No. 86-207 IN THE SUPREME COURT OF THE STATEOF MONTANA 1986

INRE THEMARRIAGE OF WILLIAM H KEEL, Petitioner and Appellant, and DONNAL. KEEL, Respondent and Respondent.

APPEAL FROM: District Court 

### of the Seventh JudicialDistrict, In and for the County ofDawson, TheHonorable R.C. McDonough,Judgepresiding.

CQTJNSEL OF RECORD:

ForAppellant: Ronald S. Efta,Wibaux,Montana

ForRespondent: KathleenM. Fritsch,Glendive,Montana

Submitted on Briefs: August 7, 1986 Decided: September 26, 1986

Filed: 

## SET.

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## T1986

-- - ClerkMr. Justice John Conway Harrison delivered the Opinion of the Court.

This is an appeal from an order of the District Court for the Seventh Judicial District in and for Dawson County, Montana, awarding maintenance and child support. Petitioner appeals. We remand. The issues on appeal are whether the District Court abused its discretion in awardingmaintenance to the wife and ordering support payments higher than petitioner reasonably can be expected topay. Petitioner, William Keel (husband), brought proceedings in the District Court seeking dissolution of his fourteen yearmarriage to respondent,Donna Keel (wife). His petition stated the wife was a fit and proper person to be awarded custody of the couple's three minor children and the only issues to be decided by the District Court were division of the property, the parties' debts, child support and visitation. Following a bench trial the District Court issued its findings, conclusions and decree. The husband appeals that part of the decree requiring him to pay the sum of $200 per month per child for their support, to pay all medical, optical, dental, and drug bills incurred on behalf of the children not coveredby insurance,and to pay the wife $300 per month maintenance for a period of four years or until she remarriesor cohabits with an adultmale. The scope of this Court's review when considering the findings and conclusions of a trial court sitting without a jury is clear and well settled in Montana. This Court's function

# . .

# . is not to substitute its judgment in place of the trier of facts but rather it is "confined to determining whether there is substantial credible evidence to support" the findings of fact and conclusions of law. (Citationsomitted.)In Re the Marriage of Thompson (Mont. 1984), 676 P.2d 223,

There is very little conflict in the testimony and evidence presented regarding the husband's income and the parties' debts. Clearly the parties had no assets of any value to divide in excess of the amount of liabilities owed. The evidence shows the following assets: Mobile home 1983Ford tonpickup SatelliteTV receiver Television Retirement Tools Miscellaneoushousehold Tax refund TOTAL The debts and obligations owed by the parties jointly are as follows: Ford Motor Credit (pickup) $6,257.00 Koch Furniture 1,442.76 1stNat. Bank ofWillmington (VISA card) 5,098.95 CITIBANK (Ready Credit Account) 5,713.97 Montgomery Ward 1,025.00 Chevron USA 130.71 Gate City Dairy 135.88 Dr. Thompson 100.00 Badlands Clinic 98.00 Robert Peterson (lot rent) 150.00 Eckroth Music 413.50 Mountain Bell 136.50 State Farm Ins. (pickup) 229.24 State Farm Ins. (mobile home) 215.00 1st Fidelity Bank (Ready Reserve) 800.00 Dawson County (taxes) 1,014.00 Mobile Home 7,900.21 Debt to wife's mother 925.00 Debt to wife's sister 500.00 TOTAL $32,285.72 The court divided theproperty and the marital debts as follows: To the husband: Mobile home, possession to be delivered when respondent moves to the state of South Dakota. SatelliteTV receiverand system.Magnavox TV set. Tools and tool chest. Tax refunds. Husband's retirement and profit. sharing funds. Husband's personal effects. To thewife: 1981Ford pickup and topper. All furniture and household goods and appliances, with the exception of the previously mentioned Magnavox TV. Children's personal effects. Wife's personal effects. The marital debts were divided as follows: To the husband: All indebtedness with the exception of those listed below as being the obligationof thewife: To thewife: Ford Motor Credit

## - balance due on pickup. Debt towife'smother. Debt towife's sister. Before awarding maintenance, the District Court must consider two factors set out in 

### 5 40-4-203, MCA: Whether the spouse seeking maintenance lacks sufficient property to provide for her reasonable needs and whether the spouse seeking maintenance is able to support herself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home. In this case there is no marital real property to be divided and that which was divided was to a large extentagreed upon by the parties. Neither party received income producing property which is the measure of sufficiency necessary to provide for one's reasonable needs. Thompson, supra, 676P.2d at 226, 41 St.Rep. at 241; InRe the Marriage of Laster (1982), 197 Mont. 470, 477, 643 P.2d 597, 601. Consequently, neither party has sufficient property to provide for his or her needs. Additionally, much of the property is encumbered by debt, but that received by the husband has the larger liens against it and will consume larger amounts ofhis income. The second factor to consider is whether the wife is able to support herself through appropriateemployment. (The remainder of the statutory section is not relevant in this case.) Although thewife has nowork experience, there isno evidence she cannot obtain suitable employment. In fact, she requestedpermission from the court tomove with the children to South Dakota to seek employment. The court properly concluded maintenance should be awarded to thewife,but, as will be shown, there is not sufficient credible evidence as to the amount. We will consider the amount of child support to be paid together with the amount of maintenance. The husband's employment is related to oil drilling. At the time of the divorce he was receiving a gross monthly salary of $2,850, based on a sixty hour work week, which he cannot anticipate will continue. His net pay is between $1,500 and $1,600per month. Subsection (2) of S 40-4-203, MCA, sets forth the factors to be consideredby the courtwhen determining amount ofmaintenance and period of time it is tobe paid: [It] shall be in such amounts and for such periods of time as the court deems just,

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# . .considering

# . ..(a) the financial resourcesof theparty seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently,

# ...

(e) the age and physical and emotional condition of the spouse seeking maintenance; and

(f) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance. The husband's financial obligations very nearly exceed his financial resources. During the three months the couple

was separated before the dissolution he was able to reduce his living expensesby livingwith friends. During this time he also reduced the couple's debts by approximately $5,000. He is responsible for all the balance of the couple's debts except the balance due on the pickup and the debts to the wife's mother and sister. The minimum payments due on the large outstanding obligations are almost $500 per month. Much of each payment is interest due, resulting in only a small reduction in principal. We do not find sufficient evidence in the record showing the husband has "the ability

# . ..to meet his needs while meeting those of [the wife]" pursuant to $ 40-4-203(2) (f),MCA. "what is important

as faras the maintenance award is concerned is the amount of income available to the spouse to make the maintenance payments at the time required to be made." In Re the Marriage of Jorgenson (19791, 180 Mont. 294, 303, 590 P.2d 606, 611-612. Nor is there evidence thewife's age,physical or emotional condition prevents her from seeking employment necessary tomeet her needs independently.Child support is awarded after considering the factors set forth in 

### 5 40-4-204(1),MCA, and the factors set forth in In Re Marriage of Carlson, (Mont. 1984), 693 P.2d 496, 41 St.Rep. 2419, including the needs of the children, the financial resourcesof the custodialparent and the financial

resourcesand needs of thenon-custodialparent. There is no evidence the District Court applied the Carlson formula in awarding child support. Numerous deductions from husband's gross pay, including medical and dental insurance premiums forhisbenefit and that of the children reduce his take-home pay to between $1,500 and $1,600per month. He must pay al-1 medical, dental,optical and drug bills incurred onbehalf of the children and not covered by insurance. He must make monthly payments of approximately $500 on the largest of the couple's outstanding debts. Further, he is responsible for paying the major portion of the balance of the debts. He must pay $900per month child support and maintenance. This does not leave him enough to meet his own personal needs. We remand the case to the DistrictCourt to redetermine the amount of child support,the degree of responsibility for expenses not covered by insurance, and the amount and duration ofmaintenance, consistent with this opinion.

We concur: /