No. 92-112 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

IN RE THE MARRIAGE OF 

BONNIE MZON, 

Petitioner and Respondent 

and 

LARRY MZON, 

Respondent and Appellant. 

r' 

-- .% UF SJPREME COURT 

STATE OF MONTANA 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Joel G. Roth, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Elizabeth A. Best, Attorney at Law, 

Great Falls, Montana 

For Respondent: 

John F. Iwen, Attorney at Law, 

Great Falls, Montana 

Filed: 

Submitted on Briefs: May 21, 1992 

Decided: December 18, 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

Larry Lozon appeals from a decree of dissolution of his 

marriage to Bonnie Lozon, entered in the Eighth Judicial District 

Court, Cascade County, which awarded Bonnie $200 per month for 

maintenance for two years, in addition to an award of costs and 

attorney fees. 

Larry contends that there is not substantial evidence in the 

record to support the awards of maintenance, costs, and attorney 

fees. We affirm the District Court decision. 

Larry raises the following issues on appeal: 

1. Did the District Court err when it awarded maintenance to 

Bonnie Lozon? 

2. Did the District Court err when it awarded costs and 

attorney fees to Bonnie Lozon? 

Bonnie and Larry Lozon were married in Great Falls on 

September 30, 1972. The parties separated in August 1988 and have 

lived apart since that time. On June 20, 1990, Bonnie filed a 

petition for dissolution with the District Court. 

The parties have two children. Prior to the date of 

dissolution, Jason, who is 17, moved to live with his father in 

Maryland. Danielle, who is nine, resides with her mother in Great 

Falls. At the time of the hearing, Bonnie was 38 years old and 

Larry was 39 years old. 

Larry worked as a drug and alcohol counselor with the United 

States Amy throughout the partiess 19-year marriage. In late 1990 

and 1991, Larry earned approximately $2400 per month after taxes as 

2 
a counselor, and an additional $600 per month from his part-time 

work at a bowling alley in Maryland. Larry's yearly earnings from 

1987-1990 averaged between $25,000 and $30,000. 

In a deposition taken in August 1991, Larry stated that he was 

retiring from his military job in September 1991. He anticipated 

finding new employment as a drug and alcohol counselor in private 

industry or with the government and expected that his annual salary 

would be approximately $16,000. Larry is entitled to receive $998 

per month as his military retirement pension. He estimated that 

his one-half share of his pension, coupled with a $16,000 salary, 

would provide him with a yearly income of $22,223. In addition, 

Larry will receive free medical care from the military for the rest 

of his life. 

Bonnie has a tenth grade education. During the 19 years of 

marriage, she worked primarily as a homemaker, raising the 

children. She has held a few jobs outside the home. In 1974, 

Bonnie worked in Alaska as a dish washer. In 1979, she worked in 

Miesau, Germany, bussing tables and washing dishes. Between 

February and December 1987, and on and off in 1988, she worked in 

Furth, Germany, in the Commissary as a store worker. Due to a back 

injury, Bonnie has not done any stocking of shelves or lifting 

since December 1987. She is currently taking medication for both 

back pain and asthma. Bonnie has been unemployed since August 

1988. She unsuccessfully applied for employment in 1991, but did 

not seek employment during the year before the trial. 
Since the parties1 separation in August 1988, Bonnie's only 

source of income has been child support. Immediately prior to the 

dissolution, she received voluntary monthly child support payments 

of $225. She supplemented this income with food stamps worth $200 

per month. 

As a property settlement, the parties agreed, in view of the 

length of their marriage, to equally divide Larry's monthly 

retirement pension of $998. As of the date of the dissolution, 

Bonnie shall receive $499 per month as her one-half share. The 

parties mutually divided the personal property accumulated by them 

during their marriage. Bonnie retained the furniture. Larry 

received the 1976 Ford truck. The parties did not own any real 

property. 

The District Court granted joint legal custody of the minor 

children and the parties agreed that it would be in the best 

interest of the children for primary care, custody, and control of 

Danielle to be placed with Bonnie, and for primary care, custody, 

and control of Jason to be placed with Larry. The court ordered 

Larry to pay Bonnie $215 per month as child support for Danielle. 

Additionally, the court awarded Bonnie $200 per month for 

maintenance for a period of two years. The District Court 

explained its award of maintenance in Finding of Fact No. 8: 

Petitioner lacks sufficient property to provide for 

her reasonable needs and is unable to support herself 

through appropriate employment. 

When the divorce is final, Petitioner will receive 

$499.00 per month as her share of Respondent's retirement 

pension with the military. This sum of money is not 
sufficient to meet Petitioner's monthly expenses. 

Petitioner is further entitled to spousal maintenance 

from Respondent based upon the duration of the marriage 

and the financial resources available to the Respondent. 

The spousal maintenance will be in the sum of [$200] per 

month for a period of two years from the date of this 

Decree to enable Petitioner to get retraining to become 

self-sufficient and perhaps obtain employment which would 

provide her with health and accident insurance. 

In addition to ordering child support and maintenance, the 

District Court awarded Bonnie costs and attorney fees. Larry 

appeals the District Court's award of maintenance, costs and 

attorney fees. He alleges that there is not sufficient evidence to 

support either award. 

Did the District 

Bonnie Lozon? 

I 

Court err when it awarded maintenance to 

This Court will not reverse the district court's award of 

maintenance unless the findings are clearly erroneous. In re the 

MamkzgeofEschenbacher (Mont. 1992), 831 P.2d 1353, 1355, 49 St. Rep. 

393, 394; ZnretheMam'ageofEide (1991), 250 Mont. 490, 493, 821 P.2d 

1036, 1037. An award of maintenance is governed by 9 40-4-203, 

MCA. InretheMam'ageofDunn (1991), 248 Mont. 95, 98, 809 P.2d 571, 

573; ZnretheMam'ageofSu~~ivan (1990), 243 Mont. 292, 298, 794 P.2d 

687, 690. As we stated in Dunn: 

An award of maintenance is premised upon a finding 

by the court that the individual seeking maintenance 

'lacks sufficient property to provide for his reasonable 

needs; and is unable to support himself through 

appropriate employment. Section 40-4-203 (1) (a) and (b) , MCA . 
In the present case, Larry asserts that the financial 

resources available to Bonnie are not inadequate to provide for her 

needs. Larry also contends that Bonnie is unemployed by choice. 

However, the District Court found to the contrary. We conclude 

that the court's findings are not clearly erroneous. 

Substantial evidence exists to support the court's finding 

that Bonnie does not have sufficient income to pay her monthly 

expenses. Bonnie has $499 per month available to her from Larry's 

pension. Adding this to the amount she was receiving for child 

support, her monthly income equals $724. Her monthly expenses are 

$885.20. 

There was also substantial evidence to support the court's 

finding that Bonnie is unable to support herself through 

appropriate employment. The records indicate that Bonnie has been 

a homemaker for 19 years. She has a tenth grade education and a 

limited work history. She has held primarily minimum wage jobs. 

Because of a back injury she has not done any stocking of shelves 

or lifting since December 1987. Furthermore, she has health 

problems which, while unsupported by medical testimony, are 

uncmtroverted by any substantial evidence. 

The District Court's findings regarding Bonnie's eligibility 

for maintenance were not clearly erroneous. There was sufficient 

evidence to support the District Court's finding that the 

requirements of 5 40-4-203(1), MCA, were satisfied. 
After determining maintenance eligibility, the District Court 

must determine the appropriate amount and duration of maintenance. 

Section 40-4-203 (2) , MCA, sets forth specific factors for the court 

to consider: 

(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. 

As we stated in Dunn, "[a] specific finding by the District 

Court as to each of these relevant facts is not required as long as 

the court considered proper information in addressing these facts 

and based its decision upon substantial credible evidence.It Dunn, 

809 P.2d at 573; Sdivan, 794 P.2d at 691. Moreover, "these 

relevant facts are to be considered by the court as a whole in the 

determination of the final maintenance award." Dunn, 809 P.2d at 
Substantial credible evidence exists to support the District 

Court's monthly maintenance award of $200 to Bonnie. The court 

based its decision on the 19 year duration of the marriage, 

Bonnie's inability to meet her monthly expenses independently 

without further employment training, and Larry's ability to make 

the maintenance payments as a drug and alcohol counselor. 

Larry testified that his monthly expenses were approximately 

$1260, plus what he spends on recreation. The court determined 

that given Larry's ability to earn $22,223 per year, he could 

afford to pay Bonnie maintenance of $200 per month. The court 

decided that maintenance for a duration of two years would enable 

Bonnie to obtain the retraining and further education she needs to 

secure employment and to become self-sufficient. 

In awarding maintenance to Bonnie, the District Court 

considered the couple's work history, skills, and employment 

capabilities. The court's award of maintenance to Bonnie is 

supported by substantial credible evidence. 

I1 

Did the District err when it awarded costs and attorney fees 

to Bonnie Lozon? 

Larry claims that the District Court erred when it granted 

Bonnie her costs and attorney fees. Awarding of attorney fees is 

governed by 5 40-4-110, MCA, which states: 

The court from time to time, after considering the 

financial resources of both parties, may order a party to 

pay a reasonable amount for the cost to the other party 

of maintaining or defending any proceeding under chapters 

1 and 4 of this title and for attorney's fees, including 
sums for legal services rendered and costs incurred prior 

to the commencement of the proceeding or after the entry 

of judgment . The awarding of attorney fees is clearly permissive under this 

statute. Sullivan 794 P.2d at 691; InretheMarriageofSmith (1990), 242 

Mont. 495, 503, 791P.2d 1373, 1378. The appropriate standard for 

reviewing district court decision awarding costs and attorney 

fees under f 40-4-110, MCA, is whether the court abused its 

discretion when it awarded such fees and costs. In re the Maniage of 

Manus (1987), 225 Mont. 457, 465, 733 P.2d 1275, 1279; InretheManiage 

ofJohnston (l986), 223 Mont. 383, 388, 726 P.2d 322, 326. To insure 

that there is no abuse of discretion when fees and costs are 

awarded, f 40-4-110, MCA, requires the court to consider the 

relative financial resources of the parties before making its 

decision. Sullivan, 794 P. 2d at 692. 

In its Conclusion No. 8, the District Court states that: 

Petitioner has incurred attorney's fees and Court costs 

to prosecute her action, none of which have been paid; 

based upon the financial disparity between the parties' 

income producing abilities, the necessity shown by the 

Petitioner, the entire economic and financial facts and 

circumstances herein set out, the Court concludes that 

petitioner does not and will not have the capability to 

pay her attorney's fees and costs. The Respondent should 

pay the same. 

The record reveals that the District Court was aware of the 

financial resources and financial burdens of both Bonnie and Larry 

as required by 5 40-4-110, MCA, and that the court made an 

informed, proper decision to award Bonnie attorney fees. The 

District Court's decision in this case was not a simple or easy 
one. Based on the combined resources of the parties, which are 

evident from the record, it was obviously difficult to apportion 

them in a way that comfortably supports two households and still 

leaves enough to pay for the cost of litigation. However, we 

conclude that the District Court's award of costs and attorney fees 

was not an abuse of discretion and the District Court's award of 

maintenance was not clearly erroneous. 

We affirm the District Court. 

We concur: 

,/ 

{d+r%- Chlef Jus ice 
December 18, 1992 

CERTIFICATE OF SERVICE 

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

named: 

Elizabeth A. Best 

BEST LAW OFFICE 

514 Strain Building 

Great Falls, MT 59401 

JOHN F. IWEN, Esq. 

Attorny at Law 

Suite 206, Strain Building 

Great Falls, MT 59401 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA