No. 91-477 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

IN RE THE MARRIAGE OF 

BONITA TAHIJA, 

Petitioner and Respondent, 

and 

APPEAL FROM: District Court of the Second Judicial District, 

In and for the County of Silver Bow, 

The Honorable James E. Purcell, Judge presiding 

COUNSEL OF RECORD: 

For Appellant: 

Deirdre Caughlan, Dunlap & Cauqhlan, Butte, Montana 

For Respondent: 

Mark A. Vucurovich, Henninqsen, Vucurovich & 

Richardson, Butte, Montana 

Submitted on Briefs: March 5, 1992 

Filed: 

C 

Clerk 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

On January 15, 1991, Bonita Tahija petitioned the Second 

Judicial District Court in Silver Bow County to dissolve her 

marriage to respondent Daniel Tahija. On August 15, 1991, the 

District Court dissolved her marriage, distributed the marital 

estate, and assigned all marital debts to Daniel, including all 

attorney fees. The District Court provided for the custody and 

support of the children, and awarded Bonita maintenance of $350 per 

month, plus payment of tuition and expenses for the next five years 

or until she completed her degree program and obtained full-time 

employment. On September 5, 1991, pursuant to Dan's Motion for 

Reconsideration, the District Court entered Amended Findings of 

Fact, Conclusions of Law and a Final Decree. The Amended Findings 

increased the temporary maintenance to a specific award of $600, 

deleted the provision for payment of "fees and educational 

expenses,'' and deleted reference to maintenance for up to five 

years. From that judgment, Dan appeals. We affirm in part and 

reverse in part. 

The issues are: 

1. Did the District Court err when it adopted Bonita's plan 

of joint custody? 

2. Did the District Court err when it awarded Bonita $600 

per month for maintenance? 

3. Did the District Court err when it divided the marital 

property and debt? 
4. Did the District Court err when it granted Bonita's 

request for attorney fees? 

Daniel and Bonita Tahija were married on July 19, 1980. Their 

marriage was dissolved on August 15, 1991. Both are 37 years old. 

They have two children, whose ages at the time of the dissolution 

were six and eight. Bonita has a high school education, but was 

unemployed outside the home during most of the marriage. She is 

currently unemployed and living in subsidized housing with the two 

children. Dan earns $41,460 a year as an accountant at Montana 

Power. Dan and Bonita received $4000 each from the sale of their 

home. 

In its amended findings of fact and conclusions of law, the 

District Court adopted a joint custody plan, awarded $607 per month 

to Bonita for child support, and required Dan to maintain health 

insurance coverage for the children. It assigned the marital debt 

of $7308 to Dan, divided the marital property equally, and awarded 

temporary maintenance in the amount of $600 per month to Bonita. 

I. 

Did the District Court err when it adopted Bonita's plan of 

joint custody? 

"On appeal, this Court will not disturb a visitation schedule 

ordered by the District Court when it is supported by substantial 

credible evidence." 111 re Mamoge of B.H.J. (1988) , 233 Mont. 461, 463, 

760 P.2d 753, 754. Dan contends that no evidence supports the 

District Court's Finding of Fact No. 15 which states: 
The following plan for the promotion of the joint 

custody agreement and visitation schedule, has been 

adopted, and accepted by the parties, as being in the 

best interests of the minor children. [Emphasis added.] 

The trial transcript confirms that both parties believed at 

the hearing that a joint custody plan could be agreed upon. 

However, the parties proposed findings of fact, and the record, 

indicate that a plan was not agreed upon. The District Court 

adopted Bonita's proposed plan which varies from Dan's proposed 

plan by providing less visitation than Dan requested. While the 

District Court erred in finding that the visitation plan was 

adopted and accepted by both parties, its adoption of Bonita's 

proposed plan was within its discretion. 

Dan cites no authority for his contention that the court must 

state reasons for adopting one proposed plan over another. 

Rule 52(a), M.R.Civ.P., provides that: 

The court may require any party to submit proposed 

findings of fact and conclusions of law for the court's 

consideration and the court may adopt any such proposed 

findings or conclusions so long as they are supported by 

the evidence and law of the case. 

Dan contends that the findings were entered without regard to 

"many of the basic issues raised by him, without reading his 

proposed Findings or in direct contravention of the evidence.I1 The 

standard of review for the adoption of a party's proposed findings 

is the same as findings prepared by the court. In re Marriage ofJacobson 

(1987), 228 Mont. 458, 743 P.2d 1025. "Error occurs only when the 

proposed findings are relied upon to the exclusion of proper 
consideration of the facts and the failure to exercise independent 

judgment." Jacobson, 743 P.2d at 1029. 

Dan did not object to the custody plan in his motion for 

reconsideration. In fact, Dan stated in his brief supporting the 

motion for reconsideration that he had no objection to the 

arrangement for custody which had been in effect since the parties 

separated on an informal basis. Failure to object may have led the 

~istrict Court to believe that Dan found the court's previous plan 

acceptable. 

At the hearing, Dan recognized that Bonita's plan varied from 

his proposed plan, but acknowledged that he has had no trouble with 

access to the children, and that a mutual agreement on visitation 

could occur without the court imposing its schedule. In addition, 

at the hearing the parties acknowledged that the visitation plan 

was a formula plan and was not set in stone. The court also noted 

that if the parties could not work out a plan it would set a plan. 

The plan itself recognizes that the schedule is flexible. 

We conclude that the lower court did address the issues raised 

by Dan in his motion for reconsideration. The District Court's 

findings are supported by substantial evidence, and are not clearly 

erroneous. 

Dan also contends that adoption of the plan has reduced his 

access to his children by several weeks per year and is contrary to 

the best interests of the children. While it is true that the 

adopted plan did not grant the additional weeks of visitation that 
Dan requested, the plan is still reasonable and within the District 

Court's discretion. 

This Court has held that a visitation schedule providing 

visitation on alternate weekends, alternate holidays, one evening 

per week, and two weeks in the summer is reasonable. In re Marriage of 

Alt (l985), 218 Mont. 327, 708 P.2d 258. Here, the District Court's 

visitation schedule is more generous than the one approved in that 

case, and Dan has failed to show that the adopted visitation 

schedule is unreasonable. The joint custody plan is affirmed. 

11. 

Did the District Court err when it awarded Bonita $600 per 

month for maintenance? 

Maintenance is within the broad discretion of the District 

Court and may not be set aside unless the court's clear err 

constitutes an abuse of discretion. See In re Mamage of Schenk (1984) , 

213 Mont. 310, 692 P.2d 6. 

Under 5 40-4-203(1), MCA, a court may award maintenance only 

if it finds that the spouse seeking maintenance "(a) lacks 

sufficient property to provide for his reasonable needs; and (b) is 

unable to support himself through appropriate employment . . . . II 

Section 40-4-203(2), MCA, provides that determining an award's 

amount and length entails considering all relevant facts, 

including: 

(a) the financial resources of the party seeking 

maintenance, including marital property apportioned to 
him, and his ability to meet his needs independently, 

including the extent to which a provision for support of 

a child living with the party includes a sum for that 

party as custodian; 

(b) the time necessary to acquire sufficient 

education or training to enable the party seeking 

maintenance to find appropriate employment; 

(c) the standard of living established during the 

marriage; 

(d) the duration of the marriage; 

(e) the age and the 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 District Court concluded that $600 per month maintenance 

is "appropriate given that [Bonita] lacks sufficient property to 

provide for her reasonable needs and is currently unable to support 

herself through appropriate employment while caring for her minor 

children." Apart from the proceeds from the sale of the home, all 

the property Bonita received was non-income producing. See Mam'age 

This Court has held that "appropriate employment1' must be 

determined with relation to the standard of living achieved by the 

parties during the marriage. 111 re Marriage of Madson (1978) , 180 Mont. 

220, 224-25, 590 P.2d 110, 112. The District Court found that the 

parties enjoyed a high standard of living. Additionally, the 

District Court found that Dan "has a substantially higher 

expectation of acquiring future income from present employment when 
compared to [Bonitaf s] present opportunity to acquire future 

income. Regardless of whether they enjoyed a high or 

13comfortable1f standard of living, as Dan contends, it is apparent 

that Bonita is in need of temporary maintenance so that she may 

acquire an education which will enable her to find appropriate 

employment. 

Dan asserts that the District Court ignored § 40-4-203(2)(f), 

MCA, requiring consideration of the obligor spouse's ability to 

meet his own needs and pay maintenance. we stated in In re Cole 

(1988), 234 Mont. 352, 358, 763 P.2d 39, 43, that the husband's 

ability to pay is not a deciding factor in determining the 

propriety of a maintenance award. While it is an element, it is 

not always the determining factor. 

However, the District Court properly considered Dan's ability 

to pay. Dan's take home pay, minus monthly expenses, maintenance, 

and child support leaves him with a small monthly surplus. This 

does not include a calculation of how maintenance payments will 

benefit Dan for income tax purposes. Thus, the District Court did 

not "fail utterly to consider Dan's ability to pay." 

A review of the record confirms that the District Court's 

order of $600 maintenance per month is supported by substantial 

credible evidence and by proper consideration of the statutory 

factors. 

~dditionally, Dan maintains that there is no evidence in the 

record to support an award for five years when Bonita only 
requested four years. While we find that evidence in the record 

supports temporary maintenance for five years as ordered in the 

District Court s initial findings of fact and conclusions of law on 

August 15, 1991, it appears that the District Court's amended 

findings of fact and conclusions of law set no specific time period 

for temporary maintenance. Therefore, we remand this case to the 

District Court for the purpose of establishing a specific period 

for temporary maintenance. 

Did the District Court err when it divided the marital 

property and debt? 

The standard of review for division of marital property is 

whether the District Court abused its discretion. In re Mamiage of 

Skirtner (1989), 240 Mont. 299, 304, 783 P.2d 1350, 1353. 

Dan was ordered to pay marital debts in the amount of $7308. 

He contends that proceeds from the sale of the parties' home should 

have been applied to satisfy that debt. 

The District Court's consideration of those statutory factors 

provided for in 5 40-4-202, MCA, is illustrated in the following 

portion of its memorandum explaining its amended order: 

The award of maintenance and division of assets in 

this matter are properly considered together, maintenance 

of $600.00 per month and an award of an equitable 

division of the property has been made. The Court is 

fully aware that the assets of the marriage have been 

divided equally while the debts of the marriage are to be 

the sole responsibility of the Respondent. The 

proportion of the division of the marital estate in this 

instance recognizes the Respondent's greater earning 
capacity and opportunity to acquire future income and 

assets. Section 40-4-202, M.C.A., requires the Court to 

consider the opportunity of the parties for future 

acquisition of capital assets and income. 'Opportunity' 

is a broad word that includes the capacity of the parties 

to earn future income. . . . 

It is also the opinion of this Court that Petitioner 

has made significant and substantial contributions to the 

property acquired during marriage in her capacity as 

housewife and mother and that the temporary award of maintenance 

is in lieu ofa largerportion of the marital estate. It is also noted that 

Petitioner's contributions as a homemaker have been a 

substantial factor in facilitatingthe maintenance of the 

home. [Italics added.] 

After reviewing the record we hold that the District Court did not 

abuse its discretion in the division of the property and debts. 

IV. 

Did the District Court err when it granted Bonita's request 

for attorney fees? 

Abuse of discretion is the standard of review for an award of 

attorney fees. Jacobson, 743 P.2d at 1029. Section 40-4-110, MCA, 

allows a court to award reasonable attorney fees "after considering 

the financial resources of both parties." The District Court 

properly considered the financial resources and burdens of both 

parties when it determined that Bonita was entitled to attorney 

fees. We hold that the District Court did not abuse its discretion 

when it awarded attorney fees to Bonita. 

Finally, Dan contends, and Bonita agrees, that his 

contributions to the Montana Power Benefit Accounts which were made 

prior to the parties' marriage should not have been divided as part 

of the marital estate. We agree 
We affirm the judgment of the District Court with the 

exception of its allocation of the benefit accounts. 

This case is remanded to the District Court for determination 

of the proper division of the benefit accounts, determination of 

the maximum duration of maintenance, and the entry of judgment 

consistent with this opinion. 

Affirmed in part, reversed in part, and remanded. 

We concur: 

,A 

Chief Justice 
June 30, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

folIowing named: 

Deirdre Caughlan 

Dunlap & Caughlan 

27 W. Broadway 

Butte, MT 59701 

Mark A. Vucurovich 

Henningsen, Vucurovich & Richardson 

P.O. Box 399 

Butte, MT 59703 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE O,P MONTANA 1