NO. 93-335 IN THE SUPREME COURT OF THE STATE OF MONTANA 1994

IN RE THE MARRIAGE OF DELILAH HANEY, Petitioner and GUY L. HANEY, Respondent and Respondent,

and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District, In and for the County of Cascade, The Honorable John M. McCarvel, Judgepresiding.

COUNSEL OF RECORD: For Appellant: Kenneth R. Olson,Attorney at Law, Great Falls,Montana

For Respondent: Susan L. Weber, Attorney at Law, Great Falls,Montana

Filed: Submitted on Briefs: April 28, 1994 Decided: October 13, 1994Justice John Conway Harrison delivered the Opinion of the Court.

Guy 

### L. Haney (Guy) appeals an order of the Eighth Judicial District Court, Cascade County, which awarded Delilah Haney

(Delilah) maintenance. We reverse. Guy and Delilah were married for thirty-five years. Delilah raised the couple's five children who have attained the age of majority. Delilah filed for dissolution on June 13, 1990. Guy filed his response and the parties agreed to divide 

### the marital assets and debts. They could not, however, agree on the maintenance issue;Guy argued thathe shouldpaymaintenance inthe amount of $300 per month for two years, while Delilah contended that she should be awarded $300 per month for fiveyears. Notwithstanding the contention on the part of both Guy and Delilah that $300 per month was adequate,with the only question being the number of years duration, the District Court awarded Delilah permanent maintenance of $400 permonth. Inaddition, that amount would increase to $600 per month if Delilah became unemployed by reason of age, sickness or disease. The court found that Delilahworked three jobs, seven days a week, for a net pay of $435 per month while her expenses totaled $875. The court found that Guy had the ability to earn substantially more income than Delilah, referring to his snow removal contract and various equipment which he owned. After deducting Guy's living expenses,the District Court concludedthat Guy would net in excess of $210 per month over and above the $300 maintenance award to Delilah. Thatwas the apparent basis for theDistrict Court's conclusion that Guy had the ability to pay $400 per month maintenance to Delilah. Guy presents the following issue: Did the District Court err by awarding Delilah $400 per month permanent maintenance? It is well settled that this Court will scrutinize the district court's legal conclusions and examine whether the court interpretedthe law correctly. InreMarriage of Danelson (1992), 253 Mont. 310, 317, 833 P.2d 215, 219-20. After an equitable divisionof marital property, a district court is required toapply the two-prong test of 5 40-4-203, MCA, to determine whether a maintenance award is appropriate. 

## - See In re Marriage of Eschenbacher and Crepeau (1992), 253 Mont. 139, 142-43, 831 P.2d 1353, 1355-56. Section 40-4-203,

### MCA,provides inpertinentpart: (1) In a proceeding for dissolution of marriage 

# . . . the courtmay granta maintenance order for either spouse only if it finds that the spouse seekingmaintenance: (a) lacks sufficientproperty to provide for [her] reasonable needs; and (b) 

### is unable to support [herlself through appropriate employment 

# . . . . [Emphasis added.] Here, the DistrictCourt found thatDelilah worked three jobs, seven days aweek, fornetpay of $435 permonth while her expenses totalled $875per month and that she was unable to supportherself through appropriate employment. The court, however, did not make a finding concerning whether Delilah lacked sufficientproperty to provide for her reasonable needs. "Sufficient property" is property which is "income-producing rather than income-consuming

### property." Marriaqe of 

### Eschenbacher, 831 

### P.2d at 1356. 

### Inthis case,a reviewof therecord revealsthat themajority of the property awarded to Delilah was income-consuming property;

a car, the trailer house with adjoining land and household furnishings. However, Delilah also received income-producing property--one-half ofGuy's Teamsterspension. Thecourt failedto discuss thepension award and to set forthwhen payments could be anticipatedunder thepension and to thenconsidertherelationship to the maintenance award. We conclude this is a basis for reversal. Without any explanation on the part of the court as to the

reason it disregarded the agreement of the parties that $300 per month for maintenancewas appropriate, the District Court awarded Delilahpermanent maintenance of $400 per monthwith an escalation to $600 per month if Delilah became unemployed. Under Rule 54(c), M.R.Civ.P., "every final judgment shall grant the relief to which theparty inwhose favor it is rendered is entitled, even if theparty has not demanded such relief inhis pleadings." While that gives a broad discretion to the trial court, the discretion under Rule 54(c) must be viewed in light of thenature of the case. In reMarriage of Hughes (1989), 236Mont. 427,430, 770 

### P.2d 499, 501. A 

### district courtmay not grant relief not requested when the facts and issuesnecessary to support such reliefhave not been tried and proven at trial. Matter of George Trust (1992), 253 Mont. 341, 345, 834 P.2d 1378, 1381. In dissolution cases, the court's power to grant relief is strictlystatutory, and with respect to maintenance the court must make specific findings under § 40-4-203, 

### MCA. Marriaqe of Huqhs, 770 P.2d at 501. In our review of the record and our application of 

### the statutory criteria to the evidence produced,we are unable to find support for the exercise of the court's discretion to award permanent maintenance when maintenance only for a term ofyearswas requested; to award maintenance of $400 per month when $300 per month was requested;and finally to award an automatic escalation to $600 per month if Delilah becomes unemployed. Accordingly we reverse and remand for consideration of this issue in accordance with this opinion. Reversed and remanded.

We concur: //--

Chief JustiJustice Terry N. Trieweiler specially concurring. I specially concur with the majority opinion which reverses the judgment of the District Court. However, Ido not agree with the basis for reversal set forth in themajority opinion,nor do 

### I agree that this case should be remanded for furtherproceedings. The effect of the positions advocated by the parties in the District Court was to stipulate that $300 per month was a reasonable amount of maintenance, and to further stipulate that a duration for maintenance beyond five years was unreasonable. The stipulation was supported by the evidence and did not offend any public policy. Therefore, I conclude that it was an abuse of discretion for the District Court to ignore the stipulation by awarding maintenance in an amount greater than $300, and for a duration beyond five years. Furthermore, based on the limited nature of the dispute in this case, and the fact that there are already inadequate assets with which to satisfactorily supportboth parties, 

### I seeno reason for either party to exhaust more of those resources on additional attorney fees for further legal proceedings. Since the District Court found that Delilah was entitled to maintenance for longer than was stipulated to 

### by the parties, but failed to adhere to the limitation established by the parties, I would reverse the judgment of the District Court and remand this

case to the District Court solely for entry of judgment awarding maintenance to Delilah inthe amount of $300

### permonth for

### aperiod of five years.For these reasons, I specially concur with the majority's reversal of the District Court.