No. 85-67 

IN THE 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: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Diane G. Barz, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Keefer, Roybal, Hanson, Stacey & Jarussi, 

Billings, Montana 

For Respondent : 

George Radovich, Billings, Montana 

Submitted on Briefs: May 9, 1985 

Decided: July 29, 1985 

Filed: 

Clerk 
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of 

the Court. 

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 

division of the marital property is affirmed; maintenance and 

attorneys fees are remanded. 

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 11 years prior to the marriage as a pediatric micro-chemistry laboratory worker. Tony's income varies 

from year to year but he is now making approximately $25,000 

a year. Carolyn did not work while the parties were married. 

After the parties separated, Carolyn started to teach piano 

lessons and sell skin care products from her home, At the 

time of trial she was making approximately $175 per month 

teaching piano and approximately $300 per month selling skin 

care products. 

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 that Tony vacate the 

family home and that during the pendency of the proceedings, 

he be required to support her and the children. The parties 

reached an agreement, incorporated in a court order, that 

Tony would vacate the family home and that he would pay 
Carolyn $300 each month and in addition pay the monthly 

mortgage on the family home in the amount of $320. 

Trial was held on September 2, 1983. The District Court 

made findings of fact and conclusions of law and 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 the District Court equitably divide the parties' 

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 

defense of this matter proper? 

PROPERTY DIVISION 

The District Court divided the marital assets as 

f0l.lows: 

HUSBAND 

ITEM 

One-half house proceeds 

One-half land sale 

1978 Chevrolet pickup 

1982 Datsun pickup 

1982 Toyota car 

Kawasaki motorcycle 

1964 Chevrolet van 

Tools 

Business savings account 

Business checking account 

Personal checking account 

One-half Vail time-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 

Furnishings and appliances 

Personal savings account 

One-half Vail time-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 liabilities of the parties were divided as follows: 

HUSBAND 

ITEM 

Taxes - 1982 and 1983 

Gertie Perry - one-half of $11,000.00 

Gertie Perry - remainder of pickup loan 

One-half Vail time-share 

Kawasaki debt (as above) 

Datsun debt (as above) 

Toyota debt (as above) 

HUSBAND'S TOTAL LIABILITIES $41,050.00 ------------ 

WIFE 

ITEM AMOUNT 

Gertie Perry - 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 in the 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 is only $320. She would not be able 

to find similar housing for that amount. The District Court 

determined the house should be sold and the proceeds split 

evenly between the two parties. 

Carolyn also disputes the equal division of their real 

property in Colorado because she used $5,000 from her 
premarital savings account for its down payment. The District Court found that Tony's income had been used for the 

rest of the payments and he was entitled to one-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 to make 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 settlement has been 

stated many times. In dividing property in a marriage dissolution the District Court has far-reaching discretion and its 

judgment will not be altered without a showing of clear abuse 

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 

its discretion. 

We are sympathetic to the wife's desire to stay in the 

family home, however, the house represents a very large part 

of the total assets owned by the parties. If the husband 

cannot obtain his share of this asset, he will have substantially less than one-half of the assets. The wife will be 

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 able to find adequate housing for herself 

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 the District Court 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 District Court found that the husband's payments of 

$620 per month for over a year were sufficient for the 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 or a 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, in which 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 15 years 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. At the time of trial, she 

was without a teaching certificate or teaching experience for 

16 years. 
Similarly, in the case at hand, Carolyn has not worked 

in 10 years. There is evidence in the record, that if she 

were to return to her 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 for her to work 

40 hours a week at either 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 to make several large purchases. 

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 to become 

financially independent. We remand to the District Court 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 District Court 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, the denial must be substantiated. 
The husband contends that the filing of this appeal was 

without merit and was done for purposes of delay. Clearly, 

this appeal has merit and his request for damages is denied. 

We affirm in part and remand in part for further proceedings in accordance with this opinion. 

We concur: I