No. 84-235 INTHE SUPREP.IECOURT OF THE STATE OF 

### MONTANA 1984

114 RE THEMARRIAGE OF JOYM. SCHENCK, Petitioner and Respondent,-vsJOSEPHW. SCHENCK, Respondent andAppellant.

APPEAL FROM: DistrictCourtof the Eighth Judicial District, Inand for the County of Cascade, TheHonorableJohnM. McCarvel,Judgepresiding.

COUNSELOF FSXORD:

ForAppellant: Hartelius & Ferguson; Cameron Ferguson, Great Falls, Montana For Respondent: Church, Harris, Johnson & Williams;DonA. LaBar, GreatFalls,Montana

Submitted on Briefs: July 

### 27, 1984 Decided: November 15,1984

Filed: 

### MOV1

## 5f904

ClerkMr. 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 $500per month. 

### On appeal, Joseph argues that the courtdid not consider the statutory requirements for an award of mai~tenanceto Joy,that the award ofmaintenance awardedwas 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 preventsher from lifting heavy objects. Joseph is employed-by the Burlington Northern Railroad

as a car man. His 1983 gross incomewas $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,lessbusiness expensesof S5,079. The District Court found the net marital estate to be $63,855. Joywas award.ed:

### Personal PropertyDistributed $7,825 Less ~iabilities-~ssumed

Difference inValue of Personal Property (to be paid when house sells) $5,525 Excess in Savings Account after Equal Division 573 Half of Equity inHouse after Distribution to her of $5

## , 525 ($43,979

## - $5,5253 x 

### 50%= 

### Total Essential-lythe 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. Theproceeds 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 1iving expenses of approximately $500. Joy showed average monthly 1-ivingexpenses of $1,000 for herselfand the child. The courtactually awarded to Joy $250 inmonthly child support to be paid by Josephuntil the younger child turned 18, and $250 in maintenance. After September 20, 1984, the amount of maintenance shall be 

### $500 permonth. 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.ygrant maintenance for a 

### spouse if two conditions are present: the spouse seekingmaintenance lacks sufficientproperty 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 

### toinvest 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 issuedoes not fullymeet 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 inmaking 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. Itwas 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, shewill undoubtedly incur rental expense. Considering the duration of theirmarriage, 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 sufficientproperty to provide for her needs nor is there sufficientproof in the record to establish that she is able to support herself through appropriateemployment. Joseph's second contention is the amount of maintenance is excessive. Herewe 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 consideredby the District Court, but nowhere in the record is there any indication that the court did take his potential railroad benefits intoconsideration. 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 willhave little incentiveto 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 forwhom 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 livingwith her averaged $900 to $1,000per month. It found that after the house is soldand she must pay rent, her expenses will increase $300 to $400 per month. She must alsoprovide 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 toforecast a date inthe futurewhen the a.mount of maintenance requiredby herwould be less than $500 permonth

or nothing atall. In the exercise of its discretion, the District Court made a determination which provides maintenance without a time limit. The protection toJoseph 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 isaffirmed. n Justice WeConcur:

Chief Justice