No. 13560 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

IN RE THE MARRIAGE OF DONALD L. JOHNSRUD, 

Petitioner and Respondent, 

-vsJEANETTE I. JOHNSRUD, 

Respondent and Appellant. 

Appeal from: District Court of the Twelfth Judicial District, 

Honorable B.W. Thomas, Judge presiding. 

Counsel of Record: 

For Appellant: 

Marra, Wenz and Iwen, Great Falls, Montana 

Joseph Marra argued, Great Falls, Montana 

For Respondent : 

Morrison, Ettien and Barron, Havre, Montana 

Van H. Barron argued, Havre, Montana 

Submitted: March 16, 1977 

Decided: NQQ 2 5 19'7-7 

f ,,I 7. i 

. i -- Filed : 
Mr. Justice Daniel J. Shea delivered the Opinion of the Court. 

Jeanette I. Johnsrud, former wife of Donald L. Johnsrud, 

appeals from an order of the Hill County District Court, awarding 

her $250 a month maintenance in the decree of dissolution of the 

parties' marriage. 

The parties were married January 24, 1958. They have three 

children: Donald Larry, born October 6, 1960; Steven Paul, born 

April 2, 1963; and Cynthia Lynn, born May 17, 1966. At the time 

the parties married, the wife was 16 years old. She did not graduate 

from high school but later obtained a high school equivalency certificate. She had not been employed outside the home during the marriage. Each month, the husband gave the wife funds to pay for 

groceries, utilities and clothing. At the time of separation, she 

had been receiving $556 a month plus occasional supplements. In 

addition, the husband paid the house payments, car expenses including 

insurance, and bills for his own clothes. 

The parties accumulated approximately $248,800 in assets 

during their marriage, with liabilities at the time of trial of 

approximately $40,800. 

In its decree of dissolution of marriage dated July 28, 1976, 

the District Court decreed custody of the older son to the husband 

and the two younger children to the wife. The court ordered the 

husband to pay $150 a month child support for each of the two children 

in the wife's custody until each child reached majority or graduated 

from high school, whichever occurred first. The court awarded the 

wife the following property totaling $80,400 in value: 

Family residence $53,900 

Household furnishings, 

fixtures and appliances 15,000 

1976 Pacer automobile 5,000 

Two snowmobiles 1,500 

Cash 
The court awarded all other property to the husband, including $129,000 in corporate and other business interests. The court 

also ordered the husband to assume all liabilities, which included 

the monthly house payments of $169.00. It appears, however, in the 

court's findings that the house payments were somehow considered as 

maintenance, to terminate upon the wife's remarriage. The court 

found the husband's average net salary was $22,350 for the years 

1971 through 1974, and that this income for succeeding years "should 

equal or exceed his average annual income for the 1971-1974 period." 

The court awarded monthly maintenance to the wife in the amount of 

$250, to be reviewed in five years. 

The wife appeals primarily from the award of maintenance, 

but also questions the source of funds to be used for child support, 

and contends the District Court improperly denied attorney fees. 

The wife contends the husband cannot use as a source of 

child support payments a $30,000 trust set up for the children under 

the Uniform Gifts to Minors Act. However, there appears to be no 

dispute on this matter. The husband agrees this trust was set up 

for incidental future expenses such as higher education and claims 

he does not intend to use it for present child support payments. 

Furthermore, the District Court in its findings of fact recognized 

the child support would come from the husband's income and not from 

any trust fund set up for future educational needs of the children. 

It is clear this trust fund will not be used for present child support obligations. 

As to maintenance, the wife contends the court erred in determining the amount of maintenance, and that it awarded rehabilitative 

maintenance where it should have awarded permanent maintenance. 

The disposition of marital property and the right to maintenance are closely related under the Uniform Marriage and Divorce 

Act, which became effective in Montana on January 1, 1976. section 

48-321, R.C.M. 1947, states: 
"Disposition of property. (1) In a proceeding 

for dissolution of a marriage, legal separation, or 

disposition of property following a decree of dissolution of marriage or legal separation by a court 

which lacked personal jurisdiction over the absent 

spouse or lacked jurisdiction to dispose of the 

property, the court, without regard to marital misconduct, shall, and in a proceeding for legal separation may, 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 disposing of 

property acquired prior to the marriage; property 

acquired by gift, bequest, devise or descent; property 

acquired in exchange for property acquired before the 

marriage or in exchange for property acquired by gift, 

bequest, devise, or descent; the increased value of 

property acquired prior to marriage; and property 

acquired by a spouse after a decree of legal separation, the court shall consider those contributions of 

the other spouse to the marriage, including the nonmonetary contribution of a homemaker; the extent to 

which such contributions have facilitated the maintenance of this property and whether or not the property 

disposition serves as an alternative to maintenance 

arrangements. 

"(2) In a proceeding, the court may protect and 

promote the best interests of the children by setting 

aside a portion of the jointly and separately held 

estates of the parties in a separate fund or trust for 

the support, maintenance, education, and general welfare of any minor, dependent, or incompetent children 

of the parties." (Emphasis added.) 

The maintenance provision, section 48-322, R.C.M. 1947, states: 

"Maintenance. (1) In a proceeding for dissolution of marriage or legal separation, or a proceeding 

for maintenance following dissolution of the marriage 

by a court which lacked personal jurisdiction over the 

absent spouse, the court nay grant a maintenance order 

for either spouse only if it finds that the spouse 

seeking maintenance: 

"(a) lacks sufficient property to provide for his 

reasonable needs, - and 
"(b) is unable to support himself through 

appropriate employment or is the custodian of a 

child whose condition or circumstances make it 

appropriate that the custodian not be required to 

seek employment outside the home. 

"(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, including the extent to which 

a provision for support of a child living with the 

party includes a sum for that party as custodian; 

"(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." 

(Emphasis added.) 

The comments of the code commissioners to these statutes 

indicate the property division statute and maintenance statute must 

be read together because they have a dual purpose. In 9 Uniform 

Law Annotated, Marriage and Divorce Act, 5308, p. 494, the comment 

under the maintenance section states in part: 

"* * * The dual intention of this section [maintenance] and Section 307 [property disposition] is 

to encourage the court to provide for the financial 

needs of the spouses by property disposition rather 

than by an award of maintenance. Only if the 

available property is insufficient for the purpose 

and if the spouse who seeks maintenance is unable 

to secure employment appropriate to his skills 

and interests or is occupied with child care may 

an award of maintenance be ordered." (Paraphrased 

material added.) 

We conclude, therefore, it is the first duty of the District 

Court to equitably distribute the marital property. After the court 

makes a decision on property division, then any additional needs 
of a spouse petitioning for maintenance should be readily apparent. 

If these future needs cannot be met by a property distribution, then 

a petitioning spouse is entitled to maintenance if he fulfills the 

requirements of section 48-322, R.C.M. 1947. The District Court 

should enter appropriate findings under section 48-322, either granting or denying the maintenance. 

In the present case no consideration was given to an equitable 

property distribution. The District Court awarded the wife only 

one-third of the marital estate; and, it was, as the District Court 

noted, income consuming. On the other hand, the property awarded to 

the husband was income producing and most likely would increase in 

value. Section 48-321, R.C.M. 1947, requires certain factors to be 

considered in dividing the marital estate, and there is no indication 

from the findings that this statute was followed in this case. 

As a housewife, the wife acquired a vested interest in the 

property accumulated by the parties during the marriage. Biegalke 

v. Biegalke, Mont. , 564 P.2d 987, 34 St.Rep. 401, 404 (1977); 

Eschenburg v. Eschenburg, Mont. , 557 P.2d 1014, 33 St.Rep. 

1198, 1201 (1976); Downs v. Downs, Mont . , 551 P.2d 1025, 

33 St.Rep. 576, 578 (1976). From the evidence before us we cannot 

determine whether an equitable division of the marital property would 

sufficiently provide for the wife's future needs without the need 

for maintenance. Whatever the case, before ordering maintenance and 

arriving at an amount, the District Court should first have arrived 

at an equitable division of the property. 

The District Court need not be hamstrung in devising methods 

to accomplish an equitable division of property. States which have 

adopted the Uniform Marriage and Divorce Act dissolution provisions 

have provided alternative methods of handling the division of property 

upon dissolution of marriage. In the case of In re Marriage of 

Harding, (Colo. 1975), 533 P.2d 947, the parties, during the marriage, 
had accumulated assets of $668,640, mostly in radio station stock. 

The court gave the husband the option of selling the stoclc and 

dividing the proceeds with the wife, or retaining full ownership 

and paying off the wife's interest in installments over 20 years. 

Another Uniform Marriage and Divorce Act case, Williams v. Williams, 

(Ky. 1973) 500 S.W.2d 79, set out similar alternatives. Williams 

cited as authority the pre-Uniform Marriage and Divorce Act cases 

of Clark v. Clark, (Ry. 1972), 487 S.W.2d 272 and Colley v. Colley, 

(Ky. 1970), 460 S.W.2d 821. In Colley the court held that the 

property should be distributed in kind, but where that is impracticable, it can be paid in money value, either in a gross amount ok 

in installments. The court stated: 

"The distribution or division of property 

acquired during marriage by the team effort 

of the marital partners, is, strictly speaking, not alimony. * * * Where property is 

acquired during marriage by the joint efforts 

of the parties, it should be divided between 

the spouses according to what is just and reasonable. * * * This division is a distribution of property in kind or where that is 

impracticable the value of the interest in 

property in money can be adjudged payable in 

a gross amount or in installments where that 

method is suitable. * * *" 460 S.W.2d 826. 

In Clark, the wife contended that the property awarded to her 

on division of the couple's horse breeding and trading business 

should be granted in kind rather than in cash. The court disagreed, 

stating: 

" * * * We have here a business estate, the 

division or forced liquidation of which could 

materially depreciate its value and could destroy the basis of the husband's earning capacity. In those circumstances it is proper to 

allow the wife the value of her share in cash, 

payable in installments. * * *" 487 S.W.2d 275. 

For similar but non-Uniform Marriage and Divorce Act cases, see also, 

Vaughn v. Vaughn, (S. Dak. 1977), 252 N.W.2d 910, reported in 3 Family 

Law Reporter 2446; and Wilcox v. Wilcox, (1977 Ind.App.), 365 N.E.2d 

792, 3 FLR 2599. 
Under the Uniform Marriage and Divorce Act, there is a need 

to distinguish between a property right in the marital estate, and 

the maintenance provisions. Upon dissolution of marriage the property 

interest vests in the spouse to whom it is awarded. On the other 

hand, an award of maintenance is related only to the "needs" of the 

spouse seeking maintenance, and ceases, for example, upon the happening of certain events,such as death. Section 48-322 does not distinguish between permanent and rehabilitative maintenance. The right 

to maintenance continues as long as the need exists but, under set- 

,' u-! ) 

tion 48-32>7f), R.C.M. 1947, this must be balanced with the needs 

of the other party. Under any circumstances, one is not entitled to 

maintenance unless he fulfills the requirements of section 48-322. 

Absent any evidence and findings under section 48-322, there is 

simply no basis to award maintenance. 

It appears here the parties were confused as to the nature 

of maintenance. The record seems to indicate the wife did not object 

to the property division because she anticipated income in the form 

of maintenance to supplement this property award. There is no indication in the record as to whether she regarded the maintenance as 

a property right she would be getting in exchange for giving up the 

business property, or whether she was confining her claim to maintenance strictly to a situation where she could continue to show her 

need for it. 

The wife demanded maintenance in the minimum amount of 

$600.00 per month and the maximum of $1,000.00 per month to continue 

reeither until her/marriage or death, or until she reached the age 

of 62. There is some indication, however, that perhaps she was 

looking at maintenance more in the nature of a property interest in 

that she sought to peg her maintenance to a certain percentage of 

the husband's gross salary. Whatever the situation, the nature of 

her claim is not at all clear. Neither party proceeded on the basis 
that it was the duty of the District Court to first make an equitable division of the marital estate before determining whether 

the wife should also receive maintenance. 

Since we cannot determine from the findings and record that 

the case was properly tried and considered under the provisions of 

the Uniform Marriage and Divorce Act, we remand for a redetermination 

of the disposition of the parties' marital estate. The District 

Court is instructed to make specific findings of fact on each element 

delineated in section 48-321, R.C.M. 1947, as well as any other 

factors which it considers in dividing the property. Without such 

findings we cannot determine how the District Court arrived at its 

ultimate property division. 

We cannot effectively reach the secondary matter of maintenance until there is a more equitable determination of the parties' 

interests. As we stated earlier, an award of maintenance is allowed 

only where a spouse has insufficient assets to cover living expenses 

(section 48-322(1)(a)) and cannot have appropriate employment for 

the reasons stated in section 48-322(1)(b). The needs of the spouse 

as to maintenance can only be determined after there is an equitable 

division of the marital estate. 

The last issue is that of attorney fees. The wife requests 

an award for fees incurred for the trial. The District Court denied 

them because she did not request them in her pleadings. Section 48- 

327, R.C.M. 1947, allows the District Court to award attorney fees 

to a party in a dissolution of marriage procedding. while this 

section does not require attorney fees to be prayed for, nevertheless 

we deem it good practice to request such fees in the pleadings. The 

Montana Rules of Civil Procedure do apply to the Uniform Marriage 

and Divorce Act unless otherwise provided. Section 48-315, R.C.M. 

1947. Since we remand this case for a determination of property 

interests, the wife has the right to move to amend her pleadings and 
make an appropriate request for attorney fees. 

The judgment is vacated and remanded for redetermination of 

the marital estate in a manner consistent with this opinion. 

We Concur: .cP 

LJ'a,&& Justices & 4