Marriage of Chapin v. Chapin

No. 82-337

I N T E SUPREME COURT O THE STATE O F XONTANA
H F

1982

I N RE THE LMARRIAGE OF

RUTH CATHERINE CHAPIN,

P e t i t i o n e r and Respondent,

-vs-

ROBERT L W E C C A I N ,
A RNE H P

Respondent and A p p e l l a n t .

Appeal from: D i s t r i c t Court of t h e Nineteenth J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f L i n c o l n , The Honorable
R o b e r t M. H o l t e r , Judge p r e s i d i n g .

Counsel of Record:

For A p p e l l a n t :

Donald L. S h a f f e r , Libby, Montana

For Respondent:

S c o t t B. S p e n c e r ; S v e r d r u p & Ruyske, L i b b y ,
Montana

-- --

S u b m i t t e d on B r i e f s : November 2 4 , 1982

Decided: December 29, 1982

rjk k i 2 j 1982
Filed:
Mr. Justice John C. Sheehy delivered the Opinion of the Court.

This is an appeal by Fbbert Chapin (husband) from a decree of

dissolution issued by the Nineteenth LJudicial District, Lincoln County,
dissolving the marriage of the parties, dividing their property and
awardinq the wife an a j s t
du- allowance and attorney's fees. We affirm
the decree of the District Court.
The parties were married in 1975 and no children were born of the
marriage.

At the t h of the dissolution, the District Court found that Ruth
Chapin (wife) was 38 years old and that although she had several minimum
wage jobs during the marriage, she was primarily a wife and homemaker.
She was employed as a cook's helper at the t h e of the dissolution and
received total earnings of $50 per week. At this same t b the husband
was employed by Fbsaur's and received $269 per week. His employer is
required to deduct $50 per month from his earnings for child support
arising from a previous marriage.
The District Court divided the propertv awned by the parties and
awarded the wife what it called an "adjustment allowance" of $150 per
mnth for two years. The court ordered the husband to pay the debts of
the marriage and the wife's attorney's fees of $400.
The issues are:
1. Whether the District Court abused its discretion when it awarded

the wife an adjustment allowance.
2. Whether the District Court improperly awarded the wife's
attorney's fees.
The husband argues that the "adjustnent allowance" is improper
because this Court does not use the term when defining maintenance and
that the District Court abused its discretion when it made the award to
the wife without sufficiently substantiating the allowance.
 This Court has determined that maintenance is related to the needs
of the spouse receiving it and is subject to modification. Maintenance
can only he had after there is an equitable division of the marital
estate. Johnsrud v Johnsrud (19771, 175 Mont. 117, 572 ~ . 2 d
. 902.
Here, the Court equitably divided the marital estate and the needs
of the spouse were taken into consideration. Maintenance by any other
n m is still maintenance.

When determining whether maintenance is proper the District Court
must consider the factors set forth in section 40-4-203, m. The
standard of review of maintexance awards is whether the District Court
abused its discretion when evaluating and allowing or disallowing
maintenance. In re the Marriage of Knudson (1981), . ,
P o t - 622
ln
P.2d 1025, 1026, 37 St.kp. 147, 152; In re the Marriage of Gauthier

(19821, .
Mont - -P.2d
I , 39 St.kp. 2137.
The District Court, after hearing the evidence, evaluated the
factors set forth in the statute when it determined the propriety of the
award and found that:
"The Petitioner (wife) would ask for permanent
support. Based upon the living style of the parties,
the short duration of the marriage, the dissipation
of the few assets, and the employment experience a .
nd
opportunities available to both parties, such
permanent support is unreasonable. Rather, the
Respondent (husband) should assist Petitioner (wife)
for a period of two years and in the m u n t of
$150.00 per mnth . . ."
This Court holds tha.t the award is proper and that the District
Court did not abuse its discretion when it set the amount of +he award.
The second issue is whether the District Court improperly awarded
attorney's fees.
The husband contends that the District Court abused its discretion
i awarding the wife attorney's fees, pursuant to section 40-4-110, MCA,
n
because the court did not have an evidentiary hearing on the matter as
required by Phennicie v Phennicie (1979
. , Mont . , 604 P.2d 787,
791, 36 St.Rep. 2378, 2383, citing Cmcevich v. Georgetown Recreation
Corp. (1975), 168 Mont. 113, 120, 541 P.2d 56, 59.
The District Court awarded the wife $400 in attorney's fees. This
award approaches - minimus. If we reverse on this issue the cost to the
de
parties could easily exceed the initial sum awarded. For these reasons,
the award of attorney's fees will not be disturbed.
The decree of the District Court is affirmed in all respects.

Q K
Justice
?
We Concur;,