NO. 92-448 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

IN RE THE MARRIAGE OF: 

MARTHA J. BURRIS, 

Plaintiff and Respondent, 

-vBILLY C. BURRIS, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Twelfth Judicial District, 

In and for the County of Hill, 

The Honorable R D. McPhillips, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

K. Dale Schwanke, Jardine, Stephenson, Blewett & 

Weaver, Great Falls, Montana 

For Respondent: 

Daniel A. Boucher, Altman & Boucher, Havre, Montana 

Filed: 

Submitted on Briefs: March 18, 1993 

Decided: May 13, 1993 
Justice Fred J. Weber delivered the Opinion of the Court. 

This is an appeal from the Twelfth Judicial District Court, 

Hill County, continuing a 1974 award of $250 per month for 

permanent maintenance to the ex-wife. We affirm. 

We consider the following issues on appeal: 

1. Did the District Court err in determining that Mr. 

Burris was responsible to pay $250 per month maintenance 

to his ex-wife, from whom he was divorced in 1974? 

2. Did the District Court properly award part of Mrs. 

Burris's legal fees? 

Martha and Billy Burris were first married in October of 1955. 

This marriage was dissolved in 1964. The couple remarried in 1965 

and subsequently divorced in 1974. In the 1974 divorce decree, the 

court ordered Mr. Burris to pay a $250 per month sum "as and for 

permanent alimony." Throughout both marriages, Mr. Burris held a 

position as an Immigration Officer of the United States. Mrs. 

Burris did not work outside the home but took care of the couple's 

three sons. Today Mr. Burris is retired. Mrs. Burris is now 

unemployed, although at one time she held a full-time job for five 

years at Francis Willard Home for Girls in Tulsa, Oklahoma, as a 

group care worker. Following an extended leave of absence in order 

to achieve diabetes stabilization, she never returned to work. 

Mr. Burris attempted to modify his maintenance obligation in 

May of 1975. The District Court denied modification and the $250 

award was affirmed by this Court in Burris v. Burris (1976), 171 

Mont. 227, 557 P.2d 287. Mr. Burris petitioned again in 1983 for 
modification of his maintenance payment. The District Court denied 

modification and he did not appeal. 

Mr. Burris retired in December of 1989. His last full check 

was in January of 1990. He did not receive any of his retirement 

pay until July of 1990. Because of this, he was unable to pay the 

$250 maintenance to Mrs. Burris until that time. He subsequently 

sent her a check for all delinquent months due to this delay. 

Meanwhile, in May of 1990, Mrs. Burris filed a notion asking 

for certain relief because Mr. Burris had not paid his maintenance 

payments for February, March, April and May. Thereafter, Mr. 

Burris petitioned the court for elimination of the maintenance 

requirement. Subsequently, Mrs. Burris filed a petition for 

modification of maintenance, seeking $500 per month. 

The District Court denied both parties' petitions, maintaining 

$250 monthly award and awarding Mrs. Burris $1,000 of her 

attorney's fees and costs. Mr. Burris appeals. 

Did the District Court err in determining that Mr. Burris was 

responsible to pay $250 per month maintenance to his ex-wife from 

whom he was divorced in 1974? 

Mr. Burris claims that the District Court erred by determining 

that the word vpermanent" defining maintenance payments to his exwife cannot be modified. According to Mr. Burris, his 

circumstances have substantially changed due to his retirement and 

it is unconscionable that he continue to pay his ex-wife the 

maintenance payments. Mr. Burris contends that maintenance awards 
are only given ex-spouses until such time as the ex-spouse can 

become self-sufficient. Mr. Burris argues that his ex-wife 

received college training and had a self-sustaining position but 

through her own choices, gave up that position. 

According to Mrs. Burris, it was her ex-husband's burden to 

establish that his circumstances were substantially changed and 

that his continuance to pay the agreed-upon maintenance was 

unconscionable. The District Court specifically determined that 

Mr. Burris had not met his burden. 

Mr. Burris's contention that the District Court determined as 

a matter of law that the 1974 award of "permanent" alimony could 

not be modified is an incorrect assessment of the District Court's 

findings of fact and conclusions of law. In the District Court's 

conclusions of law, the court obviously employed the reasoning of 

40-4-208 (2) (b) (i) , MCA: 

(1) Except as otherwise provided in 40-4-201(6), a decree 

may be modified by a court as to maintenance or support 

only as to installments accruing subsequent to actual 

notice to the parties of the motion for modification. . . . 

(2) (b) whenever the decree proposed for modification 

contains provisions relating to maintenance or support, 

modifications under subsection (1) may only be made: 

(i) upon a showing of chanqed circumstances so 

substantial and contiiuinq as to make the terms 

unconscionable. (Emphasis added.) 

The court's words were: 

Defendant has not shown a substantial chanqe in 

circumstances which make the terms unconscionable as to 

Defendant and his petition to reduce maintenance ought to 

be denied. 

It is clear that the court considered the evidence presented to it 

in light of the modification provision. It did not, as Mr. Burris 
contends, determine that it could not modify the 1974 decree. The 

court made a reasoned decision that modification was inappropriate. 

A ~istrict Court's conclusion of law is reviewed as to whether 

it is correct. Steer Inc. v. Dept. of Revenue (1990), 245 Mont. 

470, 803 P.2d 601. We conclude that the District Court used the 

appropriate legal standard in reviewing Mr. Burris's evidentiary 

burden. 

The District Court supported its conclusions of law with a 

lengthy recitation of facts concerning the Burrisesr health, 

financial condition and need. The standard of review concerning 

these findings of fact is whether the District Courtt s findings are 

clearly erroneous. Marriage of Eschenbacher (1992) , 253 Mont. 139, 

831 P.2d 1353. Such a determination involves consideration of 

whether the facts are supported by substantial evidence, next 

whether the court correctly understood the evidence, and finally, 

whether, the first two considerations having been met, this Court 

still believes a mistake has been made. Interstate Prod. Credit 

Assn. v. DeSaye (1991), 250 Mont. 320, 820 P.2d 1285. 

The District Court stated that Mr. Burris receives only $1400 

retirement per month because he withdrew $17,000 from his 

retirement. Further, Mr. Burris purchased a new truck while 

delinquent in his alimony, Part of the strain on Mr. Burris's 

monthly budget, according to the court, comes from monthly truck 

payments of $350.29 and monthly property settlement to his second 

wife for $468.29. Both of these monthly obligations ended last 
year. Thus, Mr. Burris is not now required to pay these out of the 

$1,400 he receives each month. 

The court also states that Mr. Burris owns real property in 

Montana valued at $100,000 as well as property in Oklahoma valued 

at $35,000. Mr. Burris received $7,800 in 1989 as a CRP payment on 

the Montana land and received $469 monthly from trailer rentals in 

that same year. Also, Mr. Burris has $4,500 in a credit union, 

approximately $15,000 in stocks, an IRA valued at $5,158.78 and an 

interest in Realty Income Corp. worth $3,352.00. This brings Mr. 

Burris's worth to in excess of $120,000, not including his 

retirement drafts. 

Mrs. Burris, on the other hand, currently has no employment, 

poor health, $13,000 in savings, $17,000 owed by the Burrisest 

three sons, and a 1975 Chevrolet. The court determined that while 

Mr. Burris's income has diminished it has not disappeared, so as to 

make the $250 per month unconscionable. However, the court also 

acknowledged that Mrs. Burris did not do what was necessary to 

preserve the $11,000 per year job she had prior to being diagnosed 

as a diabetic. 

First, we conclude that there is substantial credible evidence 

in the record to clearly substantiate the court's assessment of the 

Burrises' life situation. The trial transcript bears out the 

court's breakdown of financial worth except for $5,000 in an IRA 

account which Mr. Burris claims he has now depleted paying his 

bills. Therefore, we find substantial evidence to support the 

court's findings. 
Next we consider whether the court misapprehended the evidence 

it had before it. Mr. Burris claims that he never imagined that 

the $250 per month payment would be permanent but, if it is, that 

such an arrangement cannot be used by courts. 

Mr. Burris has known from the original 1974 order that the 

$250 award to his ex-wife was In March of 1974, Mr. 

Burris filed a motion for new trial and an affidavit by his 

attorney objecting to the "permanent alimony." Awards of 

maintenance are within the broad discretion of the District Court. 

In re Marriage of Tahija (1992), 253 Mont. 505, 833 P.2d 1095. We 

do not disturb a District Court's award of maintenance provided 

that the award is based upon substantial evidence and exhibits no 

clear abuse of discretion. In re Marriage of Cole (l988), 234 

Mont. 352, 763 P, 2d 39. The court does not abuse its discretion in 

awarding permanent or lifetime maintenance if the facts of the case 

necessitate such an award. In re Marriage of Gauthier (1982), 201 

Mont. 320, 654 P.2d 517. See also In re Marriage of Deichl (l989), 

239 Mont. 425, 781 P.2d 254. In both of these cases, we affirmed 

grants of lifetime maintenance. 

Such discretion to award permanent or lifetime maintenance is 

derived directly from the legislature: 

(2) The maintenance order shall be in such amounts and 

for such periods of time as the court deems iust. . . . (Emphasis added.) 

Section 40-4-203 (b) , MCA. Given the foregoing law, permanent or 

lifetime maintenance can be awarded by a court. The facts of this 

particular case show that Mr. Burris understood the permanent 
nature of the maintenance, and although he has protested it on 

various occasions, both the District Court and this Court have 

determined it to be appropriate because of Mr. Burrists superior 

financial situation. 

In terms of the evidence presented by Mr. Burris regarding his 

change of circumstances, it is true that he receives less money now 

that he is retired. Mr. Burris claims that pursuant to 5 40-4- 

203(f), MCA, he should not have to pay a maintenance award because 

he cannot meet his own bills. In opposition to Mr. Burrists 

condition, Mrs. Burris currently receives nothing. She is in bad 

health and some concern exists as to her employability because of 

her health and age. While she attended college she is essentially 

in the same position as when maintenance was awarded to her. 

In considering whether to modify her maintenance, the District 

Court must consider statutory language. In re Marriage of Cooper 

(l985), 216 Mont. 34, 699 P.2d 1044. It is clear that the District 

Court here considered appropriate elements found in 5 40-4-208, 

MCA, because it determined that the changes in Mr. Burris's 

financial condition although decreasing his income, did not prevent 

him from meeting the maintenance obligation of the 1974 order. In 

reaching that determination, the court set out in great detail the 

financial facts provided by each party and upon which it relied. 

Those facts clearly show that the award of $250 per month to Mrs. 

Burris is not unconscionable because Mr. Burris continues to be in 

a superior financial position despite his retirement. We conclude 
that the District Court did not misapprehend the evidence with 

which it was provided. 

Finally, after reviewing the entire record we do not feel that 

the court has made a mistake in continuing the $250 per month 

maintenance award. We conclude, therefore, that the District Court 

was not clearly erroneous. 

We hold the District Court did not err in determining that Mr. 

Burris was responsible to pay $250 maintenance to his ex-wife from 

whom he was divorced in 1974. 

Did the District Court properly award part of Mrs. Burris's legal 

fees? 

The District Court awarded Mrs. Burris $1,000 of her $2,966.09 

legal fees. The court directed attention to 5 40-4-110, MCA, and 

stated that after considering the financial resources of both 

parties Mr. Burris is able to pay $1,000 toward Mrs. Burris's fees 

because of his "better financial position.I1 

Mr. Burris argues that he should not have to pay his ex-wife s 

legal fees because any inability she has in regards to payment is 

her own fault in losing or not pursuing employment. Mrs. Burris 

argues that the District Court appropriately assessed the award of 

attorney's fees. 

The appropriate statute declares: 

The court . . . after considering the financial resources 

of both parties, may order a party to pay a reasonable 

amount for the cost to the other party of maintaining or 

defending any proceeding under chapter 1 and 4 of this 

title and for attorney's fees . . . 
Section 40-4-110, MCA. We will review an award of attorney fees in 

a dissolution action as to whether the court abused its discretion. 

Tahiia, 253 Mont. at 511, 833 P.2d at 1099. 

The District Court considered carefully the respective 

financial situations of the parties and determined Mr. Burris could 

reasonably afford to help pay Mrs. Burris's attorney's fees at a 

rate of $100 per month. We conclude no abuse of discretion 

occurred. 

We hold the District Court properly awarded part of Mrs. 

Burris1s attorney's fees. 

Affirmed. 

We Concur: 
May 13, 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

K. Dale Schwanke 

Jardine, Stephenson, Blewett & Weaver 

P. 0. Box 2269 

Great Falls, MT 59403 

Daniel A. Boucher 

Altman & Boucher 

P. 0. Box 268 

Havre. MT 59501 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTAN+4