No. 88-553 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

IN RE THE MARRIAGE OF SUSAN 

RIDGEWAY ERNST, 

Petitioner and Appellant, 

-vsLENNIE RAY ERNST, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Tenth Judicial District, 

In and for the County of Judith Basin, 

The Honorable Peter L. Rapkoch, ~ud~e. presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Joan Meyer Nye, Billings, Montana 

For Respondent: 

Jo Mickelson, Dorsey & Whitney, Billings, Montana 

Submitted: May 5, 1990 

Decided: May 24, 1990 
Justice William E. Hunt, Sr., delivered the Opinion of the Court. 

The husband in a dissolution action, Lennie Ray Ernst, appeals 

from the judgment of the District Court of the Tenth Judicial 

District, Judith Basin County, which ordered him to pay maintenance 

support to the wife and cross-appellant, Susan Ridgeway Ernst. We 

affirm and dismiss the cross-appeal. 

The issues raised on appeal are: 

(1) Whether the District Court properly complied with the 

requirements of 5 40-4-203(2), MCA, by awarding the wife 

maintenance in the form of monthly payments, educational expenses, 

and psychotherapy costs. 

(2) Whether an award of $30,000.00 to the wife in the 

distribution of property by the District Court was a clear abuse 

of discretion. 

(3) Whether the District Court's findings, particularly 

findings nos. 10, 11 and 15, are clearly erroneous. 

(4) Whether this Court has jurisdiction over the wife's 

cross-appeal. 

Susan Ridgeway Ernst, the wife, and Lennie Ray Ernst, the 

husband, were married in Stanford, Montana, in 1976 and were 

married 11 years prior to their separation in March, 1987. Two 

children were born of this marriage: Ashley Jean Ernst, who was 

born on July 29, 1982, and Brandon Jacob Ernst, who was born on 

August 29, 1984. At the time wife and the husband separated, the 

wife was 30 years old and the husband was 32 years old. 

During the majority of their marriage, the wife and the 

husband resided on the Ernst family farm located south of Stanford. 

The husband has worked the family farm and developed it into a 

profitable enterprise. The wife, who had been valedictorian of her 

high school class, obtained one year of secretarial training and 

had worked outside the home during the first years of marriage. 

The wife quit her job in 1981 during her first pregnancy and has 

not worked outside the home since that time. 
During their marriage, there were times when the husband was 

physically abusive to the wife. The majority of these incidents 

occurred during the first few years of marriage. It was common 

that these incidents were precipitated by the husband's alcohol 

use. The husband has been diagnosed as suffering from an episodic 

alcohol abuse disorder and from an intermittent explosive 

personality disorder. 

The wife has recently been diagnosed as suffering from a 

paranoid mental disorder. During the marriage, the wife was 

suffering from the affects of this disorder. 

The wife filed for dissolution on April 24, 1987. A five day 

trial was held in February, 1988, on the issues of custody, 

property division and maintenance. Expert testimony was presented 

regarding both parties1 mental disorders. Expert testimony was 

also offered regarding the effects of spouse abuse syndrome. In 

May of 1988, the wife's mental disorder resulted in the District 

Court committing the wife to the Montana Deaconess Medical Center 

in Billings, Montana, for a 30-day evaluation. On July 1, 1988, 

the court entered its findings of fact and conclusions of law. A 

motion to modify the findings of fact was filed by the wife on July 

14, 1988. The husband contested this motion to modify upon 

jurisdictional grounds and, therefore, filed a notice of appeal on 

August 16, 1988. The court ruled on the wife's motion on September 

14, 1988, and the next day entered the final Decree of Dissolution. 

The husband filed a motion to amend the final decree, pursuant 

to Rule 59(g), M.R.Civ.P., on September 26, 1988. Before the 

District Court had ruled on the husband's motion, the wife filed 

a notice of appeal. This notice of appeal was filed on October 12, 

1988. The court subsequently ruled upon the husband's motion on 

November 7, 1988. The husband filed his second notice of appeal 

on December 5, 1988. 

The first issue on appeal is whether the District Court 

properly complied with the requirements of 3 40-4-203, MCA, by 

awarding the wife maintenance in the form of monthly payments of 
$800.00, educational expenses to pursue a bachelor's degree, and 

psychotherapy costs. 

The appropriate standard of review for an award of maintenance 

is established by statute at 1 40-4-203, MCA. See In re the 

Marriage of Barnard, - P.2d , 47 St.Rep. 152 (1990) ; In re the 

Marriage of Lundvall, 786 P.2d 10, 47 St.Rep. 173 (1990). An 

award of maintenance is premised upon a finding by the court that 

the individual seeking maintenance "lacks sufficient property to 

provide for his reasonable needs; and is unable to support himself 

through appropriate employment. 'I Section 40-4-203 (1) (a) (b) , MCA. 

The District Court in this case made such a finding. The court 

must then consider all relevant facts in determining an appropriate 

award of maintenance. Section 40-4-203 (2), MCA. Some of the 

relevant facts to be considered include: 

(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. 

Section 40-4-203(2), MCA. 

A specific finding by the court regarding each of these 

relevant facts is not required as long as the court considered 
proper information in addressing these facts and based its decision 

upon substantial credible evidence. In re Marriage of Cole, 234 

Mont. 352, 763 P.2d 39 (1988). These relevant facts are to be 

considered by the court as a whole in the determination of the 

final maintenance award. Cole, 763 P.2d at 43. 

There is substantial credible evidence to support the District 

Court's monthly maintenance award of $800.00 to the wife. 

"Maintenance payments supplement the property division.I1 Cole, 763 

P.2d at 42. The ability of the property award to produce income 

is an essential consideration in the determination of the 

appropriateness of a maintenance award. See generally Cole; In re 

the Marriage of Bowman, 633 P.2d 1198, 38 St.Rep. 1525 (Mont. 

1981). At the request of both parties, the husband was given all 

of the income-producing property, which included the farm and all 

of its accompanying assets and liabilities. As a result, the wife 

was given remaining property consisting primarily of a house, 

furnishings and a car. All of the wife's property is incomeconsuming property in that it will not be able to produce income 

for the wife. In fact, this property will eventually require 

repair or replacement thereby depleting the wife's property 

settlement. 

Although the wife was allotted $30,000.00 by the court which 

at some time could be invested by the wife and thereby become 

income-producing, this amount will not come due for another six 

years. In the meantime, the wife has no means of support. She has 

had little education or experience in the work force. 
Additionally, she is suffering from a mental disorder which could 

reasonably make it difficult for her to secure a job at this time. 

The only evidence submitted to the court regarding an appropriate 

award for monthly maintenance was the uncontradicted statement by 

the wife that she, the husband and the children spent approximately 

$2,000.00 per month on living expenses while still living with the 

husband. In addition to the wife, the maintenance award must also 

support the children when the wife partakes of her liberal 

visitation rights. In light of these facts, $800.00 per month is 

not an unreasonable sum for the maintenance of a household. 

There is substantial credible evidence to support the court's 

award of educational expenses and psychotherapy costs. It is 

undisputed that the wife suffers from a paranoid mental disorder. 

Expert testimony revealed that she would need approximately two 

years of psychotherapy to overcome this disorder. Following 

psychotherapy, the wife should be capable of benefiting from higher 

education. This education is necessary to enable the wife to 

continue in her accustomed lifestyle. 

The husband argues that Bowman states that the maintenance 

award should be struck down for failure to decree an amount 

certain. Although in Bowman we said that the type of property 

awarded and appropriate employment must be evaluated in 

I1establishing amounts and duration of maintenance," the amount 

established does not have to be certain. Bowman, 633 P. 2d at 1201. 

In this case, it would be impossible to accurately determine the 

cost. However, the court was concerned and therefore placed 
conditional limitations on the wife. The psychotherapy will be for 

two years and she must complete the degree within six years. 

Further, the education must be obtained from a college or 

university in Montana. These conditions sufficiently identify the 

costs involved. 

The husband has also argued that his ability to meet these 

costs is determinative of the appropriateness of a maintenance 

award. We agree that this is an important consideration but must 

be viewed in accordance with the facts of this case. The husband 

has been given all of the income-producing property in the property 

settlement. The husband will continue to be engaged in an 

agricultural business that, for the past three years, has been 

increasingly profitable. It is reasonable to assume that the 

husband will continue on such a track. There is no information in 

the record to suggest that these maintenance payments will 

financially deplete the husband. In light of the facts of this 

case, the District Court's award of maintenance to the wife is 

supported by substantial, credible evidence. 

The second issue is whether the award of $30,000.00 by the 

District Court to the wife as part of the division of property was 

a clear abuse of discretion. 

The husband argues that the District Court abused its 

discretion by awarding the wife $30,000.00, plus interest, as part 

of the property distribution. The husband argues that this ruling 

is inequitable in light of all of the maintenance payments the 

husband has also incurred. We disagree. 
A "District Court s judgment, when based upon substantial 

credible evidence, will not be altered unless a clear abuse of 

discretion is shown. In re the Marriage of Stewart, 232 Mont. 40, 

42, 757 P. 2d 765, 767 (1988) , citing In re the Marriage of Watson, 

227 Mont. 383, 739 P.2d 951 (1987). Section 40-4-202, MCA, lists 

the factors the court must consider in dividing the property assets 

and liabilities between a husband and wife. The division must be 

wequitable'' when reviewing the particular facts of the case with 

the factors listed. Section 40-4-202(1), MCA. 

The District Court specifically found that the $30,000.00 

award was equitable under the facts and circumstances of this case. 

The court's finding regarding this $30,000.00 award reads as 

follows : 

[I]t was the court's original purpose herein to divide 

the marital estate "equitably1' rather that necessarily 

llequally, l1 as originally stated. Equity means, 

generally, as close to equality as possible and 

reasonable under the facts and circumstances of the 

particular case and in keeping with the principles of 

justice. These parties originally married and set out 

to share their lives and all included therein. Both used 

their wits and their goods for the good of their family. 

Each contributed equally; each must share in proportion 

to his or her contribution if possible. It is possible 

here. 

This finding indicates that the District Court did not abuse 

its discretion in awarding the wife the $30,000.00. Upon reviewing 

the particular facts of this case, the court concluded that each 

party had essentially contributed equally to the marriage and was 

entitled to as close to equal portions of the acquired property as 

possible. 
The District Court also placed a value upon all of the assets 

and distributed these assets in accordance with the wishes of the 

parties in keeping the farm intact. Subsequently the court found 

it necessary to award the wife $30,000.00 in an attempt to equalize 

the property division. Based upon the court's findings and the 

particular facts of this case, there is substantial credible 

evidence to support the $30,000.00 award to the wife. 

The third issue raised is whether the District Court's 

findings, particularly findings nos. 10, 11 and 15, are clearly 

erroneous. 

The husband argues that the District Court's findings are not 

supported by substantial, credible evidence and, are therefore, 

clearly erroneous. The particular findings that the husband argues 

are unsubstantiated are: the finding that the husband's physical 

abuse of the wife during marriage was instrumental and causative 

of the wife's mental and psychological problems; the finding that 

on several occasions the children were witnesses to violence; and 

the finding that the wife's mental disorder had not adversely 

affected either child. We find that there is substantial, credible 

evidence to support the findings of the District Court and they are 

not, therefore, clearly erroneous. 

"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 the credibility of the witnesses." Rule 

52(a), M.R.Civ.P. Evidence was presented at trial regarding the 

wife's mental disorder and of the effects of spouse abuse syndrome. 
It was indicated at trial that spouse abuse syndrome could be a 

cause of the wife's disorder. The husband's expert, Dr. Tranel, 

testified that he had insufficient information at that time to 

determine the exact cause of the wife's mental disorder. Without 

evidence to the contrary, the District Court's conclusion that the 

physical abuse by the husband may have been one of the known causes 

of the wife's mental disorder is supported by substantial credible 

evidence and is, therefore, not clearly erroneous. 

The District Court found that on several occasions the 

children were witnesses to violence. Testimony from primarily the 

wife indicated that there was one recent occasion when the husband 

threw her against the wall while she was holding Brandon. 

Additional testimony indicated that Ashley had been disciplined 

at least twice by the husband hitting her on the back. Although 

the word useveralll may not have been completely appropriate, we 

hold that there is substantial, credible evidence to support the 

District Court's conclusion that the children had been witnesses 

to violence. The use of the word several, if error, was harmless. 

Conflicting evidence was presented at trial concerning the 

effect the wife's mental disorder had on the children, 

particularly Ashley. As long as the court's findings are supported 

by usubstantial though confli~ting~~ evidence such findings will not 

be disturbed. See In re the Marriage of Johns, 776 P.2d 839, 841, 

46 St.Rep. 1249, 1251 (Mont. 1989). Expert testimony at trial 

provided very little evidence concerning the effect the wife's 

disorder had on the children. The court was in the best position 
to judge the credibility of the witnesses and their testimony. 

From this position the court chose to emphasize the testimony that 

the wife's mental disorder had not adversely affected either child. 

There is substantial credible evidence to support the District 

Court's finding. 

The final issue, raised on cross-appeal by the wife, is 

whether the District Court erred by refusing to award attorney's 

fees to the wife. This issue must be dismissed for failure to be 

properly raised upon appeal in accordance with Rule 5(a) (4), 

Normally, the time for filing an appeal is 30 days from the 

entry of judgment. Rule 5 (a) (1) , M.R.App. P. However, an exception 

to this filing rule exists in Rule 5(a) (4), M.R.App.P. The 

exception states, in pertinent part, that: 

(4) If a timely motion under the Montana Rules of Civil 

Procedure is filed in the district court by any party:. . . (iii) under Rule 59 to alter or amend the judgement;. . .the time for appeal for all parties shall run from the 

entry of the order denying a new trial or granting or 

denying any other such motion. . . A notice of appeal 

filed before the disposition of any of the above motions 

shall have no effect. A new notice of appeal must be 

filed within the prescribed time measured from the entry 

of the order disposing of the motion as provided above . . . (Emphasis added. ) 

Rule 5(a) (4), M.R.App.P. 

In this case, the final Decree of Dissolution was filed on 

September 15, 1988. As a result, the husband's notice of appeal 

filed August 16, 1988, was premature and invalid. The husband 

filed a timely motion to alter or amend the decree, pursuant to 

Rule 59(g), M.R.Civ.P., on September 26, 1988. The court's order 
on the motion was dated November 4, 1988, and was filed on November 

7, 1988. The wife's motion for appeal, filed on October 12, 1988, 

was filed prior to the court's ruling on the pending motion to 

amend and is, therefore, invalid under ~ul& (a) (4) , M.R.Civ. P. A vnotice of appeal was required to be filed by either party 30 days 

from November 7, 1988, the date of entry of the court's order 

disposing of the motion to amend. See generally In re the Marriage 

of Neneman, 217 Mont. 155, 703 P.2d 164 (1987). The wife failed 

to comply with this requirement. 

AFFIRMED with dismissal of the cross-appeal. 

We Concur: /f 

Chief Justice 

Justice 
Justice Diane G. Barz, dissenting. 

I dissent and would remand this case to the District Court on 

several grounds. The District Court completely failed to address 

or consider 5 40-4-203 (2) (b) , MCA, in determining an appropriate 

award of maintenance. That factor in light of the maintenance 

award in this case is very important: namely the ability of the 

spouse from whom maintenance is being sought to meet his needs 

while meeting those of the spouse. Here we have the husband 

required to pay $800 per month for maintenance plus the wife's 

psychotherapy for two years, including hospitalizations and costs 

of her college for six years without restriction. In addition, the 

husband is to make house payments for the wife, completely support 

the children and provide for their counseling, and pay for 

counseling for himself. There is no evidence whatsoever where he 

is to find that kind of money other than the assertion that he is 

a llsuccessfulll farmer. The wife testified that she, the husband 

and children spend approximately $2,000 per month and the husband 

agreed but did point out that figure included farming expenses as 

well. Spending $2,000 per month and having the income or means to 

spend that much are significant differences on which the record is 

silent. 

In Finding of Fact No'. 10, the court found: 

10. Petitioner, to one degree or 

another, suffers from a paranoid disorder 

which will require at least two years of 

intensive counseling. There is no evidence 

that this disorder has adversely affected 

either of the children of the parties hereto; 

and, at this point, it is purely speculative 
that said disorder will have an adverse effect 

in the future. 

In light of the court's finding and evidence on the fiveyear-old daughter's tlemotionally disturbedw condition, Finding No. 

10 is not only clearly erroneous, it is preposterous. The wife's 

mental illness and her bizarre behavior because of it cannot be 

ignored anymore than the husband's personality disorder as it 

relates to the best interests of the children. To say there is no 

adverse effect on either of the children is a naive opinion of the 

District Court and contrary to the evidence in this case. 

In Finding of Fact No'. 15, the District Court stated: 

15. The finding is unavoidable that 

Petitioner's health problems spring from and 

are to a large extent result from her physical 

and emotional abuse and humiliation by the 

Respondent during the marriage. She is shown 

to be intelligent, having a pleasing 

personality and to have been normal before her 

marriage. She was involved to a degree in 

some very fundamentalist religious practices 

during marriage, which caused some waves, but 

don't appear to be a major force in her 

present condition. Her religious and health 

concerns appear to be coincidental or 

concurrent or even part of her problem, rather 

than causal. 

That finding is clearly erroneous if the court is attempting to 

find the cause of her mental illness. Such a finding of marital 

misconduct is also contrary to Montana's no-fault dissolution law. 

Dr. Tranel testified that one could not know the causes of 

the wife's mental illness of a paranoid disorder, and data showing 

biological contribution, psychological factors and social 

contributions to the disorder all interact and need to be 

considered. Dr. Tranel also pointed out there is a strong school 
of thought in his profession that believes that the mental disorder 

is primarily a biochemical malfunction but it was his opinion that 

that evidence alone is inconclusive. In addition, there was no 

psychiatric or medical testimony presented during the trial which 

would allow the District Court to find the causative factor of the 

wife's illness. In actuality it serves little purpose to find the 

causative factor, particularly if it is in fact a genetic condition 

which is inherited. Regardless, treatment is necessary. 

Both Finding No. 10 and ind ding No. 15 should be vacated or 

at least modified. It would appear, unfortunately, that the 

~istrict Court Judge has not seen the last of this family's 

problems in any event. 

Justice John Conway Harrison joins in the foregoing dissent 

of Justice Diane G. Barz. 

C 

Justice 
IN THE SUPREME COURT FOR THE STATE OF MONTANA 

No. 88-553 .................... 

IN RE THE MARRIAGE OF 1 

1 

SUSAN RIDGEWAY ERNST, ) 

1 

petitioner & Respondent, ) 

LENNIE RAY ERNST, 

1 

1 

1 W' 

Respondent & Appellant. ) ,. t--' < 1 

c: rJ .................... - - , J - L 

On May 24, 1990 this Court issued its opinion in the case of 

In Re the Marriage of Ernst, - P.2d -, 47 St. Rep. 1034, (Mont. 

1990), in which we affirmed the judgment of the District Court of 

the Tenth Judicial District, ~udith Basin County, ordering 

appellant, Lennie Ray Ernst, to pay maintenance support to 

respondent, Susan Ridgeway Ernst. Appellant requests a rehearing. 

Appellant correctly points out that the statement in the 

opinion, !!The psychotherapy will be for two years and she must 

complete the degree within six years." is erroneous. The statement 

should have read, '!The husband is responsible for the wife's 

psychotherapy for six years. The husband may obtain medical 

insurance to cover this responsibility. The wife must complete her 

educational degree within six years." 

Because the change in the language of the opinion does not 

affect the decision the Petition for ~ehearing must be denied. 

WHEREFORE, IT IS HEREBY ORDERED THAT: 

1. The following phrase shall be stricken from the original 

opinion at page 7, lines 1-2: "The psychotherapy will be for two 

years and she must complete the degree within six years." 
2. The stricken phrase shall be replaced with: '!The husband 

is responsible for the wife's psychotherapy for six years. The 

husband may obtain medical insurance to cover this responsibility. 

The wife must complete her educational degree within six years.It 

3. Appellant's petition for rehearing is DENIED. 

4. The Clerk of this Court shall mail a true and correct copy 

of this Order to all unsel of record. 

DATED this 

Justices 

Justice John C. Harrison and Justice Diane G. Barz would 

grant a rehearing.