NO. 87-325



### INTHE SUPREME COURT OF THE STATEOF MONTANA

1987

INRE THEMARRIAGE OF JANICEB. TOW, Petitionerand Respondent, and

LINDLEY R. TOW, Respondent andAppellant.

APPEAL FROM: District Courtof the Eleventh JudicialDistrict, 

### Inand for the County ofFlathead, The Honorable MichaelKeedy, Judgepresiding.

COUNSELOF RECORD:

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

ForRespondent: 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 theCourt.

Lindley R. 

### Tow appeals from an order of the District Court, Eleventh Judicial District, Flathead County, awarding his ex-wife, Janice B. Towmaintenance payments and attorney fees. We remand. The issueson appealare: 1. 

### Did the courterr in its determination that the wife required maintenance and in awarding theamount 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 apsychiatrist's care. His prognosis for recovery isgood. Until his retirement in January, 1983,Lindley owned a 

### Marine Survey and Casualty Insurance Company in Minnesota. At the outset of this action, Janicewas a certifiedmedical 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)whichhe had sold in 1981and due to thedepressed farm economy bought back and rented in 1985. This is his mainsourceof income. It isvalued at $128,000.00. Both parties owned 78 acres in Wisconsin with avalue of $800.00 per acre. The family home inMinnesotawas sold in 1981 fromwhich 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 isnow listed for sale at $165,000.00. The property settlementwhich is not being contested divided the assets and cash in the followingmanner: Petitioner (Janice) Respondent (Lindley)

PersonalProperty Sale ofMinnesota home Brewster farm Wisconsin acreage:

40acres to Petitioner 38 acres to Respondent Bank account Projected net sale

proceeds fromFlathead Lakeproperty Petitioner's

inheritance Respondent's payments*

on Flatheadproperty Boat

TOTAL: 134,397.96 268,917.06 

## * Itwas agreed that the respondent Lindleywould recoverhis payments on the Flathead property. Petitioner's inheritance representsJanice's net inherited contributionto themarital 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 equalvalue.
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 petitionerattorney 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 thathis ex-wife'sproperty 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 emp1 oyment

# . 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), 690P.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" fromHundtoft because itdoes notassist in reviewing the actions of the lower court.InRe Marriage ofHall, 740 P.2d at 686. Under $ 40-4-203(11, MCA, maintenance may be awarded only if the spouse seeking it "lacks sufficientproperty 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; InreMarriage ofHerron (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 whethermaintenancewasproper. Inevidence 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 findinghere,wewill 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 thathis 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 thesewere reasonableexpenses. Lack of a specific finding is not necessarily an abuse of discretion. Marriage of Madson (19781, 180Mont. 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 thatpurchase 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 necessitatesanewer car. These are notunreasonable. Appellant additionally contends that the business expenses cited by thewife and her car expense because it is business-related are not proper expenses tobe considered in determining her reasonable needs. We find no case law on thispoint and appellant citesnone. We will notpunish 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 expenseson thepart of the employee. Appellant next contends that the wife has purposely chosen inappropriate employmentas a realestate 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)

### containsa component connected to the standard of living enjoyed by the parties during the marriage. 

### -- In re Marriage - 

### of Madson, 590 

### P.2d at 112. Thehusband testified that their standardof livinghad been "magnificient." Rut he also testified that tomaintain 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 ofdoing this type ofwork again but found no opportunities. She also chosenot to return to this work because she had become "tired of itand feared thather performance in aprofessionof such a lifeand 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 doesnot showan abuse ofdiscretion in awarding maintenance. We affirm the DistrictCourt's decision to awardmaintenance. 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 inmaking amaintenance determination: (a) the financial resources of the party seeking maintenance, including maritalproperty 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 durationof 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 theproperty settlement she received substantially the same amount of assets as Lindley when inherited property is excluded. The DistrictCourt 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 thewife's assets were available to her for investment as well. This Court recognizes that the maintenance-seeking spouse'sability to investhis orher assets is a valid consideration when awarding maintenance. In reMarriage 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 fromhis 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 hisexpenses 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 themaintenance requiredby the court. The District Court noted that certain large expense itemswill eventually diminish,particularly doctor bills and property taxes, leaving Lindley with an even larger surplus. Appellant argues that this ispure speculationand cannot be the basis for the court's finding but his own testimony 

### is that his depressionwould eventually "clearup" given time. This is not so speculative that the court cannot consider it and is similar to income projections. See Gall v. Gal1

(19801,187Mont. 17, 20, 608P.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 suchapayment with which she couldmeet some of her expenses. The court simply increased the maintenance payments by $650.00 to a total of $925.00 permonth. After 1987 thehusband's only incomewill 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. Itappears to thisCourt 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 sufficientevidence. We remand this case to the District Court for a 

### redeterminationof the amount of maintenance the husband must pay and for 

### reconsideration of 

### the award of attorney fees. 

### /

We Concur:

Justices