No. 88-06 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

IN RE THE MARRIAGE OF 

GERALD E. HUGHES, 

Petitioner and Appellant, 

and 

AUDREY ANN HUGHES, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Ninth Judicial District, 

In and for the County of Glacier, 

The Honorable R.D. McPhillips, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Randy K. Dix, Helena, Montana 

For Respondent: 

Marc G. Buyske; Anderson, Beatty & Lee, Shelby, 

Montana 

Submitted on Briefs: Feb. 9, 1989 

i- 

! r: Decided: 21, 1989 

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Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Mr. Hughes appeals from an Order of Clarification issued 

by the District Court for the Ninth Judicial District, Glacier County, following a judgment entered in the parties' 

divorce proceedings before that court. We reverse and remand 

for further proceedings. 

The issue presented for our review is whether the District Court erred in granting Mrs. Hughes permanent maintenance in its Order for Clarification. 

The parties had been married for 25 years when they 

separated in April of 1982. The marriage was dissolved in 

1986. Three children were born of the marriage, all of whom 

were emancipated at the time of the divorce proceedings. 

During the marriage, Mrs. Hughes was not, for the most 

part, employed outside the home. She raised the children and 

served as homemaker in the various locations in which the 

family lived while Mr. Hughes pursued his career as a mi1.itary officer with the United States Air Force. Mr. Hughes 

served fourteen of his active duty years in the United Kingdom primarily because Mrs. Hughes was a British citizen and 

preferred to live in England. After 23 years of active 

service, Mr. Hughes retired in 1978, having attained the rank 

of major. 

Following Mr. Hughes' retirement, the parties remained 

in Scotland. Mr. Hughes sold automobiles and Mrs. Hughes 

began working as a social worker for the local government. 

In 1982, Mr. Hughes moved to the United States to pursue a 

second career in hospital administration. Mrs. Hughes chose 

not to accompany her husband. She remained in the family 

residence in Scotland and continued her employment as a 

social worker. 
Upon his return to the United States, Mr. Hughes worked 

as a hospital administrator in Ekalaka, Montana, then in Cut 

Bank, and finally in Helena, Montana. While in the United 

States, Mr. Hughes continued to support his family by depositing his entire Air Force pension check in a bank account in 

Scotland along with other monies from his hospital employment. That assistance continued until November of 1986 when 

the parties' youngest child reached the age of majority. 

That same month, the marriage was dissolved by the Glacier 

County District Court and the court ordered Mr. Hughes to 

keep current all of the mortgage payments, taxes, and insurance associated with the Scotland residence. 

In January of 1987, Mr. Hughes was ordered to pay $300 

per month temporary maintenance "until the final determination of this matter, either by Court Order or by mutually 

agreed upon settlement." A final hearing was held on March 

23, 1987, and the trial court issued its Findings of Fact and 

Conclusions of Law dated July 31, 1987. Pursuant to that 

judgment, Mrs. Hughes was awarded the family residence in 

Scotland, "40% of the Air Force pension and all personal 

effects and furnishings in Scotland." She was to assume all 

debt incurred in Scotland. Mr. Hughes was awarded "60% of 

the Air Force pension, the retirement funds associated with 

his hospital employment, and his personal effects. " He was 

to assume all debts incurred in the United States. 

On July 29, 1987, Mrs. Hughes filed a timely motion 

requesting clarification of the court's order concerning the 

Air Force pension award. Specifically, she requested that 

the court clarify whether it intended her to receive 40% of 

the lump sum present value of the pension, or whether she was 

entitled to receive 40% of some monthly payment due to Mr. 

Hughes. The court issued its Order of Clarification on 
August 28, 1987, which is the subject of this appeal. In 

that order, the District Court stated: 

The Court has the authority to make the following changes to its Order of July 31, 1987. Such 

changes are not corrections of substantial judicial 

error; rather they are merely attempting to specifically state the result this Court intended to 

achieve by its July 31, 1987 decision. The Court 

can make such changes under the authority of Rule 

60 (a) , M. R.Civ.P. (Citations omitted. ) Moreover, 

Respondent's motion to clarify can be easily construed by this Court to be a timely motion under 

Rule 60(b), MRCP, and the Court finds sufficient 

reasons to justify clarifying its July 31, 1987 

order, specifically, the potential problem created 

by using the phrase "40% of the Air Force pension" 

vis a vis 10 U.S.C. 1408, and 32 C.F.R. § 63 (statute and regulations defining when and to what 

extent the military will make direct payments to a 

former spouse from a military pension); the potential problem of finding a present value of an asset 

and then intending the former spouse to receive, in 

effect, a maintenance payment. 

The Court then ordered that the marital assets and 

liabilities be divided as follows: 

To Audrey Hughes: 

Assets: (1) residence in Tayport, Scotland 

(2) all household furnishings and 

effects located in Scotland. 

Liabilities: (1) all debts of the marriage in 

Scot land 

To Gerald Huahes: 

Assets: (1) U.S. Air Force pension 

(2) PERS pension 

(3) personal effects 

(4) Cadillac automobile 

Liabilities: all debts of the marriage in the 

U.S. 
Additionally, the Court awards to Audrey 

Hughes maintenance, payable monthly in the manner 

specified below, in an amount equal to $650.00 per 

month, or 408 of the disposable retired pay of 

Petitioner from his U.S. Air Force pension, whichever is greater. 

On appeal, Mr. Hughes contends that the District Court 

had no authority to change what was originally contemplated 

as a property settlement to a maintenance award in the Order 

of Clarification because such relief was not requested by 

either party and because no findings were made to support 

such an award as required by statute. Both parties admit 

that an award of maintenance was not specifically requested, 

although Mr. Hughes' petition for dissolution requested "such 

other and further suitable arrangements as (the District 

Court) may deem just and proper." 

Mrs. Hughes argues that the failure to specifically 

request an award of maintenance does not preclude the District Court from granting such relief as long as it is warranted by the evidence. As authority, Mrs. Hughes cites Rule 

54 (c) , M.R.Civ.P., which states: 

. . . every final judgment shall grant the relief 

to which the party in whose favor it is rendered is 

entitled, even if the party has not demanded such 

relief in his pleadings. 

The discretion granted to the District Court in Rule 

54 (c) , however, must be viewed in light of the particular 

nature of this case. In a dissolution proceeding, the 

court's power to grant relief is strictly statutory, and 

statutory guidelines are set forth to determine whet-her such 

relief is warranted in any case. Prior to granting an award 

of maintenance, the court is required to make specific findings under § 40-4-203, MCA: 
. . . 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 . . . (Emphasis supplied.) 

Section 40-4-203 (I), MCA. We therefore review the District 

Court's findings and conclusions to determine whether an 

award of maintenance was justified under S 40-4-203, MCA. 

The court found that Mrs. Hughes' take home pay as a 

social worker was approximately $680 per month, which is 

somewhat less than the usual wage for a social worker of Mrs. 

Hughes' experience and qualifications. The court concluded 

that she has reached her maximum earning capacity, subject to 

normal yearly salary increases, and that she has no formal 

training for the position she now holds or any other. The 

court also concluded that Mrs. Hughes' monthly expenses 

exceed her monthly income if no consideration is given to the 

Air Force payments provided by Mr. Hughes during the time he 

lived in the United States prior to the divorce. Finally, 

the court concluded that Mrs. Hughes has no assets capable of 

generating income, and that the only asset located in Scotland, the family residence, is income consuming as it is 

still subject to a mortgage and to assessments for taxes and 

insurance. These findings tend to support an award. 

However, the District Court made other findings and 

conclusions which are contradictory and would not tend to 

support an award of permanent maintenance. Because of Mrs. 

Hughes' salary, the Scottish economy and standard of living, 

and the Scottish governmental benefits and military benefits 

to which she is entitled, the court found that Mrs. Hughes 

"is able to live somewhat comfortably from her own resources." The court found that the standard of living in Scotland 
is not as high as in the United States, and that a divorced 

woman in Scotland would expect to receive a home free of any 

mortgages plus several years of maintenance to enable her to 

retrain if she were not employed or had no employment skills. 

Based on Mrs. Hughes' salary, the court concluded that she is 

capable of maintaining house payments on a $30,000 mortgage, 

with associated costs and expenses. 

The court also found that any maintenance payments 

received by Mrs. Hughes could reduce her take home pay because of Scotland's tax structure. If she were not receiving 

temporary maintenance, the court found that her take home pay 

could be about $200 per month higher. There are no findings 

as to how Mrs Hughes' take home pay might be affected by an 

award of permanent maintenance. 

Finalllr, the court noted the source of many of Mrs. 

Hughes' expenses. In her claimed living expenses, Mrs. 

Hughes included the living expenses of the parties' youngest 

daughter, Christine, who was legally an adult at the time of 

trial and whom the parties had no obligation to support. The 

court found that Christine was able-bodied and capable of 

employment. While she managed a wine shop in Scotland, she 

did not share or contribute to the expenses incurred in Mrs. 

Hughes' home. Mrs. Hughes also supported the oldest daughter, Karen, up until the time of her wedding in November, 

1986. Karen is involved in equestrian pursuits, and participates in jumping contests and other equestrian competitions 

which Mrs. Hughes actively supports. The court noted it to 

be an expensive hobby, and found, "If one follows such a 

hobby and only has middle-income means, it severely strains 

the budget. . . She (Mrs. Hughes) will have to, and should be 

expected to, more realistically approach her 1-ifestyle in 

order to live within her means." 
These findings do not establish that Mrs. Hughes is 

entitled to permanent maintenance under the requirements of S 

40-4-203, MCA. We conclude that this case should be remanded 

for reconsideration by the District Court after the making of 

new findings which meet the requirements of the statutes. 

Mrs. Hughes requested that this Court reinstate temporary maintenance in the event of a remand. We note that the 

issue of interim maintenance is already before the District 

Court by way of Mrs. Hughes' motion for enforcement of temporary maintenance orders. In light of her pursuit of an 

adequate remedy in the lower court, we decline to exercise 

appellate action in this regard in accordance with State ex 

rel. Kaasa v. District Court (1978), 177 Mont. 547, 551, 582 

P.2d 772, 775. We reverse and remand this case for further 

proceedings consistent with this opinion. 

We Concur: 

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i/ Justice William E. Hunt did not participate in this case.