No. 14245 

IN THE SUPREME Cm OFTHE: STATE OF MOfii'TANA 

1978 

IN THE MARRIAGE OF 

C. R. CWWELL, 

Petitioner and Appellant, 

Respondent and Respondent. 

Appeal frm: District Court of the Fourth Judicial District, 

Honorable mbert Holter, Judge presiding. 

Counsel of Record: 

For Appellant: 

Garlington, Lohn and mbinson, Missoula, Mntana 

Larrey E. Riley argued, Missoula, IWntana 

For Respondent: 

Mulroney, Delaney, Dalby and Mudd, Missoula, mntana 

Dexter L. Delaney argued, Missoula, Montana 

Sutmitted: Novmber 16, 1978 

Decided: JAN 1 :979 

Filed: jm 1- - - fL- , - 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This appeal is brought by petitioner-appellant, Carley 

R. Cromwell, from a final property settlement and maintenance 

judgment and decree of the Fourth Judicial District Court, 

County of Missoula, following the dissolution of the parties' 

marriage. The District Court, the Honorable Robert M. 

Holter presiding without a jury, awarded the petitioner the 

former family home free and clear of mortgage indebtedness, 

the home furnishings, a $3,000 lump sum with which to pay 

her outstanding debts, and $2,000 as attorney fees. The 

decree further includes a maintenance award of $250 per 

month during the twelve months following February 1, 1978, 

$125 per month during the succeeding eighteen months, and 

none thereafter. The decree provides that the petitioner's 

eligibility for maintenance terminates with her death or 

remarriage. 

On appeal petitioner requests a modification of the 

decree to provide for: 

1. A permanent award of $500 maintenance per month; and 

2. Security for future maintenance payments in the form 

of a claim against respondent's Teachers' Retirement or 

Social Security Funds. 

Petitioner requests this Court to modify the decree 

without remand in view of the fact that the matters at issue 

have been thoroughly litigated in two trials. After a first 

trial and decree dated November 30, 1976, in which petitioner's 

claim for maintenance was entirely denied, petitioner appealed 

to this Court. In remanding the matter, this Court held 

that the District Court had abused its discretion in refusing 

to consider petitioner's needs for "some financial assistance 

during the transition from housewife to a single person." 
Cromwell v. Cromwell (1977), Mont . , 570 P.2d 1129, 

1131, 34 St.Rep. 1193, 1196. On remand, the District Court 

heard full testimony on the parties' earning capacities and 

monthly expenses, and on respondent's ability to pay maintenance before it modified both the property settlement and 

maintenance provisions. 

The issue on appeal is whether the District Court 

abused its discretion in awarding petitioner only $250 per 

month maintenance for twelve months, $125 per month for the 

succeeding eighteen months, and no maintenance thereafter. 

The parties in this case were married in 1947. Petitioner, Carley Cromwell, was then age 25 and had been employed as a nurse prior to her marriage. In September, 

1947, respondent Gardner Cromwell began his legal education 

at the University of Montana School of Law. During the next 

three years, while respondent attended school, petitioner 

worked as a housewife and cared for the parties' oldest son, 

who was born in May, 1948. Respondent worked for the Bonneville Power Administration following his graduation in 1950. 

Two more children were born before the end of 1953. In 

September, 1954, respondent entered the University of Michigan Law School and worked toward an LL.M. degree which he 

obtained in June, 1955. During that time petitioner cared 

for the parties' three children and worked two nights a week 

at the University of Michigan Hospital. Respondent taught 

at the New York University during the next two academic 

years, while petitioner cared for the children. A fourth 

child was born in June, 1957. In 1957 the family returned 

to Montana where respondent accepted a teaching position at 

the University of Montana School of Law. Respondent has 

taught each year since 1957 and obtained the degree of 
S.J.D. from the University of Michigan by submission of a 

thesis. 

During this time, 1957 through 1975, petitioner put 

most of her working time into caring for her family. She 

did work part-time during quarterly registration at the 

University of Montana from 1957 to 1965. She spent only one 

year since 1957, however, working part-time as a night nurse 

at the N.P. hospital in Missoula. 

The parties separated in 1975, some twenty-eight years 

after their marriage. In May of 1975 petitioner began work 

as a hostess in a Missoula restaurant. That employment 

lasted about eighteen months, until October, 1976, when her 

job was terminated due to remodeling. Her highest wage 

during that period was $2.475 per hour. 

Between October and December, 1976, petitioner was 

unable to find work despite repeated applications. During 

that time she obtained unemployment compensation of $68 per 

week. In December she secured employment with the Missoula 

County Food Stamp program and continued working there until 

a nursing position opened at a Missoula nursing home in 

April, 1977. As of this date, she continues to work at the 

nursing home as a relief nurse at irregular hours averaging 

about $500 per month of net income. There are no fringe 

benefits and no retirement plan available to her at the 

nursing home. 

Petitioner also sought employment at St. Patrick's 

Hospital in Missoula, but upon learning her age and the 

number of years since she had actively worked as a nurse, 

the hospital refused to accept her application. The personnel director of the hospital testified that there currently are no openings for registered nurses at St. Patrick's; 
that there are presently about eighty full-time nurses and 

forty part-time nurses employed there; and that there are 

approximately 100 applications for registered nurse positions on file. In the director's opinion, the same situation 

exists in the other two Missoula hospitals. 

The District Court found that petitioner's reasonable 

monthly living expense is $789.50. That figure includes her 

present rental costs, but the court noted that when petitioner moves back into the family home, she will continue to 

have costs such as taxes and insurance which will replace 

the rental expense. 

Paragraph 5 of the District Court's findings appears to 

state the rationale for its decree of $250 per month, then 

$125 per month, then zero maintenance. The second sentence 

of that finding concludes that "[ilt is likely that [petitioner] will, through diligent application and some assistance, continue to progress in her employment; there is 

little likelihood, however, that she will be able to substantially gain retirement benefits or accrue savings." 

The District Court's findings show that respondent is 

a tenured professor of law at the University of Montana 

School of Law. His gross salary for the 1976-77 academic 

year was $22,862 and for the 1977-78 year was $25,862. His 

net income during this latter year was approximately $1,778.53 

per month for each of the ten months during which he taught. 

The Court further found that respondent's living expenses 

are "about equal in amount to those of petitioner." 

Respondent was remarried on December 18, 1976, to a 

woman with a five year old daughter. Respondent and his 

present wife agreed before their marriage that all of the 

interest in her property would remain in her name. Respon- 
dent has lived in his present wife's home outside Missoula 

since his remarriage. His present wife, as manager of a 

Missoula business, has an average monthly income of $922.27 

and additionally receives $75 per month in child support 

from her previous husband. Thus, as the District Court 

noted in paragraph 6 of its findings the "'family' net takehome of Respondent's new family [is] approximately $2,500" 

per month. 

In addition respondent had, as of the date of trial, 

accumulated some twenty-six years toward retirement under 

the Montana Teachers' Retirement System. The District 

Court, in paragraph 4D of its findings, indicates that there 

have been contributions made into respcndent's account "from 

income during the marriage" of approximately $19,000. That 

amount would be available to respondent now only if he quit 

his job and cashed in his account. However, if he were to 

continue in his position as a law professor and retire at 

age 60, respondent's interest in the retirement system would 

greatly increase. In a footnote to paragraph 4D, the District Court calculated the "present" value to the petitioner 

when he reached age 60 to be $224,239.32. This figure is 

based upon life expectancy, interest rate, final average 

salary and creditable years of service assumptions, and 

would be available to respondent only on a monthly pay 

basis. Respondent testified that he did not intend to 

retire until age 65. Thus, while life expectancy at that 

age would be sonewhat decreased, the average annual compensation may be somewhat higher and the number of years of 

creditable service increased by five. In any case, as the 

District Court concluded, the actual value of his retirement 

to respondent cannot be calculated with exact certainty, but 

it does clearly represent "a considerable asset and security" 

to him. 
Finally, the District Court found that respondent is 

"free to pursue other remunerative employment during the 

summer months." 

Section 48-322, R.C.M. 1947, of the Montana Uniform 

Marriage and Divorce Act establishes two criteria upon which 

to determine a spouse's eligibility for maintenance following 

dissolution of marriage. These are that the spouse seeking 

maintenance (1) lacks sufficient property to provide for his 

or her reasonable needs, and (2) is unable to support himself or herself through appropriate employment. The District Court concluded that petitioner met both of these 

criteria, at least for two years following its decree. 

Petitioner's contention, that she will continue to be in 

this category indefinitely, must be weighed in terms of the 

next six criteria listed in subsection (2) of section 48- 

322. Those criteria require the District Court to consider 

the petitioner's financial resources, including the property 

apportioned to her in the decree, and her ability to meet 

her needs independently; the time necessary for her to make 

a transition to a single person, including any additional 

education or retraining; the standard of living established 

during the marriage; the duration of the marriage; her age 

and physical and emotional condition; and the respondent's 

ability to meet his own needs while providing additional 

support to her. 

Petitioner has received in the decree full interest in 

the family home, worth about $48,000, and $3,000 cash with 

which to pay most of her outstanding debts. But her reasonable monthly needs, according to the District Court's 

findings, are $789.50, while her take-home pay is only $500 

per month. At age fifty-six and having been separated from 
nursing for some twenty years, her opportunities for fulltime nursing work appear bleak. Additionally, she has no 

retirement plan in her present position. 

On the other hand, respondent has retained his teaching 

position, his salary and his retirement benefits. He has 

remarried and his present wife and he have together nearly 

$2,500 per month in take-home pay. 

Considering the criteria listed in section 48-322(2), 

it is clear that at present petitioner is unable to meet her 

present monthly needs through appropriate employment. The 

District Court decree, however, assumes that within a year 

she will be nearer to self-sufficiency, and that after two 

and one-half years, she will be able to support herself 

entirely. No evidence in the record supports this finding. 

Under the criteria of the standard of living established during the marriage and duration of the marriage, the 

court is silent as to petitioner's expectation of a secure 

retirement prior to the dissolution. The District Court 

made elaborate findings concerning the "considerable" value 

to respondent of his interest in the Montana Teachers' 

Retirement System. Yet the decree makes no mention of the 

petitioner's needs at retirement age. Cf. Wilson v. Wilson 

(Or. 19721, 499 P.2d 828, 828-29. 

Finally, the District Court notes that this case is 

typical in that "there really is not enough to satisfy all 

of the demands and requests of the Petitioner and Respondent" and that a decree requiring all petitioner asks for 

could be "disastrous to the party from whom payment is 

required." Yet the court ignores the competent evidence of 

respondent's ability to pay. The court did make a finding 

that the reasonable monthly needs of respondent are roughly 
equivalent to petitioner's needs, that is, about $789.50. 

It also found that respondent's monthly take-home pay on a 

twelve month basis is $1,482.11. Thus, there appears no 

reason from the District Court's findings why respondent 

cannot continue to assist his former wife, to help her meet 

not only her present needs, but also to help prepare her for 

retirement. 

Petitioner appears to justify her request for $500 per 

month on the decision in Eschenberg v. Eschenberg (1976), 

Mont . , 557 P.2d 1014, 33 St.Rep. 1198. In that 

case, an award of $500 per month alimony was approved, but 

the husband was somewhat better off financially than respondent here, and the wife somewhat less capable of earning 

income than petitioner here. 557 P.2d at 1015-16, 33 St.Rep. 

at 1200, 1201-02. 

Appellate courts in other states have seen fit to 

increase awards of maintenance where the result at the trial 

court level appeared unjust or inequitable. See In re 

Marriage of Fisher (Iowa 19761, 237 N.W.2d 452, 454; Wheeler 

v. Wheeler (19751, 193 Neb. 615, 228 N.W.2d 594, 596. 

In light of the trial court's finding of petitioner's 

needs for support in addition to her own earnings, the 

standard of living during her marriage, which included an 

anticipated secure retirement and respondent's ability to 

provide continuing support to his former wife, this Court 

orders the decree modified so as to provide continued maintenance to petitioner. An equitable amount would be one 

which would assist her to meet her reasonable monthly expenses in excess of the $500 take-home pay she receives as a 

nurse. Thus, the amount should be at least $300 per month, 

until her death or remarriage. In addition petitioner is 
also entitled to enjoy something of the secure retirement 

which she helped respondent to achieve. Therefore and for 

that purpose, an additional $100 per month until her death 

or remarriage which she could save toward retirement does 

not appear unfair to either her or respondent. The decree 

is ordered modified in accordance with these .suggested 

amounts. 

Paragraph Nos. 1, 2, 3, 4 (a), and (5) of the decree of 

the District Court are affirmed. Paragraph 4(b) and 4 (c) 

are vacated and shall be amended as ordered herein. Paragraph 

No. 6 is vacated on order of this Court and shall read 

instead: "That upon completion of the various transfers and 

all payments set forth herein the jurisdiction of the presiding Judge shall cease, however; continuing jurisdiction 

shall remain in the District Court of the Fourth Judicial 

District, County of Missoula." 

The cause is remanded to the District Court to enter 

judgment according to this opinion. 

,? 

kg?/ 

Justice 

We Concur: 

7~dd pddd. 

Chief Justice 

n