NO. 8 3 - 0 2
IN THE SUPREME COURT OF THE STATE OF MONTANA
1983
IN RE THE briARRIAGE OF
WILLIAM RONALD CARR,
Petitioner and Appellant,
DENISE DEAN CARR,
Respondent and Respondent.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable James B. Wheelis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Tipp, iloven, Skjelset & Frizzell, Missoula,
Montana
For Respondent:
Mulroney, Delaney & Dalby; Mars P, Scott,
Missoula, Nontana
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Submitted on Briefs: May 12, 1983
Decided: August A, 1983
Filed: AUG 4 1983
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Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Appellant, William Ronald Carr, husband in a marital
dissolution proceeding, appeals from an order amending the
judgment entered by the District Court of the Fourth Judicial
District, Missoula County.
William and Denise were married on January 26, 1963.
They have two children; one is a minor, the other is
emancipated but living in the family home. The major assets
of the marriage include the family home, an investment
a.ccount worth over $20,000, William's United States Forest
Service retirement pension, and a refund from their 1981
federal and state withholding taxes.
Pursuant to the terms of the property settlement
agreement William received personal property valued at
$3,395; $9,035 from the investment account, one-half of the
1981 tax return valued at $1,010.50; and exclusive right to
the retirement pension. Denise received furniture and
household goods valued at $7,265; $10,345 from the investment
account; and one-half of the 1981 tax refund. The parties
further agreed that Denise would retain possession of and
maintain the family home until the minor child turns
eighteen, or Denise moves from the home or remarries.
William is responsible for the monthly mortgage installments,
insurance, and taxes on the home. Upon termination of
Denise's right to use the home, William will be reimbursed
for all principal paid by him from January 1, 1982, with the
remainder of the net proceeds to be divided equally between
the parties.
William is employed by the United States Forest Service
and has a net monthly income of $1,980.42. He also sells
Provida Food Supplements Dehydrated. and Skin Care Products.
He is in good health and his job is secure.
Denise was a mother and homemaker for the nineteen years
of their marriage. She has no vocational skills, but is
currently employed by Teleprompter in Missoula where she
earns $3.50 an hour. Her net monthly income, calculated from
her 1981 W-2 form, is $696.75. She has high blood pressure,
one kidney, and is in need of medical attention.
On July 9, 1982, the District Court entered findings of
fact and conclusions of law; judgment followed September 8,
1982. The District Court awarded Denise $80 per month
maintenance and $200 per month for each minor child. The
District Court further ordered William to pay all attorn.ey
fees .
William moved the District Court to amend its judgment
and findings of fact and conclusions of law to reduce the
maintenance and child support payments, and eliminate his
responsibility for Denise's attorney fees. The District
Court reduced only the maintenance payment from $180 per
month to $100 per month. Responsibility for the attorney
fees was not altered. It is from this amended judgment that
William appeals.
The issues are:
1. Did the District Court err in awarding maintenance
to Denise?
2. Did the District Court err in ordering William to
pay Denise's attorney fee?
The guidelines for an award of maintenance are set forth
in 40-4-203, MCA.
The parties were married for nineteen years. During
that time Denise was a wife, mother, and a homemaker. She
did not acquire the skills or experience necessary to meet
the standard of living established during the marriage. It
is also clear that her physical health is in doubt. William
is able to provide Denise with maintenance while maintaining
his established standard of living. Furthermore, both
children are living with Denise, but William is only required
to pay support for one child.
After two days of hearings, the District Court found
that Denise required and William could pay $180 per month for
maintenance. The District Court later amended that finding
and reduced the required payment to $100 per month.
The standard of review of the District Court is set
forth in Rule 52(a), M.R.Civ.P., as follows:
"Findings of fact shall not be set aside unless
clearly erroneous, and due regard shall be given to
the opportunity of the trial court to judge the
credibility of the witnesses."
We have held that his Court's function is to review the
lower court's findings in light of the record and to make
certain the findings are not clearly erroneous. Peckenpaugh
v. Peckenpaugh (19821, Mont . , 655 P.2d 144, 39
St.Rep. 2132, LeProwse v. LeProwse (1982), Mont. I
646 P.2d 526, 39 St.Rep. 1053; Jensen v. Jensen (1981),
Mont . , 629 P.2d 765, 38 St.Rep. 1109. In light of the
factors previously stated, we find no clear error by the
District Court in requiring the maintenance payments.
The second issue is whether the District Court erred in
ordering William to pay Denise's attorney fees. Section
40-4-110, MCA, provides:
"Costs--attorney's fees. The court from time to
time, after considerins the financial resources of
both.parties, may orde; a party to pay a reasonable
amount for the cost to the other party of
maintaining or defending any proceeding under
chapters 1 and 4 of this title and for attorney's
fees, including sums for legal services rendered
and costs incurred prior to the commencement of the
proceeding or after entry of judgment. The court
may order that the amount be paid directly to the
attorney, who may enforce the order in his name."
This Court has held:
"Traditionally, a showing of necessity has been a
condition precedent to the exercise of the court's
discretion to award attorney fees. Whitman v.
Whitman (1974), 164 Mont. 124, 519 P.2d 966. But
the lower court's discretion in the matter will not
be disturbed if substantial evidence is found in
the record to support the award." Kaasa v. Kaasa
(19791, Mont
St.Rep. 425, 430.
. , 591 P.2d 1110, 1114, 36
"Here, the trial court was well aware of the
parties' financial situations. It did not abuse
its discretion in making an award of reasonable
attorney fees, based on necessity. Houtchens v.
Houtchens (1979), Mont. , 592 P.2d 158, 36
St.Rep. 501, 505.'Tailey v. Bailey (1979),
Mont 1 . 603 P.2d 259, 261, 36 St.Rep. 2162.
In the present case the District Court was provided
ample evidence to determine the financial situa.tion of the
parties. William has greater earning potential, a much
larger salary, a secure pension, and is in good health.
Denise, on the other hand, is of doubtful health, does not
have an established retirement pension, and does not have as
much earning potential as William. Based on these factors
the District Court did not abuse its discretion in awarding
Denise attorney fees. The judgment of the District Court is
a£firmed. The cause is remanded for a determination of
reasonable attorney fees.
We concur:
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Justices