No. 94-289
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
IN RE THE MARRIAGE OF
DANIEL G. BRADSHAW,
Petitioner and Respondent,
-v-
MICHELLE NORICK BRADSHAW,
Respondent and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Ed McLean, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Laurence J. Ginnings, Missoula, Montana
For Respondent:
John C. Schulte, Missoula, Montana
Submitted on Briefs: December 8, 1994
Decided: March 9, 1995
Filed:
Justice James C. Nelson delivered the Opinion of the Court.
This is an appeal and a cross-appeal from the Findings of
Fact, Conclusions of Law and Final Decree of Dissolution of the
Fourth Judicial District Court, Missoula County. We affirm in part
and reverse and remand in part.
The following are issues on appeal and cross-appeal:
APPEAL ISSUES
I. Did the District Court err in awarding the wife $6,000
equity in the house?
II. Did the District Court err in ordering the husband to pay
for the wife's future dental expenses associated with tooth repair?
III. Did the District Court err in ordering the husband to
undergo and pay for counseling as a condition of exercising
unsupervised visitation?
IV. Did the District Court err when it refused to award the
husband a variance from child support for the court-ordered
counseling?
CROSS-APPEAL ISSUES
I. Did the District Court err in granting grandparent
visitation when there was no petition by the grandparents for such
visitation?
II. Did the District Court err when it did not order that the
beneficiary of the husband's annuity be the child?
III. Did the District Court err in not awarding the wife
maintenance?
IV. Did the District Court err in not awarding the wife a
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higher share of the equity in the house?
V. Did the District Court err in not awarding the wife
attorney's fees?
FACTUAL AND PROCEDURAL BACKGROUND
Daniel G. Bradshaw (Daniel) and Michelle Norick Bradshaw
(Michelle) were married in Missoula, Montana on September 2, 1992,
and they were separated in early February, 1993. Daniel and
Michelle have one child, Daniel Richard Bradshaw, (Danny), who was
born on June 17, 1992.
Daniel's petition for dissolution came on for hearing on
August 27, 1993, and September 1, 1993, before Susan P. Leaphart,
a Special Master. The Special Master filed her Recommended
Findings of Fact, Conclusions of Law and Opinion on September 17,
1993. The District Court adopted the Special Master's
recommendations with a few minor changes on January 13, 1994, with
an Order regarding Objections to the Special Master's Findings of
Fact and Conclusions of Law and Final Decree of Dissolution. The
following factual information comes from the Special Master's
Findings:
Daniel suffers from serious physical impairments sustained in
a head injury when he was 15 years old. He also has a learning
disability which causes problems in processing information and
communicating orally and in writing. Michelle is able-bodied and
in good health.
Daniel's physical and mental impairments impede his ability to
obtain employment and his options seem to be manual labor positions
3
such as dishwashing and custodial work, positions which he has held
in the past. At the time of the dissolution he was unemployed and
receiving unemployment benefits of $103 which were about to expire.
Also about the time of the dissolution, Michelle, who had been
unemployed, was hired by a health care facility for $5.10 per hour
with an increase to $5.60 per hour when she receives her Nurse's
Aide certification. Immediately prior to her hiring at the health
care facility, she was receiving $310 per month in general
assistance and $161 per month in food stamps.
Daniel received a structured settlement due to his head injury
and receives a monthly annuity of $l,ZOO.OO, which increases by
four percent annually, and a lump sum of $2,500.00 in July of each
year which increases by three percent annually.
Daniel's major asset is the home at 2300 Woodcock in Missoula,
which he purchased on December 7, 1989, for $48,000, paying $16,000
as a down payment. He purchased the home with funds from his
personal injury settlement. Daniel has paid all mortgage payments,
taxes and insurance payments associated with the home. Michelle
has not contributed in any meaningful way, either economically or
non-economically, to the value of the home. The increase in value
of the house is due entirely to the inflation of home values in the
Missoula area. An expert valued the home at $64,000 at the time of
the dissolution.
Michelle has been Danny's primary caregiver and Daniel has
cared for Danny for only a few brief time periods. Although Daniel
and Danny have an affectionate relationship, Daniel's disabilities
4
prevent him from adequately parenting Danny on a full-time basis.
The social worker who performed the custody assessment recommended
that Daniel be granted reasonable supervised visitation while
Michelle should be designated as the primary custodial parent.
The social worker recommended supervised visitation until such
time as Daniel completes a Child Abuse Potential Inventory, an
Adult Parent Inventory, and counseling which offers training and
education in child development and parenting skills. Moreover, the
social worker recommended that Daniel receive counseling with a
therapist trained in working with head injury victims. Periods of
depression and violent outbursts concerned the social worker as
they may affect Daniel's parenting of his son. Unsupervised
visitation may be appropriate upon completion of the above
mentioned programs & a recommendation by Daniel's primary
treating therapist.
The social worker also recommended that Michelle continue in
counseling with her therapist and that she attend educational
counseling with Daniel's therapist regarding head injuries. The
social worker also suggested that the entire family be monitored by
a case manager for 12 months.
The social worker also testified that it would be in Danny's
best interests if Daniel's parents, who live in Libby, could
exercise visitation. This practice would be contingent upon
Daniel's parents signing an agreement that Danny would never be
left alone with Daniel on any of the visits. Daniel's mother has
stated that she would be agreeable to such an agreement and that
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the paternal grandparents would provide Danny's transportation on
such visits.
Daniel had the following expenses at the time of the
dissolution:
1. Rent - $100.00 per month.
2. Purchase or mortgage payments and taxes - $360.27 per
month
3. Utilities - $50.00 per month
4. Food - $175 per month
5. Transportation - $150 per month
6. Insurance - $275 every 3 months
7. Recreation - $25.00 per month
8. Other regular or extraordinary expense - $225.00 per
month
9. Water - $20.00 per month
10. Montana Power Company - $75.00 per month
11. Telephone - $100.00 per month
12. Chapter 13 payments - $200.00 per month
13. Repair to truck - $2400.00
TOTAL - $1347.27 PER MONTH
Michelle had the following expenses at the time of the
dissolution:
1. Doctor bills - $25.00 per month (until $130 balance is
paid)
2. Telephone - $16.00 to 19.00 per month
3. Garbage - $11.00 per month ($40.00 owing)
4. Gas - $100.00 per month
5 . Clothing for Danny - $200.00 per month
6. Personal bills - minimum of $50.00 per month
7. Repair to tooth - total approximately $3000.00
TOTAL - $405.00 PER MONTH
The monthly totals do not include the costs of repairing Michelle's
tooth or Daniel's truck. The parties filed bankruptcy and Daniel
has been making Chapter 13 payments of $200.00 per month to retire
this debt. These payments are to continue for three years.
The following conclusions of law from the Special Master's
opinion, adopted by the District Court, are pertinent to the issues
6
on appeal:
1. The home at 2300 Woodcock was awarded to Daniel.
2. Michelle was awarded $6,000, a portion of the equity
in the home.
3. Michelle will not be awarded maintenance because she
is able to support herself through employment
commensurate with her education and skills.
4. Michelle is designated as the primary custodial parent
with Daniel granted supervised visitation.
5. Daniel shall be evaluated for parenting skills and, if
appropriate, receive counseling and education to develop
necessary parenting skills.
6. Daniel shall receive counseling with a primary
therapist who is knowledgeable about head injuries.
7 . Daniel may exercise supervised visitation with Danny
twice a week and supervision shall be arranged through
Extended Family Services in Missoula.
8. Danny's paternal grandparents shall have visitation
with Danny once a month, providing for Danny's
transportation, if they will sign a stipulation stating
that they will not leave Danny alone with Daniel.
9. Daniel shall pay child support in the amount of
$539.00.
10. Daniel shall pay for the repair of Michelle's tooth.
11. Each party will be responsible for his/her attorney
fees.
From the order of the District Court, adopting the Special Master's
Findings of Fact and Conclusions of Law, with some modifications,
both parties appeal.
STANDARD OF REVIEW
The standard of review for findings of fact of a district
court is whether the court's findings are clearly erroneous and
whether its conclusions of law are correct. In re Marriage of Rada
(1994), 263 Mont. 402, 405, 869 P.2d 254, 255. This Court is not
bound by a lower court's conclusions of law; this Court remains
free to reach its own conclusions. In re Marriage of Danelson
(1992) I 253 Mont. 310, 317, 833 P.2d 215, 219.
ISSUE I - $6,000 EQUITY IN THE HOUSE FOR MICHELLE
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The Special Master found that Daniel had purchased the home
prior to the marriage, making a downpayment of $16,000 from his
settlement monies and that he had paid all mortgage payments, taxes
and insurance payments associated with the house from his
settlement and annuity. Moreover, Michelle "ha [dl not contributed
substantially to the value of the house either monetarily or as a
homemaker."
The distribution of property is governed by 5 40-4-202, MCA,
which provides in pertinent part:
(1) . . . In dividing property acquired prior to the
marriage; . . . the increased value of property acquired
prior to marriage; . . . the court shall consider those
contributions of the other spouse to the marriage,
including:
(a) the nonmonetary contribution of a homemaker;
(b) the extent to which such contributions have
facilitated the maintenance of this property; and
(c) whether or not the property division serves as an
alternative to maintenance arrangements.
This Court has held that the "source of the property was a
major factor to be considered by the District Court dividing
property under Section 40-4-202, MCA. 'I In re Marriage of
Summerfelt (1984), 212 Mont. 332, 337, 688 P.2d 8, 11. Moreover,
if the increase in value of the property is not a product of
contribution from a marital effort, the court may find that the
non-acquiring spouse has no interest in the property at issue. In
re Marriage of Stewart (1988), 232 Mont. 40, 44, 757 P.2d 765, 768.
Although Stewart concerned inherited property, the proposition is
applicable here.
In the instant case, the court specifically found that Daniel
purchased the home with his own funds before the couple married and
8
he paid for all mortgage and insurance payments as well as taxes
associated with the home. Michelle did not make any substantial
contributions to the home monetarily or as a homemaker. The court
also found that the increase in the value of the house was entirely
due to the general inflation of home values in the Missoula area.
Under subsection (a) and (b) of 5 40-4-202, MCA, Michelle would not
be entitled to any portion of the equity in the house because she
made no contributions to the maintenance and value of the property.
Moreover, although the court stated that the $6,000 in equity
in the house awarded to Michelle was in lieu of maintenance, the
court also stated elsewhere in the opinion that it was not
appropriate for Michelle to be awarded maintenance. Therefore,
under subsection (c) of § 40-4-202, MCA, Michelle would not be
entitled to a portion of the equity in the house. We also note
that the length of the marriage was brief - the couple lived
together as husband and wife for only five months.
Considering § 40-4-202, MCA, and our case law interpreting
that statute, we determine that the District Court should have
properly concluded that Michelle was not entitled to any share of
the equity in the house. We hold that the District Court erred in
awarding a share of the equity in the house to Michelle and
accordingly, we reverse on this issue.
ISSUE II - TOOTH REPAIR
Daniel argues that he should not be liable for Michelle's
dental expenses associated with her tooth injury because these
damages were not plead and he had no notice and opportunity to
9
present evidence on the disputed issue. Michelle asserts that
Daniel should pay for the repair of the tooth because he admitted
to causing the damage. Moreover, although Michelle states that she
did not specifically ask for these damages in her prayer for
relief, she did request "such other and further relief as the Court
may deem just and proper."
Finding of Fact no. 43 in the Special Master's findings and
conclusions states that "[dluring the marriage, Petitioner [Daniel]
inflicted damage to Respondent's tooth. Costs of the repair to
that tooth should be borne by the Petitioner. The estimated cost
of this repair is approximately Three Thousand Dollars
($3,000.00).~ Conclusion of Law no. 23 states that "Petitioner
shall pay for the repair of Respondent's tooth in the amount not to
exceed $3,000.00.1'
We find two problems with awarding Michelle up to $3,000.00
for the repair of the tooth in the instant case. First, although
Michelle contends that Daniel admitted during the hearing that he
had damaged her tooth, we have no record which we can review to
determine whether an admission was indeed made. Moreover, we
cannot determine whether, as Daniel insists, Michelle sought to
introduce an estimate prepared by Dr. Ming but the exhibit was not
received into evidence. Therefore, this Court is hampered by an
inability to review the record to determine what evidence was
actually presented. We do, however, find support in the record for
Daniel's contention that he strenuously objected to the finding of
fact and conclusion of law regarding the tooth damage and
10
subsequent repair.
Second, and most problematic, is the fact that Daniel received
no notice regarding this claim, essentially a personal injury
claim, until the dissolution hearing. There is no indication in
Michelle's response to the petition for dissolution that the
personal injury claim might be an issue during the proceedings.
"The purpose of a pleading is to provide notice before trial to the
opposing party of the specific relief being sought so that both
parties have an opportunity to present evidence on the issues in
dispute." Matter of Custody of C.J.K. (1993), 258 Mont. 525, 527,
855 P.Zd 90, 91. Here, it appears that no such notice was provided
and no opportunity to present evidence on the issue was afforded
Daniel. C.J.K. states that there are exceptions which provide the
court with jurisdiction to grant relief outside of the issues
presented in the pleadings; if the parties stipulate that other
questions may be considered or if the pleadings are amended to
conform to the proof, citing Old Fashion Baptist Church v.
Department of Revenue (19831, 206 Mont. 451, 457, 671 P.2d 625,
628. Parties may "stipulate" either expressly or impliedly.
C.J.K., 855 P.2d at 91. (Citation omitted.) There is no evidence
here that an expressed stipulation to consider the issue of tooth
repair occurred.
Moreover, "[cloncerning the issue of implied consent, we have
stated that ‘pleadings will not be deemed amended to conform to the
evidence because of 'implied consent' where the circumstances were
such that the other party was not put on notice that a new issue
11
was being raised."' C.J.K., 855 P.2d at 91. There is no evidence
that Daniel received notice before trial that the tooth repair was
an issue and therefore, he could not have consented to consider the
issue. Further, he objected to the consideration of this issue
because he was not provided proper notice, he does not admit to
injuring the tooth and the issue of tooth repair is a personal
injury issue, not a dissolution issue. Such objection cannot be
interpreted to provide implied consent to consider the issue.
C.J.K., 855 P.2d at 91. Therefore, there was neither a stipulation
nor an amendment of the pleadings to conform to the proof and no
exception applies here.
Lack of notice may have prejudiced Daniel and prevented him
from having adequate opportunity to prepare evidence and testimony
regarding the issue. C.J.K., 855 P.2d at 91. We therefore hold
that the determination of the issue of the tooth repair was not
properly before the District Court and we reverse the District
Court's conclusion on this issue.
ISSUE III - PAYMENT OF COUNSELING
Daniel argues that there was no substantial credible evidence
that he should have only supervised visitation until he received
appropriate counseling and an assessment of his parenting skills.
According to Daniel, the court did not consider the costs
associated with counseling and supervised visitation. Section 40-
4-212, MCA, states that " [tlhe court shall determine custody in
accordance with the best interest of the child. The court shall
consider all relevant factors, including. . . the mental and
12
physical health of all individuals involved [and] physical abuse or
threat of physical abuse. . . .'I The Special Master made the
following findings regarding Daniel's physical and mental health as
well as his issues of physical abuse:
First, Daniel was involved in a wrestling accident when he was
15 years old. The accident resulted in brain trauma, leaving his
left arm permanently paralyzed and his left side impaired. His
physical condition is expected to deteriorate as he gets older.
Second, he also has a learning disability which causes problems in
processing and communicating orally and in writing. Third, Daniel
has cared for Danny without assistance for only a few brief time
periods. Fourth, Karen Emerson, the social worker who conducted
the custody assessment, concluded that Daniel should be granted
reasonable supervised visitation. Fifth, Emerson recommended that
visitation be supervised until he completed a Child Abuse Potential
Inventory, an Adult Parent Inventory, counseling, education and
training in child development and parenting skills, and counseling
with a primary therapist trained in treating clients with head
injuries. Emerson was particularly concerned with Daniel's violent
outbursts and periods of depression. These findings are supported
by the Special Master Report which Karen Emerson provided to the
Special Master. When Daniel was interviewed during the custody
assessment process, he stated that he had hit Michelle and
destroyed property in anger on several occasions. He also reported
that law enforcement authorities had been called to the home at
least six times due to his violent behavior, and he admitted he has
13
problems managing his anger. He also spoke about being
hospitalized two times for suicidal ideation.
Given that § 40-4-212, MCA, requires consideration of the
mental and physical health of the individuals involved, and because
of the reported incidents of abuse and possibility of future
physical abuse here, the District Court appropriately granted
supervised visitation. Daniel admitted to having problems with
anger and aggression, including incidents of hitting Michelle and
destroying property. There were also reports of six incidents
where the police were called to the home because of violent
behavior on Daniel's part. Clearly, there is cause for concern for
Danny's safety. Moreover, although this Court may be sympathetic
to Daniel's concern regarding the cost of the counseling, under 5
40-4-212, MCA, the best interest of the child is the paramount
consideration in granting visitation.
This case can be distinguished from In re Marriage of Gebhardt
(1989), 240 Mont 165, 783 P.2d 400, cited by Daniel. In Gebhardt,
the wife reported eight instances of abuse by the husband/father.
However, there was conflicting testimony as to who instigated some
of those confrontations between the husband and the wife and
between the husband and one of the children. Both parents agreed
that corporal punishment was appropriate for children. The Court
also found that the wife's affidavit regarding visitation was self-
serving and contained no evidence to reflect "a potential for
serious endangerment." Gebhardt, 783 P.2d at 405.
In the instant case, there was evidence presented by both
14
parties to the effect that Daniel has had problems with anger and
physical aggression including several incidents where the police
were called. These problems, where they are found to exist, must
properly be considered by the court in its assessment of custody
and visitation under § 40-4-212, MCA.
Daniel also argued that Emerson lacked the expertise to make
recommendations concerning Daniel's medical condition. However,
during the custody evaluation, the social worker interviewed
Daniel, Michelle, references, therapists, police reports, an
employment counselor as well as interviewing a rehabilitation
social worker, trained to work with individuals with head injuries
to facilitate her report to the Special Master. She also reviewed
appropriate literature to help her understand head-injured persons
and their problems and concerns. Emerson has a master's degree in
social work, and she located additional resources to ensure a valid
and comprehensive custody evaluation, taking into consideration the
special concerns and problems of head-injured persons. This
argument is accordingly, without merit.
In the instant case, Daniel has been given the opportunity for
unsupervised visitation upon the approval of his therapist and upon
proper training and education in child development and parenting
skills. Albeit a financial strain, with Daniel's history and
background, this is an appropriate visitation plan. Substantial
evidence supports the District Court's conclusion on this issue.
We hold that the District Court properly determined and correctly
concluded that Daniel should undergo counseling as a condition of
15
exercising visitation.
ISSUE IV - VARIANCE IN CHILD SUPPORT
Daniel's final argument concerns whether the District Court
should have awarded him a variance in child support for his
expenses associated with the joint bankruptcy obligation and the
court-ordered counseling. Daniel contends that he should receive
a variance of $100.00 per month for the joint bankruptcy payments
and a further variance for the cost of the counseling. Daniel
argues that the District Court determined that his expenses were
$1,347.27 per month, which costs did not include any child support
payments or the cost of repairing his vehicle which was not in
operating condition. Daniel's unemployment benefits were about to
expire, and he was still unemployed at the time of dissolution.
His monthly annuity is $l,ZOO.OO, and even with his unemployment
benefits, he was finding it hard to meet his monthly expenses.
Daniel contends that the result of the court order to pay child
support of $539.00 per month is that he has to pay almost half of
his annuity income to child support. Moreover, he still cannot
afford to pay for the counseling and supervised visitation and is,
in effect, prevented from seeing his child in a meaningful way.
Rule 46.30.1543(h), ARM, permits a variance in child support
payments based upon the overall financial condition of a parent.
In the instant case, Daniel has expenses of $1,347.27.00 per month,
which does not include the cost of repair to his truck, child
support payments or the cost of counseling and supervised
visitation. It does include a $200.00 monthly payment for the
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joint bankruptcy obligation. Daniel receives a $l,ZOO.OO per month
annuity and was receiving $103.00 per month in unemployment
compensation. However, the unemployment payments were about to
expire at the time of the dissolution.
Clearly, Daniel has a difficult time meeting his expenses
without even considering child support and counseling payments. It
is unrealistic to expect him to meet his own expenses, make
payments on the joint bankruptcy obligation & make child support
payments of $539.00 &pay for counseling in order to exercise his
visitation. Considering subsection (h), of Rule 46.30.1543, ARM,
a variance in child support payments is in order. At the time of
the dissolution, Daniel's overall financial condition was poor.
This situation needs to be carefully considered in determining an
appropriate child support payment amount for Daniel. We reverse
the monthly child support payments set at $539.00 and remand for a
recalculation considering a variance from the child support
obligation previously calculated.
CROSS APPEAL ISSUE I - GRANDPARENT VISITATION
Michelle's first issue on cross-appeal is whether it was error
for the court to allow grandparent visitation when there was no
petition from the grandparents before the court. Daniel argues
that the grandparents were actually granted visitation in order to
facilitate his exercise of parental visitation and therefore, the
granting of grandparent visitation was appropriate.
There appears to be no disagreement that a petition for
visitation by Danny's paternal grandparents was never filed.
17
Section 40-4-217(2), MCA, permits the grant of visitation to
grandparents upon the petition of a qrandparent if the court finds,
after a hearing, that visitation would be in the best interest of
the child. Even though there was some discussion about grandparent
visitation in the Special Master's Report, the Special Master's
Recommended Findings and Conclusions and the District Court's Order
regarding Objections to the Special Master's Recommended Findings,
Conclusions and Final Decree of Dissolution, there is no mention of
a petition for grandparent visitation nor is there evidence that a
hearing was held to determine whether such visitation was in
Danny's best interests. Therefore, this issue was not properly
before the court and we hold that the District Court erred in
granting visitation to the paternal grandparents and accordingly,
reverse on this issue.
CROSS-APPEAL ISSUE II - ANNUITY BENEFICIARY
Michelle argues that Danny should be the surviving beneficiary
of Daniel's annuity, and that the trial court should have ordered
that designation to avoid potential future litigation because
Daniel's mother, the named surviving beneficiary, and Michelle do
not "get along." Therefore, according to Michelle, Danny may not
receive the money to which he is entitled. Daniel contends that he
is entitled to designate a personal representative of his choice to
administer his annuity, and that, since there is no actual
controversy here, Michelle cannot request relief for a future harm
which "possibly may occur." We agree with Daniel.
The dispensation of Daniel's estate and the payment of child
18
support from his estate are not issues before this Court because
Daniel is still alive. No actual case or controversy is presented.
"Therefore we do not have a justiciable controversy over which the
judicial power to determine real controversies may be exercised."
Hardy v. Krutzfeldt (1983), 206 Mont. 521, 525, 672 P.2d 274, 276.
Absent a real controversy, this Court does not have the power to
address the issue presented. Hardy, 672 P.2d at 276. Nor was this
issue properly before the District Court. Accordingly, it will not
be considered further.
CROSS APPEAL ISSUE III - MAINTENANCE
Michelle argues that she should have been awarded maintenance
because her property is insufficient to provide for her reasonable
needs. She asserts that her need for retraining and the needs of
her child justify an award of maintenance. Daniel counters her
argument by stating that she is in good health, is able-bodied and
"is able to support herself through employment commensurate with
her education and skills [and that1 she does not meet the statutory
requirements for an award of maintenance." Daniel further states
that Michelle is more employable than he is, and "both parties have
had inadequate financial resources to meet their monthly
obligations." We agree with Daniel.
The Special Master made the following findings of fact about
Michelle, adopted by the District Court. She is able-bodied and in
good health and although she had been unemployed, she was hired
during the course of the hearing to be trained as a certified
nurse's aide at $5.10 per hour plus benefits with a $.50 raise once
19
certified. The court found that she had demonstrated that she was
able to locate work appropriate to her level of training and
education. The court found that her job would help her to achieve
her goal of becoming an LPN or an RN. The court also determined
that the marriage had lasted only five months. The court concluded
that she did "not meet the statutory requirements for an award of
maintenance and, therefore maintenance [was] not appropriate in
this case."
The court found that Daniel suffered serious physical
impairments when he received a head injury when he was 15 years
old. His left arm is permanently paralyzed and the left side of
his body is impaired. His physical condition is expected to
deteriorate as he gets older. Moreover, he has a learning
disability which affects his processing of oral and written
communication and impedes his ability to communicate effectively.
He was unemployed at the time of the dissolution and was not
expected to work at any jobs other than manual labor jobs such as
dishwasher and custodial work. His physical and mental impairments
were found to restrict his ability to obtain employment.
Clearly, Michelle's educational and economic prospects are
brighter than Daniel's prospects. Daniel can barely provide for
his own needs, much less provide maintenance for Michelle. She has
proven that she is able to "support herself through employment
commensurate with her education and skills." She has already
sought and obtained a position through which she can continue to
receive an education and improve her skills and employability. She
20
does not meet the requirement for maintenance set forth in § 40-4-
203(l) (b), MCA, because she is able to support herself through
appropriate employment, and she is not the custodian of a child
whose condition makes it inappropriate to seek employment outside
of the home. Moreover, considering the factors set forth in § 40-
4-203(2), MCA, an award of maintenance is inappropriate. The
marriage was of short duration, Michelle is young, able-bodied and
in good health. Daniel is barely able to meet his own needs and
does not have the ability to work in positions other than manual
labor such as dishwashing or custodial work. We therefore hold
that the District Court correctly concluded that this is not a
situation in which an award of maintenance would be appropriate.
CROSS APPEAL ISSUE IV - CALCULATION OF EQUITY
Michelle's next argument is that the District Court's
calculation of the amount of equity in the house to which she was
entitled was miscalculated. This issue was dispensed with in
Appeal Issue I wherein we held that Michelle was not entitled to
any equity in the house. Therefore, this issue need not be further
addressed.
CROSS APPEAL ISSUE V - ATTORNEY'S FEES
Michelle's final argument is that she should have been awarded
attorney's fees. Section 40-4-110, MCA, governs awards of
attorney's fees and provides:
The court from time to time, after considering the
financial resources of both parties, may order 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. . . .
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The District Court may award attorney's fees after considering
the financial resources of both parties and such an award is
"largely discretionary with the District Court. . .'I In re
Marriage of Roullier (1987), 229 Mont. 348, 360, 746 P.2d 1081,
1088. This is not a case such as Roullier where one party is
clearly in a better financial position and can properly be ordered
to pay attorney's fees. In the instant case, in view of both
parties' well-documented negligible financial resources and
Daniel's overall health and employability problems, neither party
is in a position to pay the other party's attorney's fees and the
District Court properly considered this issue. We hold that the
District Court did not err in ordering each party to pay their own
attorney's fees.
AFFIRMED IN PART AND REVERSED AND R
We Concu
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