No. 85-67 INTHE SUPREME COURT OF THE STATE OF MONTANA 1985

IN RE THE MARRIAGE OF DALTON ANTHONY PERRY, Petitioner 

### and Respondent, 

### and CAROLYN SUE PERRY, Respondent 

### and Appellant.

APPEAL FROM: DistrictCourt

### of the Thirteenth

### Judicial District, 

### Inand for the County

### of Yellowstone, TheHonorableDianeG. Barz, 

### Judge presiding.

COUNSEL OF RECORD:

ForAppellant: Keefer, Roybal, Hanson, 

### Stacey & 

### Jarussi, Billings, Montana

ForRespondent: George Radovich, Billings, Montana

Submitted

### on Briefs: May 9, 1985 Decided: July 29, 1985

Filed:

ClerkMr. JusticeFrank B. Morrison, 

### Jr., delivered the Opinion of theCourt. Carolyn Perry appeals an order and judgment of the District Court, Thirteenth Judicial District, Yellowstone County, which divided the marital estate, provided for child support and denied maintenance and attorneys fees. The divisionof the maritalproperty 

### isaffirmed; maintenance and attorneys feesareremanded. Carolyn and Tony 

### were married 

### on September 17, 1971. They had two children, Jody, now age 

### 9, and Jeff, age 6. Carolyn 

### is 44 years old and Tony 

### is 35. Prior to their marriage, both parties 

### were employed and provided for their

own support. Tony was an electrician, and he has been selfemployed since 1977 as an electrical contractor. Carolyn holds a Bachelor of Science (Zoology) degree and was employed for approximately 11yearspriortothemarriage asa pediatricmicro-chemistry laboratory worker. Tony's income varies from year toyear but he 

### isnow making approximately $25,000

a year. Carolyn did notwork while the parties

### weremarried. After the parties separated, Carolyn started to teach piano lessons and sell skin care products from her home, Atthe 

### time of trial she was making approximately $175 per month teaching piano and approximately $300 per month selling skin

careproducts. Tony filed a petition for dissolution of marriage on April 16, 1982. 

### By motion dated May 21, 1982, Carolyn sought

a temporary restraining order requesting thatTony vacate the family home and that during thependency of the proceedings, he be required tosupport her and the children. The parties reached an agreement, incorporated in a court order, that Tony would vacate the familyhome and that

### he would payCarolyn $300 each month and in addition pay the monthly mortgage on the familyhome inthe amount of $320. Trialwas held on September 2, 1983. The 

### District Court made findings of factand conclusions of 

### lawand an order on October 4, 1983. The decree of dissolution was not signed until October 18, 1984. Carolyn appeals the 

### District Court order on the following

### issues: 1. Did theDistrict Court equitably dividetheparties' real and personal property? 2. Was the denial of a maintenance award 

### to the wife justified under the facts and circumstances of this case? 3. Was the denial of the 

### wife's request that the husband pay reasonable attorney's fees incurred by her in the defenseof thismatterproper? PROPERTY DIVISION The 

### District Court divided the marital assets as f0l.lows: HUSBAND ITEM One-half house proceeds One-half land 

### sale 1978Chevrolet pickup 1982Datsun pickup 1982 Toyota car Kawasaki motorcycle 1964 Chevroletvan Tools Business savingsaccount Business checking account Personal checking account One-half Vailtime-share TOTAL A.SSETS TO HUSBAND AMOUNT $17,750.00 6,000.00 3,450.00 8,500.00 10,000.00

3,000.00 1,000.00 1,500.00 5,000.00 800.00 400.00 (unknown)ITEM WIFE AMOUNT One-ha 1 f house proceeds One-half land sale 1978 Subaru Jewelry Furnishingsand appliances Personal savings account One-half Vailtime-share $17,750.00 6,000.00 2,875.00 3,000.00 6,000.00 3,000.00 (unknown) TOTAL ASSETS TO WIFE $37,625.00 

### ----------- The liabilitiesof the partieswere divided

### as follows: HUSBAND ITEM Taxes

## - 1982 and 1983 Gertie Perry

# - one-half of $11,000.00 GertiePerry

# - remainder of pickup loan One-half Vail time-share Kawasaki debt (asabove) Datsun debt (asabove) Toyota debt (asabove) HUSBAND'S TOTAL LIABILITIES $41,050.00 

### ------------

WIFE ITEM AMOUNT GertiePerry

# - one-half of $11,000.00 $ 5,500.00 One-half Vail time-share 1,750.00 WIFE'S TOTAL LIABILITIES $ 7,250.00 

### ----------- Carolyn's primary dispute with the property division 

### is that she wishes 

### to be allowed 

### to remain inthe family home until the children reach the age of majority because the house 

### is located close to the children's school and the monthly mortgage payment isonly $320. Shewould notbe able to find similar housing for that amount. The District Court determined the house should be sold and the proceeds split evenlybetween the two parties. Carolyn also disputes the equal division of their real property in Colorado because she used $5,000 from herpremarital savings account 

### for 

### its down payment. The Dis

### trict Court found that Tony's income had been used for the rest of the payments and he was entitled toone-half of the proceeds from 

### its sale. Carolyn also argues that she should not have to pay one-half of the amount remaining due on a loan from Tony's mother because there had been an agreement with the mother that they wouldn't have tomake anymore payments. There was

a promissory note on the loan signed by both Carolyn and Tony, but no payments had been made since 1977. The standard of review of a property 

### settlementhasbeen statedmany 

### times. Individingproperty ina marriage dissolutionthe

### District Courthas far-reaching discretion

### and its judgment willnotbe alteredwithout a showing of clearabuse of discretion. The 

### test of abuse of discretion 

### is whether the trial court acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice. In Re Marriage of Rolfe (Mont. 1985), 699 P.2d 79, 42 St.Rep. 623; In Re Marriage of Vert (Mont. 1984), 680 P.2d 587, 41 St.Rep. 895. Applying this standard 

### we cannot say that the District Court abused 

### itsdiscretion. We are sympathetic tothe wife's desire to stay in the family home, however, the house represents a very largepart of the total assets owned by the parties. If the husband cannot obtain his share of this asset, he willhave substantially less than one-half of the assets. The wife willbe receiving funds from the sale of the property, and although she may not be able to find housing as nice as the family home, she should be abletofind adequatehousing forherself and her children.The equal division of the proceeds from the Colorado real property was a reasonable exercise of the District Court's discretion. Since Tony did contribute toward the purchase of the property, 

### we cannot find an abuse of discretion. Carolyn 

### is legally obligated to pay on the note to Tony's mother. We cannot find that theDistrictCourt erred in ordering her to pay one-half of the remaining payments. Maintenance Carolyn contends that the District Court's denial of maintenance for her was not justified under the facts and circumstances of this case. We agree. The DistrictCourt found thatthe husband's payments of $620permonth forover a year

### were sufficientforthe wife's rehabilitative purposes and that no further maintenance was necessary. The court went on to say that the wife has a "demonstrated income capacity" as a lab technician, a piano teacher ora cosmetic salesperson. We find Carolyn's situation very similar to the situation in the recent case of In Re Marriage of Rolfe (Mont. 1985), 699 P.2d 79, 42 St.Rep. 623, inwhich 

### we remanded the award of maintenance for only one year because that was not enough 

### time for the wife to find adequate employment to maintain her standard of living. In Rolfe, the wife had a B.A. in education and had taught for several years prior to marriage. She did not work during the 15years of marriage. We found that the District Court had relied heavily on the husband's assertion that the wife could earn $17,000 a year

as an elementary school teacher. Atthe time of trial, she

was without 

### a teaching certificateorteaching experience for 16 years.Similarly, in the case athand, Carolyn has not worked in 10 years. There 

### is evidence in the record, that if she



### were toreturn toher old position as a lab technician, she would need additional schooling to 

### meet certification 

### requirements. The District Court also relied too heavily on the finding that Carolyn could earn $11 per hour teaching piano or $12 to $40 per hour selling cosmetics. This 

### is deceptive because 

### it would be very difficult forher towork 40 hours a week ateither one of these jobs. Carolyn 

### testified that she and the children had been struggling financially since the party's separation, but the husband's lifestyle seems to have suffered very little. He has even been able tomake several largepurchases. The property the District Court awarded Carolyn 

### is not income-producing. The one year of maintenance Carolyn has already received has not been enough to allow her tobecome financially independent. We remand totheDistrictCourt to reconsider the wife's salary prospects and duration of maintenance. Attorney's Fees Carolyn asked that the 

### District Court award her attorney's fees. The court made no findings on this matter but simply stated: "Each of the parties shall pay their own legal fees and costs." Where the DistrictCourt refuses to award attorney's fees, 

### it must indicate in the findings of fact why such fees 

### were not awarded. In Re Marriage of Hammeren (Mont. 1982), 663 P.2d 1152, 39 St.Rep. 2222. Having failed to follow this procedure, the wife's request for attorney's fees shall be considered on remand, and if denied, thedenialmust be substantiated.The husband contends that the filingof this appeal was without 

### merit and was done for purposes of delay. Clearly, this appeal 

### has meritand hisrequest for damages 

### is denied. We affirm in part and remand in part for further proceedings inaccordance with thisopinion.

We concur: I