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 .$ 1381 
Mr. 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 District Court dissolved the 

marriage of the appellant and petitioner, Warren D. Bowman; 

established child custody and child support; divided the 

marital estate; awarded maintenance to respondent; required 

petitioner to provide for the college education of the 

children, and; ordered each party to pay their own attorney 

fees and costs. 

Appellant and respondent were married at Gallup, 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 in the 

Billings Clinic. His net taxable income for 1978 was $63,800 

and in 1979 was $78,048. The District Court found that 

respondent was in excellent 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 also works part-time as 

director of Christian Education at St. Luke ' s Episcopal 

Church in Billings and as a director of the Western 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 in economics. She needs 52 additional 

credit hours to obtain her degree. The District Court also 

found appellant to be in excellent health. 
At the time of dissolution, the net worth of the marital 

estate of the parties was $416,301.64. Pursuant to an 

agreement reached by the parties, appellant received approximately $159,000 in assets. These assets were primarily 

nonincome assets. 

Custody of the minor children, Joan, Amy and Eric was 

granted to the appellant. Respondent was granted reasonable 

visitation rights and ordered to pay $250 per month child 

support for each of the minor children until each minor 

child reached age 18 or was graduated from high school, 

whichever occurred last. He was also required to pay all 

medical and dental bills incurred by the children and pay 

all expenses necessary for the children to obtain college 

degrees. 

The District Court found that appellant was clearly 

able to obtain employment outside the family home. She was 

attending college and the court found that a realistic 

graduation date was June 1982. Although the District Court 

found that the appellant's present employment was not appropriate and that she was in need of further education, the court 

specifically determined that it was unfair to require the 

respondent to pay maintenance enabling her to obtain a law 

degree or any post-graduate degree. Based on these findings, 

the District Court awarded the appellant maintenance of 

$1,500 per month, to terminate on June 1, 1982, the expected 

graduation date. 

The District Court 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 District Court erred in limiting the 

duration of maintenance payments for appellant to two years 

following dissolution? 
2. Whether the District Court erred in refusing to 

award the appellant attorney fees? 

Appellant does not contest the net worth valuation, the 

distribution of assets, or the amount of maintenance awarded; 

she appeals from the District Court's limitation on the 

duration of maintenance. 

Awards of maintenance are governed 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 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. 

" (2) The maintenance order shall be in such amounts 

and for such periods of time as the court deems 

just, without regard to marital misconduct, and 

after considering all relevant facts including: 

"(a) the financial resources of the party seeking 

maintenance, including marital property apportioned 

to him, and his ability to meet his needs independently, including the extent to which a provision 

for support of a child living with the party includes a sum for that party as custodian; 

" (b) the time necessary to acquire sufficient education 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 meet his needs while meeting 

those of the spouse seeking maintenance." 
In awarding maintenance the District Court must first 

determine if maintenance is appropriate under the standards 

set forth in 40-4-203 (1) (a) and (b) , MCA. Then, if maintenance 

is deemed necessary, the District Court must determine 

duration and amount of the award. Such determinations must 

be made in accordance 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" as used in section 40-4-203 (1) (a), means income 

producing property, not income consuming property. Herron 

v. Herron (1980), - Mont. , 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. In Re Marriage of Madson (1978), 

- Mont. - , 590 P.2d 110, 35 St.Rep. 1873. In the case at 

bar, the District Court found that the assets to be distributed 

to the spouse requesting maintenance, Jean Bowman, were 

primarily income consuming. The District Court also found 

that she was not appropriately employed at the present and 

would need further education. Therefore, the District Court 

determined that maintenance was proper. We hold that the 

District Court correctly determined that maintenance was 

necessary in this case. 

However, in determining amount and duration of maintenance, 

the District Court appears to have ignored the considerations 

it applied in determining appropriateness of maintenance. 

The considerations of whether assets consume or produce income and whether employment is appropriate must also be 

evaluated and applied when establishing amounts and duration 

of maintenance. 
The District Court determined that the appellant was 

entitled to maintenance 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 it was ". . . 

unfair and unjust to require Petitioner [Warren Bowman] to 

pay maintenance to Respondent [Jean Bowman] for law school 

or other graduate degrees she may want in the future." Apparently, the District Court determined that appellant's 

bachelor degree in economics would enable her to find appropriate employment to support herself in a manner similar to 

that enjoyed during the marriage. However, this determination 

contradicts other findings made 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 at least $18,000 per year 

to replace the lost maintenance and maintain the standard of 

living found appropriate. Testimony by Jean Dimich, a 

career planning and placement counsel at Rocky Mountain 

College, who specialized in job opportunities for women, 

indicated that Jean's chances for obtaining employment with 

merely a bachelor's degree in economics were not very good. 

The following is an excerpt from her testimony. 

"Q. Assuming, for sake of argument, that a person 

is 41 years 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 are available to that person in this 

comrnuni ty? 

"A. Well, for the most part, what a woman is encouraged to do would be to go get Vo-Tech training 

and brush-up on clerical skills, and go to a job of 

minimum wage or slightly above, around $600.00 
would 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 that person? 

"A. Well, the chances are better. But it is still 

very, very competitive. There is an over supply in 

Billings of well educated women who have been transferred in here with their husbands, mostly. With 

the people that I talk with in the community who 

are involved in this sort of thing, say, when a 

job opens up that is considered a professional position and would pay, say $1,000.00 a month, 30 to 

60 people apply for that position. Many of whom 

have master's degrees. That doesn't mean that the 

job always requires a master's degree. But there 

are a lot of 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 first time? 

"A. What has been happening with the job market 

is that women have been going into the work force 

in astonishing numbers. It has doubled in the 

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 so many younger women with the work 

experience as well as the men. So it is getting 

tougher all the time. 

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

who is entering the work force for the first time 

have in order to have the best opportunity available 

to find a decent job? 

"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 at a date closely coinciding with appellant's 

expected graduation with a bachelor's degree in economics 

places the appellant in a situation where she must depend 
upon income consuming assets obtained in the dissolution and 

an employment future which is not 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 to maintain, as nearly as possible, the 

standard of living she and the respondent enjoyed during 

their marriage. This is required by section 40-4-203 (2) , 

MCA. The cause must be remanded for further proceedings 

consistent with this opinion. 

On remand the District Court must keep in mind that the 

appellant is receiving 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 is receiving primarily income producing assets. 

With regard to the issue of attorney fees raised by 

appellant, this Court has consistently determined that when 

the District Court refuses to award attorney fees, it must 

indicate in the findings of fact, conclusions of law, or 

order why such fees were not awarded. Kronovich v. Kronovich 

(1978) , Mont. - , 588 P.2d 510, 35 St.Rep. 1946. The 

District Court failed to follow this procedure. The attorney 

fees requested by the appellant will be considered on remand, 

and if denied, reasons for such denial shall be stated. 

The matter is remanded for proceedings in conformity 

with this opinion.