No. 53-432 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

IN RE THE MARRIAGE OF 

FRED L. THOMPSON, 

Petitioner and Appellant, 

and 

ANN W. TIIOMPSON, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Iionorable Thomas A. Olson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Landoe, Brown, Planalp, Kornmers & Lineberger; 

Gene I. Brown, Bozeman, Montana 

For Respondent: 

Nash & Nash; Michael M. Nash, Bozeman, Montana 

Submitted on Briefs: December 1, 1983 

Decided: February 9, 1984 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

This is an appeal in a domestic relations case arising 

in the District Court of the Eighteenth Judicial District in 

and for the county of Gallatin. 

The parties to this marriage, Fred and Ann Thompson, 

were married for the second time on August 24, 1975. Their 

previous marriage had lasted approximately eleven years and 

resulted in a divorce in 1973. The parties had only been 

married to each other, and three children were born of their 

marriages, namely Wendy, born in 1965, Scott, born in 1968 

and Chris born in 1978. 

The parties separated on August 27, 1981, after living 

several years in West Yellowstone, Montana. Respondent and 

the children moved to Spokane, Washington where respondent 

attended graduate school at Whitworth College, and at the 

time of the hearing was within several months of obtaining 

her masters degree in education. She was employed at that 

time as a school teacher in the Spokane Public School 

Sys tem. 

Upon going to Spokane in August of 1981, respondent, 

who had previously taught school there, was unable to get a 

job teaching school so she went to work as a receptionist at 

a medical lab and attended graduate school at night. Her 

earnings at the medical lab were approximately $800 per 

month. This figure included money she received from 

appellant as partial support payments for their children, 

who were with her in Spokane. During this time while 

working and attending school she testified she received 

approximately $5,000 from her parents which went to support 
her family and help pay for her education costs. 

On January 6, 1983, respondent commenced employment as 

a school teacher with the Spokane Public School System as a 

teacher of the fifth grade. Her approximate gross annual 

income was $20,000, and her net take-home pay amounted to 

$1,056.72 per month. In addition she testified that after 

several months in the school system, she would be entitled 

to participate in the medical plan offered through the 

school system, and that she had delayed medical treatment 

for herself and the children during this period due to the 

fact that there was no money available for this purpose. 

Respondent testified that her estimated current monthly 

expenses were $1,630 and as long as she was attending 

college she occupied student quarters which were 

considerably cheaper than that which she could obtain in the 

community and that as soon as she graduated in May of 1983, 

she would have to leave campus housing to lease a home in 

Spokane at considerably greater cost. Respondent estimated 

that she had an anticipated deficit of approximately $897 

per month in meeting her personal and the childrens' monthly 

expenses. 

Appellant at the time of the hearing, was 41 years 

old, had two years of college training, and was in good 

health. Since the separation of the parties he has resided 

in Casper, Wyoming, where he is employed as a real estate 

salesman. He also lives and works out of West Yellowstone, 

Montana. The home that the parties own in West Yellowstone 

has an approximate value of $110,000 with a considerable 

indebtedness against the same, and appellant testified that 

the property was up for sale, but there was not much of a 
market for a home of that value in West Yellowstone. 

The testimony of both parties indicates that not only 

in West Yellowstone where they lived for three years, but in 

Wyoming and Utah, they had established a rather high 

standard of living. This turned out to be based upon 

appellant's ability to borrow considerable sums of money 

from banks and other lending institutions without putting up 

much security. Appellant estimated that his income for the 

past two years was in the vicinity of $28,000 per year, but 

respondent's estimate of his income was closer to $60,000. 

This estimate by the respondent was based upon statements 

that he had made to her during the period, and her knowledge 

of his capacity to earn a substantial income in the sales 

field. 

At the time of the hearing the District Court found 

the parties' assets consisted of the family home, equity in 

a storage business in West Yellowstone, respondent's 

automobile, household furnishings and personal effects. 

The District Court issued its findings of fact and 

conclusions of law, and directed appellant to pay respondent 

the sum of $500 per month for her maintenance and support 

until respondent dies, remarries, or July 5, 1993, whichever 

occurs first. In addition the court ordered appellant to 

pay the sum of $200 per month per child for the two minor 

children until they reach the age of majority. The Court 

also ordered the residence owned by the parties be sold and 

the joint obligations paid out of the net proceeds, with the 

remainder to be divided equally between the parties. From 

these findings of fact and conclusions of law and judgment 

appellant appeals. 
Two issues are presented for our consideration: 

(1) Did the District Court properly follow the 

statutory requirements in establishing an award for spousal 

maintenance? 

(2) Is the amount of the award for maintenance and the 

time frame imposed excessive? 

The first issue concerns awarding respondent spousal 

support in the sum of $500 per month upon the previously 

noted conditions. Appellant argues that under Section 

40-4-203(1), MCA the trial court failed to follow the 

conditions set forth in considering the award of 

maintenance. Section 40-4-203(1), MCA provides: 

"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." 

Arguing that maintenance is not favored, and that the 

amount is excessive, appellant contends that the court did 

not follow the statutory requirements set forth in the above 

statute. 

The standard of review of a district court ruling is 

set forth in our rule 52(a) M.R.Civ.P., as follows: 

"Findings of fact shall not be set aside 

unless clearly erroneous, and due regard 

shall be given to the opportunity of the 

trial court to judge the credibility of 
the witnesses. If 

An examination of the record indicates that the trial 

court was called upon to judge the credibility of appellant. 

He appeared at the divorce proceedings alleging that he did 

not want the divorce, even though he had filed for it. His 

wheeling and dealing operations over a number of years, 

borrowing from various financial institutions putting up 

little security, raised considerable questions about his 

credibility. He failed to bring with him the papers 

necessary to substantiate much of his testimony casting a 

shadow of doubt over his story. For example, on direct 

examination he was unable to give a definite answer of his 

annual salary. He alleged that his employer's bookeeper had 

died of a heart attack and those records were not available 

for a period of years including the past three where he had 

not filed any income tax returns. 

In addition it is interesting to note that after the 

second marriage respondent sold a house in Spokane and 

deposited somewhere between $12,000 and $14,000 in a bank in 

Ogden, Utah where appellant was in the auto business. The 

undisputed testimony of respondent is that appellant somehow 

got $12,000 of that money out of the bank to finance a 

flooring loan on his automobile business, and that she was 

unaware at the time that he had used the money in that 

manner. In addition, the trial court heard appellant's 

testimony of how he handled his financial operations in such 

a manner that not only did his wife lose money but it 

appeared that even his own mother lost money. Furthermore, 

practically every financial institution that he dealt with, 

as many as five or six, holds paper that has little or no 
value. The record leaves no question that the above amounts 

were taken from the wife, and in considering how to handle 

this matter, the trial court obviously made an effort to 

recompense her for that loss. 

We noted in Kowis v. Kowis (Mont. 1983) 658 P.2d 1084, 

40 St.Rep. 149, citing Cameron v. Cameron (1978) 179 Mont. 

219, 587 P.2d 939, the following: 

"The scope of this Court's review when 

considering the findings and conclusions 

of a trial court sitting without a jury 

is clear and well settled in Montana. A 

brief consideration of those rules is 

appropriate at this point. 

"'This Court's function in reviewing 

findings of fact in a civil action tried 

by the district court without a jury is 

not to substitute its judgment in place 

of the trier of facts but rather it is 

"confined to determining whether there is 

substantial credible evidence to support" 

the findings of fact and conclusions of 

law. ' (Citations omitted) 

"Although conflicts may exist in the 

evidence presented, it is the duty of the 

trial judge to resolve such conflicts. 

His findings will not be disturbed on 

appeal where they are based on 

substantial though conflicting evidence, 

unless there is a clear preponderance of 

evidence against such findings." 

(citations omitted) 658 P.2d at 1087, 40 

St.Rep. at 152. 

As noted above, before a district court can award 

either spouse maintenance, it must find that the spouse 

seeking maintenance lacks sufficient property to provide for 

her reasonable needs. Section 40-4-203(1)(a), MCA. It is 

we11 settled that sufficient property as used here means 

income producing, not income consuming property. See In re 

Marriage of Laster, (Mont. 1982) 643 P.2d 597, 39 St.Rep. 

737; and In re Marriage of Herron (1979), 182 Mont. 142, 595 
Here the judgment gave respondent an automobile 

together with the monthly payments, her personal effects and 

one-half of the net proceeds from the sale of the family 

home in West Yellowstone after payment of debts which were 

well in excess of $30,000. While the home has been listed 

for sale for over a year, it has not been sold and she has 

received no income from the property. In addition the 

interest on the debt obligations continue to erode her 

equity in the home. Following the findings of the District 

Court she also must now make a monthly payment of $257.52 on 

an automobile which raises her monthly deficit from 

practically $900 to $1,054.52 each month. 

The record reveals ample evidence to support 

respondent's testimony. She testified to a monthly deficit 

of $897 per month in the amount needed to meet her needs and 

those of the minor children. In addition, the property 

distributed to her was income consuming property, not income 

producing property. Thus we find the award of maintenance 

by the District Court was based on substantial evidence. 

The second issue is whether the District Court abused 

its discretion in determining the amount of maintenance and 

imposing limitations on its continuance. 

Section 40-4-203(2), MCA sets forth relevent facts for 

the district court to consider in determining maintenance 

and the time period for its duration: 

"(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." 

We held in Jorgensen v. Jorgensen (1979), 180 Mont. 

294, 590 P.2d 606 that, "What is important as far as the 

maintenance award is concerned is the amount of income 

available to the spouse to make the maintenance payments at 

the time required to be made." 180 Mont. at 303, 590 P.2d 

The District Court did its best to make specific 

findings as to each statutory element with little or no help 

from appellant during the trial. The record here clearly 

indicates that there is sufficient support for the amount 

reached by the District Court. Appellant had provided up to 

$800 per month support during 1982. The court awarded her 

$400 per month child support for the minor children, Scott 

and Chris. Even totalling her income of $1,058 with the 

$400 child support, she is still short approximately $500 of 

her expenses not including the $257.52 car payment. Also 

while she has aquired a masters degree and is employed as a 

teacher, this does not yield a sufficient income to care for 

the family's needs. The record indicates that her current 

standard of living is considerably lower than that which she 

enjoyed during her marriage and that the standard of living 
of appellant did not experience any noticeable change after 

she left. 

Also the conditions of maintenance imposed by the 

trial judge are not excessive. The District Court ordered 

that payments be made until remarriage, death or passage of 

ten years. Although the court did not specify in its 

findings why it set those conditions, they are not beyond 

substantiation. First the record indicates that respondent 

is facing medical problems, namely a cataract condition, 

which will have to be cared for in the next few years. 

Second, respondent has custodial responsibilites which will 

continue for at least another thirteen years. Finally, the 

District Court could well have considered the fact that 

respondent's pay as a school teacher in the next ten years 

needed supplementation to restore not only her standard of 

living but to properly care for those in her home. 

While appellant cites numerous cases, within and 

without this jurisdiction, where $500 per month maintenance 

was determined excessive, each of those cases was decided on 

its specific facts. Here the trial court heard the facts, 

weighed the credibility of the witnesses, and determined the 

case according to the facts and the law. 

The decision of the District Court is affirmed. 

We concur: 

Chief ~ustice'