No. 32-262 

IN THE 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: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, The Honorable 

William J. 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, 1982 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Both parties appeal a decree of dissolution issued by 

the District Court of the Thirteenth Judicial District, 

Yellowstone County, dissolving the marriage of the parties, 

awarding custody of the children to the husband, dividing 

the marital property and providing maintenance to the wife. 

We affirm in part and remand in part. 

The parties were married on July 7, 1965. There were 

three children born of the marriage. 

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. 

The wife, primarily a mother and homemaker, had several 

minimum wage jobs during the marriage. She has had little 

income producing job training or experience. 

The major asset of the marriage is the family home 

located in ~illings, Montana. The parties also own several 

vehicles, household furnishings and other personal property. 

The husband testified that he has a mineral interest in 

property located in North Dakota. 

The District Court 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, 

in monthly installments of $200 at 6 1/2 percent interest. 

This sum represents the wife's equitable share of the marital 

estate. Upon the sale of the home the husband is ordered to 

apply the proceeds to the balance owing the wife. 

The court awarded the wife one vehicle and ordered the 

husband to pay the wife monthly maintenance of $300 payable 
beginning 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 District Court 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 District Court abused its discretion in 

failing to consider all marital assets when it apportioned 

the marital estate. 

5. Whether the District Court properly substantiated 

its refusal to allow the wife's requested attorney's fees. 

There was evidence presented at trial to substantiate 

the District Court'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 court will 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 issue presented is whether the District 

Court abused its discretion in ordering the husband to pay 

monthly maintenance to the wife. The District Court applied 

the factors set forth in section 40-4-203, MCA, and referred 

to them in its findings of fact. The standard of review for 

maintenance awards is whether the District Court abused its 
discretion 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 in making the maintenance 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 District Court abused its discretion 

in determining whether or not the noncustodial parent is 

required to pay child support. In re the Marriage of Jensen 

(19811, - Mont. -- , 631 P.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 is whether the District Court took 

into consideration all marital assets in apportioning the 

marital estate. The husband testified that he had mineral 

rights to property in North Dakota. his property was not 

included in the findings of fact, and this exclusion was not 

explained by the District Court. If contested evidence is 

presented regarding the existence of a marital asset 

and no findings are made regarding that asset or no explanation 

provided as to why the District Court did not include or 

explain the exclusion of such property, the District Court 

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 the marital estate. 

The fifth issue is whether the District Court properly 

substantiated its refusal to allow the wife's requested 
attorney's fees. The wife's request was supported by evidence 

presented at trial. Where the District Court refuses to 

award attorney's fees it must indicate in the findings of 

fact why 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 shall be considered on remand, 

and if denied, the denial must 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 

accordance with this opinion. Costs to the wife. 

We Concur: 

i Justice 

i Y 

Justices