No. 89-429 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

IN RE THE MARRIAGE OF 

KENNETH JONES, 

Petitioner and Appellant, 

and 

RITA MARIA "GOBERT" JONES, 

Respondent and Cross-Appellant. 

.PPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable John Henson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Arthur D. Agnellino, Missoula, Montana 

For Respondent: 

Paul Neal Cooley, Missoula, Montana 

Submitted on Briefs: Dec. 21, 1989 

,Decided: March 19, 1990 

-. E , .-- . <_ ' .. . L. , - ". . ..-- 12.- * Clerk 

-.: ;: 
~ustice ~iane G. Barz delivered the opinion of the Court. 

Kenneth Jones, petitioner, appeals from the June 13, 1989 

decision by the District Court of the Fourth Judicial District, 

Missoula County, finding that he must pay maintenance to Rita Ann 

Gobert Jones, respondent, in the amount of $500 per month 

commencing June 1989 and ending May 1991; $300 per month through 

May 1991 for the $8,000 in unpaid child support and maintenance; 

and $500 per month commencing in June 1991 until the unpaid child 

support and maintenance are paid off. Respondent cross-appeals, 

arguing that the ~istrict Court erred by failing to grant 

respondent's trial motions; by modifying the original maintenance 

order dated July 21, 1988; and by incorrectly determining the 

amount of unpaid child support and maintenance. Affirmed and 

remanded for proceedings consistent with this opinion. 

The essential issue raised by petitioner on appeal is whether 

the District Court abused its discretion by denying petitioner's 

motion to modify the courtgs July 21, 1988 order awarding spousal 

maintenance to respondent. 

On cross-appeal, respondent raises the following issues: 

1. whether the District Court erred by failing to grant 

respondent's trial motions; 

2. whether the District Court erred in not granting 

respondent's motion to dismiss petitionergs motion for modification 

of spousal maintenance; and 

3. whether the District Court erred in setting forth the 
amount of unpaid maintenance and child support as $8,000. 

Kenneth and Rita Jones were married approximately twentyseven years before they dissolved their marriage on January 15, 

1985. The decree of dissolution reserved all other issues, 

including the property disposition, until a subsequent date. On 

December 5, 1986, the court issued its findings of fact, 

conclusions of law and judgment. In its conclusions of law, the 

~istrict Court concluded that the parties have joint custody of 

the minor child, with Rita as the custodial parent; that Kenneth 

have reasonable visitation rights; and that Kenneth continue to pay 

$150 per month in child support and pay for all necessary health 

costs for the child. The court also divided the marital property 

and awarded Rita one-half of this property for the sum of $43,594. 

The property division was a money judgment against Kenneth and the 

court ordered that the parties sign all necessary documents to 

accomplish this division of property. 

Kenneth subsequently appealed the December 5, 1986 property 

settlement order to this Court. This Court affirmed the District 

Court in its opinion of In re Marriage of Jones (1987), 229 Mont. 

128, 745 P.2d 350. Kenneth then filed a petition for chapter 7 

bankruptcy relief in the United States Bankruptcy Court for the 

District of Montana on April 29, 1988. Kenneth listed Rita and the 

amount of her December 5, 1986 property settlement of $43,594 as 

a dischargeable debt. 

In light of Kenneth's petition for chapter 7 bankruptcy 

relief, ~ita filed a motion for spousal maintenance with the 
District Court on June 14, 1988. On July 21, 1988, after the 

bankruptcy court had terminated the automatic stay, the District 

Court issued an order granting temporary maintenance to Rita in the 

amount of $650 per month until November 12, 1988, at which time 

the court noted that child support would cease as a result of the 

child reaching age eighteen. The court then found that Kenneth 

would be able to afford $800 per month in maintenance beginning in 

December 1988. The court also found Kenneth in contempt on January 

24, 1989 and March 24, 1989 for failing to pay the court ordered 

maintenance and child support payments. 

On May 22, 1989, Kenneth filed a motion for modification of 

spousal maintenance after the bankruptcy court discharged Rita's 

$43,594 property judgment. The District Court entered an order 

dated June 13, 1989, finding in pertinent part that Kenneth owed 

$8,000 in unpaid child support and maintenance as of June 1989; 

that Rita was entitled to $500 per month in maintenance commencing 

June 1989 and ending May 1991; that Kenneth must pay the $8,000 

arrears at the rate of $300 per month until June 1991 and 

thereafter at the rate of $500 per month until the remaining 

balance of the arrears is paid in full; and that failure to pay the 

ordered amounts may result in Kenneth once again being cited for 

contempt. Kenneth appeals and Rita cross-appeals from this June 

13, 1989 order. 

The essential issue raised on appeal is whether the District 

Court abused its discretion by denying Kenneth's motion to modify 

the court's July 21, 1988 order awarding spousal maintenance to 
Rita. 

On appeal, this Court must determine whether the District 

Court abused its discretion by issuing its modification order dated 

June 13, 1989. We will not disturb a district court's order when 

it is based on substantial credible evidence and no abuse of 

discretion is shown. In re Marriage of Cole (Mont. 1988), 763 P.2d 

39, 41, 45 St.Rep. 1965, 1967-68; In re Marriage of Loegering 

(1984), 212 Mont. 499, 510, 689 P.2d 260, 266. 

In its findings of fact, the District Court found in pertinent 

part that Rita had been receiving $337.35 a month since June 1988 

for her one-half interest in the Washington real estate contract 

and that this amount was not part of the bankruptcy estate, but was 

considered at the time of the 1986 decree as part of the marital 

estate to be awarded to Kenneth if he paid the December 5, 1986 

property judgment; that Rita had received $4,048.20 from the 

Washington real estate contract, which was used to defray her 

attorney fees; that Rita still had a balance of over $6,000 in 

attorney fees to pay; that the December 5, 1986 property judgment 

was discharged in bankruptcy, leaving Rita with approximately 

$24,650.90 less administrative expenses and no assurances as to 

when and how she would receive this money; that Kenneth asserted 

no new facts besides the payments to Rita from the bankruptcy court 

to justify a modification of maintenance; and that assuming Kenneth 

paid the $43,594 due and owing and also assuming a ten percent 

interest rate, Rita would now have the benefit of approximately 

$54,492 in the bank and would also receive approximately $5,449.92 
per year interest or $454 per month indefinitely on this amount. 

The court also found, however, that under the present status she 

will receive only $674 per month until 1994, less any 

administrative expenses, and she will not have the benefit of any 

money in the bank. On the other hand, the court found that Kenneth 

had a monthly income of $1,910, a late model car, and $20,000 

equity in a ten acre parcel and homesite near Florence, Montana. 

The court concluded that it had originally awarded an uneven amount 

of property in lieu of maintenance, but that the original 

justification for not awarding maintenance is no longer present; 

that the award of maintenance is appropriate in light of the 

parties unequal future earning power; that the prospects for reeducating Rita and/or job possibilities in her present capacity is 

limited and her ability to earn surplus income is unlikely. The 

court then incorporated its July 21, 1988 findings of fact and 

conclusions of law into the order and determined that maintenance 

was equitably required in the amount of $500 per month for twentyfour months; and that the $8,000 arrearage shall be paid at the 

rate of $300 per month until June 1991 when Kenneth shall then pay 

Rita $500 per month until the remaining balance of the arrearage 

is paid in full. 

In light of the above, we hold that the District Court did not 

abuse its discretion in awarding Rita maintenance. Substantial 

credible evidence exists to support the District Court's order. 

Kenneth nonetheless sets forth gtargumentstl that he was 

penalized by the District Court for using proper bankruptcy 
procedures in discharging his original debt of $43,594 to ~ita and 

that the District Court erred in evaluating the amount of assets 

available to Rita from the bankruptcy estate and therefore ordered 

an excessive maintenance award. We find no merit in either of 

these arguments. Furthermore, we find ludicrous Kenneth's argument 

that he had "fixed expenses of approximately $1,900 long before he 

had any obligation to pay maintenance to [Rita] .I1 Kenneth cites 

his marriage to his current wife, his subsequent purchase of his 

$85,000 farm house, and the subsequent birth of his two children 

by his current wife and her child by a previous marriage as events 

that took place "years before the July 21, 1988 maintenance order 

was entered." Merely because the final order regarding the 

property disposition and Rita's entitlement to maintenance was not 

issued until June 13, 1989, does not lessen Kenneth's existing 

obligation to his former wife and family. After nearly twentyseven years of marriage, Kenneth's obligation to Rita and their 

children existed lllong before1' his obligation to his current wife 

and their children and her child by a previous marriage. Kenneth 

has possibly taken on more than he can afford by purchasing an 

$85,000 home and a late model car, and by remarrying and having 

more children. However, since his obligation to his first wife and 

children existed long before his obligation to his subsequent wife 

and children, Kenneth will not be allowed to shun these first 

obligations by merely acquiring new obligations. 

The District Court did not overlook Kenneth's newly acquired 

obligations, but properly considered the new obligations in light 
of his original obligations and awarded maintenance accordingly. 

Contrary to what Kenneth asserts, the court properly followed 5 40- 

4-203, MCA, which sets out the standards and factors that the court 

must consider when awarding maintenance. 

The first issue Rita raises on cross-appeal is whether the 

District Court erred by failing to grant her trial motions. 

The District Court issued an order on July 21, 1988, granting 

Rita $650 per month in maintenance and $150 per month in child 

support through November, 1988, at which time the minor child would 

have reached the age of eighteen. The court also ordered that 

commencing in December 1988, Kenneth pay $800 per month in 

maintenance. The order then stated that 

Upon receiving notice from either party that 

the Bankruptcy Court has made a final finding 

with regards to [Rita's] judgment, the Court 

will consider reduction or elimination of 

maintenance due to recovery of [Rita s] debt 

in whole or in part. Otherwise, maintenance 

will continue until further order of the 

Court. 

The bankruptcy court subsequently issued a judgment and Kenneth 

then filed a motion for modification of spousal maintenance with 

the District Court. 

On June 6, 1989, a hearing was held before the District Court 

regarding Kenneth's motion for modification of spousal maintenance. 

On cross-appeal, Rita apparently argues that she made a motion in 

limine in conformance with 5 40-4-208(2)(b)(i), MCA. The record, 

however, reveals that Rita objected to Kenneth addressing anything 

other than evidence that would show a substantial change of 

circumstances that would permit the court to consider Kenneth's 
motion for modification of spousal maintenance. The court 

overruled the objection. 

In light of the court's statement in its July 21, 1988 order, 

the order was temporary in nature. Under these circumstances, the 

court was not required to limit the hearing to evidence pertaining 

only to proving that a substantial change of circumstances 

occurred. Kenneth had already established the District Court's 

requirement of sending notice to the District Court that the 

bankruptcy court had made a final finding regarding his petition 

for chapter 7 bankruptcy relief. The District Court therefore was 

entitled to hear all of the relevant testimony regarding 

maintenance so as to determine whether Rita was entitled to 

maintenance and if so, the proper amount. The District Court 

properly overruled Rita's objection. 

Rita also argues under this issue that the District Court 

erred by denying Rita's motion to dismiss Kenneth's motion for 

modification of spousal maintenance because he failed to provide 

evidence. Contrary to what Rita asserts and as stated above, the 

District Court properly heard all relevant evidence before it 

determined, in light of the factors set forth in 3 40-4-204, MCA, 

that Rita was entitled to spousal maintenance and the amount 

thereof. The court therefore did not err by not granting Rita's 

motion and by determining that Rita was entitled to $500 per month 

in maintenance from June 1989 through May 1991. 

The second issue Rita raises on appeal is whether the District 

Court erred in not granting Rita's motion to dismiss Kenneth's 
motion for modification of spousal maintenance. 

Rita argues that the July 21, 1988 order is unassailable 

because of the lapse of time for an appeal. The ~istrict Court 

clearly indicated in its July 21, 1988 order that it was a 

temporary order and subject to revision upon a final judgment from 

the bankruptcy court. Upon receiving a final judgment from the 

bankruptcy court, Kenneth properly filed a motion for modification 

of spousal maintenance pursuant to 5 40-4-208, MCA, on May 22, 

1989. As stated above, the court then properly considered all 

relevant evidence and modified the maintenance accordingly in its 

June 13, 1989 order. The District Court therefore did not err in 

denying Rita's motion to dismiss Kenneth's motion for modification 

of spousal maintenance. 

The last issue raised on appeal by Rita is whether the 

District Court erred in setting forth the amount of unpaid 

maintenance and child support as $8,000. 

~ita argues that Kenneth owes $9,818.33 in arrearage plus 

legal interest. Upon reviewing the record, we find evidence 

supporting the conclusion that Kenneth currently owes $9,840.06 in 

unpaid child support and maintenance. In particular, the record 

supports the following amounts of unpaid child support and 

maintenance: 

Pre-June 13, 1988 child 

support arrearage: 

June 1988 maintenance: 

($650/month x 18 days) 
July 1988 to November 1988 

maintenance: 

($650/month x 5 months) 

July 1988 to November 1988 

child support: 

($150/month x 5 months) 

December 1988 to May 1989 

maintenance: 

($800/month x 6 months) 

The court granted Kenneth $1,600 credit which would leave a balance 

of $9,840.06 in arrears plus legal interest. The amount in dispute 

is apparently the $2,250 in the pre-June 13, 1988 unpaid child 

support. However, considering the absence of sufficient findings 

of fact on this issue, we must remand the case to the District 

Court to determine the proper amount of unpaid child support and 

maintenance. 

Rita also contends that she is entitled to damages and 

attorney fees in light of Rule 32, M.R.App.P. Rule 32, M.R.App.P. 

provides : 

If the supreme court is satisfied from the 

record and the presentation of the appeal in 

a civil case that the same was taken without 

substantial or reasonable grounds, such 

damages may be assessed on determination 

thereof as under the circumstances are deemed 

proper. 

When a reasonable ground for an appeal exists, a respondent is not 

entitled to recover damages under Rule 32, M.R.App.P. searight v. 

Cimino (Mont. 1988), 748 P.2d 948, 952, 45 St.Rep. 46, 52; Erdman 

v. C & C Sales, Inc. (1978), 176 Mont. 177, 184, 577 P.2d 55, 59. 

In the present case, the question of whether the ~istrict Court 
abused its discretion by denying Kenneth's motion for modification 

of spousal maintenance was reasonably in issue. In addition, Rita 

also contends that under Rule 11, M.R.Civ.P., she is entitled to 

her attorney fees and costs. We find no basis for Rita asserting 

this issue on appeal. 

Affirmed and remanded for proceedings to determine the proper 

amount of unpaid child support and maintenance. / 

We concur: 

P dd'/