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: JoMickelson, Dorsey & Whitney, Billings, Montana

Submitted: May 5, 1990 Decided: May 24, 1990Justice William E. Hunt, Sr., delivered the Opinion of the Court.

Thehusband inadissolution action, LennieRay Ernst,appeals from the judgment of the District Court of the Tenth Judicial District, JudithBasin County,which orderedhim topaymaintenance support to thewife and cross-appellant, SusanRidgeway 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 30years old and the husband was 32 years old. During the majority of their marriage, the wife and the husband resided on theErnst family farm located southof Stanford. The husband has worked the family farm and developed it into a profitable enterprise. The wife, whohad been valedictorianof 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. Thewife filed fordissolution onApril 24, 1987. A fiveday trial was held in February, 1988, on the issues of custody, property division and maintenance. Expert testimonywas presented regarding both parties1mental 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 tomodify the findingsof fact was filedby thewife 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 thewife'smotion on September 14, 1988,and the next day entered the final Decree of Dissolution. Thehusband filed amotion to amend the finaldecree,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. Thisnotice of appealwas filed onOctober 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. Theappropriatestandard 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 forhis reasonable needs;and isunable to supporthimself 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 considerall relevant facts indetermininganappropriate 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 towhich aprovision 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 themarriage; (e) the age and the physical and emotional condition of the spouse seeking maintenance; and

(f) theability of the spouse from whommaintenance 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 consideredproper information inaddressing these factsandbased 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 credibleevidence to supporttheDistrict Court's monthly maintenance award of $800.00 to the wife. "Maintenancepayments supplementthepropertydivision.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 amaintenance award. Seegenerally 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, thewife 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 themeantime, thewife has nomeans of support. Shehas had little education or experience in the work force.Additionally, she is suffering from a mental disorder which could reasonablymake 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 thewife that she,thehusband and thechildren spentapproximately $2,000.00 per month on living expenseswhile still livingwith the husband. Inaddition to thewife, themaintenance awardmust 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 themaintenance 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 capableofbenefiting 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 I1establishingamounts and duration of maintenance," the amount established does not have tobe 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 placedconditional limitationson thewife. Thepsychotherapywill be for two years and she must complete the degree within six years. Further, the education must be obtained from a college or university inMontana. 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 considerationbut must be viewed in accordancewith the facts of this case. The husband hasbeen givenall of the income-producing property in theproperty 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 thewife aspart of the division of property was a clear abuse of discretion. The husband argues that the District Court abused its discretionby awarding the wife $30,000.00,plus interest,aspart of theproperty distribution. Thehusband 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. Inre theMarriage of Stewart,232Mont. 40, 42, 757 P.2d 765, 767 (1988)

## , citing In re theMarriage ofWatson, 227 Mont. 383, 739 P.2d 951 (1987). Section 40-4-202,MCA, lists the factorsthecourt must consider individing theproperty assets and liabilitiesbetween 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 awardwas equitable under the factsand 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 sharetheir livesand all included therein. Bothused their wits and their goods for thegood 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 itsdiscretion in awarding thewife the $30,000.00. Upon reviewing the particular facts of this case, the court concluded that each party had essentially contributed equally to themarriage and was entitled to as close to equal portions of the acquired property as possible.The District Court also placed avalue upon all of the assets and distributed these assets in accordancewith the wishes of the parties in keeping the farm intact. Subsequently the court found itnecessary toaward thewife $30,000.00 in an attemptto 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. Thehusband argues that the District Court's findings are not supported by substantial, credible evidence and, are therefore, clearlyerroneous. Theparticular findingsthat thehusband 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 supportthe findings of theDistrictCourt and they are not, therefore, clearly erroneous. "Findings of fact shall not be set aside unless clearly erroneous,and due regard shallbe 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'smental disorderand of the effectsof 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 abuseby thehusbandmay have been one of theknown causes of thewife'smental disorder is supportedby substantialcredible evidence and is, therefore, not clearly erroneous. The District Court found that on several occasions the childrenwere witnesses to violence. Testimony fromprimarily the wife indicated that therewas one recent occasionwhen thehusband 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 theword several, if error,was harmless. Conflicting evidence was presented at trial concerning the effect the wife's mental disorder had on the children, particularlyAshley. As long asthe court's findingsare supported by usubstantialthoughconfli~ting~~ evidence such findingswill not be disturbed. See In re theMarriage 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 positionto judge the credibility of the witnesses and their testimony. From thisposition the court chose to emphasize the testimony that thewife's mental disorderhad 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 thewife. This issuemust 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 timelymotion under theMontana 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 forall parties shallrun from the entry of the order denying a new trial or granting or denying any other such motion. 

# . . A notice of appeal filedbefore the disposition of any of the above motions shall have no effect. A new notice of appeal must be filedwithin theprescribed timemeasured 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 orderon themotion was dated November 4,1988,andwas filed onNovember 7, 1988. Thewife'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 themotion toamend. Seegenerally Inre theMarriage 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 JusticeJustice 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 ofher college for sixyearswithout restriction. Inaddition, the husband is tomake house payments for thewife, completely support the children and provide for their counseling, and pay for counseling forhimself. 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 ormeans to spend thatmuch are significantdifferencesonwhich 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 speculativethat said disorderwill have an adverse effect in the future. In light of the court's finding and evidence on the fiveyear-olddaughter's tlemotionally disturbedwcondition, FindingNo. 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 thebest 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 fromherphysical and emotional abuse and humiliation by the Respondent during themarriage. She is shown to be intelligent, having a pleasing personality and tohave been normal beforeher 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 concurrentor 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 toMontana's no-fault dissolution law. Dr. Tranel testified that one could not know the causes of thewife'smental illness of aparanoid 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 schoolof thought inhisprofession thatbelieves that themental disorder isprimarily a biochemical malfunction but itwas his opinion that that evidence alone is inconclusive. 

### In addition, there was no psychiatric ormedical testimony presented during the trial which would allow the District Court to find the causative factor of the wife's illness. Inactuality it serves little purpose to find the causative factor,particularly if it is in factagenetic 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 ~istrictCourt 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 JusticeIN 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 InRe the Marriage of Ernst, 

### -P.2d 

## -, 47 St. Rep. 1034, (Mont. 1990), inwhich we affirmed the judgment of the District Court of the Tenth Judicial District, ~udithBasin County, ordering appellant, Lennie Ray Ernst, to pay maintenance support to respondent, SusanRidgeway 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 completethedegreewithin sixyears." iserroneous. The statement should have read, '!The husband is responsible for the wife's psychotherapy for six years. The husband may obtain medical insurance to coverthisresponsibility. The wifemust 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: "Thepsychotherapy will be for two years and shemust complete the degree within six years."2. The stricken phrase shallbe replacedwith: '!Thehusband 

### is responsible for the wife's psychotherapy for six years. The husband may obtainmedical insuranceto 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 correctcopy of this Order to all unsel of record. DATED this

Justices

Justice John C. Harrison and Justice Diane G. Barz would grant a rehearing.