NO. 80-33 IN THE SUPREME COURT OF THE STATE OF MONTANA 1980

IN RE THE MARRIAGE OF ELIZABETH PEARL VIVIAN, PetitioneradRespondent,

VS

# . ROBERT WILBER VIVIAN, Respondent and Appellant.

Appeal from: District Courtof the Second Judicial District, 

### In and for the County

### of Silver Bow. Honorable Frank E. Blair, Judge presiding. Counsel

### of Record: For Appellant: McCaffery 

### and Peterson, Butte, Montana For Respondent: Joseph Engel, 111, Butte, Montana

Submitted 

### on briefs: April 25, 1980 Decided: 

## JUL

## 2

# - 1980Mr. Justice Gene B. Daly delivered the Opinion of the Court. The issue inthis case 

### iswhether the DistrictCourt, County of silver Bow, abused 

### its discretion inordering appellant topay his former wife $200 per month maintenance pursuant to a decree of dissolution of marriage. The marriage of Robert Wilber Vivian and Elizabeth Pearl Vivian was dissolved in 1977 by a decree of the Dis

### trict Court. Wife appealed from the DistrictCourt's distribution of marital property and award of maintenance, and thisCourt reversed and remanded for a new 

### trial. Vivian v. Vivian (1978), Mont. 

## , 583 P.2d 1072, 35 St.Rep. 1359. In our prior opinion, we held that the DistrictCourt had failed todetermine the networth of the parties and make specific findings to support the distribution of marital assets; had erred indeducting the husband's inheritance from the value of the home prior todividing the marital property; and thatbecause the distribution was reversed, the award of maintenance would alsohave tobe reversed because "[tlherule 

### is that the needs of the spouse as to maintenance and the reasonableness of such an award can only be properly determined after there has been an equitable division of the marital estate." Vivian 

### v. Vivian, supra, 583 P.2d at1075, 

### 35 St.Rep. 

### at 1362. After 

### a new trial following remand, the DistrictCourt entered findings of factand conclusions of law on June 26, 1979. The husband challenged these findings and conclusions and additional hearings 

### were held on August 8, 1979 and on August 30, 1979. The DistrictCourt issued its final amended findings of factand conclusions of law, together with an accompanying memorandum on September 

### 7, 1979, and the amended judgment and decree

### was filed on October 23, 1979.The DistrictCourt ultimately found the net worth of theparties to be $47,500.55 atthe 

### timeof the divorce and determined that the wife owed medical bills of $1,025.70 and further indebtedness of $5,000 plus intereston a bank loan. The marital property was divided equally, based on the wife's contribution asa homemaker for nearly thirty yc.ars, with each party toreceive $23,750. The husband was ordered topay the wife $200 per month maintenance. Husband was given the option of satisfying the wife's share of the marital estateby payment of 

### a lump sum of $23,750 orby paying $8,509.73 cash and the balance of $15,240 over ten years at$184.90 per month, which includes 8 percent annual intereston the balance due. The pertinent findings of the DistrictCourt are: I That Petitioner, Elizabeth Pearl Vivian isnow 59 years old and has no formal training for any type of employment outside the home. "IV That Petitioner has recently undergone major surgery and 

### isconvalescing therefrom; thatprior toher surgery she 

### was inextremely poor health, suffering from diabetes and high blood pressure and was mentally and physically incapable of working. That Petitioner 

### still suffers from hypertension, weakness and diabetes and she 

### is still under 

### a Doctor's care for hypertension and diabetes.

"VII That the Respondent, Robert Vivian 

### is an able-bodied man, age 57, employed by the Montana Power Company inButte and earns a gross income of $1,740.00 per month. "VIII That the only source of income Petitioner now has is the temporary support which the Montana Supreme Court ordered Respondent to pay inthe 

### sum of $200.00 per month and that it 

### was established during the hearing that thiswas inadequate tomeet her modest needs and support."XI1 That when Petitioner has paid [her debts] she

### willhave remaining about $17,724.30 from themarital 

### assets allocated toher hereunder. The Court finds that said sum 

### is insufficient toprovide for ordinary and reasonable needs, the Petitioner being unable to support herself by employment inany of the ways suggested by Respondent, or atall. "That inconsideration of allof the facts in this case the Court finds 

### it fair, equitable and just thatRespondent pay maintenance for Petitioner inthe amount of $200.00 per month until the further order of thisCourt, said payments tocommence the 15thday of the month succeeding the dateof the entry of the amended judgment inthis action." The wife's needs and the District Court's reasoning fxr twarding her maintenance are further detailed inthe DistrictCourt's memoranda filedAugust 20, 1979 and September 7, 1979. On appeal, the husband urges that the District Court abused 

### itsdiscretion inawarding his former wife $200 per month inmaintenance. He contends that the District Court abused 

### itsdiscretionby failing toconsider the elements of a maintenance award and by failing to adopt findings of factregarding the ability of the husband to pay, the abilityof the wife towork, and the wife's needs after receiving her half of the marital estate. Respondent wife challenges the 

### District Court's finding 

### as toher indebtedness, arguing that the court erred infailing to find that she owes $5,000 inattorney fees and inreducing her maintenance from the original award of $250 per month to $200 per month. We find these contentions tobe without substance. The prerequisites for a maintenance award 

### are set forth in section 40-4-203, MCA: "Maintenance. (1)In a proceeding for dissolution of marriage or legal separation or a proceeding formaintenance following dissolution of the marriage by a courtwhich lacked personal jurisdiction over the absent spouse, the courtmay granta maintenance order foreither spouse only if it finds that the spouse seeking maintenance: 

### "(a) lacks sufficientproperty to provide for his reasonable needs; and "(b)isunable to support himself through appropriate employment or 

### is the custodian of a child whose condition or circumstances make 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 tomarital 

### misconduct, and after considering allrelevant 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 thatparty as custodian; 

### "(b) the 

### timenecessary to acquire sufficient education or training toenable the party seekingmaintenance tofind 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

### meethis needs while meeting those of the spouse seeking maintenance." An affirmative showing must be made 

### as 

### a precondition to the award of maintenance. Schultz v. ~chultz (1979), Mont. 

## , 597 P.2d 1174, 1177, 36 St.Rep. 1330, 1333. Contrary to appellant'

### s contentions, the DistrictCourt in this case made appropriate findings under section 40-4- 203(1),

### MCA, that thewife (a) lacks sufficientproperty to provide forher reasonable needs, even after the property distribution, and (b) isunable to support herself through appropriate employment. Thus, the DistrictCourt did not abuse its discretion. These findings are supported bysubstantial credible evidence, and the wife sustained her burden of making an affirmative showing. The facts show that the wife 

### is 59 years old, has not been employed other than 

### as a homemaker for the past thirtyyears and has no training for any employment, 

### isinextremely poor health, has no outside income, 

### isover $6,000 indebt, and that the Stateof Montana has paid $8,200 of her outstanding medical bills. Furthermore, asevidenced by 

### its findings and memoranda, the DistrictCourt properly assessed allof the relevant facts indetermining the amount and duration of the maintenance award, including the considerations listed in section 40-4-203(2), MCA, having made specific findings as to those facts. Regarding the issue of the husband's ability topay, the DistrictCourt specifically found, "[tlhat the Respondent, Robert Vivian 

### isan able-bodied man, age 57, employed by the Montana Power Company inButte and earns a gross income of $1,740.00 per month." The court did not commit any error by failing toinclude a specific finding that his net take-home pay was $1,159.87 per month or that his alleged monthly expenses total $1,090.89 per month. Likewise, while it is true that the DistrictCourt did not go so far

### as todraw up a monthly budget of the wife's reasonable needs after receiving her half of the marital estate, to do sowas unnecessary inview of the amount of the property award, the wife's debts, her nonexistent earning capacity, her poor health, her age, and her lack of outside income or additional assets. ~ppellant'scontention that the wife should be able torely on the amortized property distribution payments of $184.90 per month asher sole source of income 

### is ludicrous. That such an amount 

### is insufficient to

### meether needs 

### is supported by the wife's testimony that she could not liveon $200 per month and by

### the District Court's observations in itsmemoranda. In addition, the wife testified to several items of support, those being her $50 per month rent at government assisted housing, her expenses for medication, and the cost of food,

as well as her need for clothing, furnishings, eyeglasses and dental work. In summary, it can be said that the District Court adequately considered the wife's reasonable needs. The judgment of the District Court is affirmed with costs of this appeal assessed against ap

We concur:

Chief Justice 

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### ustices