No. 32-262 INTHE SUPREME COURT OF THE STATE OF MONTANA 1982

BEVERLY J

# . HAi~E\EKEN,Petitioner and Appellant,

-vsBOB E. H&WII.'IEREN, Respondent and Respondent.

Appeal from: DistrictCourt of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable WilliamJ. Speare, Judge presiding.

Counsel of Record: For Apsellant: Robert P. Morin; Berger Law 

### Firm, Billings, Montana

For Respondent: George T. Radovich, Billings, Montana

-- Submitted on Briefs: October 26, 1982 Decided: December 15, 1982Mr. JusticeJohn C. Sheehy delivered the Opinion of the Court.

Both parties appeal a decree of dissolution issued by the DistrictCourt of the Thirteenth Judicial District, Yellowstone County,dissolving the marriage of the parties, awarding custody of the children to the husband, dividing themarital property and providing maintenance to thewife. We affirm in part and remand in part. Theparties were married on July 7, 1965. There were three childrenborn of themarriage. At the time of trial the husband was employed by the United States Postal Service and the Billings Gazette. His monthly income is approximately $2,000. Thewife,primarily a mother and homemaker,had several minimum wage jobs during the marriage. She has had little incomeproducing job training or experience. Themajor asset of the marriage is the familyhome located in ~illings, Montana. The parties also own several vehicles, household furnishingsand other personal property. The husband testified that he has a mineral interest in property located in North Dakota. The DistrictCourt awarded the husband the family home, the household furnishings,two vehicles, other personal property, and custody of the children. The court ordered the husband to pay the wife $15,050, inmonthly installments of $200 at 6 1/2 percent interest. This sum represents the wife's equitable share of themarital estate. Upon the sale of the home the husband is ordered to apply the proceeds to thebalance owing thewife. The court awarded the wife one vehicle and ordered the husband to pay the wife monthly maintenance of $300 payablebeginning April 1, 1982, reduced to $250 cer month beginning October 1, 1982,until either party dies or she remarries. The District Court also ordered the parties to pay their own attorney's fees and costs. The issues are: 1. Whether the District Court abused its discretion in awarding custody of the children to the husband. 2. Whether the DistrictCourt abused its discretion in ordering the husband to pay monthly maintenance to the wife. 3. Whether the District Court abused its discretion in declining to order the wife to pay child support. 4. Whether the DistrictCourt abused its discretion in failing to consider allmarital assets when it apportioned the marital estate. 5. Whether the District Courtproperly substantiated its refusal to allow the wife's requested attorney's fees. There was evidencepresented at trial to substantiate the DistrictCourt's custody award. The District Court included in its findings the necessary factors outlined in section 40-4-212,MCA. Unless there is a clear abuse of discretion by the District Court the custody determination made by that courtwill not be overturned on appeal. Malcolm



### v. Malcolm (1982), Mont

# . , 640 P.2d 450, 451, 39 - - St.Rep. 262, 263. We find no clear abuse of discretion by the District Court in this instance. The second issuepresented is whether the District Court abused itsdiscretion in ordering the husband to pay monthly maintenance to thewife. The District Court applied the factors set forth in section 40-4-203,MCA, and referred to them in its findingsof fact. The standard of review for maintenance awards is whether the District Court abused itsdiscretion in determining the award. In re the Marriage of Knudson (1982), Mont. - -- I 622 P.2d 1025, 1027, 37 St.Rep. 147, 152. The District Court did not abuse its discretion inmaking themaintenance award. The third issue is whether the District Court abused its discretion in declining to order the wife to pay child support. The District Court found that the wife was without the means to pay child support to the husband. This Court must decide whether the DistrictCourt abused its discretion in determining whether or not the noncustodialparent is required to pay child support. In re the Marriage of Jensen

(19811, -Mont. -- 

### , 631P.2d 700, 703, 38 St.Rep. 1109, 1112. There is ample evidence to support this finding. We therefore affirm the ~istrict Court's order regarding child support. The fourth issue iswhether the District Court took into considerationallmarital assets in apportioning the marital estate. The husband testified that he had mineral rights to property inNorth Dakota. 

### his property was not included in the findings of fact, and this exclusionwas not explained by the District Court. If contested evidence is presented regarding the existence of a marital asset and no findingsaremade regarding that asset or no explanation provided as towhy the DistrictCourt did not include or explain the exclusion of such property, the DistrictCourt has abused its discretion. Larson

### v. Larson (1982)

### , - Mont

# . 1 -P.2d 

### - 39 St.Rep. 1628, 1631. Here, the District Court did not properly consider all of the husband's assets in apportioning themarital estate. The fifth issue iswhether the DistrictCourt properly substantiated its refusal to allow the wife's requestedattorney's fees. The wife's request was supported by evidence presented at trial. Where the District Court refuses to award attorney's fees itmust indicate in the findings of factwhy such fees were not awarded. Bowman v. Rowman (1981), -Mont

# . -

### , 633 P.2d 1198, 1202, 38 St.Rep. 1515, 1520. Having failed to follow this procedure the wife's request for attorney's fees shallbe considered on remand, and if denied, the denialmust be substantiated. The District Court decree is affirmed except that the

cause is remanded for the purpose of a determination by the District Court of the value of the unconsidered mineral interests owned by husband, and whether the wife 

### is entitled to

a portion of the same or the value thereof;and for reconsideration and statement of reasons as to the grant or denial of wife's attorney fees. The remainder of the decree of the District Court is affirmed, and remand is ordered for proceedings in accordancewith this opinion. Costs to thewife.

We Concur: 

### i Justice i 

# Y

Justices