### 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,Judgepresiding. Counsel of Record: ForAppellant: Poore,Roth, Robischon and Robinson, Butte,Montana For Respondent: John L. Peterson, Butte,Montana

Submitted on briefs: December 23, 

### 1980 Decided: 

# WflF

# 91

## 1g~f Filed: 

# MA!?.31Mr. Chief JusticeFrank I. Haswell delivered the Opinion of the Court. PetitionerEugene Tidball appeals from an order entered in District Court, Silver Bow County, denying hispetition 

### to terminate maintenance payments to respondent Marcia Tidball. 

### We aff

### irm.InSeptember 1976, a dissolution decreewas entered in District Court, SilverBow County, which required petitioner to pay both child support for the care of the parties1son Stephen, and spousal maintenance. Based on the criteria setout in 

### section 40-4-203(1), MCA, the court determined thatrespondent 

### was the custodial parent of 

### a child needing special care and that for thisreason respondent should not be required to seek employment outside the home. The parties agreed 

### atthat

### 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 specificallyrejected reliance on the criteria for modification in section 40-4-208, MCA, the modificationprovision of the UMDA, which requires a showing of unconscionability. Eugene Tidball petitioned the District Court inMarch 1980, asking the court to discontinue the maintenance award. He alleged that

### Marcia Tidballhad 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 timeof the dissolution 

### was now performing adequately in school, leaving Marcia free towork outside the home. The evidence 

### atthe June 1980 show cause hearing indicated that respondent worked during the lastpart of the 1978-79 school year and obtained a full-term contract for the 1979-80 school year. However, shortly afterthe petition seeking mdification

was filed, respondent lefther job inArizona and moved to California. She testified thatworking fulltime and caringfor Stephen 

### was a severe emotional and physical strain and lefther unable to adequately 

### care forStephen.Based on the evidence presented atthishearing, the districtjudge 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 inworking fulltime and incaring forher son. Additionally, he determined that Stephen's grades



### were suffering because respondent did not have the 

### time and energy 

### to helphim while she 

### was employed. From these findings, the districtjudge concluded thatpetitioner 

### was not entitled to relief from maintenance payments. On appeal, petitioner 

### raises several issues: (1)Did the district judge 

### err inhis interpretation of section40-4-203, MCA, in finding that respondent 

### met the statutoryrequirements necessary for spousal maintenance? (2)Did the district judge abuse hisdiscretion in refusing to discharge the maintenance award? (3)Was petitioner effectivelydenied hisright 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 inrefusing evidence offered by petitioner showing improvement inStephen'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 inthose 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 formaintenance following dissolution of the marriage by a court which lacked personal jurisdictionover the absent spouse, the court may grant a maintenance order for either spouse only if it finds that the spouse seeking maintenance: 

### "(a)lacks sufficientproperty 

### to provide for hisreasonable needs; and

### "(b)is unable 

### to support himself through appropriate employment 

### or is the custodian of a child whose condition orcircumstances 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. Atthe timeof 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 

### timeof the original decree. Respondent testified that although she had now completed a 

### master's degree in special education and had been successfullyemployed, she was unable physicallyand emotionally 

### to both work fulltime and 

### to adequately attend to her son's needs. She testified to the difficulty of teaching special education allday and then working with a hearing-impaired child athome. Petitioner argues that respondent is not automatically entitled to maintenance, and that to qualify, she must meet the prerequisites setout inthe statute, citing Johnsrud v. Johnsrud (1977), 175Mont. 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 failsto recognize the other set of circumstances inwhich a spouse can qualify formaintenance, 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 orcircumstances make it appropriate that the custodian not be required to seek employment outside the home." Section 40-4-203, MCA. We find that the districtjudge properly interpreted this statute inordering continued maintenance 

### to respondent.Respondent has demonstrated that she can infact obtain and hold

a job. But 

### we note that the statutedoes not demand that the custodial parent of 

### a special child must work if she is capable 

### of doing 

### so. The statutedirects the district judge to determine onlywhether it is appropriate under the circumstances that she be required towork. The judge determined that it 

### was not appropriate, and 

### we find no error inthis interpretation. Petitioner next alleges that the districtjudge 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 forthe court. Respondent testified toher health problems and 

### to the fact that Stephen needed her athome. She testified 

### to his scholastic problems and hisneed tohave her helphim with school work. Evidence of Stephen

## 's improved grades 

### was introduced, but the judge found respondent's testimony concerning hisdependence on her forhelp with school work tobe more persuasive. The districtjudge is the 

### trier of fact in this 

### case and 

### we willnot 

### set aside his findingsunless they 

### are clearlyerroneous. Jensen v. Jensen (1979

### 1, Mont

# . ,597 P.2d 733, 735, 36 St.Rep. 1259, 1262; Rome v. Rome (1981), Mont

# . ,621P.2d 1090, 1092, 38 St.Rep. 50, 53. We do find an abuse of discretion, though, inthe 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 thatone 

### of the

reasons forher quitting her job and moving 

### to California 

### was the filingof the modification petition by her former husband. Thisact, according to petitioner, effectivelydenied petitioner his right of review, because involuntarily cutting her income, respondent forced him to continue making maintenance payments. Respondent admitted thather 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.

# .. WellI was exhausted from my job, I was exhausted from Steve's grades going down, and then this new threat inhaving to go to a lawyer, I didn't have 

### time inthe day, along with the financial thing, to get a lawyer in Tucson and start thiscase again." Based on this testimony and otherevidence, the district judge denied the reduction inmaintenance, finding insufficient change in the circumstances. We cannot say thatpetitioner was denied his right 

### to a review of the prior order merely because thejudge found inrespondent's favor. The evidence that respondent lefther job voluntarily was introduced, but the findings indicate that the judge found other factors 

### to be determinative inhis decision to continue the maintenance payments. The voluntarydeparture alone does not require a finding that respondent 

### is no longer entitled tomaintenance. 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 inthe earlier dissolution proceedings. He did agree to take judicial notice of that testimony. We find no error in the judge's ruling. Petitionerwasattempting 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 

### timeof 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, 

### ata 

### timewhen respondent 

### was not working. The judge ruled only thathe did not want 

### to again hear any testimony concerning Stephen's grades which had been heard 

### earlier. The record indi

### cates thatpetitioner 

### 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 intestimony of events prior 

### to the dissolution. The order of the District Court 

### is affirmed.

Chief ~ustice \