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 Sixth Judicial District, 

Honorable C. B. Sande, Judge presiding. 

Counsel of Record: 

For Appellant : 

Patrick F, Hooks argued, Townsend, Montana 59644. 

For Respondent: 

Swanberg, Koby and Swanberg, Great Falls, Montana 59401, 

Ray F, Koby argued, Great Fa 11s , Montana 59401. 

Submitted: June 19, 1972 

Decided: JUL 19 1972. 

Filed : 

JhlL 19 1972 
Mr. Chief Justice James T. Harrison delivered the Opinion of 

the Court. 

This is an appeal by the plaintiff from an order modifying 

alimony payments entered in the district court of Park County. 

The cause was 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 The opinion of September 24, 1971, is hereby withdrawn and this opinion substituted.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 the monthly alimony payments which amount 

to $4,800 annually and permanent relief from the ordered assumption 

of the monthly mortgage payments on the former family residence 

in Livingston, Montana, amounting to $2,040 annually. 

After a hearing held in the district court without a jury 

the court entered its order granting a readjustment of the alimony 

payments by $100 a month annually for two years and thereafter 

increasing the payments by $20 a month annually for 10 years and 

thereafter restoring the original amount, $400 per month; and 

denying by its silence the requested modification of the mortgage 

payment. 

Plaintiff and defendant were 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 them having reached 

their majority at the time of the divorce except for the youngest 

son, Peter, who is now past 21 years of age. 

After 27 years of marriage, a decree of absolute divorce was 

granted each party. 
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 net worth has decreased from $142,000 at the 

time of the entry of the divorce decree to $58,000 at 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 1969 was 

but $3,317.36. He and his present wife pay $50 a month for a 

home without telephone or television; require about $400 per 

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 his mother. 

At the time of the divorce in 1966 the defendant wife was not 

employed but she has been employed since 1967 and earns approximately $12,000 per year and receives an 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. 

The plaintiff refers our attention to our holding in Daniels 

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

" * * * Under our law the final judgment granting 

alimony 'may be enforced by the court by such 

order or orders as in its discretion it may from 

time to time deem necessary, and such order or 

orders may be varied, altered, or revoked at the 

discretion of the court.' R.C.M. 1947, § 21-137. 

'Where a divorce is granted for an offense of 

the husband, the court may compel him * * * to 

make such suitable allowance to the wife for her 

support during her life, or for a shorter period, 

as the court may deem just, having due regard to 

the circumstances of the parties respectively, 
and the court may, from time to time, modify its 

orders in these respects * * *.I Section 21-139. 

Thus, we see that under our law there is no guarantee of an annuity to a divorced wife. The trial 

judge in the ambit of his discretion must weigh 

the relative circumstances of the parties in light 

of the evidence presented in determining whether 

conditions demand a variation, alteration, or 

revocation of alimony and support payments. 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." (Emphasis added.) 

It is quite evident from the facts heretofore related that 

plaintiff does not have his former ability to provide, though 

this is not the fault of the defendant since the original decree 

required her to deed all her right and interest in the property 

to the plaintiff. 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 

decree has been within the exclusive province of the plaintiff, 

we must be mindful of the needs of the defendant and she clearly 

is in no imminent need of great assistance for her support. 

Guided by our decision in Daniels we 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 the parties. We feel therefore that her 

alimony payments should be reduced to an amount which would 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 record 
discloses 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 question was the actual residence of 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 is no longer used as a residence by 

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 defendant having demonstrated no present need for the house 

in question the plaintiff should be relieved of the obligation 

of the monthly mortgage payment. 

We therefore direct the district court to modify its order 

of modification by reducing the alimony payment to the sum of 

$150 per month and eliminate 

to make the monthly mortgage the house. 

It is so ordered. 

Chief Justice