No. 14553 INTHESUPHEME

### ComOF THEST- OFM3NTANA 1979

INIIETHEM?UWAGEOF ROBINJAYAANENSON, PetitionerandAppellant,

-vsDENISEANN AANENSON, Respondent andRespondent.

Appeal fm: DistrictCourt of theEighteenth JudicialDistrict, HonorableW. W. Lessley,Judgepresiding. Counsel ofmrd: ForAppellant: Brown, Pepper &Kmrmers, Bozeman,Mntana Gene I. Brawnargued, Bozenaan, IWntana ForRespondent: A. Michael Salvagniargued, Bozm,Mntana

Sdmitted: March 20, 1979 Decided:

# AUG1.5l9nMr. Justice Daniel J. Shea delivered the Opinion of the Court. Husband appeals from the judgment of the Gallatin County District Court dissolving his marriage and making provisions forproperty distribution,maintenance award, and an award of attorney fees. The partieswere married on August 16, 1975. No children

were born as issue of themarriage. On May 23, 1978, the husband filed a petition seeking a dissolution of the marriage and an equitableproperty distribution. On July 14, 1978, the wife filed a cross-petition seeking dissolution of the marriage,

a property distribution,maintenance award, and attorney fees. The husband and wife were the only witnesses who testified at the hearing. Husband is a 21 year old maintainer for the Milwaukee Railway, and has a high school education. At the time this action was tried,he was earning $1,300 a month, and he netted approximately $800 amonth after deductions. He testified that he spent approximately $200 amonth for living expenses. The wife is 22 years old, and is employed by the Manhattan State Bank as a bookkeeper-teller. She has a high school education and one year of vocational training as a medical assistant. At the time this actionwas tried, shewas taking home approximately $445 amonth. She testified that she had approximately $260 in expenses eachmonth, excluding housing. She further testified that shewould not be able to remain in the couple's mobile home unless shewas provided with at least $100 amonth maintenance. The testimony of the parties established that the marital estate consisted of the following assets: 1. Four unimproved lots in Three Forks,Montana. Parties owed $6,100 on these lots, the valuation of which was not established at trial. 2. A 1976Mercury valued at $4,795, with $500 left to be paid on this car.3. A 1964 Ford pickup valued at $1,000. The truck was free and clear. 4. A 1975mobile home, on which there was a balance of $11,000due on the purchase price. Monthly payments of $178.81 were required on the purchase price for the next sevenyears. Petitioner testified that the equity in themobile home was approximately $4,000. 5. Various items of personal property. In addition to entering a decree dissolving the marriage, the District Court ordered the 1964 Ford pickup to the husband and the 1976Mercury to the wife. The four unimproved lots

were to be sold, and the proceeds of the salewere to be used to pay the $6,100 loan at the bank. The court also ordered that if the proceeds from the sale produced an excess after payment of the loan, the excess be first applied to the balance owing

on the 1976Mercury with the remainder to be divided equally between the parties. The parties stipulated to the distribution of the various items of personal property. With respect to the mobile home and the wife's request for maintenance, the Court rendered the following conclusion of law: "Thatthe Respondent be awarded themobile home subject to the condition that the Petitioner pay to the Respondent the amount of $100.00 per month of which $89.40 shall be applied to the monthly payment of $178.81 and the remainder to be used by the Respondent for her maintenance, and further subject to Petitioner'scontinuous equity in the mobile home to be paid Petitioner by Respondent in the event of the following: Upon Respondent's remarriage, upon Respondent's sale of the mobile home, upon the balance owing on themobile home being paid in fullby Respondent or until further order of this Court and upon the happening of any said event the Petitioner shallnot be further required to pay to Respondent the sum of $100.00 per month." The court further ordered the petitioner to pay the wife's reasonable attorney fees. The husband contends first, that the District Court abused its discretion and erred in the distribution of the marital assets; second, that the District Court erred in the award of $100 amonth for maintenance; and third, that the District Courterred in the award of reasonable attorney fees to the wife. Section 40-4-202MCA, controls District Courts in the equitable apportionment of marital assets. Section 40-4-203MCA, controls DistrictCourts on the issue of whether or not to grant amaintenance award. Under section 40-4-202 MCA, the District Court is authorized to equitably apportion the marital assets between the parties. The statute requires the District Courts to consider the criteria expressly enumerated in the statute. Under section 40-4-203(1) MCA,maintenancemay be awarded if the spouse seeking maintenance lacks sufficientproperty to provide for his reasonable needs and is unable to support himself through appropriate employment. Section 40-4-203(2) MCA establishes a list of guidelines or factors that the District Court is required to consider. Husband first contends that the District Court made a completely one-sided distribution of the marital assets. He argues that the wife received the 1976Mercury and themobile home,while he received only the 1964 Ford pickup. He argues that an equitable distribution of the marital assets should have resulted in an equaldivision of the assets. In essence, husband contends that the assets, including themobile home, should have been reduced to cash and then divided equally between the parties. He cites no authority. Although the District Courtmay equally divide themarital assets, such a distribution is not mandated by section 40-4-202 MCA. See Kuntz v. Kuntz (1979), Mont

# . , 593 P.2d 41, 36 St.Rep. 662. Section 40-4-202 is flexibleand itvests
a good deal of discretion in the District Court. In Re Marriage of Jorgensen (1979), Mont

# . , 590 P.2d 606, 609, 36 St.Rep. 233, 237. We have stated,before and after the adoption of the statute, that each case must be looked at individually, with

an eye to its unique circumstances. Jorgensen, 590 P.2d at 609; Cook v. Cook (1972), 159 Mont. 98, 495 P.2d 591. -4-A District Court has far-reaching discretion in resolving property divisions, and its judgment will not be altered unless

a clear abuse of discretion is shown. Kaasa v. Kaasa (1979), Mont

# . , 591 P.2d 1110, 1113, 36 St.Rep. 425, 428; Kramer

v. Kramer (1978), Mont

# . , 580 P.2d 439, 35 St.Rep. 700; Eschenburg v. Eschenburg (1976), 171Mont. 247, 557 P.2d 1014. The test for reviewing the District Court's discretion is: Did the District Court in the exercise of its discretion act arbitrarilywithout employment of conscientious judgment, or exceed the bounds of reason in view of all the circumstances? Kuntz, 593 P.2d at 43;Jorgensen, supra;Kraner, supra; Zellv. Zell (1977)

### , Mont. 

### , 570 P.2d 33, 34 St.Rep. 1070; Berthiaume v. Berthiaume (1977)

### , Mont

# . , 567 P.2d 1388, 34 St.Rep. 921. The duty of the District Court was to consider the statutory criteria and equitably apportion themarital assets. We find that the District Court did so. The District Court considered the duration of the marriage, the age, occupation, amount and sources of income, vocational skills,employability, estate, and the liabilitiesand needs of each of the parties. The distribution of one asset, the mobile home, lies at the heart of the husband's argument. He claims that the Court allowed the wife to retainpossession of the mobile home, in which therewas $4,000 equity at the tine this action was tried, for such time as shedesired. He further argues that by virtue of the $100 a month maintenance award,he is required to pay one-half of themonthly payment on the mobile home. The court order,however,protected the husband's equity in the mobile home. The order of maintenance directed that $89.40 of the $100be applied to themonthly payment of $178.81 on the mobile home. The net effect of the court order was to protect the petitioner's present and future one-half equity in themobile home. -5-Thewife was not awarded possession of themobile home for such time as she desired;but rather the court order conditioned the award. Upon the occurrence of one ormore of four events, as specified in the court order, the wife must pay the husband his share of the equity in themobile home. This award was not arbitrary nor beyond conscientious judgment as

reason. An award ofmaintenance is related only to the needs of the spouse seeking maintenance. Jorgensen, 590 P.2d at 611; Johnsrud v. Johnsrud (1977), Mont

# . , 572 P.2d 902, 34 St.Rep. 1417; Cromwell v. Cromwell (1977), Mont

# . I 570 P.2d 1129, 34 St.Rep. 1193. The District Court has wide discretion in the determination of maintenance awards, and that discretion is not to be disturbed unless clearly erroneous. Jorgensen, 590 P.2d at 611. In the instant case, the District Court specifically found the wife lacked sufficientproperty to provide forher reasonable needs and was unable to support herself. This finding is supported by the record. In compliance with the requirements of section 40-4-203 MCA, the District Court awardedmaintenance in the amount of $100 amonth. We hold that the District Court properly exercised its discretion in awarding maintenance to the wife. Last, the husband contends that therewas no showing of necessity, and that the court abused its discretion in granting attorney fees to the wife. Section 40-4-110 MCA controls District Courts concerning the issue of attorney fees. This statutevests in the District Court the discretion to award costs and attorney fees in a dissolutionproceeding. Brown v. Brown (1978), Mont

# .

, 587 P.2d 361, 35 St.Rep. 1733, 1740. Clearly, there was
a necessity for the husband to pay the attorney fees in this case. -6-The District Court found that the respondent lacked sufficientproperty to provide for her reasonable needs, and that shewas unable to supportherself without a maintenance award. Additionally, the wife testified she did not have the money with which to pay her attorney fees. The record also contains testimony establishing that the husband was taking home approximately $800 amonth, and that thewife was taking home approximately $445 a month. The District Court was adequately appraised of the relative financial means of the parties, and sufficient evidence supported the court's finding of an award of attorney fees. We note, however, that a showingmust be made on the reasonableness of attorney fees; and that a hearing must be held on attorney fees. Downsv. Downs (1979), Mont

# . , 592 P.2d 938, 940, 36 St.Rep. 577, 581; Marriage of Barron (1978), Mont

# . I 580 P.2d 936, 35 St.Rep. 891; First Security Bank of Bozeman v. Tholkes (1976), 169Mont. 422, 547 P.2d 1328;Crncevich v. Georgetown Rec. Corp. (1975), 168Mont. 113, 541 P.2d 56. The reasonableness of the attorney fees claimed must be shown by evidence. 

### An award of attorney feesmust be based on a hearing allowing for oral testimony, the introduction of exhibits, and

an opportunity to cross-examine in which the reasonableness of the attorney fees claimed is demonstrated. Green v. Green (1979), Mont. 

### , 593 P.2d 446, 450, 36 St.Rep. 708, 713; State Highway Comrn'n. v. Marsh (1978), Mont

# . , 575 P.2d 38, 35 St.Rep. 105. Guidelines have been established concerning the factors to be considered in determining the proper amount of attorney fees to be awarded. First Security Bank of Bozeman

v. Tholkes, 169Mont. at 429-430; Crncevich, supra. The cause is remanded to the District Court for a hearing, consistentwith the authority cited, to determine the amount of reasonable attorney fees to be paid by the petitioner. The judgment of the District Court is otherwise affirmed. Husband is to pay costs on appeal.

## ................................. Justice

We Concur:

Chief Justice