NO. 80-33 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

IN RE THE MARRIAGE OF 

ELIZABETH PEARL VIVIAN, 

Petitionerad Respondent, 

VS . 

ROBERT WILBER VIVIAN, 

Respondent and Appellant. 

Appeal from: District Court of 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 - 1980 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

The issue in this case is whether the District Court, 

County of silver Bow, abused its discretion in ordering appellant to pay 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 District Court. Wife appealed from the District Court's distribution of marital property and award of maintenance, and 

this Court 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 District Court 

had failed to determine the net worth of the parties and 

make specific findings to support the distribution of marital 

assets; had erred in deducting the husband's inheritance 

from the value of the home prior to dividing the marital 

property; and that because the distribution was reversed, 

the award of maintenance would also have to be reversed 

because "[tlhe rule 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 at 1075, 35 St.Rep. at 1362. 

After a new trial following remand, the District Court 

entered findings of fact and 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 District Court issued its final amended 

findings of fact and 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 District Court ultimately found the net worth of 

the parties to be $47,500.55 at the time of the divorce and 

determined that the wife owed medical bills of $1,025.70 and 

further indebtedness of $5,000 plus interest on a bank loan. 

The marital property was divided equally, based on the 

wife's contribution as a homemaker for nearly thirty yc.ars, 

with each party to receive $23,750. The husband was ordered 

to pay the wife $200 per month maintenance. Husband was 

given the option of satisfying the wife's share of the 

marital estate by payment of a lump sum of $23,750 or by 

paying $8,509.73 cash and the balance of $15,240 over ten 

years at $184.90 per month, which includes 8 percent annual 

interest on the balance due. 

The pertinent findings of the District Court are: 

I That Petitioner, Elizabeth Pearl Vivian 

is now 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 is convalescing therefrom; 

that prior to her surgery she was in extremely 

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 in Butte 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 in the sum of $200.00 per month and that 

it was established during the hearing that 

this was inadequate to meet her modest needs 

and support. 
"XI1 That when Petitioner has paid [her debts] 

she will have remaining about $17,724.30 from 

the marital assets allocated to her hereunder. 

The Court finds that said sum is insufficient 

to provide for ordinary and reasonable needs, 

the Petitioner being unable to support herself 

by employment in any of the ways suggested by 

Respondent, or at all. 

"That in consideration of all of the facts in 

this case the Court finds it fair, equitable 

and just that Respondent pay maintenance for 

Petitioner in the amount of $200.00 per month 

until the further order of this Court, said 

payments to commence the 15th day of the month 

succeeding the date of the entry of the amended 

judgment in this action." 

The wife's needs and the District Court's reasoning fxr 

twarding her maintenance are further detailed in the District Court's memoranda filed August 20, 1979 and September 

7, 1979. On appeal, the husband urges that the District 

Court abused its discretion in awarding his former wife $200 

per month in maintenance. He contends that the District 

Court abused its discretion by failing to consider the 

elements of a maintenance award and by failing to adopt 

findings of fact regarding the ability of the husband to 

pay, the ability of the wife to work, and the wife's needs 

after receiving her half of the marital estate. Respondent 

wife challenges the District Court's finding as to her 

indebtedness, arguing that the court erred in failing to 

find that she owes $5,000 in attorney fees and in reducing 

her maintenance from the original award of $250 per month to 

$200 per month. We find these contentions to be 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 

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 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 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 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." 

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 District Court 

in this case made appropriate findings under section 40-4- 

203(1), MCA, that the wife (a) lacks sufficient property to 

provide for her reasonable needs, even after the property 

distribution, and (b) is unable to support herself through 

appropriate employment. Thus, the District Court did not 

abuse its discretion. These findings are supported by 
substantial 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 thirty years and has no 

training for any employment, is in extremely poor health, 

has no outside income, is over $6,000 in debt, and that the 

State of Montana has paid $8,200 of her outstanding medical 

bills. 

Furthermore, as evidenced by its findings and memoranda, 

the District Court properly assessed all of the relevant 

facts in determining 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 

to pay, the District Court specifically found, "[tlhat the 

Respondent, Robert Vivian is an able-bodied man, age 57, 

employed by the Montana Power Company in Butte and earns a 

gross income of $1,740.00 per month." The court did not 

commit any error by failing to include 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 District Court did 

not go so far as to draw up a monthly budget of the wife's 

reasonable needs after receiving her half of the marital 

estate, to do so was unnecessary in view 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's contention that the wife should be able to rely on the amortized 

property distribution payments of $184.90 per month as her 

sole source of income is ludicrous. That such an amount is 

insufficient to meet her needs is supported by the wife's 

testimony that she could not live on $200 per month and by 
the District Court's observations in its memoranda. 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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