that Wendell called him and proposed that they burglarize a motel room in Havre in return for $1500. He stated that two other people were to murder the victim after the burglary and that no one was supposed to be in the room during the burglary.

Johnson testified further that he and Wendell flew from Missoula to Great Falls and were picked up at the airport by John Wirtala. After making various stops in Great Falls, Johnson and Wendell drove to Havre in Wirtala’s car. Sometime after 2:00 a.m. on July 22, Wendell knocked on the motel room door where defendant and Maurice Dannels were staying. When Dannels answered, Wendell hit him in the face and entered the room. Johnson followed. He then saw defendant walk past him and go into the bathroom where she stayed until he and Wendell left. Immediately prior to their leaving the room, Johnson heard defendant tell Wendell: “You better take these.” Defendant then handed her rings to Wendell. Johnson and Wendell subsequently drove back to Great Falls and met with Wirtala in defendant’s home.

Defendant raises ten issues in her appeal:

1. Did the court’s ruling refusing to authorize expenditures for the retention of a specific psychiatric expert to examine defendant on the possible existence of “battered woman syndrome” deprive defendant of the opportunity to present a defense and deny her the right to a fair trial?

2. Did the court err in denying defendant’s motion to suppress (1) certain statements made by defendant to police officers and medical personnel on the night of the murder, and (2) the result of her medical examination on that night?

3. Did the court err in denying defendant’s motion for a directed verdict on the grounds that the testimony of Dan Johnson was not sufficiently corroborated?

4. Is the verdict supported by substantial credible evidence?

5. Did the court commit error in violation of the Sixth Amendment, United States Constitution, and Rule 802(d)(2)(e), M.R.Evid., by allowing certain testimony of Dan Johnson?

6. Did the court abuse its discretion by refusing to grant immunity to Melvin Wendell so that he could be compelled to testify at trial?

7. Did the court err by admitting into evidence photographs of the injuries to defendant’s face and left breast which were taken at the hospital during her examination?

8. Did any misconduct by the prosecutor during the trial prevent defendant from receiving a fair trial?

9. Did the court commit prejudicial cumulative error?

10. Did the court err in giving an instruction dealing with the concealment or destruction of evidence by defendant?

Prior to trial, defendant filed a motion requesting the court to authorize expenditures for an expert witness from Denver who would testify to the effects of “abused spouse” or “battered woman” syndrome. Although the court did authorize expenditures for local psychiatrists to testify on that subject, the court refused to do so for the expert from Denver. Defendant argues at length that the court’s ruling was prejudicial and denied her the right to present a defense.

The use of “abused spouse syndrome” as a defense to a forcible felony is a recent occurrence. States which have considered this issue are divided on whether the syndrome in fact exists and, if so, whether it should be allowed as a defense to a homicide charge. Although the issue is one of importance, the facts of this case do not mandate that we resolve this issue now.

Section 46-14-102, MCA, provides that applicable rule in determining whether evidence of a mental disease is relevant. It states:

“Evidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did or did not have a state of mind which is an element of the offense. [Emphasis added.]”

Defendant did not seek to prove that she suffered from abused spouse syndrome and, as a result, did not have the necessary state of mind to cqmmit the homicide. Rather, defendant planned to use the syndrome as an explanation for the reason she lied to the investigating officers as to the origin of her bruises. She sought the abused spouse syndrome testimony to buttress her credibility. Therefore, even if the court had authorized expenditures for the specific expert defendant wanted, the testimony from that expert would not have been relevant or admissible.

Defendant cites a number of cases in support of her position. However, in every case cited, the defendant used abused spouse syndrome to prove that she did not have the requisite state of mind to commit the offense. That is not the situation here. Under Section 46-14-102, MCA, a defendant may not use evidence of abused spouse syndrome to support her credibility. Since that is the only reason defendant sought the testimony here, the court did not err in refusing to authorize expenditures for retention of the expert.

In her second issue, defendant contends that certain statements she made were taken in violation of Miranda. She argues that the statement she gave to Officer Stevens at the LeHavre Inn was involuntary and taken in violation of Miranda, as was the “search” of her body at the hospital and the statement given by her at police headquarters. To support this assertion, she contends that she was in custody at the motel office when she spoke to Officer Stevens and that she was also in custody at the hospital.

The requirements of Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, come into play only when there is a “custodial interrogation.” Often, it is difficult to determine whether an individual is in custody for purposes of Miranda. However, United States Supreme Court decisions since Miranda, as well as Montana Supreme Court decisions, have increasingly narrowed this area of uncertainty.

Miranda defined custodial interrogatories as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. The fact that the questioning took place in a “coercive environment” does not suffice, by itself, to render the interrogation custodial. As the Court pointed out in Oregon v. Mathiason (1977), 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714:

“Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him ‘in custody.’ ”

See also State v. Dupre (Mont. 1982), 200 Mont. 165, 650 P.2d 1381, 39 St.Rep. 1660.

We find no basis to conclude that defendant was in custody when she gave her statement to Officer Stevens. Defendant requested the night clerk to call the police. Therefore, the questioning was initiated pursuant to defendant’s request and during the questioning, defendant was wrapped in a blanket, smoked cigarettes and drank coffee. Defendant was not placed under arrest at that time. Clearly, the questioning by Officer Stevens was no more than an on-the-scene investigation of a homicide.

Defendant argues that she was in custody because she was not allowed to return to her room. This argument is without merit. Defendant, with the exception of her room, was free to go anywhere. Preventing a witness from returning to the crime scene does not render that witness in custody.

Defendant further argues that all witnesses to a crime are considered suspects by the police. Since defendant was considered a suspect, Miranda warnings were required prior to questioning by the police. This argument is also without merit. Beckwith v. United States (1976), 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1, made it clear that Miranda warnings are not required where police officers question a person not in custody, even though that person is the “focus” of the investigation. Were we to accept defendant’s argument, police officers would be required to give warnings to every witness whom they question. Such a result would stretch the holding of Miranda beyond recognition.

Likewise, defendant was not in custody when she was taken to the hospital. Although defendant initially stated that she did not want to go to the hospital, she later agreed and consented to the medical examination. At no time during the examination did defendant request to leave or indicate that she did not want to be examined. In hospital questioning of a person who is the focus of an investigation does not require Miranda warnings unless that person is “deprived of his freedom of action in any significant way.” State v. Lapp (Mont. 1983), 202 Mont. 327, 658 P.2d 400, 402, 40 St.Rep. 120, 122. Clearly, defendant was not deprived of her freedom of action.

Finally Miranda warnings were not required prior to defendant’s questioning at police headquarters. Defendant voluntarily went to the police station. She was not arrested prior to or subsequent to the questioning. She willingly answered the questions, and after the questioning was over, she left. The fact that the questioning took place at a police station does not, by itself, render defendant in custody. See Mathiason, supra. Defendant was not deprived of her freedom of action in any significant way and was not entitled to Miranda warnings prior to questioning.

Defendant next contends that the testimony of accomplice Dan Johnson was not sufficiently corroborated. Defendant contends further that since the bulk of the State’s case rested on Johnson’s testimony, the court erred in not directing a verdict in favor of defendant.

The proper standard to be applied in determining whether the testimony of an accomplice has been sufficiently corroborated is set forth in Section 46-16-213, MCA:

“A conviction cannot be had on the testimony of one responsible or legally accountable for the same offense . . . unless the testimony is corroborated by other evidence which in itself and without the aid of the testimony of the one responsible or legally accountable for the same offense tends to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.”

The connecting evidence may be circumstantial and need not establish a prima facie case of guilt. State v. Mitchell (Mont. 1981), 625 P.2d 1155, 38 St.Rep. 487. It is sufficient if it only tends to connect the defendant to commission of the crime. However, where the connecting evidence “shows no more than an opportunity to commit a crime, simply proves suspicion, or is equally consonant with a reasonable explanation pointing toward innocent conduct on the part of the defendant, the evidence is to be deemed insufficient.” Mitchell, 625 P.2d at 1158. State v. Shurtliff (1980), 187 Mont. 235, 609 P.2d 303.

Apart from Johnson’s testimony, the State showed that defendant gave inconsistent statements about what happened during the commission of the homicide. Initially, she told Officer Magnuson that after she was hit by one of the men, she willingly removed her rings and gave them to him. Defendant stated that she was hit once more and then closed the bathroom door where she remained until the men left. However, defendant told Officer Stevens a different story. She claimed that when the man asked for her rings she refused. The man forcibly removed the rings from her fingers. He hit her five times and she lost consciousness. Defendant’s inconsistent statements suggest that she fabricated the story.

Secondly, as defendant was relating her statement to Officer Stevens, she pulled back her gown to reveal the bruises to her chest. She did not do this in response to any question asked by Officer Stevens. Furthermore, upon examination at the hospital, Dr. Booth concluded that the bruises were several days old and could not have been sustained during the alleged burglary. Dr. Booth made the same conclusion as to the abrasions to defendant’s nose. He did not find any injuries to her fingers indicating that defendant’s rings had been forcibly removed. Dr. Booth did not find any injury of recent origin. Therefore, it is obvious that defendant was lying when she told the police that she had been hit by one of the men. Defendant had not been hit anywhere during the crime.

Additionally, defendant’s rings were found in the pocket of Melvin Wendell subsequent to the crime. The victim’s rings were never found. This fact tends to connect defendant with the conspiracy to kill her husband.

The evidence sufficiently corroborates defendant with the commission of the offense. Defendant stated that she was hit repeatedly until she lost consciousness. However, defendant suffered no injuries during the commission of a very violent crime. She voluntarily showed Officer Stevens her bruises in an effort to make her story more believable. At trial defendant offered no explanation concerning this damaging evidence.

As the Court observed in Shurtliff, 609 P.2d at 306:

“There can be no question that defendant could not have been convicted without Johnson’s testimony; but this fact does not establish that the corroborating proof was insufficient.”

Although the connecting evidence would not have been sufficient, standing by itself, to convict defendant, it clearly corroborated Dan Johnson’s testimony.

Defendant’s fourth issue concerns insufficiency of the evidence to support the verdict. The standard of review for questions involving sufficiency of the evidence to support a conviction is: (1) questions of fact must be determined solely by the jury, and (2) once a certain legal minimum of evidence has been presented, this Court will not make an independent determination of guilt and and substitute its judgment for that of the jury. State v. Lemmon (Mont. 1984), [214 Mont. 121,] 692 P.2d 455, 41 St.Rep. 2359; State v. Martinez (Mont. 1980), 188 Mont. 271, 613 P.2d 974, 37 St.Rep. 982.

There is no question that substantial evidence existed to support the jury’s finding. Dan Johnson testified that as he and Melvin Wendell entered defendant’s motel room, he saw defendant walk calmly past him and go into the bathroom. She remained there until the two men were ready to leave. Immediately prior to their leaving, defendant told Wendell, “you better take these,” and she handed him her rings. Johnson’s testimony is corroborated by the fact that defendant sustained no physical injuries during the incident and by the fact that she lied to police officers that she was beaten during the incident. It is our task to determine whether the State presented sufficient evidence which would allow the jury to find defendant guilty beyond a reasonable doubt. Upon a review of all the evidence presented, we find that the State met its burden.

Prior to trial, defendant filed a motion in limine for the stated purpose of prohibiting the State from introducing, through the testimony of Dan Johnson, any statements by Wirtala to the effect that defendant said she agreed with or wanted to procure her husband’s death. The basis of the motion was that these statements were inadmissible hearsay and would violate defendant’s right to confront the witnesses against her. The motion was denied, and defendant raises the same argument on appeal.

In determining whether or not the statements objected to were inadmissible hearsay, we must first decide whether the statements constitute hearsay. Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” A statement is defined as “an oral or written assertion . . .” and a declarant is the person who makes a statement. Rule 801, Mont.R.Evid.

The only arguable testimony falling within defendant’s motion in limine and objection is the following:

“Q. I don’t want to know what Melvin told you yet, Dan. I’m just asking after your conversation with Melvin, you obviously understood what the plan was going to be; would that be right?
“A. Okay.
“Q. And what was the plan?
“A. I was supposed to burglarize the place.
“Q. And that’s it?
“A. And John and Corky were going to kill Maurice.”

It is apparent from this testimony that Johnson did not testify to any statements made to him by Wendell or Wirtala. He testified only to his understanding of the plan.

It is a fundamental rule that a necessary ingredient of hearsay is a statement by a declarant. Because Johnson did not testify to any statements made to him by Wendell or Wirtala, there was no hearsay. Although defendant might have raised another objection to this testimony which would have been proper, no error can be claimed on the basis of hearsay.

This Court has previously considered this same issue in State v. Canon (Mont. 1984), [212 Mont. 157,] 687 P.2d 705, 41 St.Rep. 1659. In Canon, a detective testified that a certain conversation was taped with the consent of one Lois Ruland. The defendant objected to this testimony as hearsay. The Court held that because the detective had not testified as to any statement made by Ruland, the testimony was not hearsay. Following Canon, we hold that the testimony objected to by defendant was not hearsay. No error can be predicated on this basis.

In her sixth issue, defendant contends that the court erred in not granting Melvin Wendell immunity so he could be compelled to testify. Since Wendell’s testimony was crucial to defendant’s case, the court’s ruling prevented her from having a fair trial and presenting a full defense.

It is unnecessary for us to consider this issue for the reason that defendant did not make a proper offer of proof following the court’s ruling. Rule 103, Mont.R.Evid., provides in part:

“Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
“(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.” Since defendant failed to inform the court as to what Wendell would probably testify to or as to what she hoped to show through Wendell’s testimony, she is precluded from claiming that the court’s ruling was in error.

Defendant contends in her seventh issue that the introduction into evidence of the photographs of her face and left chest, taken during her examination at the hospital, was error. Defendant does not cite any facts which indicate that the photographs prejudiced her in anyway. She merely argues that the photographs resulted in needless embarrassment. We find that the admission of the photographs into evidence did not affect the substantial rights of defendant and does not provide any basis to set aside the verdict.

Defendant next argues that the prosecution misrepresented the immunity statute to the court in an effort to prevent Melvin Wendell from testifying, which amounted to a suppression of evidence. The record indicates that during a discussion in chambers about the effect of granting Wendell immunity, the State incorrectly argued that Wendell would have to be granted immunity for any matter related to the offense at issue. Although this was a correct statement of the law prior to October 1, 1983, the statute was amended to abolish mandatory “transactional immunity.” Section 46-15-311, MCA (1983). Thus, the prosecutor was incorrect in his argument on the immunity statute. However, a defendant is required to show more than a simple inadvertent misstatement of the law by the prosecutor to establish a claim of prosecutorial misconduct.

Misconduct implies that there was some knowing, bad faith scheme or action by a prosecutor for the purpose of gaining an unfair advantage over the defendant. An innocent misstatement of the law by a prosecutor does not rise to this level. Defendant’s argument might have some merit if she were able to present any facts which indicated that the prosecutor deliberately misrepresented the immunity statute in an effort to persuade the court to keep Wendell off the stand. However, defendant’s argument is based on nothing but speculation. The prosecutor’s good faith can easily be seen by the simple fact that neither defendant’s counsel nor the court seemed to be aware of amendment either. In other words, it was the kind of oversight that could be made by any person. We cannot reasonably expect prosecutors to be infallible in their knowledge of the law.

In her ninth issue, defendant contends that the court committed cumulative error during the trial which resulted in the denial of her right to a fair trial. Since we have found that no errors were committed by the court, this issue is without merit.

Finally, defendant contends that Instruction No. 18 was prejudicial. Instruction 18 stated that the jury could consider, as consciousness of guilt, “any testimony showing, or tending to show, concealment or destruction of evidence by defendant.” The basis of defendant’s argument is that the instruction was not supported by the evidence. We disagree with this contention.

Testimony at trial established that Wendell burned his sweater in one of the fireplaces in defendant’s home. Testimony further established that defendant suddenly cleaned the fireplaces, but cleaned no other room in the house. The evidence provided a sufficient basis for the instruction. The instruction aided the jury in assessing the probative value of such evidence, if found believable. State v. Walker (1966), 419 P.2d 300, 306, 148 Mont. 216, 226. The court did not err in giving this instruction.

For the reasons stated above, the judgment is affirmed.

MR. JUSTICES HARRISON, WEBER, GULBRANDSON, SHEEHY, MORRISON and HUNT concur.


author: MR. JUSTICE HARRISON

text:
    ROSS PULLIAM, Plaintiff and Appellant, v. JAMES PULLIAM and Fred Pulliam, d/b/a/ Pulliam Construction, Defendants and Respondents.
    No. 86-187.
    Submitted on Briefs Jan. 22, 1987.
    Decided March 11, 1987.
    733 P.2d 1299.
    Kammerer Law Offices, Clinton Kammerer, Missoula, for plaintiff and appellant.
    Garlington, Lohn & Robinson, Lawrence F. Daly, Missoula, for defendants and respondents.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the District Court of the Fourth Judicial District, in and for Ravalli County, Montana. The appellant (Ross) appeals from a finding that he is not a one-third partner in Pulliam Construction with two other brothers. We affirm.

Jim, Fred and Ross Pulliam are brothers. Jim and Fred formed Pulliam Construction, a partnership, in 1967, in Missoula, Montana. The two brothers acquired parcels of real property and began building both “spec” and custom houses. The two brothers agreed to share equally the profits, losses, ownership and management of Pulliam Construction. The partnership purchased a farm near Stevensville, Montana, as an investment in 1969. At the time of trial Jim had lived in the farmhouse since 1971. Each of the brothers drew whatever cash he needed for living expenses from the partnership account.

Jim handled the record keeping and financial affairs of the business and Fred did the design layouts and prepared bids. The two brothers worked equally on construction projects, shared in the management of the business, dealt with subcontractors, financial institutions and customers.

In 1971 Pulliam’s mother arranged with Jim and Fred for a younger brother, Ross, to come to Montana from Missouri to work for their construction business for a while. Ross lived in Fred’s house and began working as a laborer. He had no business or building experience when he began working, owned no tools or equipment, had no special skills, and no money to contribute to the partnership business.

It was originally understood Ross would be working in Missoula for only about six months. During this time he was to be provided with a place to live, food and living expenses, with the agreement Jim and Fred would settle with him when he moved back to Missouri. Ross decided not to return to Missouri, however, and the living and compensation agreement was continued. None of the brothers received wages and there was no fixed rate of pay, but each had a drawing account. Ross’s name was added to the partnership signature card allowing him to write checks on the Pulliam Construction account.

In November 1971, Ross moved into the house on the farm property where Jim lived. Ross married in December 1974, and he and his wife lived there until they were divorced in June, 1981. During this time everything Ross and his wife needed was provided by the partnership. Ross worked his last construction shift in May 1977, and became involved in various unsuccessful business enterprises.

Ross filed a complaint in May 1981, alleging his brothers had ex-eluded him from the partnership business and demanded, among other things, the partnership be dissolved and an accounting be had. After a bench trial, the court found that Ross was not a partner in Pulliam Construction and was not entitled to the relief sought. He appeals.

Findings of Fact of the District Court will not be set aside unless they are clearly erroneous. Rule 52(a) M.R.Civ.P. Nor will,

“[t]his Court . . . substitute its judgment for that of the trier of fact. We will consider only whether substantial credible evidence supports the findings and conclusions. Findings will not be overturned unless there is a clear preponderance of evidence against them, recognizing that evidence may be weak or conflicting, yet still support the findings.”

Round v. Reikofski (Mont. 1985), [216 Mont. 54,] 699 P.2d 72, 74, 42 St.Rep. 634, 636.

Therefore, the only question before us here is whether there is substantial evidence to support the District Court’s findings that a partnership did not exist between Ross and his two brothers.

Under Section 35-10-201(1), MCA, “[a] partnership is an association of two or more persons to carry on as co-owners a business for profit.” We have set forth the elements necessary to establish a partnership in Bender v. Bender (1965), 144 Mont. 470, 480, 397 P.2d 957, 962:

“[I]t is necessary to determine the intent of the parties; . . . There must be some contribution by each co-adventurer or partner of something promotive of the enterprise. There must be a joint proprietary interest and a right of mutual control over the subject matter of the enterprise or over the property engaged therein, and there must be an agreement to share the profits.”

See also First National Bank of Twin Bridges v. Sant (1973), 161 Mont. 376, 506 P.2d 835.

Ross argues at least five indicia indicate that he was an equal partner: (1) the bank card signed by all three brothers; (2) the Pulliam Construction ledgers which enumerate a separate drawing account for each brother; (3) the partnership K-l tax returns for the years 1974-1978 which are signed by each brother and which list Ross as an equal partner for purposes of sharing profits and losses; (4) the failure of Pulliam Construction to take any tax, accounting or record keeping steps which would indicate Ross was an employee, independent contractor or joint venturer; and (5) the absence of any time record for all three brothers which bears any correlation to hourly rate or to the amounts actually withdrawn from Pulliam Construction’s funds.

None of these, however, meets the test set out in Bender, supra, nor the statutory rules determining rights and duties of partners pursuant to Section 35-10-401, MCA.

“No person can become a member of a partnership without the consent of all the partners.” Section 35-10-401(7), MCA. Further, the intention of the parties must be clearly manifested. Bender, supra at 480, 397 P.2d at 962. The record shows no such manifestation. The only witness to testify there was an intention to form a partnership was Ross himself.

The two witnesses produced by Ross in his case-in-chief did nothing to support his partnership claims. They were fellow workers who testified that Ross had never said he was an equal partner. One of the witnesses assumed he was a partner, but had not been told so. Jim and Fred’s denial of intention was corroborated by other witnesses.

Regardless of intention, there are certain acts which result in a partnership, or which negate the intention of the parties.

“Superimposed upon the rule of intent, it is frequently held that where there is no express agreement to form a partnership, the question of whether such a relationship exists must be gathered from the conduct, surrounding circumstances and the transactions between the parties. [Citations omitted.] There is no automatic solution to the question of the existence of a partnership but it turns upon the facts and circumstances of association between the parties. [Citations omitted.] No single fact may be stated as the complete and final test of a partnership. [Citations omitted.] Even a written agreement, designating the partners as partners and providing for a sharing of the profits, is only evidential and not conclusive of the existence of a partnership.”

P&M Cattle Co. v. Holler (Wyo. 1977), 559 P.2d 1019, 1022.

In Truck Insurance Exchange v. Industrial Indemnity Co. (Mont. 1984), [212 Mont. 297,] 688 P.2d 1243, 41 St.Rep. 1835, we found the acts of the parties created a partnership in fact, and contrary intentions of the parties were ignored. By splitting the net profits equally, the parties established a prima facie case of partnership under Section 35-10-401(1), MCA. In this case, where there is conflicting evidence the parties intended to form a partnership, the actions of the parties to the contrary defeats any inference a partnership existed.

We find no evidence of an agreement to share the profits. The money which Ross was entitled to draw for his living expenses were as wages of an employee.

“The receipt by a person of a share of the profits of a business is prima facie evidence that such a person is a partner in the business, but no such inference shall be drawn if such profits were received in payment:

“(a) . . .

“(b) as wages of an employee . . .”

Section 35-10-202(4), MCA.

There is no evidence Ross contributed anything promotive of the enterprise, or that he had a proprietary interest or a right of control. As noted above, he had no business or building experience when be began working, owned no tools or equipment, had no special skills, and no money to contribute to the partnership business. He relied upon Jim and Fred to make all business decisions. He did not handle arrangements with subcontractors. Fred and Jim bought and sold numerous pieces of property during the time he was associated with them and his name never appeared on any of the documents of conveyance. He never dealt with any financial institution concerning the partnership loans.

The District Court correctly found:

“[t]here is conflicting testimony as to the intention to form a partnership, however the court hereby finds that there was no contribution by Ross Pulliam of something promotive of the partnership enterprise, that Ross Pulliam had no joint proprietary interest in or right of mutual control over the Pulliam Construction business enterprise or its assets, and that tax wise Ross Pulliam received a share of the net profits and losses of Pulliam Construction as payment as wages of an employee. That Ross was an employee of Pulliam Construction and upon termination of his employment was to be paid wages, less draws, and living expenses as set forth in paragraph XVII above.”

The decision of the District Court is affirmed.

MR. JUSTICES WEBER, GULBRANDSON, SHEEHY and HUNT concur.


author: MR. JUSTICE HUNT

text:
    In re the MARRIAGE OF ROBERT M. BOWMAN, Petitioner and Appellant, and ROSE-MARIE BOWMAN, Respondent and Respondent.
    No. 86-420.
    Submitted on Briefs Dec. 18, 1986.
    Decided March 12, 1987.
    734 P.2d 197.

      Datsopoulos, MacDonald & Lind, David B. Cotner, Missoula, for petitioner and appellant.
    Terry A. Wallace, Missoula, for respondent and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

Appellant, Rose-Marie Bowman appeals from the property settlement and maintenance provisions of the findings of fact and conclusions of law and order entered in the Fourth Judicial District.

We reverse and remand to the District Court with instructions to enter judgment consistent with this Opinion.

The appellant raises several issues on appeal which we consolidate into the following five issues:

1. Whether the District Court acted arbitrarily and unreasonably by ordering appellant to make house payments and accept total responsibility for all costs should foreclosure occur when it also directed that respondent need not contribute to those payments or provide any maintenance to appellant even though the court’s findings verify that appellant required such financial assistance.

2. Whether the District Court abused its discretion when it determined that the parties had abandoned their settlement agreement.

3. Whether the District Court abused its discretion when it denied appellant a proportionate share of respondent’s pension.

4. Whether the District Court abused its discretion and acted arbitrarily without employment of conscientious judgment when it determined that actuarial tables do not consider individuals with health problems similar to respondent’s and failed to use the actuarial tables in determining respondent’s lifespan and consequential valuation of his retirement pension.

5. Whether the District Court acted unreasonably and arbitrarily when it instructed the parties to take turns choosing items of personal property.

Appellant, Rose-Marie Bowman, and defendant, Robert M. “Mike” Bowman were married in 1956. Rose-Marie was 18 and had graduated from high school. Mike was 21 and attending classes at the University of Washington from which he received a B.S. in forestry in 1959. Between 1958 and 1966 the couple had 5 children. One died in infancy. Of the other four children, three were emancipated adults at the time of trial. The youngest, Kelly, age 18, was living with his mother while he completed high school.

Throughout most of their marriage Rose-Marie did not seek employment outside the home. She and Mike agreed that it would be best for the family to have her at home. She did, however, work at various times when the family needed her additional financial support. Due to Mike’s career and service in the Army, the family moved to many different locales including New York, Texas, Alaska, California, Idaho and Washington, D.C. In 1979, the family moved to Missoula, Montana, where Mike worked for the forest service and Rose-Marie worked full-time as a secretary at the University. She continues to work there in a managerial position. In 1981, Mike suffered a stroke and Wallenburg’s Syndrome. He returned to full-time work within a year. He continues to experience some symptoms such as difficulty reading fine print and instability of equilibrium and balance. In the spring of 1985, after 29 years of marriage, Mike and Rose-Marie separated. Mike moved out. Rose-Marie and their youngest son, Kelly, remained in the family home. On April 1, 1985, the parties entered into a separation agreement which provided for financial arrangements such as their tax refund distribution and the payment of debts, loans and monthly accounts. Also, Mike agreed to pay $1,300 per month toward Rose-Marie’s expenses which included the house payment and providing food, shelter and clothing for Kelly. The agreement was to have remained in effect until replaced by other formal legal documents. Although not replaced by other formal legal documents, Mike discontinued payments in July, 1985. When Mike stopped his contributions Rose-Marie was unable to meet the monthly house payments.

Mike retired from his employment in September, 1985. His position had been abolished in Missoula. He chose to retire rather than relocate and be away from his family. At the time of the trial Mike was unemployed but seeking employment as a fire control consultant, a position which pays approximately $100 per day. Mike’s monthly expenses total $1,705. His retirement benefits total $1,861 per month if a deduction is made for survivor’s benefits in Rose-Marie’s name and $2,043 without survivor’s benefits. The purpose for the survivor’s benefits was to protect Rose-Marie and enable her to meet the parties’ monthly debt on their real property in the event of Mike’s death. The District Court found that the benefits were too expensive and could be reasonably provided from another source. The court ordered that Mike provide insurance equal to the survivor’s benefits until the parties’ real property was sold.

Rose-Marie’s monthly take home pay is $1,445.89. Her monthly expenses are $2,676.63. The District Court valued Mike’s pension at $249,900, basing this calculation upon an estimated lifespan of 11.54 years. It valued Rose-Marie’s pension and retirement plans at $6,733, as it will not mature until she reaches age 50. The District Court ordered Mike to make support payments in the amount of $300 per month until June, 1985, at which time Kelly would graduate from high school. The court found Mike able to pay this sum.

It is clearly established in Montana that this Court will not disturb a lower court’s findings of fact and conclusions of law unless they are found to be “clearly erroneous.” Carr v. Carr (Mont. 1983), [205 Mont. 269,] 667 P.2d 425, 427, 40 St.Rep. 1263, 1265, and determines that the lower court “acted arbitrarily without employment of conscientious judgment, or exceeded the bounds of reason in view of all the circumstances.” In Re the Marriage of Jorgensen (1979), 180 Mont. 294, 299, 590 P.2d 606, 609.

The discretion of the District Court is very broad. “We will not substitute our judgment for the trier of fact ... We will view the evidence in a light most favorable to the prevailing party, recognizing that substantial evidence may be weak or conflicting with other evidence yet still support the findings.” Wallace v. Wallace (1983), 203 Mont. 255, 259, 661 P.2d 455, 457 citing In Re Marriage of Bosacker (1980), 187 Mont. 141, 145, 609 P.2d 253, 256.

I.

On appeal, Rose-Marie raises the issue of whether the District Court acted arbitrarily and unreasonably by first finding that she réquired maintenance, but not awarding any to her and second, that she take full responsibility for the parties’ monthly house payments.

After determining an equitable property distribution as provided for in Section 40-4-202, MCA, the court may award maintenance if the spouse seeking maintenance “(a) lacks sufficient property to provide for [her] reasonable needs; and (b) is unable to support herself through appropriate employment . . .” Section 40-4-203(l)(a)(b), MCA. If a court determines that a spouse meets these requirements, as it did in this case, it must consider several additional requirements, including “the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.” Section 40-4-203(2)(f), MCA. The language of Section 40-4-202, MCA and 40-4-203, MCA intertwines an award of maintenance with the distribution of marital property.

In this case, the District Court ordered that the parties’ real property be sold and the proceeds divided with 4/5 going to Rose-Marie, 1/5 to Mike. Rose-Marie was held responsible for the family house payments up until the time it was sold and ordered to pay Mike the value of his equity in the house should it be foreclosed upon. In its findings, the court credits this order to the fact that Mike is in poor health and his potential for future employment should not be considered in light of others of his age and experience.

The District Court considered Mike and Rose-Marie’s 29 years of marriage and found that the marital contributions of each party were equal. The marital estate was distributed as follows:

Mike Rose-Marie
Real Property $ 9,088.00 $ 36,352.00
Personal Property 11,452.50 11,452.50
Mike’s Pension 249,900.00
Rose-Marie’s Retirement Pension 6,733.00
Rose-Marie’s Annuities 7,481.00
Totals $270,470.50 $62,048.50

The record shows that the District Court thoroughly considered the statutory requirements and found that Rose-Marie did meet the maintenance requirement under Section 40-4-203, MCA, even after the distribution of property. However, the court found further that Mike was unable to pay any maintenance due to his health and potentially fixed income. Without employment Mike’s expendable income every month is approximately $338.00. Rose-Marie’s monthly expenses exceed her monthly income by approximately $1,230.74. The District Court did not necessarily abuse its discretion by distributing the marital property as it did and by not awarding a maintenance allowance to Rose-Marie. A seemingly disproportionate distribution, with or without an award of maintenance, must be considered in light of the overall property distribution, the requirements of Section 40-4-202 and Section 40-4-203 and whether there is substantial credible evidence to support the District Court’s division.

II.

In this case, the crux of whether the entire property division is equitable and not an abuse of the court’s discretion rests on whether the District Court clearly abused its discretion by concluding that the parties’ April 1, 1985 separation agreement was abandoned by both parties as of July 1, 1985. The record shows no evidence to suggest that the agreement was, in fact, abandoned by the parties. The record does show that Mike breached the agreement by failing to make bi-monthly payments of $650 as the parties agreed was necessary to make house payments and meet other expenses of Rose-Marie and Kelly. The record also shows that Rose-Marie continued to rely on the terms of the agreement through August, 1985. The agreement specifically states that it is to be in effect until it is replaced by other formal legal documents. No such documents had replaced the agreement at the time of trial.

Section 40-4-201 (4)(a), MCA, provides that unless the court finds a separation agreement unconscionable or unsatisfactory as to disposition of property or maintenance and unsatisfactory as to support, the terms “shall be set forth in the decree of dissolution . . . and the parties shall be ordered to perform them.” The District Court found the agreement neither unconscionable nor unsatisfactory in any way. The court simply concluded that “The April 1, 1985 agreement between the parties should not be considered in the equitable division of the marital estate, as both parties had abandoned it as of July 1, 1985.” The statutory divisions found in the Uniform Marriage and Divorce Act were developed to protect such settlement contracts. It is the duty of the courts to acknowledge and enforce these contracts barring any statutorily provided exceptions.

The District Court clearly abused its discretion when it concluded that the parties abandoned their separation agreement and failed to incorporate it into the findings of facts, conclusions of law and order.

The real property division was critical to the overall property distribution in this case. If Rose-Marie had been awarded the family home with some feasible arrangement enabling her to make house payments, it would have been a valuable asset. Instead, the court awarded her a piece of property which was about to be foreclosed upon and ordered her to reimburse Mike upon foreclosure for any equity which he had acquired in the house. Rose-Marie’s inability to make the house payments was due to Mike’s breach of the parties’ separation agreement. The effect of the court’s order was to diminish Rose-Marie’s share of the real property distribution from $36,352 to $21,852, making the “equitable” distribution of property between the parties even more unequal and placing full responsibility for a default upon Rose-Marie. When a court finds the parties’ contribution to the marriage was equal, as it did in this case, it does not mean that the marital estate must be divided equally. Kowis v. Kowis (1983), 202 Mont. 371, 378, 658 P.2d 1084, 1088. Section 40-4-202, MCA, does not mandate equal distribution. As long as the court considers the statutory requirements, bases its findings and conclusions on credible evidence on record and does not clearly abuse its discretion or act arbitrarily and unreasonably, the findings and conclusions of the lower court will not be disturbed. By concluding that the parties’ separation agreement of April 1, 1985 (which provided for maintenance to Rose-Marie) was abandoned; by distributing the marital estate 4 to 1 favoring Mike; by ordering Rose-Marie fully responsible for the family home payments and liable to Mike for his equity in the house upon default; and by not providing for any maintenance to make these payments after finding that she was in need of such maintenance, the District Court clearly abused its discretion by acting in an unreasonable and arbitrary manner.

III.

The next issue raised by Rose-Marie is whether the District Court abused its discretion by not awarding Rose-Marie a portion of Mike’s retirement pension.

When considering Mike’s retirement pension, the Court properly included it in the marital estate. “It is well established in this state . . . that retirement benefits are part of the marital estate.” In Re Marriage of Rolfe (Mont. 1985), [216 Mont. 39,] 699 P.2d 79, 83, 42 St.Rep. 623, 627. As a part of the marital estate to which both parties have been found to have contributed equally, the pension does not have to be distributed equally. As long as the lower court considers the requirements outlined in Section 40-4-202, it has broad discretion to equitably apportion the individual assets. The trial court may not have abused its discretion by not awarding any of Mike’s pension to Rose-Marie. It may, however, need to reconsider the total property distribution on remand, in light of the above discussion concerning the separation agreement and maintenance.

In Glasser v. Glasser (Mont. 1983), [206 Mont. 77,] 669 P.2d 685, 689, 40 St.Rep. 1518, 1523, this Court cites ways in which retirement benefits can be analyzed in terms of equitable distribution.

“For example: 1) The distribution should generally be based on the contributions made during the marriage. 2) The Courts should continue to strive to disentangle the parties as much as possible by determining, where equitable, a sum certain to be paid rather than a percentage based upon expected future contingencies. 3) In determining whether a lump sum award is appropriate, courts should consider the burden it would place on the paying spouse in view of required child support, spousal support, and other property distribution. 4) Where courts determine that the parties will share in the benefits on a proportional basis, the parties should also share the risks of future contingencies, e.g., death of the employe [sic] spouse or delayed retirement of the employee spouse, and payment should be to the receiving spouse as the employee spouse receives the retirement pay. 5) Courts should consider, where appropriate, an award of a portion of retirement benefits where other property awarded is not adequate to make equitable distribution. Citing Marriage of Rogers and Rogers (1980), 45 Or.App. 885, 609 P.2d 877, 882-883.

Intertwined with the division of the pension is the issue of whether the court abused its discretion by ordering survivor’s benefits or other “equal insurance” to be provided for Rose-Marie only until the parties’ real property is sold. The record does not show any testimony or other evidence that $182.00 per month for survivor’s benefits is “too expensive.” Nothing on the record indicates that a comparable annuity could be purchased for less. To terminate Rose-Marie’s survivor’s benefits jeopardizes her 29 year investment in the marital estate. The District Court found that Rose Marie relied upon the fact that Mike’s retirement plan continued to grow when she made plans regarding her own retirement. By awarding Mike his full pension and ordering Rose-Marie’s survivor’s benefits terminated, the court effectively destroyed Rose-Marie’s retirement plans.

Upon remand we suggest that the District Court, in its discretion, reconsider the division of the pension and survivor’s benefit in light of its finding that the parties contributed equally to the marital estate and in consideration of the fact that upon dissolution the parties should receive equitable treatment from the court.

IV.

Rose-Marie raises an additional issue as to whether the District Court abused its.discretion and acted arbitrarily without employment of conscientious judgment when it valued Mike’s pension at $249,900.

The proper test for determining the value of a pension is present value. Kis v. Kis (1982), 196 Mont. 296, 639 P.2d 1151. In Kis, this Court acknowledged that the value of the retirement benefits may be effected by the contingency of failing to reach the levels used by the court. 639 P.2d at 1153. To aid the court in valuing Mike’s pension, both parties retained the same expert witness to make the technical calculations. In its findings, the lower court seemingly disregarded this witness’ testimony and instead used an 11.54 year expected lifespan. The court derived this number by taking the 2.5 increase of Mike’s life insurance policy and dividing it into the actuarial table’s expected lifespan of 28.84 years. Although, on its face, this calculation may seem logical,, the record shows that it is not substantiated by any sound, traditionally used present value determinations. While the use of actuarial tables necessarily involves speculation regarding the number of years a specific individual will live, these tables, based on nationwide statistics, offer the most reliable method for arriving at a specific figure regarding life expectancy. The District Court found that the actuarial tables failed to consider individuals with health problems similar to Mike’s. Based on the record, it is not an abuse of the court’s discretion to make such a finding. It is, however, an abuse of discretion to arbitrarily pick a method of calculation which enjoys no support from the record and, in fact, is refuted by both parties’ expert witness as very speculative. Whether the court takes judicial notice of the actuarial tables and consequentially relies upon them as accurate for a person of Mike’s age and health falls under the discretion of the District Court judge. However, the court is required to justify its use of a particular method and select a method of calculation in a less arbitrary manner than that which it employed.

V.

The final issue raised by Rose-Marie is whether the District Court acted unreasonably and arbitrarily when it instructed the parties to take turns choosing personal property. Although the parties had already agreed to a division of these personal property items, it is not an abuse of the court’s discretionary power to select a different method for distribution. There is no allegation that the distribution is unconscionable or unfair. If carried out by the parties it can result in a 50/50 equitable division which is not unreasonable or arbitrary.

VI.

The District Court ordered that Mike pay six months of child support in the amount of $300 per month for the support of the parties’ 18 year year old son, Kelly. On appeal, Mike contends that because Kelly is legally an adult, he is not obligated to make these payments. Section 40-4-208(5), MCA, provides as follows: “Unless otherwise agreed in writing or expressly provided in the Decree, provisions for the support of a child are terminated by emancipation of the child . . .” This statute clearly empowers the District Court to provide in the conclusions of law and order that the support of the child may be extended beyond the age of emancipation. Awarding $300 per month child support to Rose-Marie through June, 1985, when Kelly would graduate from high school, is totally within the bounds of the court’s power.

Reversed and remanded.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, WEBER, SHEEHY, MORRISON and GULBRANDSON concur.


author: MR. JUSTICE MORRISON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JACK JASON COX, Defendant and Appellant.
    No. 86-421.
    Submitted on Briefs Jan. 15, 1987.
    Decided March 12, 1987.
    733 P.2d 1307.

      Christopher Daly, Missoula, for defendant and appellant.
    Mike Greely, Atty. Gen., John Paulson, Asst. Atty. Gen., Helena, Robert L. Deschamps, III, Co. Atty., Missoula, for plaintiff and respondent.
   MR. JUSTICE MORRISON

delivered the Opinion of the Court.

Defendant appeals the April 11, 1986, judgment of the Fourth Judicial District Court finding defendant guilty of aggravated burglary. We affirm.

At approximately 2:00 a.m. on November 17, 1985, Skip Caluori noticed a station wagon drive by his home and pull into a grassy driveway beside his neighbor’s woodpile. Caluori was suspicious as he had seen a similar car earlier in the evening drive by his house slowly. Caluori and his neighbor, Gene Nulliner, live on Cross Street in Piltzville, Montana. Cross Street receives very little traffic.

After seeing two men emerge from the station wagon, Caluori phoned Nulliner and told him he thought two prowlers were by his woodpile. Nulliner turned on his outside lights and he and Caluori approached the station wagon. Caluori’s sister phoned the sheriffs department concerning the suspected prowlers.

Defendant and another man were crouching behind the station wagon, apparently trying to hide. Nulliner told the men to move away from the car and asked what they were doing. Defendant stated they were fixing a flat tire. Caluori and Nulliner saw no evidence of a flat tire and asked the men to step onto the lighted driveway. At that point, Caluori and Nulliner saw numerous tools and equipment lying on the ground next to the station wagon. Defendant made an offer to trade a gun in exchange for their release.

As they stood in the driveway waiting for the sheriff, Nulliner noticed defendant inching his hand toward the inside of his coat. Nulliner grabbed defendant’s arm and reached inside his coat and extracted a handgun. The gun was a loaded .38 semi-automatic revolver. Law enforcement officers arrived shortly thereafter.

Nulliner observed the name of his neighbor, Gene Sperry, on a power generator lying near the car so he went across the street and returned with Sperry. Sperry has a large garage where he maintains a shop to conduct his business as a pump repairman. Sperry identified the equipment next to the station wagon as his, including a tool chest in the back of the station wagon. Caluori and Sperry both noticed a well beaten path between Sperry’s garage and the station wagon. There was frost on the ground and the tracks were easily seen. Sperry stated his equipment was in the shop when he closed up at 10 p.m. but that he had not locked the door.

The stolen property included an air compressor, electric welder, hand truck, power plant, two toolboxes, a trailer house wheel and tire, a boat trailer wheel, and several other tires. The equipment was valued at $7000. Defendant was discovered to be the owner of the station wagon.

Defendant was charged with aggravated burglary and the case was consolidated with several other theft charges pending against defendant. Defendant plead guilty on all counts except the aggravated burglary count. A bench trial was conducted on April 1, 1986, as to the aggravated burglary charge. Defendant was found guilty of aggravated burglary and sentenced to 30 years in the Montana State Prison with 20 years suspended, in addition to his sentences on the other counts. Defendant appeals and raises the following issue:

1) Whether the evidence is sufficient to support defendant’s conviction for the offense of aggravated burglary?

Aggravated burglary is defined in Section 45-6-204(2), MCA:

“(2) A person commits the offense of aggravated burglary if he knowingly enters or remains unlawfully in an occupied structure with the purpose to commit a felony therein and:
“(a) in effecting entry or in the course of committing the offense or in immediate flight thereafter, he or another participant in the offense is armed with explosives or a weapon; or
“(b) in effecting entry or in the course of committing the offense or in immediate flight thereafter, he purposely, knowingly, or negligently inflicts or attempts to inflict bodily injury upon anyone.” Defendant admits direct evidence was introduced proving the garage is an occupied structure and that he was carrying a weapon. However, defendant contends there is no direct evidence that he knowingly entered the garage and remained unlawfully with the intent to commit a felony therein. Defendant further contends the circumstantial evidence is insufficient to prove he was ever in the garage. Finally, defendant argues there was inadequate time to transport all the equipment from the garage to his car in the five minutes from the time Caluori first saw the car park in the driveway.

Our duty is to review the record in a light most favorable to the State and determine whether there is substantial evidence supporting the conviction. State v. Wilson (Mont. 1981), 631 P.2d 1273, 38 St.Rep. 1040. We find substantial credible evidence in the record to prove defendant committed aggravated burglary.

Circumstantial evidence may be used to prove that defendant entered the garage and committed a felony while unlawfully within the structure. In State v. Kinghorn (1939), 109 Mont. 22, 93 P.2d 964, we held that possession of stolen property, accompanied by other incriminating circumstances, and false or unreasonable explanation by the suspect is sufficient to sustain a conviction of burglary. In this instance, defendant was in possession of stolen property. The equipment was lying next to his station wagon in a deserted area at 2 a.m. A toolbox from the garage was in the back of defendant’s station wagon. When questioned by Nulliner, defendant replied that the equipment was his and that he worked in a body shop. Defendant’s answer was clearly false.

There were other incriminating circumstances surrounding defendant’s possession of the stolen property. The stolen items had been removed between 10 p.m. and 2 a.m. and the frost on the ground revealed a well-beaten path from the garage to defendant’s vehicle. After Caluori and Nulliner appeared on the scene, defendant first lied that he was fixing a tire and then attempted to reach for a gun. Defendant also offered to trade the gun for his release.

The State was not required to show that defendant and his accomplice were capable of removing all the stolen items in a span of five minutes. Even if defendant did prove it was impossible to move the items in five minutes which he did not, a plausible explanation is that they moved the stolen goods prior to driving the car to the location.

It is a rare case where “intent” is proven by direct evidence. The existence of intent is a question for the jury. State v. Jackson (1979), 180 Mont. 195, 589 P.2d 1009. In this case, there is substantial evidence from which to infer defendant’s intent to commit aggravated burglary. The District Court is affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, WEBER, SHEEHY, GULBRANDSON and HUNT concur.


text:
    In re the MARRIAGE OF JEAN A. REID, Petitioner and Appellant, and FRANK M. REID, Respondent and Respondent.
    No. 86-552.
    Submitted on Briefs Feb. 5, 1987.
    Decided March 12, 1987.
    733 P.2d 1302.

      Deirdre Caughlan, Butte, for petitioner and appellant.
    Robert P. McGee, Butte, for respondent and respondent.
   MR. JUSTICE MORRISON

delivered the Opinion of the Court.

Jean A. Holland, formerly Jean A. Reid (wife), appeals the findings of fact, conclusions of law and judgment of the Second Judicial District Court distributing marital property and awarding her maintenance. We affirm.

The parties were originally married in 1953. That marriage was dissolved in 1979. Two months later the Reids remarried. The second marriage ended in 1986, when husband moved to Spokane. He was previously employed as a construction worker. Husband, who was 65 at the time of the hearing, is now retired. He has a pension fund with James Gilam and Company in the approximate amount of $25,000. He also receives a monthly pension of $567 from Teamsters and Social Security monthly payments of $600.

Wife was 53 years of age at the time of the hearing. She was not employed outside the home during her married life. She worked as a homemaker and reared the parties’ four children. She was trained in typing at the vocational school in Butte, Montana, and was employed as a food demonstrator at a grocery store for two days. The trial judge awarded wife maintenance payments of $350 a month for five years.

“Finding of Fact VII.

“That the Petitioner has no health problems, has obtained additional training through the vocational school at Butte, Montana and had worked within one week of the hearing on this matter. That she is therefore capable of retraining and returning to the work force, and to assist her should have the sum of Three Hundred Fifty and No/100 ($350.00) Dollars per month for the period of five (5) years for the purposes of retraining for employment.”

The parties jointly own a home in Butte. Wife, based on 1986 tax appraisals, values the house at $25,000. Husband contends it is worth $50,000. Wife requested that she be awarded the house. The trial judge ordered that it be reappraised and sold, with each party receiving one-half of the proceeds.

Other assets include an account at the Montana Bank of Butte in husband’s name totalling $5,650; accounts at the Safeway Credit Union in wife’s name totalling $11,092.40; a car worth approximately $500; $1,000 in household furnishings; and an IRA valued at approximately $1,100. The funds in wife’s credit union account originated from the wife’s award of one-half the marital property at the time of the first dissolution. Husband’s half has been dissipated, but it is unclear when or on what the money was spent.

The trial judge determined that all marital assets be liquidated and that the proceeds, together with all cash accounts, be divided equally between the parties. Wife appeals, raising three issues:

1. Did, the trial judge err in ordering the residence of the parties sold and in not awarding its use and occupancy to wife?

2. Did the trial judge err in including in the marital estate the savings retained by wife from the first dissolution and in awarding husband one-half thereof?

3. Did the trial judge disregard wife’s present needs and future employability when determining her maintenance award to be $350 a month for five years?

We find no error. Absent a clear abuse of discretion by the trial judge, this Court will overturn neither the distribution of marital property nor an award of maintenance. Grenfell v. Grenfell (1979), 182 Mont. 229, 596 P.2d 205.

Section 40-4-202, MCA, governs the distribution of marital property. It sets forth numerous factors to be considered:

“Division of property. (1) In a proceeding for dissolution of a marriage . . . the court, without regard to marital misconduct, shall. . . finally equitably apportion between the parties the property and assets belonging to either or both, however and whenever acquired and whether the title thereto is in the name of the husband or wife or both. In making apportionment, the court shall consider the duration of the marriage and prior marriage of either party; antenuptial agreement of the parties; the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties; custodial provisions; whether the apportionment is in lieu of or in addition to maintenance; and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution or dissipation of value of the respective estates and the contribution of a spouse as a homemaker or to the family unit. In dividing property acquired prior to the marriage . . . 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.”

Section 40-4-203, MCA, controls the awarding of maintenance. It states:

“(2) The maintenance order shall be in such amounts and for such periods of time as the court deems just, without regard to marital misconduct, and after considering all relevant facts including:
“(a) the financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently . . .;
“(b) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
“(c) the standard of living established during the marriage;
“(d) the duration of the marriage;
“(e) the age and the physical and emotional condition of the spouse seeking maintenance; and
“(f) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.”

The lower court judge need not articulate each factor separately as long as the findings are sufficient to allow non-speculative review by this Court. In re the Marriage of Larson (1982), 200 Mont. 134, 139, 649 P.2d 1351, 1354.

“Our ultimate test for adequacy of findings of fact is whether they are sufficiently comprehensive and pertinent to the issues to provide a basis for decision, and whether they are supported by the evidence presented.”

In re the Marriage of Jensen (1981), 631 P.2d 700, 703, 38 St.Rep. 1109, 1113.

Upon review, it is apparent that the trial judge attempted to distribute the property equitably and to support his distribution with adequate findings. He divided the marital estate, less husband’s monthly pension and Social Security benefits, equally between the parties. He acknowledged wife’s lack of employment training by providing maintenance payments for five years. He further recognized, by reducing wife’s $600 request for maintenance to $350, that although wife’s ability to earn income in the future was slight, it was better than that of husband, who was retired and apparently ill. Testimony at trial indicated that husband would be undergoing surgery in the near future.

The trial judge also has considerable discretion in determining how to distribute property acquired prior to the marriage. It may be equitably apportioned between the parties with no regard to title or time of acquisition. The only requirement is that the court consider the contributions to the marriage of the spouse who did not acquire the property. In re the Marriage of Lewis (1982), 198 Mont. 51, 643 P.2d 604. We find no abuse of discretion in the trial judge’s decision to divide wife’s remaining proceeds from the first dissolution equally with husband upon the second dissolution. Husband was, afterall, the sole source of marital income.

Affirmed.

MR. JUSTICES HARRISON, SHEEHY, GULBRANDSON and HUNT concur.