No. 14553 

IN THE SUPHEME Com OF THE ST- OF M3NTANA 

1979 

IN IIE THE M?UWAGE OF 

ROBIN JAY AANENSON, 

Petitioner and Appellant, 

-vsDENISE ANN AANENSON, 

Respondent and Respondent. 

Appeal fm: District Court of the Eighteenth Judicial District, 

Honorable W. W. Lessley, Judge presiding. 

Counsel of mrd: 

For Appellant: 

Brown, Pepper & Kmrmers, Bozeman, Mntana 

Gene I. Brawn argued, Bozenaan, IWntana 

For Respondent : 

A. Michael Salvagni argued, Bozm, Mntana 

Sdmitted: March 20, 1979 

Decided: AUG 1.5 l9n 
Mr. 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 

for property distribution, maintenance award, and an award 

of attorney fees. 

The parties were married on August 16, 1975. No children 

were born as issue of the marriage. On May 23, 1978, the 

husband filed a petition seeking a dissolution of the marriage 

and an equitable property 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 a month after deductions. He testified that 

he spent approximately $200 a month 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 action was tried, she was taking home approximately 

$445 a month. She testified that she had approximately $260 

in expenses each month, excluding housing. She further testified 

that she would not be able to remain in the couple's mobile home 

unless she was provided with at least $100 a month 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 1976 Mercury 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 1975 mobile home, on which there was a balance 

of $11,000 due on the purchase price. Monthly 

payments of $178.81 were required on the purchase 

price for the next seven years. Petitioner testified 

that the equity in the mobile 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 1976 Mercury to the wife. The four unimproved lots 

were to be sold, and the proceeds of the sale were 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 1976 Mercury 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: 

"That the Respondent be awarded the mobile 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's continuous 

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 the mobile home being paid in full by 

Respondent or until further order of this Court 

and upon the happening of any said event the 

Petitioner shall not 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 a month for maintenance; and third, that the District Court 
erred in the award of reasonable attorney fees to the wife. 

Section 40-4-202 MCA, controls District Courts in the 

equitable apportionment of marital assets. 

Section 40-4-203 MCA, controls District Courts on the 

issue of whether or not to grant a maintenance 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, maintenance may be awarded if the spouse seeking maintenance 

lacks sufficient property 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 1976 Mercury and the mobile 

home, while he received only the 1964 Ford pickup. He argues 

that an equitable distribution of the marital assets should 

have resulted in an equal division of the assets. In essence, 

husband contends that the assets, including the mobile home, 

should have been reduced to cash and then divided equally between 

the parties. He cites no authority. 

Although the District Court may equally divide the marital 

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 flexible and it vests 

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), 171 Mont. 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 

arbitrarily without 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; Zell v. 

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 the marital 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 liabilities and 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 retain possession of the mobile home, in 

which there was $4,000 equity at the tine this action was tried, 

for such time as she desired. He further argues that by virtue 

of the $100 a month maintenance award, he is required to pay 

one-half of the monthly 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 $100 be applied to the monthly 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 the mobile 

home. 

-5- 
The wife was not awarded possession of the mobile home 

for such time as she desired; but rather the court order 

conditioned the award. Upon the occurrence of one or more 

of four events, as specified in the court order, the wife must 

pay the husband his share of the equity in the mobile home. This 

award was not arbitrary nor beyond conscientious judgment as 

reason. 

An award of maintenance 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 sufficient property 

to provide for her 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 

awarded maintenance in the amount of $100 a month. We hold that 

the District Court properly exercised its discretion in awarding 

maintenance to the wife. 

Last, the husband contends that there was 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 statute vests in the District 

Court the discretion to award costs and attorney fees in a 

dissolution proceeding. 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 

sufficient property to provide for her reasonable needs, and 

that she was unable to support herself 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 a month, and that the wife 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 showing must be made on the reasonableness of attorney fees; and that a hearing must be held on attorney 

fees. Downs v. 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), 169 Mont. 422, 547 P.2d 1328; Crncevich v. 

Georgetown Rec. Corp. (1975), 168 Mont. 113, 541 P.2d 56. The 

reasonableness of the attorney fees claimed must be shown by 

evidence. An award of attorney fees must 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, 169 Mont. at 429-430; Crncevich, supra. 

The cause is remanded to the District Court for a hearing, 

consistent with 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