### No. 80-262 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 1981

IN RE THE MARRIAGE OF WARREN D. BOWMAN, Petitioner and Respondent,

VS

# . JEAN L. 

### BOWMAN, Respondent and Appellant.

Appeal from: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone. Honorable Diane G. 

### Barz, Judge presiding. Counsel of Record: For Appellant: Holmstrom, Dunaway & 

### West, Billings, Montana For Respondent: Anderson, Edwards and Molloy, Billings, Montana

Submitted on briefs: June 24, 1981 Decided: September 14, 1981 Filed: 

## SEP

# 1.$

## 1381Mr. Justice Frank B. Morrison, 

### Jr., delivered the Opinion of the Court.

Jean 

### L. Bowman, appeals from the findings of of fact, conclusions of law and judgment entered by the District Court of the Thirteenth Judicial District, Yellowstone County. The judgment of the DistrictCourt dissolved the marriage of the appellant and petitioner, Warren D. Bowman; established child custody and child support; divided the marital estate; awarded maintenance torespondent; required petitioner toprovide for the college education of the children, and; ordered each party to pay their own attorney fees and costs. Appellant and respondent were married atGallup, New Mexico, on June 12, 1957. They are the parents of four living children; Carolyn, born December 29, 1960; Joan, born May 

### 24, 1962; Amy, born May 9, 1964; and, Eric, born April 19, 1969. Respondent, age 50, 

### is a physician and partner inthe Billings Clinic. Hisnet taxable income for 1978 was $63,800 and in 1979 was $78,048. The District Court found that respondent was inexcellent health and that his prospects for continued employment as a physician were good. Appellant, age 

### 41, has been primarily a housewife during the marriage. However, she alsoworks part-time as director of ChristianEducation 

### atSt. Luke

## 's Episcopal Church inBillings and as a director of theWestern State Bank of Billings. She earns approximately $4,500 per year from these positions. She has been actively involved in community, church, and political activities. Appellant has attended Rocky Mountain College and earned 72 credit hours toward a degree 

### ineconomics. She needs 52 additional credithours toobtain her degree. The DistrictCourt also found appellant tobe inexcellent health.Atthe 

### timeof dissolution, the net worth of the marital

estate of the parties was $416,301.64. Pursuant toan agreement reached by the parties, appellantreceived approximately $159,000 inassets. These assets were primarily nonincome assets. Custody of the minor children, Joan, Amy and Eric was granted to the appellant. Respondent 

### was granted reasonable visitationrights and ordered to pay $250 per month child support for each of theminor children until each minor child reached age 18 orwas graduated from high school, whichever occurred last. 

### Hewas also required topay all medical and dental bills incurred by the children and pay allexpenses necessary for the children to obtain college degrees. The DistrictCourt found that appellantwas clearly able to obtain employment outside the family home. She was attending college and the court found that 

### a realistic graduation datewas June 1982. Although the DistrictCourt found that the appellant's present employment was not appropriateand that she was inneed of further education, the court specifically determined that 

### itwas unfair to require the respondent topay maintenance enabling her to obtain a law degree or any post-graduate degree. Based on these findings, the DistrictCourt awarded the appellantmaintenance of $1,500 per month, to terminate on June 1, 1982, the expected graduation date. The DistrictCourt ordered that each party bear his or her own attorney fees and costs relating to the dissolution. The issues presented on appeal are: 1. Whether the DistrictCourt erred inlimiting the duration of maintenance payments for appellant to two years following dissolution?2. Whether the DistrictCourt erred inrefusing to award the appellant attorney fees? Appellant does not contest the networth valuation, the distribution of 

### assets, or the amount of maintenance awarded; she appeals from the DistrictCourt's limitation on the duration of maintenance. Awards of maintenance aregoverned by section 40-4-203, MCA. This provision states: "(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 courtmay grant a maintenance order for either spouse only if 

### it finds that the spouse seeking maintenance: 

### "(a) lacks sufficientproperty to provide for his reasonable needs; and "(b)

### isunable to supporthimself through appropriateemployment 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. 

### "(2) The maintenance order shall be in such amounts and for such periods of 

### timeas the court deems just, without regard tomarital misconduct, and after considering allrelevant facts including: 

### "(a)the financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability tomeet his needs independently, including the extent towhich a provision for support of a child livingwith the party includes a 

### sum for thatparty as custodian; 

## "(b) the time necessary to acquire sufficienteducation 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

### meethis needs while meeting those of the spouse seeking maintenance."

### In awarding maintenance the District

### Courtmust first determine if maintenance 

### is appropriate under the standards setforth in40-4-203 (1) 

### (a) and (b)

## ,MCA. 

### Then, if maintenance isdeemed necessary, the District Courtmust determine duration and amount of the award. Such determinations must be made inaccordance with the factors 

### set forth in section 40-4-203, MCA. 

### Grenfell v. Grenfell (1979), 

# - Mont. I 

### - 

### 596 P.2d 205, 36 St.Rep. 1100. This Court has determined that the 

### term "sufficient property" asused in section 40-4-203 (1) 

### (a),means income producing property, not income consuming property. Herron Mont. v. Herron (1980), 

## - 

## , 608 P.2d 97, 37 St.Rep. 387. This Court also has held that "appropriate employment", as used in section 40-4-203(1) (b),MCA, 

### must be determined with relation to the standard of living achieved by the parties during the marriage. InRe Marriage of Madson (1978), Mont. 

## , 590 P.2d 110, 

### 35 St.Rep. 1873. In the case at - 

## - bar, the DistrictCourt found that the 

### assets tobe distributed to the spouse requestingmaintenance, Jean Bowman, 

### were primarily income consuming. The DistrictCourt also found that she was not appropriately employed atthe present and would need further education. Therefore, the DistrictCourt determined thatmaintenance was proper. We

### hold that the DistrictCourt correctly determined thatmaintenance was necessary inthis case. However, indetermining amount and duration of maintenance, the District

### Court appears tohave ignored the considerations it

### applied indetermining appropriateness of maintenance. The considerations of whether assets consume orproduce income and whether employment 

### isappropriate must alsobe evaluated and applied when establishing amounts and duration of maintenance.The District Court determined that the appellantwas entitled tomaintenance of $1,500 per month for 24 months beginning June 1, 1980, and terminating on June 1, 1982. The basis stated in support of the order was that the appellant could realistically be expected to obtain her degree in economics from Rocky Mountain College and that

### itwas 

# ".



# .. unfair and unjust to require Petitioner [Warren Bowman] to pay maintenance toRespondent [Jean Bowman] for law school

or other graduate degrees she may want in the future." Apparently, the DistrictCourt determined that appellant's bachelor degree ineconomics would enable her to find appropriateemployment to support herself ina manner similar to that enjoyed during the marriage. However, this determination contradicts other findingsmade by the District Court and 

### is unsupported by the record. Therefore, 

### it is clearly erroneous and must be reversed. Rule 52(a),M.R.Civ.P. Eliminating maintenance for Jean Bowman, would force her to immediately begin earning atleast $18,000 per year toreplace the lostmaintenance and maintain the standard of living found appropriate. Testimony by Jean Dimich, a

career planning and placement counsel 

### atRocky Mountain College, who specialized injob opportunities for women, indicated thatJean's chances for obtaining employment with merely a bachelor's degree ineconomics were not very good. The following 

### is

### an excerpt from her testimony. "Q. Assuming, for sake of argument, that a person 

### is 

### 41years old, with very limited work experience, and without a college degree, the person 

### is a woman, and 

### is entering the job market full-time for the first

### time. What types of jobs and what salary ranges areavailable to thatperson inthis comrnunity? "A. Well, for the most part, what a woman 

### is encouraged todo would be to go getVo-Tech training and brush-up on clerical skills, and go to 

### a job of minimum wage or slightly above, around $600.00would be the kind of a job that a person could get. Basically, they would be talking about skilled training, some kind of clerical skilled training. "Q. Now, assuming the same situation, assuming that the person 

### is a woman, 

### 40 years old, or thereabouts, with a college degree entering the labor market for the first

### time, what opportunities are available to thatperson? "A. Well, the chances arebetter. But 

### it is 

### still very, very competitive. There 

### is an over supply in Billings of 

### welleducated women who have been transferred inhere with their husbands, mostly. With the people that I talk with in the community who areinvolved in this sortof thing, say, when a job opens up that

### isconsidered a professional positionand would pay, say $1,000.00 a month, 30 to 60 people apply for thatposition. Many of whom have master's degrees. That doesn't mean that the job always requires a master's degree. But there area lotof people with those advanced degrees. So, other things being equal, they tend to squeeze out the bachelor's degree candidates. 

### "Q. Is the competition for that type of job limited to someone who 

### is 40 years old and entering the job market for the firsttime? "A. What has been happening with the job market 

### is thatwomen have been going into the work force inastonishing numbers. Ithas doubled inthe last 25 years. And a great deal of increase are in the women 

### 24 to 35 who traditionally were out of the work force. Now women aren't stepping out to raise children. They are staying in. So the competition for the 40 plus women without experience 

### is even tougher than a few years ago. Because there are somany younger women with the work experience aswell as themen. So 

### it 

### is getting tougher allthe 

### time. "Q. What type of training must the 40 year old woman who 

### isentering the work force for the firsttime have in order to have the best opportunity available to find a decentjob? "A. Well, I think that something that has been considered non-traditional for women 

### is good. And that could be anything from a very technical laboring type position which pays 

### well, to a professional degree, law degree, medical degree, or a master's of business administration I think 

### is another marketable degree." Thus, the order of the District Court terminating maintenance ata date closely coinciding with appellant's expected graduation with a bachelor's degree in economics places the appellant ina situation where she must dependupon income consuming assets obtained in the dissolution and

an employment futurewhich 

### isnot bright without additional education. Granting her maintenance only until she obtains her bachelor's degree does not give the appellant enough time to obtain a sufficient education through which she can find employment tomaintain, as nearly aspossible, the standard of living she and the respondent enjoyed during theirmarriage. This 

### isrequired by section 40-4-203 (2)

## , MCA. The cause must be remanded for further proceedings consistentwith this opinion. On remand the DistrictCourt must keep inmind that the appellant 

### isreceiving primarily income consuming assets in the dissolution; that the parties achieved a relatively high standard of living during the marriage; that the appellant

must be given an opportunity for appropriate employment considering this high standard of living; and that the respondent 

### isreceiving primarily income producing assets. With regard to the issue of attorney fees raised by appellant, this Court has consistently determined thatwhen the DistrictCourt refuses to award attorney fees, 

### itmust indicate inthe findings of fact, conclusions of law, or order why such fees were not awarded. Kronovich v. Kronovich Mont. (1978)

## , - 

## , 588 P.2d 510, 35 St.Rep. 1946. The DistrictCourt failed to follow this procedure. The attorney fees requested by the appellant

### willbe considered on remand, and if denied, reasons for such denial shall be stated. The matter isremanded for proceedings inconformity with this opinion.