No. 14872 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979

IN RE THEMARRIAGE OF KENNETH REESE, Petitioner and Respondent,

VS

# . MARTHA LOUISE REESE, Respondent and Appellant.

Appeal from: District Court of the Fourth Judicial District, Honorable E. Gardner Brownlee, Judgepresiding. Counsel of Record:. ForAppellant: Datsopoulos and MacDonald, Missoula,Montana For Respondent: Garnaas,Hall,Riley & Pinsoneault, Missoula,Montana

Submitted on briefs: November 14, 1979 Decided:

## I)EC

## 311973

Filed:

ClerkMr. Justice John C. Sheehy delivered the Opinion of the Court.
Martha Louise Reese appeals from a property division and maintenance award entered in a marital dissolution action in the Fourth Judicial District,Missoula County. Martha and Kenneth Reese were married on February 10, 1966 and resided together until their separation in October 1977. Kenneth petitioned for dissolution in June 1978. Martha responded and agreed to the dissolution in August 1978. She prayed for $600per month maintenance. Both parties sought an equitable property division. At the time of themarriage of the parties in 1966, Kenneth was 44years of age and had been an employee of the Missoula City Police Department for a period of 16 years. Martha

was 49 years of age and was engaged in a contract cleaning business with the Hoerner-WaldorfCompany, located in Missoula. During themarriage, Martha received title to 136.95 acres of land situated in Powell County, Montana, as an inheritance from her mother. During the course of the marriage the parties paid the taxes on the land from joint funds. Following the separation of the parties, Martha divested herself of the land by deeding it to her children in joint tenancy. Subsequently one of the children died which resulted in that child's interest in the property reverting to Martha who in turn divested herself of the property by deeding it to her remaining children. Kenneth did not claim ownership of any portion of this land but asserted that it should be included as an asset in determining the claim of Martha tomaintenance. During the course of themarriage, the parties accumulated debts and obligationswhich totaled $15,000 at the time the parties separated. The total assets of the parties consisted of a trailer house valued at $3,200, a 1972 Jeep pickup worth $2,000, a 21 foot 1978 travel trailer which cost $8,000, a 1978American Motors automobile which cost $5,000 and amotorcycle with a value of $1,400. The assetswere mortgaged for a total amount of $15,000. Martha presently has independent income of $425per month resulting from a payment to her by the Social Security Administration of $135.90 per month and income from employment in the cleaning business of $290per month. Martha divested herself of ownership of the cleaning business by transferring it to her son forwhom shenowworks. Themaximum amount which Martha can earn without incurring a reduction in Social Security payments is the sum of $290per month. Kenneth receives income of $545per month as a disability pension from the City of Missoula. Since September 24, 1970 and at the time 

### of trial he was employed as a security officer by Hoerner-Waldorf and received $6.90 per hour. In addition, Kenneth will become entitled to a pension from HoernerWaldorf of $180per month after completion of ten years of service,and upon retirement, in lieu of the wages mentioned above. Both parties testified that they suffered from physical disabilities. Martha testified she suffers from an arthritic condition and Kenneth testified that physical disabilities resulted in his being retired from the Missoula PoliceDepartment.Dissolutionwas granted in 1979 and Kennethwas ordered to pay $100per month maintenance. The property was divided

as follows: Martha was awarded the trailer house, furnishings, and the car which was in her possession. Kenneth received the rest of the property and assumed all of the debts incurred before separation. It is from this award that Martha appeals alleging the following two issues as error:



### -3-(1) The findings and conclusions of the District Court are inadequate as amatter of law. (2) The District Court erred in awarding only $100 .permonth maintenance to Martha. Martha contends that the District Court erred in failing to include in its findings and conclusions,an express determination of the net worth of the parties at the time of dissolutionof theirmarriage. In a recent decision, this Court stated: "Ordinarilythe trial court must firstdetermine the networth of the parties at the time of their divorcebefore a proper distribution of marital property can be made. Vivian v Vivian (1978), Mont

# . , 583 P.2d 1072, 35 St.Rep. 1359. But where, as here, the only issue is the disposition of the family home and furnishings, the net value thereof was not an issue. Under such circumstances,the failureof the District Court to find the net worth of themarital property is of no consequence." Schwartz

### v. ~chwartz(1979)

## , Mont. I P.2d 

### , 36 St.Rep. 1980, 1981. Similarly, here,net value of the family property is not an issue. Furthermore, in the presence case, "[tlhere is no evidence in the record that the trial court did not establish the net worth of the marital estate prior to granting maintenance to [the]petitioner." Maberry v. Maberry (19791, Mont. 

### , 598 P.2d 1115, 1116, 36 St.Rep. 1511, 1513. Appellant additionally asserts that the facts do not support the findings of the District Court. "Findingsof fact shall not be set aside unless clearly erroneous.. 

# .." Rule 52(a), M0nt.R.Civ.P. The substance of this issue iswhether the lower court abused its discretion in the distribution of the marital property and inmaking the award of maintenance. The judgment of the District Court will not be altered unless

a clear abuse of discretion is shown. In Re Marriage of Vashler (1979)

### , Mont. 

### , 600 P.2d 208, 210, 36 St.Rep. 1726, 1728; In Re Marriage of Metcalf (19791, Mont

# . I 598 P.2d 1140, 1142, 36 St.Rep. 1559, 1562; In Re Marriage ofAanenson (1979) 

### , Mont. 

### , 598 P.2d 1120, 1123, 36 St.Rep. 1525, 1528; 

### In Re Marriage of Kramer (1978), Mont

# . , 580 P.2d 439, 442, 35 St.Rep. 700, 704; Zell

### v. Zell (1977), Mont

# . , 570 P.2d 33, 35,34 St.Rep. 1070, 1074. The District Court inmaking itsproperty and maintenance determinations must consider the factors enumerated in sections 40-4-202 and 40-4-203,MCA. The record here indicates that the District Court heard testimony and reviewed other evidence concerning the relevant factors set out in the statutes. We conclude that the District Court did not

err in awarding maintenance of $100per month to the appellant. The decision of the District Court is affirmed.

Justice We Concur:



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