No, 12027 IN

### THE SUPREME COURT OF 

### THE STATE OF MONTANA 1972

- --- - - - - BENNETT H. STEIN, Plaintiff and Appellant,

HILDEGARDE 

### B. STEIN, Defendant and Respondent.

Appeal from: District Court of the SixthJudicialDistrict, Honorable C. B. Sande, Judge presiding. Counsel of Record: ForAppellant: PatrickF, Hooks argued, Townsend, Montana 59644. ForRespondent: Swanberg, Koby and Swanberg, Great Falls, Montana 59401, Ray F, Koby argued, Great Fa

### 11s

## ,Montana 59401.

Submitted: June 19, 1972 Decided: 

### JUL 191972. Filed: 

## JhlL19

### 1972Mr. Chief Justice James T. Harrison delivered the Opinion of the Court. This is an appealby the plaintiff from an order modifying alimony payments entered in the district court of Park County. The causewas heard in oral argument and an opinion handed down

on September 24, 1971. Thereafter a petition for rehearing was filed, granted, and the case was reheard. The opinion of September 24, 1971, is hereby withdrawn and this opinion substituted. The plaintiff, Bennett H. Stein, filed an application to modify the terms of a divorce decree. He alleged material changes in the circumstances of the parties, seeking elimination or substantial reduction in themonthly alimony payments which amount to $4,800 annually and permanent relief from the ordered assumption of themonthly mortgage payments on the former family residence in Livingston, Montana, amounting to $2,040 annually. After a hearing held in the district courtwithout a jury the court entered its order granting a readjustmentof the alimony payments by $100 a month annually for two years and thereafter increasing the payments by $20

### amonth annually for 10years and thereafter restoring the original amount, $400per month; and denying by its silence the requested modification of themortgage payment. Plaintiff and defendantwere married in November 1939 in Chicago, Illinois. Throughout the years of their marriage the plaintiff was engaged solely in the ranching and livestock business. The couple had five children, all of themhaving reached their majority at the time of the divorce except for the youngest son, Peter,who isnowpast 21years of age. After 27 years ofmarriage, a decree of absolute divorce was granted eachparty.The gravamen of plaintiff's appeal is that changed financial circumstances so substantial and so undisputed, required a modification order consistent with such changed financial circumstances. His networth has decreased from $142,000 at the time of the entry of the divorce decree to $58,000at the time of the hearing. Also at that time some of his contracts were pledged to secure his indebtedness and receipts from another contract were required to make payments upon a place he had purchased but which had no income therefrom during the previous taxable years. Further, that his disposable income in 1969was but $3,317.36. He and his present wife pay $50 a month for a home without telephone or television; require about $400per month for their living expenses. His only other earned income has been his compensation as a State Senator and a relatively small amount from a trust set up by hismother. At the time of the divorce in 1966 the defendantwife was not employed but she has been employed since 1967 and earns approximately $12,000per year and receivesan additional $1,200 for teaching at night school. She has tenure in her teaching position and she appears to have a present net worth of $21,721, which includes the equity of $15,000 in the home. Theplaintiff refers our attention to our holding in Daniels

v. Daniels, 147Mont. 57, 409 P.2d 824: 

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## * Under our law the final judgment granting alimony 'may be enforced by the court by such order or orders as in its discretion itmay from time to time deem necessary, and such order or ordersmay be varied, altered, or revoked at the discretion of the court.' R.C.M. 1947, § 21-137.

'Wherea divorce is granted for an offense of the husband, the courtmay compel him

## * * * to make such suitableallowance to the wife for her support during her life,or for a shorterperiod, as the courtmay deem just, having due regard to the circumstances of the parties respectively,and the courtmay, from time to time,modify its orders in these respects

## * * *.I Section 21-139. Thus,we see that under our law there isno guarantee of an annuity to a divorced wife. The trial judge in the ambit of his discretionmust weigh the relative circumstances of the parties in light of the evidencepresented indetermining whether conditions demand a variation, alteration, or revocation of alimony and supportpayments. We will look critically at that determination only if it is shown to be unsupported by the evidence before the trial court of the changinq situations of the parties. The delicate decision is one of balancing the needs of the wife for support and maintenance against the husband's honest ability to provide." (Emphasisadded.) It is quite evident from the factsheretofore related that plaintiff does not have his former ability to provide, though this isnot the fault of the defendant since the original decree required her to deed all her right and interest in the property to theplaintiff. Plaintiff urged upon the court at the hearing that his present inability to pay was due to the capital investment required in acquiring and maintaining the ranch he presently operating. While the soundness of the investment and successes of its operation at all times subsequent to the original decreehas been within the exclusive province of the plaintiff,

we must be mindful of the needs of the defendant and she clearly is in no imminentneed of great assistance for her support. Guided by our decision in Danielswe should consider the needs of the wife, there being no guarantee of an annuity for her,balanced against the husband's ability to provide, and weigh the relative circumstances of theparties. We feel therefore that her alimony payments should be reduced to an amount whichwould not be a burden to plaintiff and would permit the court, if future conditions change, to make an adjustment to provide for such changes. As to the required payments on the house, here the recorddiscloses that at the time of the original decree the defendant

was not employed and was awarded the custody of a minor child and the house in questionwas the actual residenceof the defendant.At the time of the hearing as heretofore stated the record discloses the defendant is employed, the child has reached his majority, and the house isno longer used as a residenceby either the defendant or her son. Thus the failure to grant the modifications requested by the plaintiff was, we find, an abuse of discretion. We find that the defendanthaving demonstrated no present need for the house in question theplaintiff should be relieved of the obligation of the monthly mortgage payment. We therefore direct the district court tomodify its order of modification by reducing the alimony payment to the sum of $150per month and eliminate to make themonthly mortgage the house. It is so ordered.

Chief Justice