No. 14668 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1979 

IN RE THE MARRIAGE OF 

SHIRLEY M. VASHLER, 

Petitioner and Respondent, 

and 

JOHN J. VASHLER, 

Respondent and Appellant. 

Appeal from: District Court of the Thirteenth Judicial 

District, 

Honorable Nat Allen, Judge presiding. 

Counsel of Record: 

For Appellant: 

Moses, Tolliver and Wright, Billings, Montana 

For Respondent: 

Sandal1 and Cavan, Billings, Montana 

Submitted on briefs: August 1, 1979 

ac: 2 1@J Decided. w 

c: *--- Filed: fJcr L %rkz P 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

This is an appeal from the judgment of the District 

Court, Yellowstone County, dissolving the marriage of the 

parties, dividing the marital estate and fixing maintenance 

and support payments. 

The husband John J. Vashler appeals from the division 

of the marital estate and the fixing of maintenance and 

support payments. We decide the matter on briefs without 

oral argument. 

The parties to this action were married on August 7, 

1954, in Billings, Montana. At the time of the marriage the 

husband was employed with a printing company and the wife 

worked at a local laundry. After five years of marriage 

the parties used the money that the wife had earned for a down 

payment on a house. Thereafter, the wife terminated her 

employment, became a homemaker, and did not work outside of 

the home during the rest of the marriage. 

Two children were born of this marriage, Jay Darrell 

Vashler, age 18 years at the time of the divorce, and Loren 

Lynn Vashler, age 9 years. Jay Vashler pursues his college 

education at Montana State University. Loren Vashler resides 

at the family residence and attends school in Billings, 

Montana. 

At the time of the dissolution the parties' property 

consisted of a house, furniture, fixtures and other personal 

property in or about the house, a 1974 Pontiac automobile, 

a 1974 pick-up truck, a 1962 Pontiac automobile, a checking 

account, and a savings account. It was agreed by the parties 

that the total value of the marital estate was $48,450. 

The District Court found that the husband's average net 

take home pay was approximately $1,200 per month for the five 

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months of January through May 1978. The District Court also 

found that the husband's average take home pay was $1,300 

per month from June 1, 1978 through August 1978, due to a 

wage increase. The District Court found the wife to be 

employable, but doubted whether she could find employment at 

much over the minimum wage. 

The decree of dissolution granted custody of Loren, 

the minor child, to the wife subject to the husband's right 

to visitation. The District Court ordered that the husband 

pay $200 per month for the support of the minor child until 

Loren reached the age of majority, or finished high school, 

whichever occurs last. 

The District Court ordered that title to the home remain 

in the name of the husband and the wife as joint tenants with 

right of survivorship. The wife was granted exclusive use 

of the home, rent free, until Loren reached eighteen or 

finished high school or until the wife should remarry. Upon 

the occurrence of any one of these events, the home is to 

be sold and the parties must equally divide the proceeds. 

In addition, the District Court ordered the husband to 

pay $250 per month for the first six months following the 

entry of judgment, and $150 per month for the following thirty 

months, to the wife for support and maintenance. The support 

and maintenance award would terminate at the end of three 

years, or earlier if the wife were to remarry. 

The District Court equally divided the savings account. 

The 1974 Pontiac was awarded to the wife and the 1974 pickup 

truck and the 1962 Pontiac were awarded to the husband. 

The issues presented on appeal are: 

1. Was it proper for the court to keep title to the 

house in joint tenancy? 

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2. Was the award of maintenance supported by the 

evidence? 

3. Was the award of maintenance in accord with the 

Montana Marriage and Divorce Act? 

4. Can the District Court properly take into consideration 

certain overtime hours worked by the husband in determining 

his gross income potential? 

The substance of this appeal is whether the District 

Court abused its discretion in the distribution of the marital 

estate and in its award of maintenance. This Court has addressed 

this issue in several recent decisions. Kaasa v. Kaasa (1979), 

Mont . , 591 P.2d 1110, 36 St.Rep. 425; In Re Marriage 

of Jorgensen (1979), Mont . , 590 P.2d 606, 36 St.Rep. 

233; Kramer v. Kramer (1978), Mont . , 580 P.26 439, 

35 St.Rep. 700; and Johnsrud v. Johnsrud (1977), Mont. 

, 572 P.2d 902, 34 St.Rep. 1417. 

The approach which we have used in considering this 

issue was stated in Zell v. Zell (1977), Mont . I 

570 P.2d 33, 35, 34 St.Rep. 1070, 1074, in this language: 

"It is well settled in Montana that a district 

court has far reaching discretion in resolving 

property divisions and its judgment will not be 

altered unless a clear abuse of that discretion 

is shown. (Citation omitted.) The criteria for 

reviewing the district court's discretion is: 

Did the district court in the exercise of its 

discretion act arbitrarily without employment of 

conscientious judgment, or exceed the bounds of 

reason in view of all the circumstances." 

The husband contends that it was an abuse of discretion 

for the District Court to leave the title to the house in joint 

tenancy with right of survivorship. He contends that this runs 

counter to the principle that the husband is entitled to onehalf of the residence, because he would be divested of an 

interest if he were to die before the youngest child reached 

eighteen or finished high school. 
The District Court judge has a wide range of discretion 

in disposing of marital property under section 40-4-202, MCA. 

In this case the disposition of the property was well within 

the permissible boundaries of this statute. Nowhere in this 

statute or in the judgment is it provided that the husband 

is entitled immediately to one-half of the residence. The 

husband's interest in the real property as a joint tenant 

is uneffected by the court's decree. The husband's right 

of survivorship is not disturbed. All the order of the 

District Court does is postpone any transfer of the interest 

of the husband until the conditions of the decree have been 

met. 

It was not an abuse of discretion for the District 

Court to decree that the title to the house was to remain in 

joint tenancy with right of survivorship. 

The husband next contends that the award of maintenance 

was not supported by the evidence and that the award of 

maintenance was not in accord with the applicable statutory 

provisions. We will consider these contentions together. 

Section 40-4-203, MCA, provides as follows: 

"Maintenance. (1) In a proceeding for dissolution 

of marriage or legal separation or a proceeding for 

maintenance following dissolution of the marriage 

by a court which lacked personal jurisdiction over 

the absent spouse, the court may grant a maintenance 

order for either spouse only if it finds that the 

spouse seeking maintenance: 

"(a) lacks sufficient property to provide for his 

reasonable needs; and 

"(b) is unable to support himself through appropriate 

employment or is the custodian of a child whose 

condition or circumstances makes it appropriate that 

the custodian not be required to seek employment 

outside the home. 

"(2) The maintenance order shall be in such 

amounts and for such periods of time as the court 

deems just, without regard to marital misconduct, 

and after considering all relevant facts including: 
"(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 an' 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." 

The wife received the house to live in free of debts, 

plus an automobile and the other items from the marital estate 

which are listed above. The record discloses that the wife 

cannot provide for her needs with this property. 

The District Court found that the wife could only earn 

the prevailing minimum wage due to her lack of formal education 

and training. In addition, she has custody of a nine year old 

child, and this added responsibility further decreases her 

ability to secure employment. The maintenance payments are 

to be made for only three years and will decrease from $250 

per month to $150 per month six months following the entry of 

judgment. After the three year time period expires the wife 

will be required to support herself. She will receive $200 

per month as child support until the child reaches the age of 

eighteen or graduates from high school. The District Court 

also found that the husband has a net income of $1,200 to 

$1,300 per month. 

In light of these facts we hold that the award of 

maintenance is supported by the evidence and is within the 

scope of section 40-4-203, MCA. 
The husband's last contention is that it was error for 

the District Court to consider his overtime pay. The District 

Court found that the husband averaged about four hours of 

overtime per week for which he received increased compensation. 

There is uncontested evidence that the husband averaged five 

hours a week overtime for the full year of 1977, and that he 

averaged six to seven hours of overtime from January 1, 1978 

through May 1978. For the District Court to estimate that the 

husband averaged four hours of overtime per week is not error. 

We cannot say that the District Court's disposition of this 

case was arbitraryrltzrithout employment of conscientious judgment, 

or exceed[ed] the bounds of reason in view of all the circumstances." -- Zell, supra, Mont. at , 570 P.2d 35, 

34 St.Rep. at 1074. 

The judgment is affirmed. The costs on appeal are 

awarded to respondent pursuant to Rule 33, M.R.App.Civ.P. 

................................. Chief Justice