No. 86-207 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

IN RE THE MARRIAGE OF 

WILLIAM H KEEL, 

Petitioner and Appellant, 

and 

DONNA L. KEEL, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Seventh Judicial District, 

In and for the County of Dawson, 

The Honorable R.C. McDonough, Judge presiding. 

CQTJNSEL OF RECORD: 

For Appellant: 

Ronald S. Efta, Wibaux, Montana 

For Respondent : 

Kathleen M. Fritsch, Glendive, Montana 

Submitted on Briefs: August 7, 1986 

Decided: September 26, 1986 

Filed: SET. 2 T 1986 

-- - Clerk 
Mr. 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 awarding maintenance to the wife and 

ordering support payments higher than petitioner reasonably 

can be expected to pay. 

Petitioner, William Keel (husband), brought proceedings 

in the District Court seeking dissolution of his fourteen 

year marriage 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 covered by insurance, and to pay the wife 

$300 per month maintenance for a period of four years or 

until she remarries or cohabits with an adult male. 

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. (Citations omitted.) 
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 

1983 Ford ton pickup 

Satellite TV receiver 

Television 

Retirement 

Tools 

Miscellaneous household 

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 

1st Nat. Bank of Willmington 

(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 the property and the marital debts as 

follows: To the husband: 

Mobile home, possession to be delivered 

when respondent moves to the state of 

South Dakota. 

Satellite TV receiver and system. 
Magnavox TV set. 

Tools and tool chest. 

Tax refunds. 

Husband's retirement and profit. sharing 

funds. 

Husband's personal effects. 

To the wife: 

1981 Ford 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 

obligation of the wife: 

To the wife: 

Ford Motor Credit - balance due on 

pickup. 

Debt to wife's mother. 

Debt to wife'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 extent 
agreed 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, 676 P.2d at 226, 41 St.Rep. at 241; In Re 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 of his income. 

The second factor to consider is whether the wife is 

able to support herself through appropriate employment. (The 

remainder of the statutory section is not relevant in this 

case.) Although the wife has no work experience, there is no 

evidence she cannot obtain suitable employment. In fact, she 

requested permission from the court to move with the children 

to South Dakota to seek employment. The court properly 

concluded maintenance should be awarded to the wife, 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 $1,600 per 

month. Subsection (2) of S 40-4-203, MCA, sets forth the 

factors to be considered by the court when determining amount 

of maintenance and period of time it is to be paid: 

[It] shall be in such amounts and for 

such periods of time as the court deems 

just, . . . considering . . . 
(a) the financial resources of the party 

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 expenses by living with 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 far as 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 the wife's age, physical 

or emotional condition prevents her from seeking employment 

necessary to meet 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 resources of the custodial parent and the financial 

resources and needs of the non-custodial parent. 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 

for his benefit and that of the children reduce his take-home 

pay to between $1,500 and $1,600 per month. He must pay al-1 

medical, dental, optical and drug bills incurred on behalf 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 $900 per month child support and maintenance. This 

does not leave him enough to meet his own personal needs. 

We remand the case to the District Court to redetermine 

the amount of child support, the degree of responsibility for 

expenses not covered by insurance, and the amount and 

duration of maintenance, consistent with this opinion. 

We concur: /