No. 84-374 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

IN RE THE MARRIAGE OF 

LINDEN EDWARDS , 

Petitioner and Appellant, 

and 

MARILYN EDWARDS, 

Respondent and Respondent. 

APPEAL FROM: District Court of Nineteenth Judicial District, 

In and for the County of Lincoln, 

The Honorable Robert M. Holter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Keller & German; Ann C. German, Libby, Montana 

For Respondent : 

Douglas & Bostock; William A. Douglas, Libby, Montana 

Submitted on Briefs: Feb. 22, 1985 

Decided: May I, 1985 

Clerk 
Mr. Chief Justice J. A. Turnage delivered the Opinion of the 

Court. 

Husband appeals from a decree of dissolution entered in 

the District Court of the Nineteenth Judicial District, 

Lincoln County. Appellant claims it was an abuse of discretion to award the wife indefinite monthly alimony in addition 

to a disproportionate property share when the wife is not 

disabled. On appeal, the husband also claims that the court 

erroneously considered the husband's living arrangements, 

thus compensating the wife for his "marital misconduct." 

We affirm the lower court judgment. The court considered the statutory factors under the Uniform Marriage and 

Divorce Act regarding property division and maintenance and 

referred to the factors in its findings of fact and conclusions of law. The record shows the employment of conscientious judgment in arriving at a substantially just result. 

Where the record fails to show an arbitrary exercise of 

discretion and the ruling is not clearly erroneous, we will 

not overturn a iudgment. 

Appellant brings this appeal to our Court upon the 

following issues: 

1. Did the lower court abuse its discretion in awarding the wife "lifetime" alimony of $500 monthly where she got 

the family residence, he got the property he had acquired 

through inheritance, and she was not disabled? 

2. Did the court erroneously consider marital misconduct in dividing the marital property and awarding 

maintenance? 

Linden and Marilyn Edwards were married. at Coeur 

dlAlene, Idaho, on March 7, 1959. Linden adopted her two 

children and the couple had. five more children of their own. 

At Linden's insistence, Marilyn stayed home and occupied 
herself as wife, mother and housekeeper. As the breadwinner, 

Linden had a varied career including logging and mining. For 

a number of years he has worked at ASARCO, now as a supervisor making $33,000 per year. Parties resided the last twenty-three years of their marriage in the home in Libby. Tn 

1980 they purchased acreage at Troy, Montana, with an inheritance from Linden's mother. 

After the parties separated in August 1983, Marilyn 

secured part-time seasonal employment performing menial tasks 

at H & R Block during the 1984 tax season. She had acquired 

her high school equivalency degree in 1976 and had attended 

some adult education classes to improve her chances of suitable employability . Unfortunately, her inability to type 

more than 30 words per minute hampered her in her numerous 

applications for jobs. 

Following separation in August 1983, the parties divided their cash in the bank, $1300 to Linden and $1200 to 

Marilyn, and apportioned a $2500 certificate of deposit for 

Marilyn's use. Linden made voluntary payments of $700 per 

month from September 1, 1983, to April 1, 1984, for the 

support of their daughter, Theresa, her baby and Marilyn. He 

modified his payments to $600 per month in May 1984. 

Linden's petition for dissolution was filed December 7, 

1983. He proposed paying respondent $400 per month for the 

support of Theresa to the age of majority or completion of 

high school, whichever comes later. Theresa was eighteen in 

October 1984 and should graduate from high school in June 

1985. He proposed to pay respondent the sum 0-f $200 per 

month for "spousal support" for a period of five years. 

Finall-y, Linden's petition stated: "VIII. That the parties 

have accumulated real and personal property which should be 

distributed as follows: 
- TO PETITIONER 

Real Property in Troy, MT 

1971 ~ord Pickup - 

1976 Fort [sic] Pinto" 

- TO RESPONDENT 

House in Libby, MT 

1976 Ford 

Respondent answered with a prayer for $200 per month 

for the support of Theresa and $690 per month as support for 

respondent till she should. marry or die, provided that the 

amount should be red-uced by any amounts of monthly income she 

would earn. She agreed to his proposed property divi-sion, 

but asked the court to consider additional items of personal 

property to make an equitable d-istribution. 

At the hearing on May 22, 1984, Marilyn testified that 

she was residing in the family home. She acknowledged that 

two adult children living at home were contributing toward 

their share of expenses a total of $250 per month. 1,inden 

testified that he lived in an apartment and not on the property at Troy because the house was still uninhabitable. He 

admitted sharing expenses with a lady roommate who was earning about $16,000 per year. He was not contributing to the 

roommate's support. 

The court divided the property in the manner both 

parties requested and granted custody of Theresa to respondent with $200 per month support to age eighteen or comp1.etion of high school. The court awarded respondent $500 per 

month alimony to continue until she remarry, cohabit or die. 

Issue -- No. I: Abuse - of discretion - in awarding indefinite alimonx? Appell-ant contends that he proposed an "inequitable" property division so that respondent would have the 

bulk of the marital- estate and then he would not "be no 

welfare state." In the motion for reconsideration, he contended that the court gave him no credit for the amount of 

his inheritance invested in his real property at Troy. He 

criticized the court for noting the inheritance in the 
findings of fact but not debiting it from the marital estate 

in the conclusions of law. 

The appellant has changed his theory on the property 

several times. In his petition in December 1983, he referred 

to property "the parties have accumulated" and proposed the 

present distribution. Petitioner's proposed findings of fact 

and conclusions of 1.aw in May 1984 reccmmended a formula 

which included $3,000 of the $35,000 inheritance in the 

family pot, and then debited $32,000 from the total property 

for Linden's inheritance. This formula would leave the 

marital share at $25,412.50 each, Marilyn to have a $15,000 

excess. After judgment, his motion for reconsideration with 

the identical property division as proposed all along, 

Linden's share of the marital estate had dropped to $15,415 

and Marilyn's was at $40,000. Finally on appeal., Linden's 

share remained at $15,415 and Marilyn's had risen to $42,500. 

The court awarded the property as both parties requested. Acquiring property by gift or devise is only one factor 

to be considered in determining the respective contributions 

of both parties. In re the Marriage of Collett (Mont. 1981), 

621 P.2d 1093, 1096, 38 St.Rep. 36, 39. The court referred to 

the inheritance in the findings of fact, es we11 as to 

Marilyn's twenty-five years as a homemaker. The court is not 

required to distribute equally but rather to consider the 

criteria set forth in § 40-4-202 to make an equitable distribution. In re the Marriage of Hecht (Mont. 1982), 649 P.2d 

1257, 1259, 39 St.Rep. 1455, 1458. The statute is flexible 

and vests discretion in the District Court to look at each 

case individually. In re the Marriage of Laster (Mont. 

1982), 643 P.2d 597, 601, 39 St.Rep. 737, 740; In re the 

Marriage of Martens (Mont. 19811, 637 P.2d 523, 526, 38 

St.Rep. 2135, 2138. 
We hold that the court did not abuse its discretion in 

its distribution of property. The court submitted detailed 

findings which noted the source of the marital properties and 

the nature of the marital contributions. "The findings were 

detailed, reasoned, and supported by the evidence presented 

a.t trial.. . . . It Marriage of Levandowski (Mont. 1981), 630 

In the conclusions of I.aw, the court distributed the 

property as proposed by appellant: 

"4. That the property of the parties is 

distributed as follows: 

PETITIONER'S PROPERTY 

Real Property $47,000.00 

Other property 

per Exh. "B" 

Total $53,615.00 

Less debt 8,200.00 

NET TOTAL $45,415.00 

RESPONDENT'S PROPERTY 

Real Property $36,000.00 

Other Property 

per Exh. "A" 4,070.00 

TOTAL 

The court let stand the proposed division as equitable. 

Whether considered as a disproportionate share of marital 

property to either party is irrelevant where both parties 

agreed to a division which is substantially fair. The court 

concluded: 

"The Court will- not order adjustment of 

differences in property distribution 

because of Petitioner's ability to pay 

in the light of support requirements 

herein. l1 

The court then proceeded to determine the necessity for 

maintenance. 
The award of maintenance is based upon the particular 

circumstances, and not upon a mandatory adjustment for property division. The court has the discretion to grant maintenance to the party seeking maintenance who lacks sufficient 

property to provide for his or her reasonable needs and is 

unable to meet those needs through appropriate employment. 

Section 40-4-203, MCA. "The Act provides for the coordination of property distribution and maintenance to assure that 

a spouse without the ability to support herself will be 

maintained at a similar standard of living." Levandowski, 

630 P.2d at 242. 

"Sufficient property" is income-producing property. 

Laster, 643 P.2d at 601; In re the Marriage of Bowman (Mont. 

1981), 633 P.2d 1198, 1200, 38 St.Rep. 1515. The court does 

not abuse its discretion in refusing to force the sale of a 

family home. In re the Marriage of Madson (1979), 180 Mont. 

220, 223, 590 P.2d 110, 112. In denying petitioner's motion 

for reconsideration, the court reasoned that it was to petitioner's benefit for respondent to receive the family home. 

If there were an inequality in the marital property division 

in so doing, it inured to petitioner's benefit in lesser 

monthly expense to maintain respondent's standard of living. 

Appellant argues that he should not pay extended maintenance because he did not receive income-producing property. 

He is not the party seeking maintenance and he does have an 

income. Respondent received property which cannot provide 

for her reasonable needs. The issue is whether respondent is 

able to support herself through suitable employment. The 

evidence supported a conclusion that she has made efforts to 

become employable and has tried to find employment. Linden's 

projection of her trainability and improved employability was 

vague, while her efforts were clearly on the record. The 
judge reasonably concluded that Marilyn could earn about $200 

per month on a yearly basis. Determining her reasonable 

needs based upon a conservative projected monthly budget of 

$720 per month after the daughter leaves home, the court 

concluded that she would need $500 per month in maintenance 

in addition to what she could earn. 

We hold that the court did not abuse discretion in this 

award of maintenance. The court considered her financial 

resources including the property apportioned to her in the 

decree and her ability to meet her needs independently. The 

court looked at the duration of the marriage and the standard 

of living established during the marriage, adjusted down by 

necessity to the "living condition expectancies of respondent," i.e., her reasonable budget. 

Where appellant did not testify specifically as to 

respondent's rehabilitative capability, the court made a 

realistic appraisal of respondent's ability to support herself in some reasonable approximation of the standard of 

living established during the marriage. This Court approved 

the court's conscientious effort, particularly in a marriage 

of long-term duration in which there is a long-term absence 

of the spouse from the labor market and no presently existing 

employable skill. Madson, 590 P.2d at 112-113. As in 

Madson, this Court will not require respondent to sell her 

house and get job training. There was no basis on the record 

for the lower court to conclude that she would be totally 

self-supporting at the end of "some kind of training," as 

proposed by appellant. 

The court concluded, based upon petitioner's monthly 

expenditures, that he has the ability to meet his needs and 

pay her the sum she will need. Petitioner's expenditures are 

not as conservative as respondent's. He has been able to 
make support and maintenance payments of $600-$700 per month 

and still support a higher standard of living for himself 

than respondent enjoys. 

Issue No. 2: Appellant raises a final issue: Did the -- - -- 

court erroneously consider "marital misconduct" - in apportionmaintenance? There is no basis in the record, the judgment, or the findings of fact and conclusions of law for such 

a contention. The court considered the living arrangements 

of both parties. From the record it is apparent that Marilyn 

is not supporting or supported by her adult children and 

Linden is not supporting or supported by his roommate. The 

court heard only limited testimony as to financial matters; 

no other questions or issues were raised anywhere on the 

record. 

We have allowed a fiancee's income to he considered in 

determining the future financial status of a spouse and his 

ability to pay for maintenance. Laster, 643 P.2d at 602. We 

have allowed a second wife's income to be considered as part 

of a husband's family's net income. In re the Marriage of 

Cromwell, (1979), 180 Mont. 40, 44, 588 P.2d 1010, 1012. 

Here, the roommate's income was noted in the findings of fact 

on petitioner's share of household expenses. We can find no 

consideration of marital misconduct. 

We apply the following test in reviewing a lower court 

judgment in a dissolution: Did the District Court in the 

exercise of its discretion act arbitrarily without employment 

of conscientious judgment, or exceed the bounds of reason 

resulting in substantial injustice? Laster, 643 P.2d at 601. 

We find the record replete with competent evidence. The 

court conscientiously coordinated the maintenance and property division. 
We hold that .the judge had. a reasonable basis for 

awarding indefinite maintenance with the limits of remarriage 

or cohabitation with another mate. Respondent had made a 

concerted effort to adjust to a single life, but the record 

indicates that she will have a continued limited ability to 

meet her reasonable needs and that petitioner can afford to 

pay maintenance and still meet his needs. 

Affirmed. 

We concur: