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In re Marriage of Toenjes

Supreme Court of Montana

July 31, 2018

IN RE THE MARRIAGE OF: JONI E. TOENJES, n/k/a JONI E. HARDY, Petitioner and Appellee,
VINCENT G. TOENJES, Respondent and Appellant.

          Submitted on Briefs: June 13, 2018

          APPEAL FROM: District Court of the Twenty-First Judicial District, In and For the County of Ravalli, Cause No. DR-15-102 Honorable Jeffrey H. Langton, Presiding Judge

          For Appellant: P. Mars Scott, Jason M. Scott, P. Mars Scott Law Offices, Missoula, Montana

          For Appellee: Jamie J. McKittrick, Thomas Stanton, Wells & McKittrick, P.C., Missoula, Montana



         ¶1 Vincent G. Toenjes (Vince) appeals the order of the Twenty-First Judicial District Court, Ravalli County, denying his motion to modify his maintenance obligation to his former spouse, Joni E. Hardy (Joni) and requiring him to pay Joni's attorney fees. Joni requests that this Court award additional attorney fees arising from this appeal. The District Court found that although Vince lost his job and source of income, the terms of the parties' settlement agreement relating to maintenance had not become unconscionable. We affirm and grant Joni attorney fees on appeal.


         ¶2 Vince and Joni married in May 1992 and had three children together. Joni stopped working in 2004 and became a stay-at-home mother. Vince was employed as an attorney during the marriage. At the time of the divorce, his annual base salary as general counsel for LifeStorage, LP, was $300, 000.

         ¶3 Joni petitioned for dissolution of the marriage in May 2015. The parties signed a settlement agreement in December 2015. The settlement agreement awards Joni "a minimum of $90, 000 per year, plus 15% [of] any income received by Vince in excess of his currently reported $25, 000 regular per month base income" for a period of eight years. Joni's maintenance is capped at $125, 000 per year. The agreement requires Vince to pay Joni no less than $7, 500 per month through the eight-year period. Under the agreement, the maintenance payments are non-modifiable pursuant to § 40-4-201(6), MCA, with two exceptions. The exception at issue in this appeal provides: In the event Vince's base wage income drops by 10% ($30, 000) or more, Vince retains the right to seek modification of his maintenance obligation. If Vince desires to seek a modification of his maintenance obligation, he shall provide Joni documentation of his reduction in income from all sources and as much notice as possible about his intent to seek a reduction in his maintenance obligation. Regardless of the filing of a motion for modification, no modification in maintenance shall take effect sooner than two full calendar months following the date such motion is filed with the court in order to ensure Joni does not have an unexpected sudden drop in income. In the event of a motion for modification, all sources of income and benefits (direct and indirect) for the parties shall be considered and disclosed. The party filing the motion shall disclose all sources if [sic] income and benefits (direct or indirect) concurrently with filing his or her motion, and the party served with any such motion shall disclose all sources of income and benefits (direct and indirect) upon the earlier of: concurrently with filing his or her response to the motion or 21 days following service of the motion.

         ¶4 The District Court entered a final decree of dissolution incorporating the settlement agreement in January 2016. In July 2016, Vince's employer was sold to another company, and Vince was terminated as its general counsel. The District Court found that Vince received a severance package worth over $250, 000 and 264, 748 Series M equity profits as part of the sale. Vince has not disclosed the value of the Series M equity profits, nor does the record offer any explanation. The following month, Vince moved the District Court to reduce his maintenance obligation to zero until he was reemployed and had an income.

         ¶5 At the hearing on the motion, Joni explained her monthly expenses and other expenses she incurs for the children under the settlement agreement, including paying for half of the children's airline tickets to see their father in North Carolina, the costs of the children's extracurricular activities, rent for a home for her and the children, vehicle insurance for the teenage sons' car, cellular phones for all three children, the first $5, 000 of medical bills for the children, as well as nearly $1, 000 per month for her own health insurance, in addition to legal bills associated with the continuing legal proceedings under the settlement agreement. She testified that she and the children have had to change their lifestyles and cut back, including discontinuing cable television; not going out to eat; dropping some extracurricular activities; not spending money on clothing, shoes, haircuts, or replacement sporting equipment; and delaying medical procedures. She testified that she does not believe that Vince has had to change his lifestyle. Joni further testified that because of her brain injuries and PTSD from a prior injury, she has difficulty learning new things or finding gainful employment to support herself and the children. During his testimony, Vince did not deny that he continues to engage in extensive recreational travel and stays in expensive hotels and eats at expensive restaurants.

         ¶6 Shortly after the hearing, Joni filed a motion for new hearing, asserting that she had discovered that Vince had closed on a $1.4 million home in North Carolina with his girlfriend on the day of the previous hearing. In affidavits before the District Court, Vince explained that he had used some of his savings for part of the down payment, but that he had transferred any interest he had in the property to his girlfriend and that she was solely responsible for the mortgage on the property. The District Court issued its order denying a modification to Vince's maintenance obligation without ruling on the motion for a new hearing.

         ¶7 Vince remained largely unemployed until July 2017, when he took an "of counsel" position with a Georgia law firm. In his briefing before this Court, Vince states he earned $31, 700 in 2017.

         STANDARDS ...

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