Marriage of Bossler

2013 MT 261N

• Court: Montana Supreme Court
• Decided: September 10, 2013
• Docket: 13-0148
• Status: Published

Opinion

September 10 2013

DA 13-0148

IN THE SUPREME COURT OF THE STATE OF MONTANA

2013 MT 261N

IN RE THE MARRIAGE OF

LOUIS WILLIAM BOSSLER,

Petitioner and Appellant,

v.

BRENDA JOY BOSSLER,

Respondent and Appellee.

APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. CDR-2011-382 Honorable Kathy Seeley, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

KD Feeback; Gough, Shanahan, Johnson & Waterman, PLLP; Helena, Montana

For Appellee:

Joan Hunter; Hunter Law Office; Helena, Montana

Submitted on Briefs: August 21, 2013

Decided: September 10, 2013

Filed:

__________________________________________ Clerk Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2 Louis William Bossler (Bill) appeals the decree of dissolution of the First Judicial

District, Lewis and Clark County, awarding Brenda Joy Bossler (Brenda) maintenance of

$750 per month for eighteen months, beginning one month after the sale of the marital

home. We affirm the District Court.

¶3 Bill and Brenda were married on September 7, 1988, in Helena, Montana. They

separated in March 2010, and Bill filed a petition for dissolution on June 27, 2011. Bill

and Brenda have no minor children. Bill is employed by Burlington Northern and earns

approximately $76,500 per year. At the time of the dissolution hearing, Brenda was

self-employed, and her income was significantly less than Bill’s. Brenda sought

maintenance in the sum of $1,500 per month for a period of three years.

¶4 On October 12, 2012, the District Court entered its Findings of Fact, Conclusions

of Law, and Decree of Dissolution. The District Court found that Brenda was

employable, had no physical disability, and had experience in the food service industry.

However, the District Court also noted that Brenda was unsuccessful in her attempts to

secure other employment, testified she could not support herself with her existing

employment, and had enjoyed a relatively high standard of living while married to Bill.

2 The District Court determined Bill would be able to meet his own needs while paying

some maintenance and found it equitable to award Brenda maintenance of $750 per

month for eighteen months, beginning one month after the sale of the marital home.

¶5 Bill raises two issues on appeal. First, Bill argues that the District Court erred

when it declared it lost jurisdiction to rule on his M. R. Civ. P. 60 motion upon the

expiration of the 60-day deadline. The District Court had granted an extension of time

for briefing the motion and then denied the motion for lack of jurisdiction on February

13, 2013, one day after we entered our decision in Green v. Gerber, 2013 MT 35, 369

Mont. 20, 303 P.3d 729. Pursuant to Green, “the expiration of a time bar does not

deprive a district court of the jurisdiction to further act in the matter before it.” Green,

¶ 24. Thus, the District Court did not lose jurisdiction over the motion. However,

Brenda argues the question of whether the District Court should have considered the

motion is rendered moot by this appeal, as the issue Bill raised in his motion is now being

heard by this Court. We agree with Brenda that our review of the merits of Bill’s appeal

renders Bill’s first issue moot.

¶6 Second, Bill asserts that the District Court erred in awarding maintenance to

Brenda. Bill argues that the District Court failed to determine whether or not Brenda

lacked sufficient property for her reasonable needs, and that maintenance was

inappropriate because Brenda can support herself through her current employment. We

review the division of marital property and maintenance awards to determine whether the

findings of fact upon which the District Court relied are clearly erroneous. In re

Marriage of Rolf, 2004 MT 276, ¶ 18, 323 Mont. 216, 99 P.3d 217. Based on the

3 evidence before the District Court concerning the financial situations of the parties, its

findings of fact are not clearly erroneous. There is sufficient evidence to support the

maintenance award.

¶7 Bill also argues that the District Court erred in failing to consider the income

Brenda would receive upon the sale of the marital home. In its findings of fact, the

District Court acknowledged the future sale of the marital home and the parties’

agreement to share the equity. The District Court was not required to further consider the

sale as it had not yet occurred. This Court will not consider subsequent events in

reviewing a district court’s findings. In re Marriage of Beadle, 1998 MT 225, ¶ 20, 291

Mont. 1, 968 P.2d 698. Thus, the subsequent sale of the marital home does not change

our review of the District Court’s decision.

¶8 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of

our Internal Operating Rules, which provides for noncitable memorandum opinions. The

District Court’s factual findings are supported by substantial evidence and are not clearly

erroneous.

¶9 We therefore affirm the District Court’s decision.

/S/ PATRICIA COTTER

We Concur:

/S/ MICHAEL E WHEAT /S/ BETH BAKER /S/ LAURIE McKINNON /S/ BRIAN MORRIS