NO. 81-326 INTHE SUPREME COURT OF THE STATE OF YONTANA 1982

GLORIA DAWN PECKENPAUGH, Petitioner and Respondent,

VS

# . KEIL ORLAN PECKENPAUGH

### , Respondent and Appellant.

Appeal from: DistrictCourt of the SixthJudicial District, 

### In and for the County of Park Honorable Joseph B. Gary, Judqe presiding. Counsel of Record: For Appellant: Goetz, Madden & Dunn, Bozeman, Montana For Respondent: Thomas I. Sabo, Rozeman, Montana

Submitted on briefs: September 3, 1982 Decided: December 2, 1932 Filed: 

## Dl3 "

## 21982Mr. Justice Fred J. Weber delivered the Opinion of the Court.

Themzrriage of Keii Orlan Peckenpaugh and Gloria Dawn Peckenpaughwas dissolved iri the District Court of the Sixth Judicial District, Park County. The husband (Keil) appeals the award of maintenance to the wife (Gloria). The parties weremarried on March 31, 1974. Both had been married before, and Keil by his previous marriage fathered two boys, both having reacIxd maj~ritjr.Keil is a truckdriver who owns and operates a Peterbilt tractor with a flatbed trailer. Gloria has been a housewife, including caring for Keil's two sons, and has been an occasional truckdriver with her husband. The total value of all assets of the marriage as valued by the District Court was $78,042.00, as follows: Item Value 1. Mobile Home 

### - 1978Windsor 14' 

### x 75' $21,500.00 2. 1977 Honda GL 1000Motorcycle 2,700.00 3. Peterbilt

## - 1975 Model 352COE 4. Trailer

## - 1977 Raven 40' flatbed 9,500.00 5. Pontiac

## - 1979 Firebird 

### Trans

### Am 6,500.00 

### 6. Personalproperty retained in house when wife left 3,909.00 7. Money taken by Gloria Peckenpaugh when she left 2,200.00 8. Personalproperty taken by Gloria Peckenpaugh when she left 

### --- 2,233.00 TOTAL ASSETS $78,042.00 During themarriage the parties accumulated substantial debts. The court found the liabilities of the marriage totaled $112,073.34, as follows:Liability Amount 1. Note, First Security Bank, Livingston, Montana (securedby 1977 Peterbilt) $ 7,055.39 2. Note, First Security Eank, Livingston, 24ontana (securedby 1979 Pontiac and 1977 Ravens trailer) 10,194.05 3. Note, First Security Bank, Livingston, Montana (securedby 1978Windsor mobile home) 19,078.36 

### 4. Note, 0. F. Peckenpaugh (secured,second lien, 1977 Peterbilt, 1977 Ravens and 1979 Pontiac) 65,000.00 5. Note, First Security Eank, Livingston, Montana 9,432.55 6. Hager Welding, Missoula, Montana 163.00 7. Tire-Rama, Billings,Montana 692.80 8. Mountain States Telephone & Telegraph 210.44 9. Park Electric Co-op 134.15 10. Park Clinic, Livingston,Montana 107.10 TOTAL LIABILITIES The court awarded Gloria the following assets: Item Value 1. Money taken by Gloria Peckenpaugh when she left $2,200.00 2. Personalproperty taken by Gloria Peckenpaugh when she left, now in her possession 3. Personal items owned by petitioner left in themobile home Value Undetermined Reil was awarded the remaining assets. The court further found: "Thatby reason of the Court distributing all of the assets wherein the respondent can reside or can make a living or has the use of such as the automobile, the respondent should then be responsible for the indebtedness of $47,073.00 plus the indebtednessto his father, 0. F. Peckenpaughof $65,000.00."

### The District Court originally awarded maintenance to Gloria of $500per month for a two year period. After considering an affidavit and arguments of KeiZ, the court amended the maintenance payments to $300per month for 40 months,with the same total of $12,000 as previously awarded. In support of its findings and conclusi~ns, the court prepared amemorandumwhich stated: "The above casepresented some difficultquestions in the light of the extensive indebtedness owed by the parties. However, if you exclude the indebtedness to the respondent's father, the indebtedness is not great in light of the assets that the respondent is retaining. Number one

## - the respondent has a home to live in,he has 

### a new automobile, an expensive truck and trailerwith which to make a living and a Hondamotorcycle. In contrast to thatwe find that the wife has had $2,000.00 plus $2,230.00 worth of personal property and some additional assets left in the home. The wife iswithout particular training with which to make a livingwhile the husband has the truck with which he canmake a fairly substantial living if he so desires and the wife is desirous to seek and maintain herself as a beauty operator but needs to attend school. Obviously shehas no assetswith which to do SO. 

### "Ifyou examine the overallpicture, it is seen that the petitioner has not only served as a housewife but served as amother for the children of the respondent during the period ofmarriage, cared for them,provided for them and in addition she worked along with the respondent in the trucking business driving a truck. From all of that it is clear that she should not be 

### put out in the world to fend by herself asbest she can following the dissolution of themarriage without any assetswhatsoever. 

# . . "Thelegislature in 40-4-202provided that in dividing the property the Court shall consider the health, station,occupation,amount and sources of income and vocational schools, as well as the opportunity for each for the future acquisition of capital assets and income. In 

### Section 40-4-203,MCA, 

### the legislature directed that in awarding maintenance that the Court should consider the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment. This thenwas followed by me in making the decision I 

### reached."As stated in the findings, the Court is not persuaded by the idea that the respondent is going to be disinherited by his father. His testimonywas to the effect that he was disinherited by reason of his marriage to the petitioner but this is terminated and dissolved and he is the only heir of his fatherwho is aman of substantial means and for this reason the Court did not give asmuch weight to the indebtedness to the father as youwould if this were owed to a banking institution. The petitioner did testify that the advance of thismoney was to he an advance distribution of his inheritance and subsequent to that time a promissory note was executed but the Court is not convinced that if there is a failure to pay on a due date the fatherwill foreclose upon the son. In any event, the son has the capability of earning money from the use of the truck and can, therefore the petitioner is entitled to rehabilitation to enable her tomake a living and for this reason the same has been ordered." The standard of review of the District Court is set forth in Rule 52(a), M.R.Civ.P., as follows: "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of thewitness." We have held that this Court's function is to review the lower court's findings in light of the record to make certain the findings are not clearly erroneous. In re Marriage of LeProwse (1982), -Mont

# . - 

## , 646 P.2d 526, 33 St.Rep. 1053;Jensenv. Jensen (1981), Mont

# . - 

## , 629 P.2d 765,

The District Court placed with Keil the responsibility for all the marital liabilities as well as requirinq maintenancepayments for 40months. Keil was also given the benefits of the indebtedness in a home, a new automobile, and a tractor-trailer with which to supporthimself. Gloria received $2,200 in cash, some personal belongings and is without a means of support, although shewould like to attend classes at a beauty college. Keil has a gross income of $1,500per month. The court, after considering Keil'smonthly expenses, found that he was able to pay Gloria $300per monthmaintenance enabling her to attend a beauty college. We find no clear error by the DistrictCourt in requiring themaintenance payments. Affirmed.

We Concur:

Chief Judfice