No. 84-235 

IN THE SUPREP.IE COURT OF THE STATE OF MONTANA 

1984 

114 RE THE MARRIAGE OF 

JOY M. SCHENCK, 

Petitioner and Respondent, 

-vsJOSEPH W. SCHENCK, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable John M. McCarvel, Judge presiding. 

COUNSEL OF FSXORD: 

For Appellant: 

Hartelius & Ferguson; Cameron Ferguson, Great Falls, 

Montana 

For Respondent: 

Church, Harris, Johnson & Williams; Don A. LaBar, 

Great Falls, Montana 

Submitted on Briefs: July 27, 1984 

Decided: November 15, 1984 

Filed: MOV 1 5 f904 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Joseph W. Schenck appeals from a decree of dissolution 

of his marriage to Joy M. Schenck, entered in the District 

Court, Eighth Judicial District, Cascade County, which 

awarded Joy spousal maintenance of $500 per month. 

On appeal, Joseph argues that the court did not consider 

the statutory requirements for an award of mai~tenance to 

Joy, that the award of maintenance awarded was excessive, and 

that there should have been a limit on the duration of the 

maintenance award. On consideration of these issues, we 

a£ firm. 

The parties were married on January 30, 1965. Two 

children were born during the marriage. Both have reached 

majority, the younger on September 20, 1984. At the time of 

the divorce, Joseph was 42 years old and Joy was 37 years 

old. She was in normal health except for a back condition 

which prevents her from lifting heavy objects. 

Joseph is employed- by the Burlington Northern Railroad 

as a car man. His 1983 gross income was $34,201 and his net 

income, including his overtime, $24,030. His base pay for 

1983 would have allowed him $1,700 per month in take-home 

Pay 

Joy had worked at various tempora.ry jobs during the 

marriage, but she was primarily a homemaker. She has, 

however, worked as a real estate salesperson since the middle 

of 1982. Her net income in the year 1983 appears to have 

been $10,668, less business expenses of S5,079. 

The District Court found the net marital estate to be 

$63,855. Joy was award.ed: 
Personal Property Distributed $7,825 

Less ~iabilities-~ssumed 

Difference in Value of Personal 

Property (to be paid when house 

sells) $5,525 

Excess in Savings Account after 

Equal Division 573 

Half of Equity in House after 

Distribution to her of 

$5 , 525 

($43,979 - $5,5253 x 50% = 

Total 

Essential-ly the District Court awarded Joy one-half of 

the marital estate. The principal asset of the estate is a 

house "in the country" valued at $110,000 in which the 

parties have an equity of a-pproximately $44,000. The 

District Court provided that Joseph should make payments of 

$686 per month until the house is sold. The proceeds of the 

sale of the house are to be divided equally between the 

parties in accordance with the court's directions. 

Joseph showed month1.y 1 iving expenses of approximately 

$500. Joy showed average monthly 1-iving expenses of $1,000 

for herself and the child. The court actually awarded to Joy 

$250 in monthly child support to be paid by Joseph until the 

younger child turned 18, and $250 in maintenance. After 

September 20, 1984, the amount of maintenance shall be $500 

per month. 

On the first issue, whether the District Court should 

have awarded maintenance to Joy, Joseph argues that under 

section 40-4-203, MCA, the court may on1.y grant maintenance 

for a spouse if two conditions are present: the spouse 

seeking maintenance lacks sufficient property to provide for 

her needs and j.s unable to support herself through 

appropriate employment. Here, Joseph contends, after the 

sale of the house Joy will have approximately $22,000 to 
invest and a net income from her real estate business of at 

least $500 per month. He maintains, therefore, that the 

qualifications required under the statute for maintenance 

were not established in this cause. 

On the first issue Joy answers that this Court will not 

substitute its judgment for that of the District Court but 

rather determine whether there is substantial evidence to 

support the findings and conclusions of the District Court. 

and Marriage of Thompson (Mont. 1984), 676 P.2d 223, 41 

St.Rep. 237; Kowis v. Kowis (Ilont. 1983), 658 P.2d 1084, 40 

St.Rep. 149; Carr v. Carr (Mont. 1983), 667 P.2d 425, 40 

St.Rep. 1263. 

Joy's answer to the first issue does not fully meet the 

contention raised by Joseph that section 40-4-203, MCA, 

requires a finding by the court that the spouse receiving 

maintenance lacks sufficient property to provide for her 

needs and is unable to support herself through appropriate 

employment. The District Court, however, did recite that it 

had considered this statute in making the maintenance award. 

There are factors in the record which make it clear that 

the District Court was correct in awarding maintenance to 

Joy. At the time of the divorce, after a marriage of 19 

years, she had little more than one year % experience as a 

real estate salesperson. It was impossible for the District 

Court to determine her probable income from such an 

occupation without her further experience. After the 

residence of the parties is sold, she will undoubtedly incur 

rental expense. Considering the duration of their marriage, 

the short period of her business experience, and the 

husband's ability to pay, it appears satisfactorily from the 

record that the requirements of section 40-4-203, MCA, are 
met in that she does not have sufficient property to provide 

for her needs nor is there sufficient proof in the record to 

establish that she is able to support herself through 

appropriate employment. 

Joseph's second contention is the amount of maintenance 

is excessive. Here we face a matter of judgment essentially 

within the broad discretion of the District Court which we 

may not set aside unless the District Court is clearly 

erroneous. Joseph contends that his potential for future 

railroad retirement benefits may have been considered by the 

District Court, but nowhere in the record is there any 

indication that the court did take his potential railroad 

benefits into consideration. 

The third issue is whether the District Court should 

have placed a limit on the period of time that Joseph should 

pay maintenance. Here, Joseph argues that a permanent award 

in effect subsidizes Joy so she will have little incentive to 

improve her earnings from her work as a real estate 

salesperson. The factors, however, which the Court is 

required to consider in connection with the award of 

maintenance are those in section 40-4-203 (2) , MCA. These 

include not only the financial resources of the parties 

seeking maintenance, but the standard of living established 

during the marriage, the duration of the marriage, the age 

and physical condition of the spouse seeking maintenance, and 

the ability of the spouse for whom maintenance is sought to 

meet her needs while meeting those of the spouse seeking 

maintenance. 

The District Court found that the present monthly 

expenses for Joy and her child living with her averaged $900 

to $1,000 per month. It found that after the house is sold 
and she must pay rent, her expenses will increase $300 to 

$400 per month. She must also provide for her own health 

insurance, dental care, and plan for her future. Based on 

her sales experience, the District Court found that a fair 

assessment was she would not earn more than $600 per month 

net take-home pay. The court had before it little or no 

evidence to forecast a date in the future when the a.mount of 

maintenance required by her would be less than $500 per month 

or nothing at all. In the exercise of its discretion, the 

District Court made a determination which provides 

maintenance without a time limit. The protection to Joseph 

for changed circumstances in the future lies in the 

provisions for modification of t.he maintenamce award under 

proper circumstances under section 40-4-208, MCA. In the 

meantime, this Court has no more basis upon which to limit 

the duration for ma.intenance than did the District Court. 

The decree of the District Court with respect to 

maintenance is affirmed. n 

Justice 

We Concur: 

Chief Justice