MARRIAGE OF LEVANDOWSKI

Annotate this Case

Download PDF

No. 80-189 IN THE SUPREME COURT OF THE STATE OF MONTANA 1981 IN RE THE MARRIAGE OF RICHARD JAMES LEVANDOWSKI, Petitioner and Appellant, -vsDONNA MARIE LEVANDOWSKI, Respondent and Respondent. Appeal from: District Court of the Eighth Judicial District, In and for the County of Cascade, The Honorable John M. McCarvel, Judge presiding. Counsel of Record: For Appellant: Asselstine & Cruikshank, Great Falls, Montana For Respondent : Alexander & Baucus, Great Falls, Montana Submitted on Briefs: Decided : Filed: -2 - 1981 March 11, 1981 #L ;C Mr. Justice John Conway Harrison delivered the Opinion of the Court. Appellant, Richard Levandowski, filed a petition for dissolution of marriage, for property division and for the custody of the minor children. Respondent, Donna Levandowski, filed a response, admitted that the marriage was irretrievably broken, sought child custody, property division, maintenance and attorney fees from appellant. Following dissolution of a trial the District Court granted the marriage, made a property the division, awarded appellant custody of the minor boy and respondent custody of the minor girl, and ordered appellant to pay respondent maintenance payments, support for the minor child, and attorney fees. From these findings of fact, conclusions of law and order appellant appeals. The parties were married children were born of on June 20, 1959. the marriage. Four The marr iage was dissolved on February 25, 1980. Respondent married school. She studies. had no appellant shortly after formal Respondent worked training except as a secretary. for Her high recent gross earnings were approximately $7,000 for the year prior to separation. Appellant is a battalion chief for the City of Great Falls Fire Department. He has seventeen years' experience. Appellant also worked a parttime job and belonged to the Naval Reserves. His gross earnings were in excess of $22,000. The District Court found that respondent's actual earning capacity was in line with her present training and capabilities. The substantial assets of the marriage were the family home, personal property and appellant's pens ion. The pension's value was approximately $8,900; the value of the personal property was approximately $2,500. The family home was encumbered by a mortgage of approximately $7,000 at the time of dissolution, and its appraisal ranged from $45,000 to $52,000. The District Court awarded appellant. the pension solely to The District Court ordered that the home be sold in approximately two years and the net proceeds be divided equally at that time. The personal property was also to be sold at the time of the sale of the house and divided equally . Respondent was allowed to stay in the house until the parties' minor child graduated respondent remarried. from high school or until Appellant was responsible for the house payments, insurance, taxes and any repairs in excess of $100. Respondent was continuing College of Great Falls and her expected education at the to graduate in two years. She was granted maintenance on a temporary basis for her schooling in the amount of $200 per month. also was ordered fees to pay Appellant respondent's reasonable attorney . We are asked to review the following issues: Whether the findings of fact, conclusions of law and judgment were proper and whether there was sufficient evidence to support those findings; whether the property division was proper; whether the order to pay maintenance was proper; and whether the District Court erred in awarding attorney fees to respondent. A review of the record indicates that the District Court did The not e r r f i n d i n g s were its findings, in detailed, evidence presented a t t r i a l . t h e maintenance reasoned and o r d e r . and s u p p o r t e d by t h e The D i s t r i c t C o u r t c o o r d i n a t e d and p r o p e r t y abusing its d i s c r e t i o n . conclusions d i v i s i o n judgment without In dividing the property, the court f o u n d t h a t t h e p a r t i e s had made e q u a l c o n t r i b u t i o n s t o t h e marital estate. S e c t i o n 40-4-202, MCA, requires the court t o consider the following prior t o dividing the marital property: ". . . . . . t h e d u r a t i o n of t h e marriage the a g e , h e a l t h , s t a t i o n , o c c u p a t i o n , amount and sources of income, vocational skills, e m p l o y a b i l i t y , e s t a t e , l i a b i l i t i e s and n e e d s whether t h e of e a c h of t h e p a r t i e s ; apportionment is i n l i e u of o r i n a d d i t i o n t o m a i n t e n a n c e ; and t h e o p p o r t u n i t y o f e a c h f o r f u t u r e a c q u i s i t i o n of c a p i t a l a s s e t s and income. The c o u r t s h a l l a l s o c o n s i d e r t h e c o n t r i b u t i o n o r d i s s i p a t i o n of v a l u e of t h e r e s p e c t i v e e s t a t e s and t h e c o n t r i b u t i o n o f a s p o u s e a s a homemaker o r t o t h e f a m i l y u n i t . . . . . . The I1 standard for review of the District Court's d e c i s i o n is w e l l - s e t t l e d : "A D i s t r i c t C o u r t h a s f a r - r e a c h i n g d i s c r e t i o n i n r e s o l v i n g p r o p e r t y d i v i s i o n s , and its judgment w i l l n o t be a l t e r e d u n l e s s a c l e a r The t e s t a b u s e o f d i s c r e t i o n i s shown. f o r reviewing t h e D i s t r i c t C o u r t ' s d i s c r e t i o n is: Did t h e D i s t r i c t C o u r t i n t h e e x e r c i s e of i t s d i s c r e t i o n a c t a r b i t r a r i l y w i t h o u t employment o f c o n s c i e n t i o u s j u d g m e n t , o r e x c e e d t h e bounds o f r e a s o n i n v i e w o f a l l o f the circumstances? [Citations omitted. 1" In Re t h e M a r r i a g e o f J a c o b s o n , ( 1 9 7 9 ) , Mont , 600 P.2d 1 1 8 3 , 1 1 8 6 , 36 S t . R e p . 1 7 7 3 , 1776. . . . The dividing District the marital Court estate. did not The act record arbitrarily in is r e p l e t e w i t h competent c r e d i b l e evidence concerning t h e f a c t o r s s e t f o r t h in section 40-4-202, MCA. The court determined v a l u e of t h e m a r i t a l e s t a t e and t h e n d i v i d e d i t . the net Appellant's unencumbered asset. pension was by far the greatest His contributions at the time of the dissolution of the marriage were approximately $8,900. That figure does not include the matching contribution of his employer. The court awarded the pension to appellant as his sole property. Further, the distribution of the District Court particularly considered (a) the present and future earning capacity of the parties; (b) the education, vocational skills, employability and needs of the parties; and (c) the needs of the wife for additional maintenance. Appellant's earning capacity was three to four times greater than that of respondent. She had no formal training since she was married one month out of high school. The court found that her employment matched her education and training. She is presently enrolled in a two-year associate degree program at the College considered of in Great Falls, which structuring the the court property further division and structuring its maintenance award. The order. court used good judgment in Respondent suddenly found herself on her own after twenty-one years of marriage. Her net income was equal to that earned by appellant at his parttime job. completes her present schooling, Until she respondent needs maintenance in add it ion to the property distribution. The property distribution is properly delayed for approximately two years. month to In the interim, the court's award of $200 per respondent to help her through school and the exclusive use of the family home was the only method by which respondent could get to a position where she could properly care for herself during the remainder of her lifetime. Appellant argues that t h e D i s t r i c t Court failed determine t h e p r e s e n t value of t h e m a r i t a l e s t a t e . to However, t h e f i n d i n g s and o r d e r d e t a i l t h e v a l u e s o f t h e p r o p e r t y and their encumbrances. factors to be S e c t i o n 40-4-203, considered in awarding enumerates MCA, maintenance. The f a c t o r s a r e s i m i l a r t o t h o s e employed i n t h e d i s t r i b u t i o n o f property: parties; (a) the respective ( b ) t h e s t a n d a r d of (c) the marriage; education; and time earning of the living established during the necessary ( d ) each capacity to acquire spouse's ability to for coordination a sufficient independently meet t h e i r needs. The A c t provides the of property d i s t r i b u t i o n and m a i n t e n a n c e t o a s s u r e t h a t a s p o u s e w i t h o u t the ability to support herself be will maintained at a s i m i l a r standard of l i v i n g . The D i s t r i c t C o u r t c o o r d i n a t e d the the property maintenance. division with College terminates of respondent for T h i s m a i n t e n a n c e was a l s o d i r e c t l y r e l a t e d t o h e r c o m p l e t i o n o f a two-year the needs of Great upon the a s s o c i a t e degree i n business a t Falls. The maintenance payment or termination of completion her education. The d e c i s i o n o f upon the parties. income, t h e D i s t r i c t Court is soundly based property, needs and abilities of the The f i n d i n g s a r e d e t a i l e d i n t h i s r e g a r d and w i l l n o t be d i s t u r b e d on a p p e a l . Appellant argues that the District awarding a t t o r n e y f e e s t o respondent. Court erred in Respondent's counsel t e s t i f i e d t h a t a s o f t h e c o n c l u s i o n o f t h e h e a r i n g h e would have expended twenty-three hours in the preparation and t r i a l of t h e c a s e . This wherein respondent retain an a vigorously contested a c t i o n was had attorney. limited Appellant's a t t o r n e y f e e s is n o t b a s e d the amount appellant time of claims resources and on there by was her income to award of the upon t h e need o f expended that attack dissolution respondent o r However, independent no counsel. testimony w i t h r e g a r d t o t h e r e a s o n a b l e n e s s o f a f e e o f $55 t o $60 p e r hour. A t best, The reduced District amount counsel's t h i s constituted harmless e r r o r . of fee to a Court awarded $700. The r a t e of attorney District approximately fees Court $30.44 in the reduced per hour, b a s e d upon t w e n t y - t h r e e h o u r s of t i m e . This Court has recognized properly awarded reasonableness. , 603 P.2d absent See Bailey 259, t h a t a t t o r n e y f e e s may be independent v. 36 S t . R e p . Bailey 2162. testimony (1979), of Mont. A r e h e a r i n g on t h i s i s s u e would s e r v e no u s e f u l p u r p o s e i n l i g h t of t h e r e d u c e d award by the District Court. The award of C o u r t of a f e e of $30.44 p e r hour i s r e a s o n a b l e . Affirmed. the District We concur: Mr. J u s t i c e Frank B . M o r r i s o n , J r . , c o n c u r r i n g : I c o n c u r b u t do n o t t h e r e b y a p p r o v e o f d i v i d i n g t h e m a r i t a l e s t a t e a s was done h e r e . There i s a s i g n i f i c a n t d i f - f e r e n c e i n t h e f u t u r e e a r n i n g c a p a c i t y of t h e husband and wife. Though t h e husband h a s t h e g r e a t e r o p p o r t u n i t y t o acquire f u t u r e a s s e t s t h e wife received l e s s than half the estate. " See Smith v. Smith ( 1 9 8 1 ) , 38 St.Rep. 146; T e f f t v. T e f f t ( 1 9 8 1 ) , 38 St.Rep. Mont. - 622 P.2d 1022, , Mont. P.2d , - 837. f Only b e c a u s e t h e w i f e d o e s n o t h e r e complain do I v o t e t o affirm.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.