No. 80-361 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

IN RE THE MARRIAGE OF 

EUGENE C. TIDBALL, 

Petitioner and Appellant, 

VS . 

MARCIA TIDBALL, 

Respondent and Respondent. 

Appeal from: District Court of the Second Judicial District, 

In and for the County of Silver Bow. 

Honorable James Freebourn, Judge presiding. 

Counsel of Record: 

For Appellant: 

Poore, Roth, Robischon and Robinson, Butte, Montana 

For Respondent: 

John L. Peterson, Butte, Montana 

Submitted on briefs: December 23, 1980 

Decided: WflF 9 1 1g~f 

Filed: MA!?. 3 1 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the 

Court. 

Petitioner Eugene Tidball appeals from an order entered in 

District Court, Silver Bow County, denying his petition to terminate maintenance payments to respondent Marcia Tidball. We 

af f irm. 

In September 1976, a dissolution decree was entered in 

District Court, Silver Bow County, which required petitioner to 

pay both child support for the care of the parties1 son Stephen, 

and spousal maintenance. Based on the criteria set out in section 40-4-203(1), MCA, the court determined that respondent was 

the custodial parent of a child needing special care and that for 

this reason respondent should not be required to seek employment 

outside the home. The parties agreed at that time that the parties could seek future modification of the maintenance award based 

on a change in the circumstances set out in section 40-4-203, 

MCA. They specifically rejected reliance on the criteria for 

modification in section 40-4-208, MCA, the modification provision 

of the UMDA, which requires a showing of unconscionability. 

Eugene Tidball petitioned the District Court in March 1980, 

asking the court to discontinue the maintenance award. He 

alleged that Marcia Tidball had sought and obtained employment in 

Arizona as a teacher, and no longer required maintenance. He 

also argued that the son who needed her care at the time of the 

dissolution was now performing adequately in school, leaving 

Marcia free to work outside the home. 

The evidence at the June 1980 show cause hearing indicated 

that respondent worked during the last part of the 1978-79 school 

year and obtained a full-term contract for the 1979-80 school 

year. However, shortly after the petition seeking mdif ication 

was filed, respondent left her job in Arizona and moved to 

California. She testified that working fulltime and caring for 

Stephen was a severe emotional and physical strain and left her 

unable to adequately care for Stephen. 
Based on the evidence presented at this hearing, the 

district judge found that the petitioner had not shown a sufficient change in circumstances to require a discharge of the 

maintenance obligation. He found that respondent's attempts at 

pursuing a career could not be maintained because of the physical 

and emotional stress involved in working fulltime and in caring 

for her son. Additionally, he determined that Stephen's grades 

were suffering because respondent did not have the time and 

energy to help him while she was employed. From these findings, 

the district judge concluded that petitioner was not entitled to 

relief from maintenance payments. 

On appeal, petitioner raises several issues : 

(1) Did the district judge err in his interpretation of 

section 40-4-203, MCA, in finding that respondent met the statutory requirements necessary for spousal maintenance? 

(2) Did the district judge abuse his discretion in 

refusing to discharge the maintenance award? 

(3) Was petitioner effectively denied his right of review 

by respondent's act of quitting her job and reducing her income 

to a point of need? 

(4) Did the district judge err in refusing evidence 

offered by petitioner showing improvement in Stephen's grades? 

The parties to a dissolution can decide on the criteria to 

be considered in a modification of a maintenance award. Section 

40-4-201, MCA. Here, petitioner and respondent agreed to allow 

modification if there was a showing of change in those factors 

set out in section 40-4-203, MCA, without proof of unconscionability: 

"Maintenance. (1) In a proceeding for dissolution 

of marriage or legal separation or a proceeding 

for maintenance following dissolution of the 

marriage by a court which lacked personal jurisdiction over the absent spouse, the court may 

grant a maintenance order for either spouse only 

if it finds that the spouse seeking maintenance: 

"(a) lacks sufficient property to provide for 

his reasonable needs; and 
" (b) is unable to support himself 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." 

Evidence at the time the dissolution decree was entered 

and maintenance awarded indicated that respondent, as custodian, 

should not work because Stephen needed her attention. 

Additionally, at that time, Marcia lacked the education credits 

necessary to pursue a teaching career. 

At the time of the hearing on modification, respondent 

testified that Stephen was still suffering from a hearing problem 

and speech difficulty. That circumstance had not changed from 

the time of the original decree. Respondent testified that 

although she had now completed a master's degree in special education and had been successfully employed, she was unable physically and emotionally to both work fulltime and to adequately 

attend to her son's needs. She testified to the difficulty of 

teaching special education all day and then working with a 

hearing-impaired child at home. 

Petitioner argues that respondent is not automatically 

entitled to maintenance, and that to qualify, she must meet the 

prerequisites set out in the statute, citing Johnsrud v. Johnsrud 

(1977), 175 Mont. 117, 124-125, 572 P.2d 902, 906. Petitioner is 

correct but he contends that respondent should be granted maintenance only if the court finds that respondent is "unable to 

support [herself] ." Petitioner fails to recognize the other set 

of circumstances in which a spouse can qualify for maintenance, 

and the one that is pertinent here: the spouse "lacks sufficient 

property to provide for [her] reasonable needs; and . . . 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." Section 40-4-203, MCA. 

We find that the district judge properly interpreted this 

statute in ordering continued maintenance to respondent. 
Respondent has demonstrated that she can in fact obtain and hold 

a job. But we note that the statute does not demand that the 

custodial parent of a special child must work if she is capable 

of doing so. The statute directs the district judge to determine 

only whether it is appropriate under the circumstances that she 

be required to work. The judge determined that it was not 

appropriate, and we find no error in this interpretation. 

Petitioner next alleges that the district judge abused his 

discretion in adopting respondent's proposed findings and 

conclusions. We find that there is sufficient, though 

conflicting, evidence in the record to support the findings, no 

matter which party prepared them for the court. Respondent 

testified to her health problems and to the fact that Stephen 

needed her at home. She testified to his scholastic problems and 

his need to have her help him with school work. Evidence of 

Stephen ' s improved grades was introduced, but the judge found 

respondent's testimony concerning his dependence on her for help 

with school work to be more persuasive. The district judge is 

the trier of fact in this case and we will not set aside his findings unless they are clearly erroneous. Jensen v. Jensen 

(1979 1, Mont . , 597 P.2d 733, 735, 36 St.Rep. 1259, 1262; 

Rome v. Rome (1981), Mont . , 621 P.2d 1090, 1092, 38 

St.Rep. 50, 53. 

We do find an abuse of discretion, though, in the court's 

adoption of petitioner's proposed finding No. 3, stating that 

respondent had increased financial needs which require her to 

seek additional financial assistance. The issue of increasing 

spousal maintenance was not before the District Court in this 

proceeding and no evidence was presented on that issue. Accordingly, we vacate this finding. 

The testimony of Marcia Tidball indicates that one of the 

reasons for her quitting her job and moving to California was the 

filing of the modification petition by her former husband. This 
act, according to petitioner, effectively denied petitioner his 

right of review, because in voluntarily cutting her income, 

respondent forced him to continue making maintenance payments. 

Respondent admitted that her departure from Arizona and 

from her job coincided with the filing of the petition. But her 

testimony indicates that other factors prompted her to leave, and 

that the filing of the petition was merely the final impetus. 

She testified: 

'I [I] t's very hard to teach Special Ed and then go 

home and deal with a hearing impaired child. 

It's an emotional strain, a physical strain, and 

aside from your filing of the papers and my 

health things, I was under quite a strain. . . Well I was exhausted from my job, I was 

exhausted from Steve's grades going down, and 

then this new threat in having to go to a 

lawyer, I didn't have time in the day, along 

with the financial thing, to get a lawyer in 

Tucson and start this case again." 

Based on this testimony and other evidence, the district 

judge denied the reduction in maintenance, finding insufficient 

change in the circumstances. We cannot say that petitioner was 

denied his right to a review of the prior order merely because 

the judge found in respondent's favor. The evidence that respondent left her job voluntarily was introduced, but the findings 

indicate that the judge found other factors to be determinative 

in his decision to continue the maintenance payments. The voluntary departure alone does not require a finding that respondent 

is no longer entitled to maintenance. See Rome, supra, Mont. 

The last issue raised by petitioner involves the district 

judge ' s refusal to allow cross-examination of respondent concerning the relationship between respondent's past employment and 

Stephen's grades. The judge refused to allow the inquiry because 

the evidence which counsel attempted to introduce had been heard 

in the earlier dissolution proceedings. He did agree to take 

judicial notice of that testimony. 

We find no error in the judge's ruling. Petitioner was 
attempting to show the effect, if any, of respondent's working on 

Stephen's grades. He was able to cross-examine her as to the 

grades-work relationship since the time of the dissolution, and 

he introduced evidence of Stephen's grades in 1979-80. He 

apparently did not attempt to show the relationship in 1977-78, 

at a time when respondent was not working. The judge ruled only 

that he did not want to again hear any testimony concerning 

Stephen's grades which had been heard earlier. The record indicates that petitioner was not precluded from presenting testimony 

concerning change in conditions since the time of the decree. 

The judge had sufficient information before him to allow 

him to determine whether existing circumstances now required a 

discharge of the maintenance award. It was unnecessary to allow 

in testimony of events prior to the dissolution. 

The order of the District Court is affirmed. 

Chief ~ustice \