No. 14553
IN THE SUPHEME Co OF THE S-
m T OF M3NTANA
1979
IN IIE THE M?UWAGE OF
ROBIN JAY AANENSON,
Petitioner and Appellant,
-vs-
DENISE ANN AANENSON,
Respondent and Respondent.
Appeal fm: District Court of the Eighteenth Judicial District,
Honorable W W Lessley, Judge presiding.
. .
Counsel of m r d :
For Appellant:
Brown, Pepper & Kmrmers, Bozeman, Mntana
Gene I Brawn argued, Bozenaan, IWntana
.
For Respondent :
A Michael Salvagni argued, B o z m , Mntana
.
Sdmitted: March 20, 1979
Decided: AUG 1.5 l n
9
Mr. Justice Daniel J. Shea delivered the Opinion of the Court.
Husband appeals from the judgment of the Gallatin County
District Court dissolving his marriage and making provisions
for property distribution, maintenance award, and an award
of attorney fees.
The parties were married on August 16, 1975. No children
were born as issue of the marriage. On May 23, 1978, the
husband filed a petition seeking a dissolution of the marriage
and an equitable property distribution. On July 14, 1978, the
wife filed a cross-petition seeking dissolution of the marriage,
a property distribution, maintenance award, and attorney fees.
The husband and wife were the only witnesses who testified at
the hearing.
Husband is a 21 year old maintainer for the Milwaukee
Railway, and has a high school education. At the time this
action was tried, he was earning $1,300 a month, and he netted
approximately $800 a month after deductions. He testified that
he spent approximately $200 a month for living expenses.
The wife is 22 years old, and is employed by the Manhattan
State Bank as a bookkeeper-teller. She has a high school education
and one year of vocational training as a medical assistant. At
the time this action was tried, she was taking home approximately
$445 a month. She testified that she had approximately $260
in expenses each month, excluding housing. She further testified
that she would not be able to remain in the couple's mobile home
unless she was provided with at least $100 a month maintenance.
The testimony of the parties established that the marital
estate consisted of the following assets:
1. Four unimproved lots in Three Forks, Montana.
Parties owed $6,100 on these lots, the valuation
of which was not established at trial.
2. A 1976 Mercury valued at $4,795, with $500
left to be paid on this car.
3. A 1964 Ford pickup valued at $1,000. The truck
was free and clear.
4. A 1975 mobile home, on which there was a balance
of $11,000 due on the purchase price. Monthly
payments of $178.81 were required on the purchase
price for the next seven years. Petitioner testified
that the equity in the mobile home was approximately
$4,000.
5. Various items of personal property.
In addition to entering a decree dissolving the marriage,
the District Court ordered the 1964 Ford pickup to the husband
and the 1976 Mercury to the wife. The four unimproved lots
were to be sold, and the proceeds of the sale were to be used
to pay the $6,100 loan at the bank. The court also ordered that
if the proceeds from the sale produced an excess after payment
of the loan, the excess be first applied to the balance owing
on the 1976 Mercury with the remainder to be divided equally
between the parties. The parties stipulated to the distribution
of the various items of personal property. With respect to
the mobile home and the wife's request for maintenance, the
Court rendered the following conclusion of law:
"That the Respondent be awarded the mobile home
subject to the condition that the Petitioner
pay to the Respondent the amount of $100.00 per
month of which $89.40 shall be applied to the
monthly payment of $178.81 and the remainder to
be used by the Respondent for her maintenance,
and further subject to Petitioner's continuous
equity in the mobile home to be paid Petitioner
by Respondent in the event of the following:
Upon Respondent's remarriage, upon Respondent's
sale of the mobile home, upon the balance owing
on the mobile home being paid in full by
Respondent or until further order of this Court
and upon the happening of any said event the
Petitioner shall not be further required to pay
to Respondent the sum of $100.00 per month."
The court further ordered the petitioner to pay the wife's
reasonable attorney fees.
The husband contends first, that the District Court abused
its discretion and erred in the distribution of the marital
assets; second, that the District Court erred in the award of
$100 a month for maintenance; and third, that the District Court
erred in the award of reasonable attorney fees to the wife.
Section 40-4-202 MCA, controls District Courts in the
equitable apportionment of marital assets.
Section 40-4-203 MCA, controls District Courts on the
issue of whether or not to grant a maintenance award.
Under section 40-4-202 MCA, the District Court is authorized
to equitably apportion the marital assets between the parties.
The statute requires the District Courts to consider the criteria
expressly enumerated in the statute. Under section 40-4-203(1)
MCA, maintenance may be awarded if the spouse seeking maintenance
lacks sufficient property to provide for his reasonable needs
and is unable to support himself through appropriate employment.
Section 40-4-203(2) MCA establishes a list of guidelines or
factors that the District Court is required to consider.
Husband first contends that the District Court made a
completely one-sided distribution of the marital assets. He
argues that the wife received the 1976 Mercury and the mobile
home, while he received only the 1964 Ford pickup. He argues
that an equitable distribution of the marital assets should
have resulted in an equal division of the assets. In essence,
husband contends that the assets, including the mobile home,
should have been reduced to cash and then divided equally between
the parties. He cites no authority.
Although the District Court may equally divide the marital
assets, such a distribution is not mandated by section 40-4-202
MCA. See Kuntz v. Kuntz (1979), Mont . , 593 P.2d
41, 36 St.Rep. 662. Section 40-4-202 is flexible and it vests
a good deal of discretion in the District Court. In Re Marriage
of Jorgensen (1979), Mont . , 590 P.2d 606, 609, 36
St.Rep. 233, 237. We have stated, before and after the adoption of
the statute, that each case must be looked at individually, with
an eye to its unique circumstances. Jorgensen, 590 P.2d at 609;
Cook v. Cook (1972), 159 Mont. 98, 495 P.2d 591.
-4-
A District Court has far-reaching discretion in resolving
property divisions, and its judgment will not be altered unless
a clear abuse of discretion is shown. Kaasa v. Kaasa (1979),
Mont . , 591 P.2d 1110, 1113, 36 St.Rep. 425, 428; Kramer
v. Kramer (1978), Mont . , 580 P.2d 439, 35 St.Rep. 700;
Eschenburg v. Eschenburg (1976), 171 Mont. 247, 557 P.2d 1014.
The test for reviewing the District Court's discretion is: Did
the District Court in the exercise of its discretion act
arbitrarily without employment of conscientious judgment, or
exceed the bounds of reason in view of all the circumstances?
Kuntz, 593 P.2d at 43; Jorgensen, supra; Kraner, supra; Zell v.
Zell (1977), Mont. , 570 P.2d 33, 34 St.Rep. 1070;
Berthiaume v. Berthiaume (1977), Mont . , 567 P.2d 1388,
34 St.Rep. 921.
The duty of the District Court was to consider the statutory
criteria and equitably apportion the marital assets. We find
that the District Court did so. The District Court considered
the duration of the marriage, the age, occupation, amount and
sources of income, vocational skills, employability, estate,
and the liabilities and needs of each of the parties.
The distribution of one asset, the mobile home, lies at
the heart of the husband's argument. He claims that the Court
allowed the wife to retain possession of the mobile home, in
which there was $4,000 equity at the tine this action was tried,
for such time as she desired. He further argues that by virtue
of the $100 a month maintenance award, he is required to pay
one-half of the monthly payment on the mobile home.
The court order, however, protected the husband's equity in
the mobile home. The order of maintenance directed that $89.40
of the $100 be applied to the monthly payment of $178.81 on the
mobile home. The net effect of the court order was to protect
the petitioner's present and future one-half equity in the mobile
home.
-5-
The wife was not awarded possession of the mobile home
for such time as she desired; but rather the court order
conditioned the award. Upon the occurrence of one or more
of four events, as specified in the court order, the wife must
pay the husband his share of the equity in the mobile home. This
award was not arbitrary nor beyond conscientious judgment as
reason.
An award of maintenance is related only to the needs of
the spouse seeking maintenance. Jorgensen, 590 P.2d at 611;
Johnsrud v. Johnsrud (1977), Mont . , 572 P.2d 902,
34 St.Rep. 1417; Cromwell v. Cromwell (1977), Mont . I
570 P.2d 1129, 34 St.Rep. 1193. The District Court has wide
discretion in the determination of maintenance awards, and that
discretion is not to be disturbed unless clearly erroneous.
Jorgensen, 590 P.2d at 611. In the instant case, the District
Court specifically found the wife lacked sufficient property
to provide for her reasonable needs and was unable to support
herself. This finding is supported by the record. In compliance
with the requirements of section 40-4-203 MCA, the District Court
awarded maintenance in the amount of $100 a month. We hold that
the District Court properly exercised its discretion in awarding
maintenance to the wife.
Last, the husband contends that there was no showing of
necessity, and that the court abused its discretion in granting
attorney fees to the wife.
Section 40-4-110 MCA controls District Courts concerning
the issue of attorney fees. This statute vests in the District
Court the discretion to award costs and attorney fees in a
dissolution proceeding. Brown v. Brown (1978), Mont .
, 587 P.2d 361, 35 St.Rep. 1733, 1740. Clearly, there was
a necessity for the husband to pay the attorney fees in this case.
-6-
The District Court found that the respondent lacked
sufficient property to provide for her reasonable needs, and
that she was unable to support herself without a maintenance
award. Additionally, the wife testified she did not have the
money with which to pay her attorney fees. The record also contains
testimony establishing that the husband was taking home approxi-
mately $800 a month, and that the wife was taking home approximately
$445 a month. The District Court was adequately appraised of
the relative financial means of the parties, and sufficient
evidence supported the court's finding of an award of attorney fees.
We note, however, that a showing must be made on the reasonable-
ness of attorney fees; and that a hearing must be held on attorney
fees. Downs v. Downs (1979), Mont . , 592 P.2d 938, 940,
36 St.Rep. 577, 581; Marriage of Barron (1978), Mont . I
580 P.2d 936, 35 St.Rep. 891; First Security Bank of Bozeman v.
Tholkes (1976), 169 Mont. 422, 547 P.2d 1328; Crncevich v.
Georgetown Rec. Corp. (1975), 168 Mont. 113, 541 P.2d 56. The
reasonableness of the attorney fees claimed must be shown by
evidence. An award of attorney fees must be based on a hearing
allowing for oral testimony, the introduction of exhibits, and
an opportunity to cross-examine in which the reasonableness of
the attorney fees claimed is demonstrated. Green v. Green (1979),
Mont. , 593 P.2d 446, 450, 36 St.Rep. 708, 713; State
Highway Comrn'n. v. Marsh (1978), Mont . , 575 P.2d 38,
35 St.Rep. 105. Guidelines have been established concerning
the factors to be considered in determining the proper amount
of attorney fees to be awarded. First Security Bank of Bozeman
v. Tholkes, 169 Mont. at 429-430; Crncevich, supra.
The cause is remanded to the District Court for a hearing,
consistent with the authority cited, to determine the amount of
reasonable attorney fees to be paid by the petitioner. The
judgment of the District Court is otherwise affirmed. Husband
is to pay costs on appeal.
.................................
Justice
We Concur:
Chief Justice