No. 81-214 INTHE SUPREME COURT OF THE STATE OF MONTANA 1981

INRE 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, 1981Mr. Justice Fred J. Weber delivered the Opinion of the Court

# . The marriage of D.C. (thehusband) and 

### M.C. (thewife)



### was dissolved inJanuary 1981inthe DistrictCourt 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 inregard to allthree of those portions of the decree. The parties were married in 1960. Three children were born to them. Atthe 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 trialwas 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 theWestern Union Telegraph Company since 1960 and expects toremain with that company until retirement. Hisgross income atthe time of trialwas slightly inexcess 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 thatwithin a few weeks of their marriage itbecame evident that hiswife was incapable of doing the shopping and bringing home the groceries. Early in the marriage the husband observed that hiswife had amental disorder which limited her ability to function normally. Unfortunately, 

### itwas not until the 

### timeof the dissolution, nearly 

### 20 years later, that the wife 

### was firstbrought to a psychiatrist for diagnosis and treatment. The wife's psychiatric and psychological reports were entered inevidence inlieu of direct testimony by the wife. The contentof those reports 

### ispertinent to our resolution of this case. M.C.'s psychologist reported thatM.C. was suffering from "a severe emotional disturbance diagnosed 

### as schizophrenic reaction, chronic undifferentiated type." The psychologist's clinical description of the effectsof thisdisorder 

### is that M.C. has "decreased coping skills, limited intellectual problem-solving capabilities," and has experienced "withdrawal from participation inthe world of everyday events, and withdrawal from meaningful interpersonal relationships." The psychologist found thatM.C. "is functioning 

### ata borderline level of intelligence classification. However, this 

### isnot a consequence of limited intellectualresources, but 

### ismore 

### a function of her severe emotional withdrawal during recent years. This person 

### isa chronic emotionally disturbed individual who has not participated meaningfully in the everyday events of theworld around her during recent years. As a consequence, there has been 

### a sharp deteriorationin intellectual functioning because of disuse." The psychologist found M.C. tobe inthe bottom ten per cent of the general population intellectually. Most important for our purposes, M.C. was found tobe "disabled as far as her ability to participate inthe competitivejob market.

### " The prospects for an improvement inher condition do not appear good. "The prognosis for a chronic undifferentiated schizophrenic reaction 

### isvery guarded. The likelihood that thiswoman would benefit from professional psychotherapy 

### islow." The report recommended thatM.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 

### isgiven help inthe form of employment assistance, she should be required to participate injob functions in a meaningful way inorder toreceive 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 DistrictCourt must consider a number of factors in arriving ata disposition of property ina 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 

### isinlieuof or inaddition tomaintenance; and the opportunity of each for future acquisition of capital assets and income. Section 40-4-202, MCA. Before a court can award maintenance ina dissolution proceeding, there must be a finding that the spouse seeking maintenance lacks sufficientproperty 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 financialresources of the party seekingmaintenance, includingmarital property apportioned to him and his ability tomeet his needs independently; the time necessary to acquire sufficient education or training to enable the party seekingmaintenance to find appropriate employment; the standardof living established during the marriage; the duration of themarriage; the age and the physical and emotional condition of the spouse seekingmaintenance; and the abilityof the spouse from whom maintenance 

### is sought to

### meethis needs while meeting those of the spouse seekingmaintenance. 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 

### atthe 

### timeof trial. There 

### isno indication inthe record of the amount that these policies provide forpsychiatric treatment. Second, the wife was awarded a portion of the furniture and household items. Third, the wife was tobe given 50 per cent of the net proceeds of the saleof the family home, after deduction of closing costs, real estate fees, fees of thewife's attorney and her guardian ad 

### litem, a home improvement loan, the cost of the wife's pretrial psychiatric examinations, capitalgains taxes, and allother taxes, liens or encumbrances on the home. The wife's cash award from the saleof the home, after alldeductions, would be 

### less than $25,000 without consideration of potential income taxes. This sum 

### was tobe put ina trustfund, the proceeds of which 

### were toprovide for the care, support and maintenance of thewife. In her appeal, the wife argues that the court erredby: (1)requiring one-half of the wife's attorney fees tobe paid outof 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 

### itsdetermination 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 debtswhich would not be extinguished by the sale of the house. The court alsonoted that the couple's three children were 

### still residing athome. Without elaboration, the court found that 

### itwas reasonable to assume that the husband would continue to carry the financialburden of being a parent beyond the date of the children's majority. The DistrictCourt also found that the husband was not financially able topay maintenance to thewife 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 thatwould be paid off inthe near future. The record does reveal that the husband had 

### a desire tocontinue to aid his children beyond the 

### time when the law requires such aid from him. However, 

### we find nothing inthe law which transmutes parental generosity into

an obligationwhich relieves a spouse from a potential duty toprovide maintenance in

### a dissolution action. The court found that thewife was "suffering from a

severe emotional psychological disturbance." The court also found, ina mild understatement, that the wife "may experience difficulty inobtaining and keeping any type of employment." And, even though the court found that the wife 

### willneed psychological health care treatment inthe future, and that her minimum living expenses would be $600.00 per month, the court's decree requires this 40 

### year oldwoman to live offof a trustwith a principal of 

### less than $25,000.00. It

### isclear that the income from the trustcould not meet the $600.00 per month minimum living expenses of the wife. If principal 

### isused tomeet her needs, the trust

soon would be exhausted. This Court has held under facts similar to those inthe present case that if the effectof not awarding maintenance 

### is tomake 

### a spouse 

### a ward of the state, maintenance should be awarded ifpossible. Stenberg



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

### is applicable inthiscase notwithstanding the adoption of the Uniform Marriage and Divorce Act in 1975. The record shows that the wife has no employment skills, and inaddition, 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 inthe future. The provisions of the decree, including the proposed trust, are not sufficient toprovide for the reasonable needs of the wife. Unless there 

### is a change inthe decree, 

### it

### isapparent that the wife 

### willbecome a ward of the government ina relatively short

### time. This 

### is inappropriate where shewas 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 thatan award should be made to the wife of attorney fees and costs, both at

### trial and on thisappeal, with such items tobe paid by the husband. Section 40-4-110, MCA. The

cause 

### isremanded to the District Court with the following instructions:1) Determine the wife's reasonable attorney fees and costs, both attrial and on appeal; 2) Re-examine the property disposition and determine

a dispositionwhich 

### willmeetthe reasonable needs of the wife;3) Based upon the apparent need for lifetimemaintenance, determine the reasonable amount of maintenance tobe paid by the husband to thewife, with the award tobe flexible enough toprovide 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 

### isreasonably 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