No. 90-211 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

IN RE THE MARRIAGE OF DAVID L. OWEN, 

Petitioner and Respondent, 

and 

LORI L. OWEN, n/k/a LORI BALLINGER, SEP 4 1990 - - Respondent and Appellant, 

and 

Ed Srnif'4 GLLRKOFSUPREP~~ECOURT 

STATE OF MONTANA 

LARRY OWEN and MARILYN OWEN, 

Third Party Respondents. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Edward McLean, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Paulette C. Ferguson, Missoula, Montana 

Thomas W. Christie, Billings, Montana 

For Respondent: 

Dennis Lind; Datsopoulos, MacDonald & Lind; 

Missoula, Montana (petitioner-respondent) 

Portia K. Brown; Morrill, Brown & Thomas; Rapid 

City, South Dakota (third party respondents) 

Filed: 

Submitted on Briefs: August 9, 1990 

Decided: September 4, 1990 

I 

Clerk 
Justice John Conway Harrison delivered the Opinion of the Court. 

This is an appeal from the District Court of the Fourth 

Judicial District, Missoula County, Montana. On August 10, 1989, 

the District Court issued a decree dissolving the twelve-year 

marriage of David Owen and Lori Owen Ballinger. In addition to 

approving the Family Maintenance Agreement, the District Court held 

that the residence in which the parties lived during the latter 

years of their marriage properly belonged to the parents of the 

husband and denied the wife's request that she be awarded 

attorney's fees. From this judgment the wife appeals. We affirm. 

Appellant presents the following issues: 

1. Did the District Court err by failing to include the house 

purchased by the husband's parents in the marital estate? 

2. Did the District Court abuse its discretion by refusing 

to award the wife attorney's fees? 

David Owen and Lori Owen Ballinger were married in 1977. One 

daughter, now age 12, was born to the marriage. When the couple 

separated in 1987, they entered into a separation agreement which 

provided child support and monthly maintenance payments to the wife 

from that date until six months after she completed law school. 

The husband assumed all debts of the marriage prior to the date of 

the agreement. The husband was required to pay the wife's 

automobile insurance premiums until twelve months after the wife 

graduated from law school. He agreed to maintain the health 

insurance policy on the wife and child available through his 

employment. If his wife became ineligible for such insurance 
because of divorce, the husband agreed to pay for other health 

insurance for her until twelve months after completion of law 

school. 

Payment of health insurance aided the wife in meeting expenses 

incurred in treatment of a rare chronic disease, sarcoidosis, at 

present controlled by extensive medications. The disease could 

eventually result in the wife's partial or total disability. 

When the husband received custody of the child in December, 

1988, he declined to pay further maintenance payments. The wife 

moved to enforce the terms of the Family Maintenance Agreement. 

The District Court relieved the husband of child support payments 

and held that otherwise the agreement was binding and enforceable. 

The husband and the child reside in the home purchased by his 

parents. 

Duringthe twelve-year marriage the wife contributed primarily 

as a homemaker. Her financial contribution was not substantial. 

She completed paralegal training, a B.A. in business, and her first 

two years of law school by the time of the divorce in August, 1989. 

In 1982, the husband's parents purchased a home in which the 

couple resided until their separation. The couple entered into a 

written lease agreement with the husband's parents, but made only 

sporadic payments. By the time of the dissolution, the value of 

the house had decreased by $15,000. The couple had paid $1,000 of 

the down payment, but otherwise had nothing invested in the house. 

Other than personal property, the couple had no assets. At 

the time of the dissolution the husband earned a gross monthly 
income of $2,954 as Executive Vice-President of the Missoula 

Chamber of Commerce and an additional $2,000 per year as a parttime basketball referee. The husband testified that his monthly 

expenses totalled $2,696, an amount approximating his disposable 

income. 

The wife s income consisted of $490 per month maintenance 

payments plus a variable amount from part-time employment. Her 

estimated liabilities for loans received in law school totalled 

$25,000. The ~istrict Court found that while the wife's type of 

legal employment and income were uncertain, her income-producing 

ability would be greatly enhanced upon her graduation from law 

school. 

I. 

Did the District Court err by failing to include the house 

purchased by the husband's parents in the marital estate? 

The wife urges that the District Court should have imposed a 

constructive trust on her share of an ownership interest that she 

claims she and her husband had in their residence, purchased by her 

husband's parents. As evidence of an ownership interest, she cites 

the facts that the couple selected the house and handled the 

negotiations for its purchase. In addition, she and her husband 

believed that they would have been allowed to use the profits from 

the sale of the house as a down payment on another house. 

Section 72-33-219, MCA, defines constructive trust: 

A constructive trust arises when a person 

holding title to property is subject to an 
equitable duty to convey it to another on the 

ground that the person holding title would be 

unjustly enriched if he were permitted to 

retain it. 

The courts impose constructive trusts because of "fraud, mistake, 

undue influence, the violation of a trust, or other wrongful acts1' 

to work an equitable result. In re the Marriage of Malquist 

(1988), 234 Mont. 419, 422, 763 P.2d 1116, 1118. We need not 

pursue the theory of a constructive trust, since the record is 

silent as to any wrongful or fraudulent acts requiring such a 

remedy. 

Nor does the record support any ownership interest in the 

residence by the husband and wife. In a dissolution proceeding 

courts must ''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.'' Section 40-4-202(1), MCA. 

In this case, neither spouse had title to the property. The 

title was in the names of the husband's parents who assumed the 

rights and responsibilities of ownership. They paid the mortgage 

and entered into a written agreement leasing the residence to their 

son and his wife. At one point the parents sent the couple an 

eviction notice for failure to pay rent. The parents had also 

discussed selling the residence with a realtor. 

The husband wrote the wife a note in which he expressed his 

belief that the couple could have used the equity from a sale of 

the property as a down payment on a new home. However, his hope 

or belief, in the absence of any other evidence of such an 

5 
agreement, does not impose any legal obligation upon his parents. 

Although the husband and wife did contribute $1,000 of the 

$15,000 down payment, the value of the house has decreased by 

$15,000 wiping out any gain which could be attributed to their 

investment. In short, little basis exists for the wife's claim of 

an ownership interest in the property. 

We find that the husband and wife had no ownership interest 

in the house and that the District Court properly excluded the 

residence from the marital estate. 

11. 

Did the District Court abuse its discretion by refusing to 

award the wife attorney's fees? 

The wife contends that the District Court should not have 

considered her future earning capacity in denying her request for 

attorney's fees. Award of attorney's fees in dissolution 

proceedings is provided for by 5 40-4-110, MCA: 

The court from time to time, after considering 

the financial resources of both parties, mav 

order a party to pay a reasonable amount for 

the cost to the other party of maintaining or 

defending any proceeding under chapters 1 and 

4 of this title and for attorney's fees . . . (Emphasis added.) 

Since the statute is permissive, the appropriate standard of review 

is whether the court abused its discretion. In re the ~arriage of 

Smith (Mont. 1990), 791 P.2d 1373, 1378, 47 St.Rep. 925, 931; In 

re the Marriage of Anderson (1988) , 230 Mont. 89, 95, 748 P. 2d 469, 
In evaluating the llfinancial resources of both parties," this 

Court has not required that the trial court need only consider the 

partiest present financial status. For instance, the court 

properly took into account the husbandls greater earning potential, 

as well as his larger salary, pension, and good health in Carr v. 

Carr (1983), 205 Mont. 269, 273, 667 P.2d 425, 427. Even though 

one party is in a stronger financial position, the court does not 

abuse its discretion if the other spouse has sufficient resources 

to be responsible for his own fees. In re the Marriage of J.J.C. 

(1987), 227 Mont. 264, 271, 739 P.2d 465, 469. Other factors 

courts have examined include whether the spouse has custody of the 

children, needs additional vocational training, or is under a 

physician's care. In re the Marriage of Manus (1987), 225 Mont. 

457, 465, 733 P.2d 1275, 1279-80. 

In this case, although the husband has a far larger income, 

he testified that his expenses equalled his disposable income. 

Besides maintenance payments, he has the burden of family medical 

expenses exceeding the insurance coverage and the costs associated 

with child rearing. Although the wife's health may eventually 

worsen, at this time she has successfully completed law school and 

plans to seek full-time employment. The record indicates that the 

trial court was well aware of the partiest relative financial 

positions. We hold that the District Court did not abuse its 

discretion in considering the wife's earning potential as a factor 

in refusing to award attorney's fees. 

The wife asserts that an award of attorney's fees is proper 
where the spouse receives maintenance. Here, the ~istrict Court 

did not order maintenance. In signing the Family Maintenance 

Agreement in 1987, the parties themselves agreed that the husband 

pay maintenance to the wife. The maintenance agreement was not 

necessarily based on the wife's financial need and has no 

connection to the District Court's award of attorney's fees. 

The judgment of the District Court is affirmed. 

We concur: