NO. 87-325 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

IN RE THE MARRIAGE OF 

JANICE B. TOW, 

Petitioner and Respondent, 

and 

LINDLEY R. TOW, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Michael Keedy, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Keller & German; Robert S. Keller, Kalispell, Montana 

For Respondent: 

Randy K. Schwickert, Whitefish, Montana 

Submitted on Briefs: Oct. 22, 1987 

Decided: December 24, 1987 

1 40f3 : " - Filed: ?$\ 
Mr. Justice William E. Hunt, Sr., delivered the Opinion of 

the Court. 

Lindley R. Tow appeals from an order of the District 

Court, Eleventh Judicial District, Flathead County, awarding 

his ex-wife, Janice B. Tow maintenance payments and attorney 

fees. We remand. 

The issues on appeal are: 

1. Did the court err in its determination that the wife 

required maintenance and in awarding the amount it did? 

2. Did the court err in awarding the wife attorney 

fees? 

Lindley and Janice Tow were married in 1948 and 

divorced on May 29, 1987. They have three children all of 

whom are over eighteen. At the time of separation in 1983, 

both were in their late fifties. Janice is in good health. 

Lindley has suffered from depression and anxiety since 1984 

and is currently under a psychiatrist's care. His prognosis 

for recovery is good. 

Until his retirement in January, 1983, Lindley owned a 

Marine Survey and Casualty Insurance Company in Minnesota. 

At the outset of this action, Janice was a certified medical 

technologist and had worked part-time and full-time 

throughout the marriage. She ceased working in that field 

twelve years ago and at present has let her certification 

lapse. She has been actively involved in real estate sales 

since summer, 1984, and shows considerable enthusiasm and 

promise. 

The couple has considerable assets. The husband had 

inherited a farm located in Minnesota (known as the Brewster 

farm) which he had sold in 1981 and due to the depressed farm 

economy bought back and rented in 1985. This is his main 
source of income. It is valued at $128,000.00. Both parties 

owned 78 acres in Wisconsin with a value of $800.00 per acre. 

The family home in Minnesota was sold in 1981 from which each 

received $650.00 per month until February, 1987, when both 

received a $13,500.00 balloon payment. Both owned personal 

property and vehicles with conlbined value of over $30,000. 

In addition, just before the wife filed for dissolution, the 

couple bought property in Flathead County which is now listed 

for sale at $165,000.00. The property settlement which is 

not being contested divided the assets and cash in the 

following manner: 

Petitioner 

(Janice) 

Respondent 

(Lindley) 

Personal Property 

Sale of Minnesota home 

Brewster farm 

Wisconsin acreage: 

40 acres to Petitioner 

38 acres to Respondent 

Bank account 

Projected net sale 

proceeds from Flathead 

Lake property 

Petitioner's 

inheritance 

Respondent's payments* 

on Flathead property 

Boat 

TOTAL : 134,397.96 268,917.06 

* It was agreed that the respondent Lindley would recover his 

payments on the Flathead property. Petitioner's inheritance 

represents Janice's net inherited contribution to the marital 

estate. Both these amounts are to be paid out of the 

Flathead sale proceeds when sold. The balance will then be 

divided equally. Each also owns a vehicle with a stipulated 

equal value. 

After a hearing on the petition for dissolution, the trial 

court awarded the petitioner Janice maintenance of $275.00 

per month for the period of January 10, 1986 through 
December, 1986 and $925.00 per month thereafter. The court 

also awarded petitioner attorney fees. 

Lindley argues that the trial court abused its 

discretion in awarding Janice maintenance at all and 

certainly in awarding the amounts it did. First, the 

appellant maintains that his ex-wife's property settlement is 

sufficient to provide for her reasonable needs and in the 

alternative if it is not it is because her needs are 

unreasonable and she has failed to obtain appropriate 

emp 1 oymen t . He also contends that the court failed to 

consider the amount of assets available to Janice and the 

resources available to meet his own needs after the award of 

maintenance. 

The appropriate standard of review has been stated by 

this court several times. Most recently in Re Marriage of 

Hall (Mont. 1987), 690 P.2d 685, 686, 44 St.Rep. 1321, 1323, 

we stated: 

At the outset, we yet again repeat that this 

Court's function on appeal is extremely limited. 

Section 40-4-202, MCA, is of necessity a flexible 

statute which vests a good deal of discretion in 

the district court. Given the infinite varieties 

of factual situations presented by parties to 

dissolution proceedings, trial judges must enjoy 

the latitude to address each case individually, 

with an eye to its unique circumstances. 

As stated by this Court, our functions are as 

limited as the District Court's functions are 

broad. We have concluded that in a property 

distribution review in marriage dissolution, this 

Court will reverse a district court only upon a 

showing that the district court has acted 

arbitrarily or has comnlitted a clear abuse of 

discretion, resulting in either instance in 

substantial injustice. See - In - Re Marriage of 

Hundtoft and cites therein. We choose not to use 

the phraseology "without employment of 

conscientious judgment or exceeded the bounds of 

reason" from Hundtoft because it does not assist in 

reviewing the actions of the lower court. 
In Re Marriage of Hall, 740 P.2d at 686. 

Under $ 40-4-203 (11, MCA, maintenance may be awarded 

only if the spouse seeking it "lacks sufficient property to 

pr0vid.e for his reasonable needs; and is unable to support 

himself through appropriate employment . . .." 

The term "sufficient property1' has been interpreted to 

mean income-producing property rather than income-consuming 

property. In Bowman v. Bowman (Mont. 1981), 633 P.2d 1198, 

1200, 38 St.Rep. 1515, 1518; In re Marriage of Herron (1980), 

186 Mont. 396, 407-08, 608 P.2d 97, 103. The District Court 

did not specifically find what properties were 

income-producing or income-consuming. It is evident, 

however, that the trial court did consider the 

income-producing nature of Janice's property in determining 

whether maintenance was proper. In evidence were projections 

of the petitioner's income which clearly assume that wife's 

properties will be sold thereby being converted into 

income-producing assets. While we do not condone the trial 

court's lack of a specific finding here, we will not require 

it in this case. However, for future clarity and ease of 

appellate review, we will require a specific finding 

regarding the nature of the properties owned by the 

maintenance seeking spouse. 

Next appellant Lindley contends that his ex-wife's needs 

are unreasonable. The District Court found that Janice's 

monthly expenses totaled $2,383.32. This figure includes a 

new car payment, a new house payment and $410.00 worth of 

monthly business expenses. Her monthly income for 1985 was 

$1,838.47. Implicit in the trial court's award of 

maintenance is a finding that these were reasonable expenses. 

Lack of a specific finding is not necessarily an abuse of 

discretion. Marriage of Madson (19781, 180 Mont. 220, 224, 

590 P.2d 110, 112. This case is on all fours with our 
Opinion in In re Marriage of Forney (Mont. 1986), 716 P.2d 

635, 43 St.Rep. 637, where we refused to overturn the trial 

court's finding that purchase of a new car and house by the 

maintenance-seeking spouse after the separation of the 

parties was reasonable. Here, the appellant has provided 

little evidence to establish what would be reasonable. The 

wife's house is small and was priced at $39,000.00 in 1985 

and it is conceded by the appellant that her new business 

necessitates a newer car. These are not unreasonable. 

Appellant additionally contends that the business 

expenses cited by the wife and her car expense because it is 

business-related are not proper expenses to be considered in 

determining her reasonable needs. We find no case law on 

this point and appellant cites none. We will not punish the 

wife's efforts to become self-supporting by denying her 

reasonable business expenses. Her income as a real estate 

agent is completely commissions-based. This is to be 

differentiated from the traditional salary-based job which 

entails no expenses on the part of the employee. 

Appellant next contends that the wife has purposely 

chosen inappropriate employment as a real estate agent rather 

than return to her past vocation as a medical technologist. 

Appellant is correct in noting that the term "appropriate 

employment'bs used in S 40-4-203 (1) (h) contains a component 

connected to the standard of living enjoyed by the parties 

during the marriage. -- In re Marriage - of Madson, 590 P. 2d at 

112. The husband testified that their standard of living had 

been "magnificient." Rut he also testified that to maintain 

such a lifestyle he had to borrow money and sell family 

assets. It is clear that neither party can maintain their 

previous standard of living and there is little value in 

pursuing that question further. 
Appellant argues that wife should have returned to her 

prior vocation as a medical technologist rather than engage 

in a new profession. The record shows that she did 

investigate the possibility of doing this type of work again 

but found no opportunities. She also chose not to return to 

this work because she had become "tired of it and feared 

that her performance in a profession of such a life and death 

nature would suffer. The District Court found that Janice 

was "unable to support herself by employment in a manner 

which would meet her needs." Although the wording differs 

from that of S 40-4-203, MCA, when taken with the court's 

recognition of Janice's concerns about becoming a medical 

technologist again and her efforts in her current job, it 

does not show an abuse of discretion in awarding maintenance. 

We affirm the District Court's decision to award maintenance. 

The next issue concerns whether the amount and duration 

of the alimony was proper. The appellant takes issue with 

several of the District Court's findings of fact, in large 

part arguing that the court simply ignored his lack of 

resources and subsequent inability to meet his needs while 

paying maintenance. 

The District Court must consider all the following 

factors in making a maintenance determination: 

(a) the financial resources of the party seeking 

maintenance, including marital property apportioned 

to him, and his ability to meet his needs 

independently, including the extent to which a 

provision for support of a child living with the 

party includes a sum for that party as custodian; 

(b) the time necessary to acquire sufficient 

education or training to enable the party seeking 

maintenance to find appropriate employment; 

(c) the standard of living established during the 

marriage; 

(d) the duration of the marriage; 
(e) the age and the physical and emotional 

condition of the spouse seeking maintenance; and 

(f) the ability of the spouse from whom 

maintenance is sought to meet his needs while 

meeting those of the spouse seeking maintenance. 

Section 40-4-203 (2), MCA. 

The trial court made extensive findings concerning the 

financial condition of both parties. Certain of these 

findings do not conform to the statutory requirements or are 

incorrect. The record shows, and the court noted, that 

although Janice received less total assets from the property 

settlement she received substantially the same amount of 

assets as Lindley when inherited property is excluded. The 

District Court failed to consider this. The court found that 

the husband would receive $248,917.04 in cash and assets 

available for investment while the wife would receive 

$134,397.94, little of it in cash. The main difference 

between what the two parties received is the husband's 

inherited farm in Minnesota. One look at the division of 

assets shows that the parties have substantially the same 

type of assets available to them for investment. Yet the 

court did not consider that the wife's assets were available 

to her for investment as well. This Court recognizes that 

the maintenance-seeking spouse's ability to invest his or her 

assets is a valid consideration when awarding maintenance. 

In re Marriage of Cannon (Mont. 1986), 723 P.2d 951, 953, 43 

St.Rep. 1517, 1519. 

The payor spouse's ability to meet his needs while 

paying maintenance must also be considered by the trial 

court. Section 40-4-203(2)(f), MCA. At the time of hearing 

Lindley was living off rental monies from his Brewster farm. 

He was also receiving payments of $650.00 per month from the 

sale of his home in Minnesota. This gave him an annual 

income of $30,422.50 for 1985 and 1986. The court found his 
expenses to be $1,680.25 per month or $20,163.00 annually. 

This leaves him with a surplus of $259.50 a year. It is 

impossible under the facts of this case for appellant to pay 

the maintenance required by the court. 

The District Court noted that certain large expense 

items will eventually diminish, particularly doctor bills and 

property taxes, leaving Lindley with an even larger surplus. 

Appellant argues that this is pure speculation and cannot be 

the basis for the court's finding but his own testimony is 

that his depression would eventually "clear up" given time. 

This is not so speculative that the court cannot consider it 

and is similar to income projections. See Gall v. Gal1 

(19801, 187 Mont. 17, 20, 608 P.2d 496, 498. 

One item that is perfectly concrete is the end of the 

$650.00 monthly payments for the sale of the parties' 

Minnesota home. Each party was to receive a balloon payment 

in 1987 of $13,500.00. The District Court noted that both 

parties1 incomes would decrease after 1987 but recognized 

that Lindley would receive extra income from the balloon 

payment with which he could meet his expenses and provide 

maintenance. The record does not show that the court. 

considered that Janice would also receive such a payment with 

which she could meet some of her expenses. The court simply 

increased the maintenance payments by $650.00 to a total of 

$925.00 per month. After 1987 the husband's only income will 

be from his Brewster farm for the few years until he begins 

receiving social security or until the Flathead property is 

sold at which time both parties would receive increased 

income. 

It appears to this Court that the petitioner-wife Janice 

would have Lindley sell his only current source of steady 

income in order to support her. We will not require him to 

do this. 
Appellant Lindley also contends that the court erred in 

awarding Janice attorney fees. The standard adopted by this 

Court with regard to attorney fees is one of abuse of 

discretion. In re Marriage of Gallinger (Mont. 19861, 719 

P.2d 777, 783, 43 St.Rep. 976, 984. Due to the errors 

previously discussed we cannot say that the District Court's 

finding of an award of attorney fees is supported by 

sufficient evidence. 

We remand this case to the District Court for a 

redetermination of the amount of maintenance the husband must 

pay and for reconsideration of the award of attorney fees. 

/ 

We Concur: 

Justices