No. 87-43 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

IN RE THE MARRIAGE OF 

LAVON MEES FEISTHAMEL, 

Petitioner and Respondent, 

and 

GEORGE J . FEISTHAMEL , 

Respondent and Appellant. 

APPEAL FROM: District Court of the Sixteenth Judicial District, 

In and for the County of Rosebud, 

The Honorable Alfred B. Coate, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Moses Law Firm; Michael Moses, Billings, Montana 

For Respondent: 

Lucas & Monaghan; Gary L. Day, Miles City, Montana 

Submitted on Briefs: April 9, 1987 

Decided: June 30, 1987 

'JUN 3 0 1987 

Filed: 

Clerk 
Mr. Justice William E. Hunt, Sr., delivered the Opinion of 

the Court. 

George Feisthamel appeals a maintenance and property 

distribution award in a marital dissolution action from the 

Sixteenth Judicial District Court in Rosebud County, Montana. 

We reverse in part, affirm in part and remand for 

further consideration in accordance with this Opinion. 

The issues on appeal are: 

1. Did the District Court err in making a determination 

of a need for a maintenance award without considering certain 

resources which were the subject of an antenuptial agreement 

between the parties? 

2. Did the District Court abuse its discretion in its 

order of property disposition? 

George and LaVon Feisthamel were married on October 18, 

1974. They entered into an antenuptial agreement dated 

October 5, 1974, prior to the marriage. They separated in 

July, 1984. 

The respondent, LaVon Feisthamel, is a 62 year old woman 

in fair health. LaVon has had a history of problems relating 

to high blood pressure, depression, post-menopausal problems, 

and osteoarthritis. She underwent eye surgery for glaucoma 

shortly before the trial in this matter and further surgery 

may be needed. 
LaVon has not been in the employment market 

significantly. While she is a registered nurse, she is not 

currently licensed since her training occurred many years ago 

and she has never worked in that capacity. LaVon worked as a 

housewife and homemaker in a previous marriage and, following 

her first husband's death, was employed for a short time as a 

secretary/receptionist in a Billings Chiropractic Office. 

During her marriage to the appellant, she worked as a 

homemaker and housewife. She has made numerous attempts to 

obtain full employment and obtained a temporary Vista 

volunteer job for which she receives $357 per month. That 

job was to end in May, 1987. 

The appellant, George Feisthamel, is a 59 year old male 

in generally good health. Appellant has been employed by 

Long Construction Company and Western Energy for many years 

as a heavy equipment mechanic. The appellant is a member of 

the International Union of Operating Engineers. 

He continues to reside in the family home located in 

Colstrip, Montana. The respondent moved from the family home 

in July, 1984. 

Both of the parties owned certain properties, both real 

and personal, prior to their marriage. The trial court found 

that the antenuptial agreement dated October 5, 1974, 

excluded from consideration all real and personal property 

owned by either party prior to the marriage in determining 
the issues of maintenance and division of marital assets. 

This provision was honored in the final decree. 

The trial court divided the net marital assets equally 

between the parties and awarded petitioner maintenance in the 

amount of $500 per month commencing November 1, 1986, and 

ending November 31, 1991. 

The appellant contests the award of maintenance and the 

property disposition. 

Appellant contends the District Court abused its 

discretion in awarding respondent this maintenance. He 

argues that the court erroneously failed to consider the 

financial resources of the respondent arising out of property 

subject to the antenuptial agreement. He states both parties 

knowingly signed the antenuptial agreement. Despite this, he 

argues the particular provisions disallowing the 

consideration of properties acquired before the marriage. 

should be declared void as against public policy as they 

relate to a determination of the need for maintenance. 

The provision involving the maintenance issue in the 

October 5, 1974 antenuptial agreement states: 

That in the event, after entering into the 

marriage, said parties find they cannot live 

together congenially as husband and wife and decide 

to separate L and/or to secure a divorce. -- and it 

is necessary --- to make an equitable division of their 

property rights -- and a determination -- of therights, 

- if any, - of Second Party to separate maintenance or 

temporary or permanent alimony, --- all real and 

personal property now owned b~ - the parties shall 
- not be - taken into consideration. Provided, however, in event of such separation and/or 

divorce, Second Party shall be entitled to an 

equitable division of the property accumulated and 

acquired as a result of and in connection with 

their marriage. Provided, further when said 

accumulated property has been equitably divided 

said parties shall execute and deliver to each 

other, a release of any and all right, title and 

interest which they may have or claim in and to the 

property now owned or hereafter accumulated by 

either party. Provided, further that in the event 

a divorce is granted by a Court of competent 

jurisdiction to either party the terms of this 

contract shall be binding upon said Court, and at 

the time of granting said divorce this contract 

shall be incorporated in said decree. (Emphasis 

added. ) 

Appellant claims that the District Court should have 

considered a certain annuity of $248 as well as other income 

or benefits she might receive from a trust provided by her 

deceased first husband. 

Respondent LaVon's position is that the annuity income 

of $248 per month and any trust benefits are covered by the 

antenuptial agreement and should not be considered for 

determining the appropriateness of maintenance. She further 

argues that maintenance is appropriate even if the annuity 

was to be considered because she still lacks sufficient 

property to provide for her reasonable needs and is unable to 

support herself through appropriate employment. 

This issue requires an analysis of several statutes. 

Montana's maintenance statute S 40-4-203, MCA, states: 

Maintenance. (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; 

(dl the duration of the marriage; 

(el 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. 

Section 40-4-203, MCA. 

The rights of two parties to contract with one another 

are elemental and firmly established by the laws of this 
state and our federal Constitution. Contracts between 

parties prior to their marriage as well as contracts between 

married parties, if fair and equitable, are enforceable 

contracts if they do not conflict with the laws and public 

policy of this State. 

Section 28-2-201, MCA, allows all persons who are 

capable of contracting except minors, persons of unsound 

mind, and persons deprived of civil rights to enter into 

contracts. More specifically 5 40-2-301, MCA, permits either 

a husband or a wife to enter into any engagement or 

transaction with the other or with any other person 

respecting property which either might, if unmarried, be 

allowed to enter into subject to the general rules on trusts 

which control the actions of persons occupying confidential 

relationships with each other. 

This Court has also enforced antenuptial agreements as 

valid in the State of Montana if they meet the requirements 

of a contract. Stefonick v. Stefonick (1946), 118 Mont. 486, 

167 P.2d 848; In Re Herzog's Estate (1973), 162 Mont. 410, 

513 P.2d 9. 

In the case before us, the trial court honored the 

provision in the Feisthamel antenuptial contract which 

disallowed consideration of each parties' property owned 

prior to the marriage for purposes of determining maintenance 

and property disposition. 
We hold that this was error as it relates to the 

maintenance provision because such a provision conflicts with 

the inherent public policy expressed in S 40-4-203, MCA. 

A grant of maintenance under the statute has specific 

preconditions which must be met. Section 40-4-203 (1) (a) , 

MCA, states a spouse must lack sufficient property to provide 

for his or her reasonable needs to qualify for a maintenance 

award. This requires the trial court to consider all of the 

financial resources available to the spouse seeking 

maintenance, including, but not limited to the resources 

listed in S 40-4-203(2) (a), namely, the marital property 

apportioned to him or her and the ability to meet one's needs 

independently. 

As a general rule this Court will honor and uphold 

antenuptial agreements between two consenting parties in 

accordance with the contract and domestic relations laws of 

this State. However, a contract provision which disallows 

full consideration of one party's financial resources when 

determining the maintenance rights between the parties to a 

dissolution is not enforceable as against the public policy 

of this State. 

The trial court is required by S 40-4-203 (2) (f), MCA, 

to consider the ability of the other spouse, the one from 

whom maintenance is sought, to meet his or her needs while 

meeting those of the spouse seeking maintenance. To this end 
we hold that appellant's financial resources whether included 

in the antenuptial contract or otherwise, must also be 

considered in making a determination of maintenance. 

Thus the trial court must consider all of the resources 

available to the parties before an award of maintenance may 

be granted. 

The trial court also found that respondent testified she 

was not receiving social security benefits. In keeping with 

the above holding, we note that social security benefits are 

a potential financial resource of the parties. The United 

States Code through the Social Securities Act, provides that 

a divorced spouse of an individual entitled to social 

security retirement or disability benefits is entitled to 

spousal benefits if certain criteria are met. - See 42 USCS SS 

402, 416. 

According to one treatise, 2 Social Security, -- Law and 

Practice 5 15:7 (John A. Glenn ed. 19871, a spouse is 

entitled to benefits if he or she: 

(1) applies for such benefits; 

(2) is at least 62 years old; 

(3) is not entitled to his or her own primary 

benefit in an amount equal to or greater than 

one-half that due his or her spouse; and 

(4) is not married. . . . 

A divorced spouse who is otherwise eligible for 

spousal benefits may receive those benefits 

regardless of whether the insured former mate has 
begun to receive benefits. In order to be 

eligible, both the claimant and the insured must be 

age 62 or older and must have been divorced for at 

least two years prior to the date the spouse 

applies for benefits. Prior to 1985, a divorced 

spouse could not receive benefits unless the 

insured former mate had applied for and begun to 

receive benefits. Id. at 9. 

The U.S. Code defines a "divorced wife" in 42 USCS 5 

416 (c) to mean: 

A woman divorced from an individual, but only if 

she had been married to such individual for a 

period of 10 years immediately before the date the 

divorce became effective. 

Also 42 USCS 402(e) provides for an entitlement of 

widow's social security insurance benefits if certain 

criteria are met. 

Upon remand the trial court is instructed to consider 

the issue of respondent's potential eligibility for social 

security benefits in determining the need for a grant of 

maintenance to respondent. 

This case is therefore remanded to the trial court with 

instructions to consider the resources included in the 

antenuptial contract and other available resources when 

determining an award of maintenance under these facts. 

We find no abuse of discretion in the trial court's 

consideration and findings on the remainimg statutory 

preconditions for a maintenance award listed in § 

40-4-203 (2) (b) through 2 (f) , MCA. The above decision, 
therefore, does not necessarily preclude a maintenance award 

at the discretion of the trial court upon remand. 

With respect to the second issue of property 

distributions, appellant contends that the trial court erred 

and abused its discretion by acting arbitrarily, which 

resulted in substantial injustice to appellant in the 

following respects: 

First, the trial court included the appellant's 

retirement plan in the marital estate. Appellant argues the 

plan was part of the property subject to the antenuptial 

agreement of the parties. We hold the plan was properly 

included in the marital estate as a benefit of the employment 

of appellant similar to wages which are also includable. 

Further, the plan vested during the duration of the parties' 

marriage. It was not error to include the plan. 

Second, appellant contends the trial court erred in its 

valuation of $2,000 for the 1975 pick-up and $2,800 for the 

1977 Cadillac. A review of the record indicates the trial 

court arrived at a value for the 1975 pick-up between the 

Blue Book value and appellant's approximation of the value. 

The record further indicates appellant states he was 

offered $1,700 for the 1977 Cadillac but he did not state its 

worth. Respondent's affidavit states it was worth $2,800 

according to the Used Car Guide. 
We find no abuse of discretion by the trial court in its 

determination of these values. 

The last contention by appellant is that the trial court 

incorrectly used the appraisal value of the family home of 

$97,300, dated October 1, 1984. He contends the correct 

value was the one placed on it by himself of $78,000 at the 

date of the divorce proceedings in 1986. 

Our review of the record indicates no error. This Court 

has recognized that valuation of the marital assets is 

preferably done at the time of distribution using fair market 

values. In re Marriage of Krause (Mont. 1982), 654 P.2d 963, 

39 St.Rep. 1809. However, respondent had the home appraised 

by an independent appraiser at $97,300 in October of 1984. 

At trial, in August 1986, appellant speculated the home was 

worth $78,000 but when questioned by the trial court, he 

presented no concrete evidence. Without more, the trial 

court did not exceed the bounds of reason but employed 

conscientious judgment in adopting the respondent's valuation 

of the family home. 

We find no error on the property valuation and 

distribution as argued by appellant. This case is affirmed 

in part, reversed in part and remanded in accordance with 

this Opinion. 
We Concur: 

Chief Justice