No. 81-214 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

IN RE THE MARRIAGE OF 

D.C.', 

Petitioner and Respondent, 

M.C.. , 

Respondent and Appellant. 

Appeal from: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, The Honorable 

Diane G. Barz, Judge presiding. 

Counsel of Record: 

For Appellant: 

Jones Law Firm, Billings, Montana 

For Respondent : 

Lynaugh, Fitzgerald, Schoppert & Skaggs, 

Billings, Montana 

Terry L. Seiffert, Billings, Montana 

Submitted on Briefs: September 3, 1981 

Decided: November 25, 1981 
Mr. Justice Fred J. Weber delivered the Opinion of the 

Court . 

The marriage of D.C. (the husband) and M.C. (the wife) 

was dissolved in January 1981 in the District Court of the 

Thirteenth Judicial District, Yellowstone County, Montana. 

M.C. appeals from the portions of the decree relative to 

property disposition, maintenance and attorney fees. We 

reverse the District Court in regard to all three of those 

portions of the decree. 

The parties were married in 1960. Three children were 

born to them. At the time of the trial, only one of the 

children was a minor, and she was 17 years of age. The 

husband was 44 years of age and the wife was 40 years of age 

when the trial was had. The property of the couple consisted 

of the family home and its furnishings, the parties' personal 

effects, and two old and unreliable automobiles. The husband 

has been employed by the Western Union Telegraph Company 

since 1960 and expects to remain with that company until 

retirement. His gross income at the time of trial was 

slightly in excess of $20,000 per year. The wife did not 

graduate from high school. She had no outside employment 

during the marriage. The wife's contribution to the marriage 

consisted of raising the children, cooking and cleaning. 

The testimony revealed that the wife's contribution diminished 

during the course of the marriage, primarily because of mental 

problems. 

The husband testified that within a few weeks of their 

marriage it became evident that his wife was incapable of 

doing the shopping and bringing home the groceries. Early in 

the marriage the husband observed that his wife had a 
mental disorder which limited her ability to function normally. 

Unfortunately, it was not until the time of the dissolution, 

nearly 20 years later, that the wife was first brought to a 

psychiatrist for diagnosis and treatment. The wife's psychiatric 

and psychological reports were entered in evidence in lieu 

of direct testimony by the wife. The content of those 

reports is pertinent to our resolution of this case. 

M.C.'s psychologist reported that M.C. was suffering 

from "a severe emotional disturbance diagnosed as schizophrenic 

reaction, chronic undifferentiated type." The psychologist's 

clinical description of the effects of this disorder is that 

M.C. has "decreased coping skills, limited intellectual 

problem-solving capabilities," and has experienced "withdrawal 

from participation in the world of everyday events, and 

withdrawal from meaningful interpersonal relationships." 

The psychologist found that M.C. 

"is functioning at a borderline level of 

intelligence classification. However, 

this is not a consequence of limited intellectual resources, but is more a function of her severe emotional withdrawal 

during recent years. This person is a 

chronic emotionally disturbed individual 

who has not participated meaningfully in 

the everyday events of the world around 

her during recent years. As a consequence, 

there has been a sharp deterioration in 

intellectual functioning because of disuse." 

The psychologist found M.C. to be in the bottom ten per 

cent of the general population intellectually. Most important 

for our purposes, M.C. was found to be "disabled as far as 

her ability to participate in the competitive job market. " 

The prospects for an improvement in her condition do not 

appear good. "The prognosis for a chronic undifferentiated 

schizophrenic reaction is very guarded. The likelihood that 

this woman would benefit from professional psychotherapy is 
low." The report recommended that M.C. "should be provided 

assistance through some public facility, such as [the] 

Division of Vocational Rehabilitation. " It appears that 

vocational rehabilitation would serve as therapy rather than 

preparation for employment: "If she is given help in the 

form of employment assistance, she should be required to 

participate in job functions in a meaningful way in order 

to receive her check." Finally, the report advised that 

M.C. would also need assistance from the Department of 

Social and Rehabilitative Services in the form of basic life 

skills training. 

The District Court must consider a number of factors in 

arriving at a disposition of property in a dissolution 

proceeding. Among these factors are: the duration of the 

marriage; the age, health, occupation, vocational skills, estate, 

liabilities, employability, amount and sources of income and 

needs of each of the parties; whether the property disposition 

is in lieu of or in addition to maintenance; and the opportunity 

of each for future acquisition of capital assets and income. 

Section 40-4-202, MCA. Before a court can award maintenance 

in a dissolution proceeding, there must be a finding that 

the spouse seeking maintenance lacks sufficient property to 

provide for his reasonable needs and that the spouse is 

unable to support himself through appropriate employment. 

Section 40-4-203(1), MCA. If maintenance is to be awarded, 

the amount and duration of the award is determined by considering: 

the financial resources of the party seeking maintenance, 

including marital property apportioned to him and his ability 

to meet his needs independently; the time necessary to 

acquire sufficient education or training to enable the party 

seeking maintenance to find appropriate employment; the standard 
of living established during the marriage; the duration of 

the marriage; the age and the physical and emotional condition 

of the spouse seeking maintenance; and the ability of the 

spouse from whom maintenance is sought to meet his needs 

while meeting those of the spouse seeking maintenance. 

Section 40-4-203(2), MCA. 

The decree of dissolution in the case before us made 

three allocations to the wife. First, the husband was 

ordered to provide medical insurance for the wife via a 

basic medical policy and a major medical policy. The total 

monthly premiums for the policies was $62.82 at the time of 

trial. There is no indication in the record of the amount 

that these policies provide for psychiatric treatment. 

Second, the wife was awarded a portion of the furniture and 

household items. Third, the wife was to be given 50 per 

cent of the net proceeds of the sale of the family home, 

after deduction of closing costs, real estate fees, fees of 

the wife's attorney and her guardian ad litem, a home improvement loan, the cost of the wife's pretrial psychiatric 

examinations, capital gains taxes, and all other taxes, 

liens or encumbrances on the home. The wife's cash award 

from the sale of the home, after all deductions, would be less 

than $25,000 without consideration of potential income taxes. 

This sum was to be put in a trust fund, the proceeds of 

which were to provide for the care, support and maintenance 

of the wife. In her appeal, the wife argues that the court 

erred by: (1) requiring one-half of the wife's attorney fees 

to be paid out of the proceeds of the sale of the home; (2) 

not awarding maintenance to the wife; and (3) not awarding 

the wife a larger share of the proceeds of the sale of the 

house. 
The ~istrict Court based its determination of the 

financial aspects of this case upon factual considerations 

which are not always supported by the record. The court 

noted that the husband had two outstanding debts which would 

not be extinguished by the sale of the house. The court 

also noted that the couple's three children were still 

residing at home. Without elaboration, the court found that 

it was reasonable to assume that the husband would continue 

to carry the financial burden of being a parent beyond the 

date of the children's majority. The District Court also 

found that the husband was not financially able to pay 

maintenance to the wife other than providing medical insurance, 

and that the only means of providing financial assistance to 

the wife was from her 50% of the equity in the family home. 

The total obligation owing under the two debts mentioned 

above was only $1,325.88, an amount that would be paid off 

in the near future. The record does reveal that the husband 

had a desire to continue to aid his children beyond the time 

when the law requires such aid from him. However, we find 

nothing in the law which transmutes parental generosity into 

an obligation which relieves a spouse from a potential duty 

to provide maintenance in a dissolution action. 

The court found that the wife was "suffering from a 

severe emotional psychological disturbance." The court also 

found, in a mild understatement, that the wife "may experience 

difficulty in obtaining and keeping any type of employment." 

And, even though the court found that the wife will need 

psychological health care treatment in the future, and that 

her minimum living expenses would be $600.00 per month, the 

court's decree requires this 40 year old woman to live off 
of a trust with a principal of less than $25,000.00. 

It is clear that the income from the trust could not 

meet the $600.00 per month minimum living expenses of the 

wife. If principal is used to meet her needs, the trust 

soon would be exhausted. This Court has held under facts 

similar to those in the present case that if the effect of 

not awarding maintenance is to make a spouse a ward of the 

state, maintenance should be awarded if possible. Stenberg 

v. Stenberg (1973), 161 Mont. 164, 505 P.2d 110. That 

holding is applicable in this case notwithstanding the 

adoption of the Uniform Marriage and Divorce Act in 1975. 

The record shows that the wife has no employment skills, and 

in addition, her psychological, emotional and intellectual 

condition are such as to prevent her from being employed in 

the foreseeable future. The record does not show that the 

wife has any other sources of income or opportunities for 

acquisition of capital assets in the future. The provisions 

of the decree, including the proposed trust, are not sufficient 

to provide for the reasonable needs of the wife. Unless 

there is a change in the decree, it is apparent that the 

wife will become a ward of the government in a relatively 

short time. This is inappropriate where she was the wife of 

D.C. for 20 years. 

We reverse those portions of the decree relative to 

attorney fees, property disposition and maintenance. In 

view of the limited financial resources of the wife, we find 

that an award should be made to the wife of attorney fees 

and costs, both at trial and on this appeal, with such items 

to be paid by the husband. Section 40-4-110, MCA. The 

cause is remanded to the District Court with the following 

instructions : 
1) Determine the wife's reasonable attorney fees and 

costs, both at trial and on appeal; 

2) Re-examine the property disposition and determine 

a disposition which will meet the reasonable needs of the 

wife; 

3) Based upon the apparent need for lifetime maintenance, 

determine the reasonable amount of maintenance to be paid by 

the husband to the wife, with the award to be flexible 

enough to provide for the needs of both parties as their 

economic situations change; 

4) Consider the comparative needs of the husband and 

wife and determine if it is reasonably possible to extend 

the maintenance provisions beyond the retirement or death of 

the husband. Section 40-4-208 (4), MCA. 

Reversed and remanded. 

We Concur: 

pe 8. vw, tAAq 

Chief Justlce