No. 91-412 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

IN RE THE MARRIAGE OF 

KAYLEEN MARIE JONES VAN ATTA, 

Petitioner and Respondent, 

-vsLAWRENCE CLARE VAN ATTA, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Russell K. Fillner, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

David R. Paoli, Edwards and Paoli, Billings, 

Montana. 

For Respondent: 

Virginia A. Bryan, Wright, Tolliver and Guthals, 

Billinqs, Montana. 

Submitted on Briefs: March 5, 1992 

Decided: March 31, 1992 

Filed: 

I; 

5: 

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Chief Justice J. A. Turnage delivered the Opinion of the Court. 

Lawrence Clare Van Atta (Lawrence) appeals the May 9, 1991 

findings of fact and conclusions of law of the Thirteenth Judicial 

District, Yellowstone County, which awarded Kayleen Marie Jones Van 

Atta (Kayleen) $700 monthly maintenance payments following their 

marriage dissolution. We affirm. 

We rephrase the issue presented on appeal as follows: 

Did the District Court abuse its discretion when it awarded 

Kayleen $700 monthly maintenance payments until May 1, 1998, or 

until the death of either party, Kayleen's remarriage or her 

cohabitation? 

Kayleen and Lawrence were married on August 31, 1974, in 

Roundup, Montana. Their marriage produced two children, Kelsey 

Lynne, born June 4, 1977, and Brie Anne, born April 22, 1980. 

At the time of the marriage, both parties were employed as 

school teachers in Roundup. Thereafter, the parties left their 

teaching careers to pursue other employment opportunities. At the 

time of trial, Lawrence was the office manager of Piper, Jaffray & 

Hopwood in Billings and earned approximately $115,000 in 1990. 

Lawrence participated in a retirement program as well as other 

fringe benefits including a country club membership. At the time 

of trial, Kayleen was employed at River Run Interiors in Billings 

earning $6.50 an hour with no retirement benefits, sick pay, 

vacation pay, health insurance, or other fringe benefits. Kayleen 

completed a paralegal program at Rocky Mountain College, but failed 

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to find employment as a paralegal in the Billings area. Her 

teaching certificate had also expired. 

Kayleen petitioned for dissolution of marriage on May 11, 

1990. A Property Settlement Agreement dated April 12, 1991, 

awarded Kayleen approximately $118,720 of the marital estate and 

Lawrence approximately $117,405. In addition, on May 9, 1991, the 

District Court awarded Kayleen $700 monthly maintenance payments 

until May 1, 1998, or until the death of either party, Kayleen's 

remarriage, or her cohabitation. Lawrence now appeals the District 

Court's award of maintenance to Kayleen. 

Did the District Court abuse its discretion when it awarded 

Kayleen $700 monthly maintenance payments until May 1, 1998, or 

until the death of either party, Kayleen's remarriage or her 

cohabitation? 

Section 40-4-203, MCA, provides: 

(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. 

Lawrence argues that Kayleen is not entitled to maintenance 

under 5 40-4-203(l), MCA, because she does not lack "sufficient 

property" to provide for her reasonable needs and she is able to 

support herself through "appropriate employment." We disagree. 

"Sufficient property" under § 40-4-203(l) (a), MCA, means 

income-producing property, not income-consuming property. In Re 

the Marriage of Bowman (1981), 194 Mont. 233, 237, 633 P.2d 1198, 

1200. Here, Kayleen received approximately $118,720 in marital 

property, $80,000 of which constitutes a Piper, Jaffray & Hopwood 

ESOP Account, a retirement account. The funds in this account are 

tax-deferred and are subject to a tax penalty if withdrawn prior to 

retirement. Kayleen testified that she intended to leave these 
funds for her retirement as she had no other retirement benefits. 

Although these funds are income-producing property, they are 

earmarked for Kayleen's retirement and she need not use such funds 

to meet her present reasonable needs. The rest of Kayleen's share 

of the marital estate consists of a buy-out from the family home 

totaling $15,000, a 1988 Honda Accord LX valued at $11,800, and 

approximately $11,900 from various bank accounts. Kayleen 

testified that she intends to use the money from the buy-out of the 

family home for a down-payment on a home, and the money from the 

various bank accounts to inter alia, pay substantial attorney fees 

associated with the dissolution. We hold that the District Court 

properly found that the property awarded to Kayleen under the 

Property Settlement Agreement was primarily income-producing 

property but is not sufficient property to provide for her 

reasonable present needs. 

"Appropriate employmentt1 under 5 40-4-203 (1) (b) , MCA, "must be 

determined with relation to the standard of living achieved by the 

parties during the marriage." In Re the Marriage of Bowman, 194 

Mont. at 237, 633 P.2d at 1200 (citation omitted). Here, Kayleen 

enjoyed a high standard of living during the marriage, including a 

home valued at $172,500, new cars, out-of-state trips, and a 

country club social life. The District Court found that Kayleen's 

reasonable monthly expenses, including her costs associated with 

child support, do not exceed $2200. The record indicates that 

Kayleenls monthly earnings of approximately $700 without benefits 

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was comparable to an entry level paralegal position, the field in 

which she recently had been certified but was unable to find a 

position in Billings. The record further indicates that Kayleen 

was awarded $800 monthly child support. 

At the time of trial, Kayleen was unable to return to teaching 

without further education as her teaching certificate had expired. 

Kayleen testified that she had no intent of returning to school to 

renew her teaching certificate nor did she desire to further pursue 

a career as a paralegal. Accordingly, the District Court found 

that Kayleen was "not entitled to maintenance in an amount similar 

to that enjoyed during the marriage." 

At the time of trial, Kayleen's earnings, including child 

support, totals approximately $1500 a month. This amount falls 

$700 short of her monthly reasonable expenses. We hold that the 

District Court properly found that Kayleen is unable to support 

herself through appropriate employment in relation to the standard 

of living she enjoyed during her marriage. Kayleen therefore 

satisfies the requirements of 5 40-4-203(1), MCA, and is entitled 

to maintenance payments. 

Lawrence further argues that Kayleen is not entitled to 

maintenance under 9 40-4-203(2), MCA, because she has sufficient 

financial resources to meet her needs, she has sufficient education 

and training to support herself, she is young, she is in good 

health and she is emotionally stable. Lawrence also argues that he 
does not have the ability to meet his own needs and his children's 

needs while meeting the maintenance awarded to Kayleen. 

The record indicates that Lawrence earned approximately 

$115,000 in 1990. The District Court in its findings of fact and 

conclusions of law, carefully examined the applicable factors of 

5 40-4-203(2), MCA, and found that Lawrence was capable of paying 

and Kayleen was entitled to $700 monthly maintenance payments until 

May 1, 1998, when their daughter Brie Anne reached the age of 

emancipation, or until the death of either party, Kayleen's 

remarriage, or her cohabitation. We hold that the District Court 

properly considered the factors under 5 40-4-203(2), MCA. 

In conclusion, we affirm the District Court's May 9, 1991 

findings of fact and conclusions of law that awarded Kayleen Marie 

Jones Van Atta maintenance payments. 

We concur: 

SP& Justices 
March 31, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

David R. Paoli 

EDWARDS & PAOLI 

1601 Lewis Avenue, Suite 206 

P.O. Box 20039 

Billings, MT 59104-0039 

Virginia A. Bryan, Esq. 

WRIGHT, TOLLIVER and GUTHALS, P.C. 

P.O. Box 1977 

Billings, MT 59103 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA 

BY: 

Deputy /