No. 14315 

IN THE SUPREEJE COUR!F OF THE STATE OF !10NTAm 

1978 

Petitioner and Appellant, 

and 

Respondent and Respondent. 

Appeal frm: District Court of the Thirteenth Judicial District, 

Honorable Leonard H. Langen, Judge presiding. 

Counsel of Record: 

For Appellant: 

Sandall and Cavan, Billings, Mntana 

John Cavan argued, Billings, Pbntana 

For Respondent: 

Berger, Anderson, Sinclair & Murphy, Billings, Mntana 

Richard Anderson argued, Billings, Mntana 

Sdmitted: November 15, 1978 

Decided: OEc 12 1978 

Filed: DF' - ???8 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Petitioner Dale A. Madson brought this action in the 

district court of the Thirteenth Judicial District, Yellowstone County, seeking a dissolution of his marriage to 

respondent, Shirley E. Madson. Trial was had before the 

court sitting without a jury. The district court entered 

its findings and conclusions on February 28, 1978, and its 

judgment and order decreeing the dissolution, property 

division, custody award, and award of maintenance and child 

support on March 7, 1978. Petitioner appeals from the award 

of maintenance set forth in the judgment and decree. 

Dale, age 50 at the time of the decree, and Shirley, 

then age 48, were married August 22, 1950. They have five 

children: Bruce 26, Mark 24, Jeff 22, Peter 19, and Marilyn 

16. Peter and Marilyn were living at home at the time of 

the dissolution and respondent was given custody of Marilyn. 

Petitioner and respondent have been separated since January 

30, 1970. 

Petitioner is vice-president and manages the Billings 

operation of the Colborn School Supply Company, a closelyheld corporation. Petitioner also owns the largest single 

block of stock in that corporation (23% of the outstanding 

shares). Petitioner in addition is president of M & L Realty 

Company which owns the buildings housing the Billings, 

Montana and Grand Forks, North Dakota operations of Colborn. 

Petitioner's salary as an officer of Colborn is approximately 

$53,000.00 annually. Petitioner also holds insurance policies 

with cash values of approximately $18,000.00 and participates 

in a profit sharing plan of which his share is approximately 

$21,000.00 Petitioner's stock holdings in Colborn included 

in the marital estate were valued by the district court at 

$78,590.00 (542 shares at $145.00 per share). There was 
however, conflicting testimony on the value of these shares. 

The court valued petitioner's stock holdings in the realty 

company, included in the marital estate, at $21,150.00 (141 

shares at $150.00 per share). In addition, petitioner holds 

demand notes from the two companies totaling $18,150.00 and 

has a 50% interest in a Mazatlan, Mexico condominium valued 

at $10,000.00. 

It was testified at trial that petitioner contributed 

approximately $18,000.00 in 1976 to support respondent and 

the two children at home. It was further testified that 

petitioner over the course of the seven and one-haIf year 

separation, contributed approximately $132,000.00 to the 

support of his family. Petitioner also testified that 

during this time period his net worth was increasing. 

Respondent has not worked for remuneration during the 

27 years of the marriage. She was at the time of the marriage 

in 1950 engaged in nurses training but terminated when she 

was married. Since her marriage she has devoted her time 

and energy to raising her family in part due to the wishes 

of petitioner. She testified at trial that she possesses no 

technical skills and that she had been advised not to 

return to her nurses training because of its physical and 

mental demands. Respondent testified the only work she had 

ever done for remuneration was as a maid and babysitting in 

high school. Respondent testified she suffers from an 

ailment which can be surgically corrected, and occasionally 

from sciatica, and varicose veins. Respondent also indicated 

a willingness to take training to prepare herself for 

remunerative work. 

Respondent admitted at trial she often aids her older 

children financially and gives them gifts. She does little 

socially and travels infrequently. 
In its findings the district court determined the 

marital estate to have a value of $238,762.00. This consisted of the family home in Billings and its furnishings, 

valued at $85,000.00, Colborn stock held by petitioner (the 

court excluded stock devised to petitioner by his father 

during the separation from respondent), realty company stock 

(excluding shares devised to petitioner during the separation), 

life insurance cash values, interests in the pension and 

profit sharing plans of Colborn, demand notes and petitioner's 

interest in the condominium in Mexico. The court awarded 

respondent $120,000.00 as her equitable share to be made up 

of the home, its furnishings and $35,000.00 cash. 

The district court, after making detailed findings 

concerning the value of Colborn and the realty company stock 

and dividing the marital assets, found respondent had no 

employment or income history. The court found the respondent 

suffered from physical ailments, some of which could be 

corrected, and that respondent was willing to undergo 

vocational training and could become employable. The court 

then made findings concerning the income of petitioner and 

determined he could afford to pay $12,000.00 annually in 

maintenance until respondent remarries or dies. The court 

provided for an increase in maintenance sh~uld the cost of 

living increase as determined by federal government statstics. 

The district court entered its decree and judgment 

based on its findings and conclusions on March 7, 1978. 

Petitioner appeals from that portion of the judgment setting 

the maintenance award. 

Petitioner contends the district court abused its 

discretion by not making specific findings on respondent's 

reasonable needs before awarding maintenance. In conjunction 
with this contention petitioner argues the district court 

also abused its discretion by not requiring non-income 

producing property (the family home) awarded to respondent 

to be converted into income-producing property, and by not 

requiring respondent, who it found could become employable, 

to seek training and employment before it determined and 

awarded maintenance. Our review of the record, however, 

reveals no abuse of discretion; thus we affirm the judgment 

of the district court. 

The criteria by which this Court measures alleged 

abuses of discretion has been recited many times. We will 

not alter the judgment of a trial court sitting without a 

jury, particularly in dissolution matters, unless the record 

demonstrates the district court acted arbitrarily, without a 

reasonable basis, resulting in substantial injustice. In Re 

the Marriage of Caprice (1978), Mont . , 585 P.2d 641, 

35 St.Rep. 1460, 1464; Jerome v. Jerome (1978), Mont . I 

574 P.2d 997, 35 St.Rep. 148. It is true the district 

court here did not specifically enumerate what it considered 

to be respondent's reasonable needs. However, it did find 

respondent was a 48 year-old woman, with health problems, 

who had no employment history, and was without practical 

means of support. The court heard uncontradicted testimony 

concerning the amounts petitioner had voluntarily contributed 

to the support of the family during the seven year separation. 

The court also heard uncontradicted testimony concerning 

amounts respondent spent in 1976 for living expenses. The 

credibility of the witnesses is for the trial court to 

determine and not this Court. Easton v. Easton (19781, 

Mont . , 574 P.2d 989, 35 St.Rep. 123. After a 

review of the record we do not find the district court 

abused its discretion by not making a specific finding of 

reasonable needs. 

-5- 
The petitioner has also argued that in this case 

section 48-322, R.C.M. 1947, requires the non-income producing 

property awarded to respondent be sold and the proceeds 

invested to produce income, and requires respondent be 

ordered to seek job training to become employed before 

maintenance may be properly awarded. Petitioner has cited 

no authority supporting this position and we are unable to 

find any. Moreover, jurisdictions interpreting the identical 

section have stated the criteria of lack of sufficient 

property for reasonable needs and inability to support 

through appropriate employment are relative. Lindsay v. 

Lindsay (1977), 115 Ariz. 322, 565 P.2d 199, 203; Casper v. 

Casper (Ky. 1974), 510 S.K.2d 253, 255; Sharp v. Sharp (Ky. 

1974), 516 S.W.2d 875, 877; Colley v. Colley (Ky. 1970), 460 

S.W.2d 821, 827. The appropriate construction of the language 

of section 48-322(1) (a) and (b), R.C.M. 1947, is whether the 

spouse seeking maintenance lacks sufficient property and is 

unable to support herself through appropriate employment 

according to the standard of living established during the 

marriage. Lindsay, supra; Casper, supra; Colley, supra. 

Evidence was introduced at trial indicating the standard of 

living enjoyed by the respondent during recent years, but no 

evidence was introduced as to respondent's earning capabilities or the income producing potential of the real 

property awarded to respondent. We recognize there are 

public policy considerations behind rehabilitative spousal 

maintenance awards which, under appropriate circumstances, 

may give incentive to the spouse receiving maintenance to 

procure job skills so as to become selfsufficient. However, 

this public policy must be balanced with some: 

"realistic appraisal of the probabilities that the 

receiving spouse will in fact subsequently be able 

to support herself in sone reasonable approximation 

of the standard of living established during the 
marriage, especially when a marriage of long-term 

duration is involved and the employment history 

shows a long-term absence of the spouse from the 

labor market with lack of a presently existing employ 

ment skill." Lindsay, 565 P.2d at 205. (Emphasis 

added. ) 

It is noteworthy that in this case we have a husband 

who has been generous in the support given to his wife 

during their separation. Our conclusicn here is that the 

needs of his wife have been established, principally through 

his generosity, and his income warrants the district court's 

award of maintenance, especially in the light of the income 

tax impact on a high earner such as the husband. 

We find no abuse of discretion in the findings, conclusions and judgment of the district court, and affirm its 

decision. 

Justice 

We Concur: 

Chip Justice 

/ / Justices