No. 85-578 IN THE SUPREME COURT OF THE STATE OF MONTANA 1986

IN RE THEMARRIAGE OF DONALD E. SINGER, Petitioner and Appellant, and GEORGIA J. SINGER, Respondent and Respondent.

APPEAL FROM: District Court of the Eighteenth JudicialDistrict, In and for the County of Gallatin, The Honorable Joseph B. Gary,Judgepresiding.
COUNSEL OF RECORD:
ForAppellant: KellyM. Hogan,Bozeman, Montana
For Respondent: Gregory 0. Morgan, Bozeman,Montana

Submitted on Briefs: May 15, 1986 Decided: July 1511986

ClerkMr. Justice Frank B. Morrison, Jr. delivered the Opinion of the Court.
Donald E. Singer (husband) appeals the findings of fact, conclusions of law and judgment of the Eighteenth Judicial District Court distributinghis and his ex-wife's, Georgia J. Singer (wife),marital property. The sole issue raised on appeal is whether the District Court equitably apportioned the marital estatepursuant to § 40-4-202,MCA. We find the apportionment to be equitable and affirm the decision of the trial judge. Husband filed a petition for dissolutionofhismarriage inApril of 1983. Thehearingwas held December 4, 1983. At that time, the parties had been married for approximately 35 years. Husband was 55 years of age and a retired civil service employee. His formal education had ended after the eighth grade. Wife was 56 years of age and an elementary education student atMontana StateUniversity. The only income of the parties was passive. Husband received approximately $913.15 a month in retirement benefits. He also worked odd-jobs as a handyman. Pursuant to a stipulation entered into pending dissolution of the marriage, wife received $200 a month maintenance, $375 a month rental income from the parties' California home and $251 a month from a ranch mortgage, for a total of $821 a month. The trial judge later found the expenses of each party to be approximately $1000 amonth. Following the hearing and husband's petition to amend, the trial judge divided the marital estate as follows:

ITEM HUSBAND CaliforniaResidence WIFE $ 50,000.00Ponderosa Pines Property Mobile Home Mobile Home Furnishings Coachman Trailer Subaru Chevy Pickup RanchMortgage Alliance Stock K-Mart Stock Tools NASA Retirement (70%) NASA Retirement (30%) TOTAL

Further,husbandwas ordered to pay $150amonth to wife
as maintenance until March of 1987 or her graduation from college,whichever occurs first. The amount of monthly payments as a. result of the division of the parties' assets was determined by the trial judge to be $926 to wife and $700 to husband. Husband disagrees, stating that the judge failed to include wife's maintenance award of $150. Therefore, husband alleges, the monthly payments are actually $1076 to wife and $550 to husband. Maintenance is an award separate and distinct from the division of marital assets. See SS 40-4-202 and -203, MCA. Granted, the amount of marital property awarded is to be considered in awarding maintenance. Section 40-4-203(2) (a)

## , MCA. Vivian v. Vivian (1978), 178 Mont. 341, 345, 583 P.2d 1072, 1075. However, wife will receive no maintenance payments after March 1987. The payments are merely a temporary device, established to assist wife in her effortsto supportherself. Maintenance for this purpose is clearly permissible. Section 40-4-203(2)(b)

## , MCA. Peckenpaugh v. Peckenpaugh (Mont. 1982), 201 Mont. 314, 319, 655 P.2d 144, 146. In light ofwife's devotion of 35 years of her life to husband and their family and wife's efforts to become self-supporting, the maintenance award is certainly not excessive. Nor is it of such magnitude to warrant diminishmentofwife'sportion of themarital estate. Husband also alleges error in the trial judge'sdecision to award wife 30% of husband's retirement benefits. Again,
we find no error. Husband a.ccumulated his retirement benefits while married to wife. At the same time,wife was foregoing employment, and the attendant retirement benefits, to raise the family and care for husband. Wife will have been in the work-force for less than ten years when she reaches retirement age. Her retirement benefits will therefore be minuscule. Herpast contributionsto the family and to husband entitle her to share in husband's retirement security. Absent a clearabuse ofdiscretionby the trial judge in applying the relevant factors of $5 40-4-202 and -203, MCA,
we will not disturb the trial judge's findings, conclusions and judgment. Reese v. Reese (1979), 185 Mont. 52, 55, 604 P.2d 326, 328. We find no abuse ofdiscretion. Affirmed.

We Concur: 

### .A