No. 94-289

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

IN RE THE MARRIAGE OF

DANIEL G. BRADSHAW,

Petitioner and Respondent,

-vMICHELLE NORICK BRADSHAW,

Respondent and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,

In and for the County of Missoula,

The Honorable Ed McLean, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Laurence J. Ginnings, Missoula, Montana

For Respondent:

John C. Schulte, Missoula, Montana

Submitted on Briefs: December 8, 1994

Decided: March 9, 1995

Filed:
Justice James C. Nelson delivered the Opinion of the Court.

This is an appeal and a cross-appeal from the Findings of

Fact, Conclusions of Law and Final Decree of Dissolution of the

Fourth Judicial District Court, Missoula County. We affirm in part

and reverse and remand in part.

The following are issues on appeal and cross-appeal:

APPEAL ISSUES

I. Did the District Court err in awarding the wife $6,000

equity in the house?

II. Did the District Court err in ordering the husband to pay

for the wife's future dental expenses associated with tooth repair?

III. Did the District Court err in ordering the husband to

undergo and pay for counseling as a condition of exercising

unsupervised visitation?

IV. Did the District Court err when it refused to award the

husband a variance from child support for the court-ordered

counseling?

CROSS-APPEAL ISSUES

I . Did the District Court err in granting grandparent

visitation when there was no petition by the grandparents for such

visitation?

II. Did the District Court err when it did not order that the

beneficiary of the husband's annuity be the child?

III. Did the District Court err in not awarding the wife

maintenance?

IV. Did the District Court err in not awarding the wife a

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higher share of the equity in the house?

V. Did the District Court err in not awarding the wife

attorney's fees?

FACTUAL AND PROCEDURAL BACKGROUND

Daniel G. Bradshaw (Daniel) and Michelle Norick Bradshaw

(Michelle) were married in Missoula, Montana on September 2, 1992,

and they were separated in early February, 1993. Daniel and

Michelle have one child, Daniel Richard Bradshaw, (Danny), who was

born on June 17, 1992.

Daniel's petition for dissolution came on for hearing on

August 27, 1993, and September 1, 1993, before Susan P. Leaphart,

a Special Master. The Special Master filed her Recommended

Findings of Fact, Conclusions of Law and Opinion on September 17,

1993. The District Court adopted the Special Master's

recommendations with a few minor changes on January 13, 1994, with

an Order regarding Objections to the Special Master's Findings of

Fact and Conclusions of Law and Final Decree of Dissolution. The

following factual information comes from the Special Master's

Findings:

Daniel suffers from serious physical impairments sustained in

a head injury when he was 15 years old. He also has a learning

disability which causes problems in processing information and

communicating orally and in writing. Michelle is able-bodied and

in good health.

Daniel's physical and mental impairments impede his ability to

obtain employment and his options seem to be manual labor positions

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such as dishwashing and custodial work, positions which he has held

in the past. At the time of the dissolution he was unemployed and

receiving unemployment benefits of $103 which were about to expire.

Also about the time of the dissolution, Michelle, who had been

unemployed, was hired by a health care facility for $5.10 per hour

with an increase to $5.60 per hour when she receives her Nurse's

Aide certification. Immediately prior to her hiring at the health

care facility, she was receiving $310 per month in general

assistance and $161 per month in food stamps.

Daniel received a structured settlement due to his head injury

and receives a monthly annuity of $l,ZOO.OO, which increases by

four percent annually, and a lump sum of $2,500.00 in July of each

year which increases by three percent annually.

Daniel's major asset is the home at 2300 Woodcock in Missoula,

which he purchased on December 7, 1989, for $48,000, paying $16,000

as a down payment. He purchased the home with funds from his

personal injury settlement. Daniel has paid all mortgage payments,

taxes and insurance payments associated with the home. Michelle

has not contributed in any meaningful way, either economically or

non-economically, to the value of the home. The increase in value

of the house is due entirely to the inflation of home values in the

Missoula area. An expert valued the home at $64,000 at the time of

the dissolution.

Michelle has been Danny's primary caregiver and Daniel has

cared for Danny for only a few brief time periods. Although Daniel

and Danny have an affectionate relationship, Daniel's disabilities

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prevent him from adequately parenting Danny on a full-time basis.

The social worker who performed the custody assessment recommended

that Daniel be granted reasonable supervised visitation while

Michelle should be designated as the primary custodial parent.

The social worker recommended supervised visitation until such

time as Daniel completes a Child Abuse Potential Inventory, an

Adult Parent Inventory, and counseling which offers training and

education in child development and parenting skills. Moreover, the

social worker recommended that Daniel receive counseling with a

therapist trained in working with head injury victims. Periods of

depression and violent outbursts concerned the social worker as

they may affect Daniel's parenting of his son. Unsupervised

visitation may be appropriate upon completion of the above

mentioned programs & a recommendation by Daniel's primary

treating therapist.

The social worker also recommended that Michelle continue in

counseling with her therapist and that she attend educational

counseling with Daniel's therapist regarding head injuries. The

social worker also suggested that the entire family be monitored by

a case manager for 12 months.

The social worker also testified that it would be in Danny's

best interests if Daniel's parents, who live in Libby, could

exercise visitation. This practice would be contingent upon

Daniel's parents signing an agreement that Danny would never be

left alone with Daniel on any of the visits. Daniel's mother has

stated that she would be agreeable to such an agreement and that

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the paternal grandparents would provide Danny's transportation on

such visits.

Daniel had the following expenses at the time of the

dissolution:

1. Rent - $100.00 per month.

2. Purchase or mortgage payments and taxes - $360.27 per

month

3. Utilities - $50.00 per month

4. Food - $175 per month

5. Transportation - $150 per month

6 . Insurance - $275 every 3 months

7. Recreation - $25.00 per month

8. Other regular or extraordinary expense - $225.00 per

month

9. Water - $20.00 per month

10. Montana Power Company - $75.00 per month

11. Telephone - $100.00 per month

12. Chapter 13 payments - $200.00 per month

13. Repair to truck - $2400.00

TOTAL - $1347.27 PER MONTH

Michelle had the following expenses at the time of the

dissolution:

1. Doctor bills - $25.00 per month (until $130 balance is

paid)

2. Telephone - $16.00 to 19.00 per month

3. Garbage - $11.00 per month ($40.00 owing)

4. Gas - $100.00 per month

5 . Clothing for Danny - $200.00 per month

6. Personal bills - minimum of $50.00 per month

7. Repair to tooth - total approximately $3000.00

TOTAL - $405.00 PER MONTH

The monthly totals do not include the costs of repairing Michelle's

tooth or Daniel's truck. The parties filed bankruptcy and Daniel

has been making Chapter 13 payments of $200.00 per month to retire

this debt. These payments are to continue for three years.

The following conclusions of law from the Special Master's

opinion, adopted by the District Court, are pertinent to the issues

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on appeal:

1. The home at 2300 Woodcock was awarded to Daniel.

2. Michelle was awarded $6,000, a portion of the equity

in the home.

3. Michelle will not be awarded maintenance because she

is able to support herself through employment

commensurate with her education and skills.

4. Michelle is designated as the primary custodial parent

with Daniel granted supervised visitation.

5. Daniel shall be evaluated for parenting skills and, if

appropriate, receive counseling and education to develop

necessary parenting skills.

6. Daniel shall receive counseling with a primary

therapist who is knowledgeable about head injuries.

7 . Daniel may exercise supervised visitation with Danny

twice a week and supervision shall be arranged through

Extended Family Services in Missoula.

8. Danny's paternal grandparents shall have visitation

with Danny once a month, providing for Danny's

transportation, if they will sign a stipulation stating

that they will not leave Danny alone with Daniel.

9. Daniel shall pay child support in the amount of

$539.00.

10. Daniel shall pay for the repair of Michelle's tooth.

11. Each party will be responsible for his/her attorney

fees.

From the order of the District Court, adopting the Special Master's

Findings of Fact and Conclusions of Law, with some modifications,

both parties appeal.

STANDARD OF REVIEW

The standard of review for findings of fact of a district

court is whether the court's findings are clearly erroneous and

whether its conclusions of law are correct. In re Marriage of Rada

(1994), 263 Mont. 402, 405, 869 P.2d 254, 255. This Court is not

bound by a lower court's conclusions of law; this Court remains

free to reach its own conclusions. In re Marriage of Danelson

(1992) I 253 Mont. 310, 317, 833 P.2d 215, 219.

ISSUE I - $6,000 EQUITY IN THE HOUSE FOR MICHELLE

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The Special Master found that Daniel had purchased the home

prior to the marriage, making a downpayment of $16,000 from his

settlement monies and that he had paid all mortgage payments, taxes

and insurance payments associated with the house from his

settlement and annuity. Moreover, Michelle "ha [dl not contributed

substantially to the value of the house either monetarily or as a

homemaker."

The distribution of property is governed by 5 40-4-202, MCA,

which provides in pertinent part:

(1) . . . In dividing property acquired prior to the

marriage; . . . the increased value of property acquired

prior to marriage; . . . the court shall consider those

contributions of the other spouse to the marriage,

including:

(a) the nonmonetary contribution of a homemaker;

(b) the extent to which such contributions have

facilitated the maintenance of this property; and

(c) whether or not the property division serves as an

alternative to maintenance arrangements.

This Court has held that the "source of the property was a

major factor to be considered by the District Court dividing

property under Section 40-4-202, MCA. 'I In re Marriage of

Summerfelt (1984), 212 Mont. 332, 337, 688 P.2d 8, 11. Moreover,

if the increase in value of the property is not a product of

contribution from a marital effort, the court may find that the

non-acquiring spouse has no interest in the property at issue. In

re Marriage of Stewart (1988), 232 Mont. 40, 44, 757 P.2d 765, 768.

Although Stewart concerned inherited property, the proposition is

applicable here.

In the instant case, the court specifically found that Daniel

purchased the home with his own funds before the couple married and

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he paid for all mortgage and insurance payments as well as taxes

associated with the home. Michelle did not make any substantial

contributions to the home monetarily or as a homemaker. The court

also found that the increase in the value of the house was entirely

due to the general inflation of home values in the Missoula area.

Under subsection (a) and (b) of 5 40-4-202, MCA, Michelle would not

be entitled to any portion of the equity in the house because she

made no contributions to the maintenance and value of the property.

Moreover, although the court stated that the $6,000 in equity

in the house awarded to Michelle was in lieu of maintenance, the

court also stated elsewhere in the opinion that it was not

appropriate for Michelle to be awarded maintenance. Therefore,

under subsection (c) of § 40-4-202, MCA, Michelle would not be

entitled to a portion of the equity in the house. We also note

that the length of the marriage was brief - the couple lived

together as husband and wife for only five months.

Considering § 40-4-202, MCA, and our case law interpreting

that statute, we determine that the District Court should have

properly concluded that Michelle was not entitled to any share of

the equity in the house. We hold that the District Court erred in

awarding a share of the equity in the house to Michelle and

accordingly, we reverse on this issue.

ISSUE II - TOOTH REPAIR

Daniel argues that he should not be liable for Michelle's

dental expenses associated with her tooth injury because these

damages were not plead and he had no notice and opportunity to

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present evidence on the disputed issue. Michelle asserts that

Daniel should pay for the repair of the tooth because he admitted

to causing the damage. Moreover, although Michelle states that she

did not specifically ask for these damages in her prayer for

relief, she did request "such other and further relief as the Court

may deem just and proper."

Finding of Fact no. 43 in the Special Master's findings and

conclusions states that "[dluring the marriage, Petitioner [Daniel]

inflicted damage to Respondent's tooth. Costs of the repair to

that tooth should be borne by the Petitioner. The estimated cost

of this repair is approximately Three Thousand Dollars

($3,000.00).~ Conclusion of Law no. 23 states that "Petitioner

shall pay for the repair of Respondent's tooth in the amount not to

exceed $3,000.00.1'

We find two problems with awarding Michelle up to $3,000.00

for the repair of the tooth in the instant case. First, although

Michelle contends that Daniel admitted during the hearing that he

had damaged her tooth, we have no record which we can review to

determine whether an admission was indeed made. Moreover, we

cannot determine whether, as Daniel insists, Michelle sought to

introduce an estimate prepared by Dr. Ming but the exhibit was not

received into evidence. Therefore, this Court is hampered by an

inability to review the record to determine what evidence was

actually presented. We do, however, find support in the record for

Daniel's contention that he strenuously objected to the finding of

fact and conclusion of law regarding the tooth damage and

10
subsequent repair.

Second, and most problematic, is the fact that Daniel received

no notice regarding this claim, essentially a personal injury

claim, until the dissolution hearing. There is no indication in

Michelle's response to the petition for dissolution that the

personal injury claim might be an issue during the proceedings.

"The purpose of a pleading is to provide notice before trial to the

opposing party of the specific relief being sought so that both

parties have an opportunity to present evidence on the issues in

dispute." Matter of Custody of C.J.K. (1993), 258 Mont. 525, 527,

855 P.Zd 90, 91. Here, it appears that no such notice was provided

and no opportunity to present evidence on the issue was afforded

Daniel. C.J.K. states that there are exceptions which provide the

court with jurisdiction to grant relief outside of the issues

presented in the pleadings; if the parties stipulate that other

questions may be considered or if the pleadings are amended to

conform to the proof, citing Old Fashion Baptist Church v.

Department of Revenue (19831, 206 Mont. 451, 457, 671 P.2d 625,

628. Parties may "stipulate" either expressly or impliedly.

C.J.K., 855 P.2d at 91. (Citation omitted.) There is no evidence

here that an expressed stipulation to consider the issue of tooth

repair occurred.

Moreover, "[cloncerning the issue of implied consent, we have

stated that ‘pleadings will not be deemed amended to conform to the

evidence because of 'implied consent' where the circumstances were

such that the other party was not put on notice that a new issue

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was being raised."' C.J.K., 855 P.2d at 91. There is no evidence

that Daniel received notice before trial that the tooth repair was

an issue and therefore, he could not have consented to consider the

issue. Further, he objected to the consideration of this issue

because he was not provided proper notice, he does not admit to

injuring the tooth and the issue of tooth repair is a personal

injury issue, not a dissolution issue. Such objection cannot be

interpreted to provide implied consent to consider the issue.

C.J.K., 855 P.2d at 91. Therefore, there was neither a stipulation

nor an amendment of the pleadings to conform to the proof and no

exception applies here.

Lack of notice may have prejudiced Daniel and prevented him

from having adequate opportunity to prepare evidence and testimony

regarding the issue. C.J.K., 855 P.2d at 91. We therefore hold

that the determination of the issue of the tooth repair was not

properly before the District Court and we reverse the District

Court's conclusion on this issue.

ISSUE III - PAYMENT OF COUNSELING

Daniel argues that there was no substantial credible evidence

that he should have only supervised visitation until he received

appropriate counseling and an assessment of his parenting skills.

According to Daniel, the court did not consider the costs

associated with counseling and supervised visitation. Section 40-

4-212, MCA, states that " [tlhe court shall determine custody in

accordance with the best interest of the child. The court shall

consider all relevant factors, including. . . the mental and

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physical health of all individuals involved [and] physical abuse or

threat of physical abuse. . . .'I The Special Master made the

following findings regarding Daniel's physical and mental health as

well as his issues of physical abuse:

First, Daniel was involved in a wrestling accident when he was

15 years old. The accident resulted in brain trauma, leaving his

left arm permanently paralyzed and his left side impaired. His

physical condition is expected to deteriorate as he gets older.

Second, he also has a learning disability which causes problems in

processing and communicating orally and in writing. Third, Daniel

has cared for Danny without assistance for only a few brief time

periods. Fourth, Karen Emerson, the social worker who conducted

the custody assessment, concluded that Daniel should be granted

reasonable supervised visitation. Fifth, Emerson recommended that

visitation be supervised until he completed a Child Abuse Potential

Inventory, an Adult Parent Inventory, counseling, education and

training in child development and parenting skills, and counseling

with a primary therapist trained in treating clients with head

injuries. Emerson was particularly concerned with Daniel's violent

outbursts and periods of depression. These findings are supported

by the Special Master Report which Karen Emerson provided to the

Special Master. When Daniel was interviewed during the custody

assessment process, he stated that he had hit Michelle and

destroyed property in anger on several occasions. He also reported

that law enforcement authorities had been called to the home at

least six times due to his violent behavior, and he admitted he has

13
problems managing his anger. He also spoke about being

hospitalized two times for suicidal ideation.

Given that § 40-4-212, MCA, requires consideration of the

mental and physical health of the individuals involved, and because

of the reported incidents of abuse and possibility of future

physical abuse here, the District Court appropriately granted

supervised visitation. Daniel admitted to having problems with

anger and aggression, including incidents of hitting Michelle and

destroying property. There were also reports of six incidents

where the police were called to the home because of violent

behavior on Daniel's part. Clearly, there is cause for concern for

Danny's safety. Moreover, although this Court may be sympathetic

to Daniel's concern regarding the cost of the counseling, under 5

40-4-212, MCA, the best interest of the child is the paramount

consideration in granting visitation.

This case can be distinguished from In re Marriage of Gebhardt

(1989), 240 Mont 165, 783 P.2d 400, cited by Daniel. In Gebhardt,

the wife reported eight instances of abuse by the husband/father.

However, there was conflicting testimony as to who instigated some

of those confrontations between the husband and the wife and

between the husband and one of the children. Both parents agreed

that corporal punishment was appropriate for children. The Court

also found that the wife's affidavit regarding visitation was selfserving and contained no evidence to reflect "a potential for

serious endangerment." Gebhardt, 783 P.2d at 405.

In the instant case, there was evidence presented by both

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parties to the effect that Daniel has had problems with anger and

physical aggression including several incidents where the police

were called. These problems, where they are found to exist, must

properly be considered by the court in its assessment of custody

and visitation under § 40-4-212, MCA.

Daniel also argued that Emerson lacked the expertise to make

recommendations concerning Daniel's medical condition. However,

during the custody evaluation, the social worker interviewed

Daniel, Michelle, references, therapists, police reports, an

employment counselor as well as interviewing a rehabilitation

social worker, trained to work with individuals with head injuries

to facilitate her report to the Special Master. She also reviewed

appropriate literature to help her understand head-injured persons

and their problems and concerns. Emerson has a master's degree in

social work, and she located additional resources to ensure a valid

and comprehensive custody evaluation, taking into consideration the

special concerns and problems of head-injured persons. This

argument is accordingly, without merit.

In the instant case, Daniel has been given the opportunity for

unsupervised visitation upon the approval of his therapist and upon

proper training and education in child development and parenting

skills. Albeit a financial strain, with Daniel's history and

background, this is an appropriate visitation plan. Substantial

evidence supports the District Court's conclusion on this issue.

We hold that the District Court properly determined and correctly

concluded that Daniel should undergo counseling as a condition of

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exercising visitation.

ISSUE IV - VARIANCE IN CHILD SUPPORT

Daniel's final argument concerns whether the District Court

should have awarded him a variance in child support for his

expenses associated with the joint bankruptcy obligation and the

court-ordered counseling. Daniel contends that he should receive

a variance of $100.00 per month for the joint bankruptcy payments

and a further variance for the cost of the counseling. Daniel

argues that the District Court determined that his expenses were

$1,347.27 per month, which costs did not include any child support

payments or the cost of repairing his vehicle which was not in

operating condition. Daniel's unemployment benefits were about to

expire, and he was still unemployed at the time of dissolution.

His monthly annuity is $l,ZOO.OO, and even with his unemployment

benefits, he was finding it hard to meet his monthly expenses.

Daniel contends that the result of the court order to pay child

support of $539.00 per month is that he has to pay almost half of

his annuity income to child support. Moreover, he still cannot

afford to pay for the counseling and supervised visitation and is,

in effect, prevented from seeing his child in a meaningful way.

Rule 46.30.1543(h), ARM, permits a variance in child support

payments based upon the overall financial condition of a parent.

In the instant case, Daniel has expenses of $1,347.27.00 per month,

which does not include the cost of repair to his truck, child

support payments or the cost of counseling and supervised

visitation. It does include a $200.00 monthly payment for the

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joint bankruptcy obligation. Daniel receives a $l,ZOO.OO per month

annuity and was receiving $103.00 per month in unemployment

compensation. However, the unemployment payments were about to

expire at the time of the dissolution.

Clearly, Daniel has a difficult time meeting his expenses

without even considering child support and counseling payments. It

is unrealistic to expect him to meet his own expenses, make

payments on the joint bankruptcy obligation & make child support

payments of $539.00 &pay for counseling in order to exercise his

visitation. Considering subsection (h), of Rule 46.30.1543, ARM,

a variance in child support payments is in order. At the time of

the dissolution, Daniel's overall financial condition was poor.

This situation needs to be carefully considered in determining an

appropriate child support payment amount for Daniel. We reverse

the monthly child support payments set at $539.00 and remand for a

recalculation considering a variance from the child support

obligation previously calculated.

CROSS APPEAL ISSUE I - GRANDPARENT VISITATION

Michelle's first issue on cross-appeal is whether it was error

for the court to allow grandparent visitation when there was no

petition from the grandparents before the court. Daniel argues

that the grandparents were actually granted visitation in order to

facilitate his exercise of parental visitation and therefore, the

granting of grandparent visitation was appropriate.

There appears to be no disagreement that a petition for

visitation by Danny's paternal grandparents was never filed.

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Section 40-4-217(2), MCA, permits the grant of visitation to

grandparents upon the petition of a qrandparent if the court finds,

after a hearing, that visitation would be in the best interest of

the child. Even though there was some discussion about grandparent

visitation in the Special Master's Report, the Special Master's

Recommended Findings and Conclusions and the District Court's Order

regarding Objections to the Special Master's Recommended Findings,

Conclusions and Final Decree of Dissolution, there is no mention of

a petition for grandparent visitation nor is there evidence that a

hearing was held to determine whether such visitation was in

Danny's best interests. Therefore, this issue was not properly

before the court and we hold that the District Court erred in

granting visitation to the paternal grandparents and accordingly,

reverse on this issue.

CROSS-APPEAL ISSUE II - ANNUITY BENEFICIARY

Michelle argues that Danny should be the surviving beneficiary

of Daniel's annuity, and that the trial court should have ordered

that designation to avoid potential future litigation because

Daniel's mother, the named surviving beneficiary, and Michelle do

not "get along." Therefore, according to Michelle, Danny may not

receive the money to which he is entitled. Daniel contends that he

is entitled to designate a personal representative of his choice to

administer his annuity, and that, since there is no actual

controversy here, Michelle cannot request relief for a future harm

which "possibly may occur." We agree with Daniel.

The dispensation of Daniel's estate and the payment of child

18
support from his estate are not issues before this Court because

Daniel is still alive. No actual case or controversy is presented.

"Therefore we do not have a justiciable controversy over which the

judicial power to determine real controversies may be exercised."

Hardy v. Krutzfeldt (1983), 206 Mont. 521, 525, 672 P.2d 274, 276.

Absent a real controversy, this Court does not have the power to

address the issue presented. Hardy, 672 P.2d at 276. Nor was this

issue properly before the District Court. Accordingly, it will not

be considered further.

CROSS APPEAL ISSUE III - MAINTENANCE

Michelle argues that she should have been awarded maintenance

because her property is insufficient to provide for her reasonable

needs. She asserts that her need for retraining and the needs of

her child justify an award of maintenance. Daniel counters her

argument by stating that she is in good health, is able-bodied and

"is able to support herself through employment commensurate with

her education and skills [and that1 she does not meet the statutory

requirements for an award of maintenance." Daniel further states

that Michelle is more employable than he is, and "both parties have

had inadequate financial resources to meet their monthly

obligations." We agree with Daniel.

The Special Master made the following findings of fact about

Michelle, adopted by the District Court. She is able-bodied and in

good health and although she had been unemployed, she was hired

during the course of the hearing to be trained as a certified

nurse's aide at $5.10 per hour plus benefits with a $.50 raise once

19
certified. The court found that she had demonstrated that she was

able to locate work appropriate to her level of training and

education. The court found that her job would help her to achieve

her goal of becoming an LPN or an RN. The court also determined

that the marriage had lasted only five months. The court concluded

that she did "not meet the statutory requirements for an award of

maintenance and, therefore maintenance [was] not appropriate in

this case."

The court found that Daniel suffered serious physical

impairments when he received a head injury when he was 15 years

old. His left arm is permanently paralyzed and the left side of

his body is impaired. His physical condition is expected to

deteriorate as he gets older. Moreover, he has a learning

disability which affects his processing of oral and written

communication and impedes his ability to communicate effectively.

He was unemployed at the time of the dissolution and was not

expected to work at any jobs other than manual labor jobs such as

dishwasher and custodial work. His physical and mental impairments

were found to restrict his ability to obtain employment.

Clearly, Michelle's educational and economic prospects are

brighter than Daniel's prospects. Daniel can barely provide for

his own needs, much less provide maintenance for Michelle. She has

proven that she is able to "support herself through employment

commensurate with her education and skills." She has already

sought and obtained a position through which she can continue to

receive an education and improve her skills and employability. She

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does not meet the requirement for maintenance set forth in § 40-4-

203(l) (b), MCA, because she is able to support herself through

appropriate employment, and she is not the custodian of a child

whose condition makes it inappropriate to seek employment outside

of the home. Moreover, considering the factors set forth in § 40-

4-203(2), MCA, an award of maintenance is inappropriate. The

marriage was of short duration, Michelle is young, able-bodied and

in good health. Daniel is barely able to meet his own needs and

does not have the ability to work in positions other than manual

labor such as dishwashing or custodial work. We therefore hold

that the District Court correctly concluded that this is not a

situation in which an award of maintenance would be appropriate.

CROSS APPEAL ISSUE IV - CALCULATION OF EQUITY

Michelle's next argument is that the District Court's

calculation of the amount of equity in the house to which she was

entitled was miscalculated. This issue was dispensed with in

Appeal Issue I wherein we held that Michelle was not entitled to

any equity in the house. Therefore, this issue need not be further

addressed.

CROSS APPEAL ISSUE V - ATTORNEY'S FEES

Michelle's final argument is that she should have been awarded

attorney's fees. Section 40-4-110, MCA, governs awards of

attorney's fees and provides:

The court from time to time, 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 chapters

1 and 4 of this title and for attorney's fees. . . .

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The District Court may award attorney's fees after considering

the financial resources of both parties and such an award is

"largely discretionary with the District Court. . .'I In re

Marriage of Roullier (1987), 229 Mont. 348, 360, 746 P.2d 1081,

1088. This is not a case such as Roullier where one party is

clearly in a better financial position and can properly be ordered

to pay attorney's fees. In the instant case, in view of both

parties' well-documented negligible financial resources and

Daniel's overall health and employability problems, neither party

is in a position to pay the other party's attorney's fees and the

District Court properly considered this issue. We hold that the

District Court did not err in ordering each party to pay their own

attorney's fees.

AFFIRMED IN PART AND REVERSED AND R

We Concu

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