No. 13560
I N T E SUPREME COURT O THE STATE O MONTANA
H F F
1977
I N RE THE MARRIAGE O DONALD L. JOHNSRUD,
F
P e t i t i o n e r and Respondent,
-vs-
JEANETTE I . JOHNSRUD,
Respondent and A p p e l l a n t .
Appeal from: D i s t r i c t C o u r t of t h e T w e l f t h J u d i c i a l D i s t r i c t ,
Honorable B.W. Thomas, J u d g e p r e s i d i n g .
Counsel o f Record:
For A p p e l l a n t :
Marra, Wenz and Iwen, G r e a t F a l l s , Montana
J o s e p h Marra a r g u e d , G r e a t F a l l s , Montana
For Respondent :
M o r r i s o n , E t t i e n and B a r r o n , Havre, Montana
Van H . B a r r o n a r g u e d , Havre, Montana
Submitted: March 1 6 , 1977
Decided: NQQ 2 5 19'7-7
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Filed :
Mr. Justice Daniel J. Shea delivered the Opinion of the Court.
Jeanette I. Johnsrud, former wife of Donald L. Johnsrud,
appeals from an order of the Hill County District Court, awarding
her $250 a month maintenance in the decree of dissolution of the
parties' marriage.
The parties were married January 24, 1958. They have three
children: Donald Larry, born October 6, 1960; Steven Paul, born
April 2, 1963; and Cynthia Lynn, born May 17, 1966. At the time
the parties married, the wife was 16 years old. She did not graduate
from high school but later obtained a high school equivalency certi-
ficate. She had not been employed outside the home during the mar-
riage. Each month, the husband gave the wife funds to pay for
groceries, utilities and clothing. At the time of separation, she
had been receiving $556 a month plus occasional supplements. In
addition, the husband paid the house payments, car expenses including
insurance, and bills for his own clothes.
The parties accumulated approximately $248,800 in assets
during their marriage, with liabilities at the time of trial of
approximately $40,800.
In its decree of dissolution of marriage dated July 28, 1976,
the District Court decreed custody of the older son to the husband
and the two younger children to the wife. The court ordered the
husband to pay $150 a month child support for each of the two children
in the wife's custody until each child reached majority or graduated
from high school, whichever occurred first. The court awarded the
wife the following property totaling $80,400 in value:
Family residence $53,900
Household furnishings,
fixtures and appliances 15,000
1976 Pacer automobile 5,000
Two snowmobiles 1,500
Cash
The court awarded all other property to the husband, includ-
ing $129,000 in corporate and other business interests. The court
also ordered the husband to assume all liabilities, which included
the monthly house payments of $169.00. It appears, however, in the
court's findings that the house payments were somehow considered as
maintenance, to terminate upon the wife's remarriage. The court
found the husband's average net salary was $22,350 for the years
1971 through 1974, and that this income for succeeding years "should
equal or exceed his average annual income for the 1971-1974 period."
The court awarded monthly maintenance to the wife in the amount of
$250, to be reviewed in five years.
The wife appeals primarily from the award of maintenance,
but also questions the source of funds to be used for child support,
and contends the District Court improperly denied attorney fees.
The wife contends the husband cannot use as a source of
child support payments a $30,000 trust set up for the children under
the Uniform Gifts to Minors Act. However, there appears to be no
dispute on this matter. The husband agrees this trust was set up
for incidental future expenses such as higher education and claims
he does not intend to use it for present child support payments.
Furthermore, the District Court in its findings of fact recognized
the child support would come from the husband's income and not from
any trust fund set up for future educational needs of the children.
It is clear this trust fund will not be used for present child sup-
port obligations.
As to maintenance, the wife contends the court erred in deter-
mining the amount of maintenance, and that it awarded rehabilitative
maintenance where it should have awarded permanent maintenance.
The disposition of marital property and the right to main-
tenance are closely related under the Uniform Marriage and Divorce
Act, which became effective in Montana on January 1, 1976. section
48-321, R.C.M. 1947, states:
"Disposition of property. (1) In a proceeding
for dissolution of a marriage, legal separation, or
disposition of property following a decree of dis-
solution of marriage or legal separation by a court
which lacked personal jurisdiction over the absent
spouse or lacked jurisdiction to dispose of the
property, the court, without regard to marital mis-
conduct, shall, and in a proceeding for legal separa-
tion may, finally equitably apportion between the
parties the property and assets belonging to either
or both however and whenever acquired, and whether
the title thereto is in the name of the husband or
wife or both. In making apportionment the court shall
consider the duration of the marriage, and prior mar-
riage of either party, antenuptial agreement of the
parties, the age, health, station, occupation, amount
and sources of income, vocational skills, employability,
estate liabilities, and needs of each of the parties,
custodial provisions, whether the apportionment is in
lieu of or in addition to maintenance, and the oppor-
tunity of each for future acquisition of capital
assets and income. The court shall also consider the
contribution or dissipation of value of the respec-
tive estates, and the contribution of a spouse as a
homemaker or to the family unit. In disposing of
property acquired prior to the marriage; property
acquired by gift, bequest, devise or descent; property
acquired in exchange for property acquired before the
marriage or in exchange for property acquired by gift,
bequest, devise, or descent; the increased value of
property acquired prior to marriage; and property
acquired by a spouse after a decree of legal separa-
tion, the court shall consider those contributions of
the other spouse to the marriage, including the non-
monetary contribution of a homemaker; the extent to
which such contributions have facilitated the main-
tenance of this property and whether or not the property
disposition serves as an alternative to maintenance
arrangements.
"(2) In a proceeding, the court may protect and
promote the best interests of the children by setting
aside a portion of the jointly and separately held
estates of the parties in a separate fund or trust for
the support, maintenance, education, and general wel-
fare of any minor, dependent, or incompetent children
of the parties." (Emphasis added.)
The maintenance provision, section 48-322, R.C.M. 1947, states:
"Maintenance. (1) In a proceeding for dissolu-
tion of marriage or legal separation, or a proceeding
for maintenance following dissolution of the marriage
by a court which lacked personal jurisdiction over the
absent spouse, the court nay grant a maintenance order
for either spouse only if it finds that the spouse
seeking maintenance:
"(a) lacks sufficient property to provide for his
reasonable needs, -
and
"(b) is unable to support himself through
appropriate employment or is the custodian of a
child whose condition or circumstances make it
appropriate that the custodian not be required to
seek employment outside the home.
"(2) The maintenance order shall be in such
amounts and for such periods of time as the court
deems just, without regard to marital misconduct,
and after considering all relevant facts including:
"(a) the financial resources of the party
seeking maintenance, including marital property
apportioned to him, and his ability to meet his
needs independently, including the extent to which
a provision for support of a child living with the
party includes a sum for that party as custodian;
"(b) the time necessary to acquire sufficient
education or training to enable the party seeking
maintenance to find appropriate employment;
" (c) the standard of living established dur-
ing the marriage;
"(d) the duration of the marriage;
"(e) the age, and the physical and emotional
condition of the spouse seeking maintenance; and
"(f) the ability of the spouse from whom
maintenance is sought to meet his needs while
meeting those of the spouse seeking maintenance."
(Emphasis added.)
The comments of the code commissioners to these statutes
indicate the property division statute and maintenance statute must
be read together because they have a dual purpose. In 9 Uniform
Law Annotated, Marriage and Divorce Act, 5308, p. 494, the comment
under the maintenance section states in part:
" * * * The dual intention of this section [main-
tenance] and Section 307 [property disposition] is
to encourage the court to provide for the financial
needs of the spouses by property disposition rather
than by an award of maintenance. Only if the
available property is insufficient for the purpose
and if the spouse who seeks maintenance is unable
to secure employment appropriate to his skills
and interests or is occupied with child care may
an award of maintenance be ordered." (Paraphrased
material added.)
We conclude, therefore, it is the first duty of the District
Court to equitably distribute the marital property. After the court
makes a decision on property division, then any additional needs
of a spouse petitioning for maintenance should be readily apparent.
If these future needs cannot be met by a property distribution, then
a petitioning spouse is entitled to maintenance if he fulfills the
requirements of section 48-322, R.C.M. 1947. The District Court
should enter appropriate findings under section 48-322, either grant-
ing or denying the maintenance.
In the present case no consideration was given to an equitable
property distribution. The District Court awarded the wife only
one-third of the marital estate; and, it was, as the District Court
noted, income consuming. On the other hand, the property awarded to
the husband was income producing and most likely would increase in
value. Section 48-321, R.C.M. 1947, requires certain factors to be
considered in dividing the marital estate, and there is no indication
from the findings that this statute was followed in this case.
As a housewife, the wife acquired a vested interest in the
property accumulated by the parties during the marriage. Biegalke
v. Biegalke, Mont. , 564 P.2d 987, 34 St.Rep. 401, 404 (1977);
Eschenburg v. Eschenburg, Mont. , 557 P.2d 1014, 33 St.Rep.
1198, 1201 (1976); Downs v. Downs, Mont . , 551 P.2d 1025,
33 St.Rep. 576, 578 (1976). From the evidence before us we cannot
determine whether an equitable division of the marital property would
sufficiently provide for the wife's future needs without the need
for maintenance. Whatever the case, before ordering maintenance and
arriving at an amount, the District Court should first have arrived
at an equitable division of the property.
The District Court need not be hamstrung in devising methods
to accomplish an equitable division of property. States which have
adopted the Uniform Marriage and Divorce Act dissolution provisions
have provided alternative methods of handling the division of property
upon dissolution of marriage. In the case of In re Marriage of
Harding, (Colo. 1975), 533 P.2d 947, the parties, during the marriage,
had accumulated assets of $668,640, mostly in radio station stock.
The court gave the husband the option of selling the stoclc and
dividing the proceeds with the wife, or retaining full ownership
and paying off the wife's interest in installments over 20 years.
Another Uniform Marriage and Divorce Act case, Williams v. Williams,
(Ky. 1973) 500 S.W.2d 79, set out similar alternatives. Williams
cited as authority the pre-Uniform Marriage and Divorce Act cases
of Clark v. Clark, (Ry. 1972), 487 S.W.2d 272 and Colley v. Colley,
(Ky. 1970), 460 S.W.2d 821. In Colley the court held that the
property should be distributed in kind, but where that is imprac-
ticable, it can be paid in money value, either in a gross amount ok
in installments. The court stated:
"The distribution or division of property
acquired during marriage by the team effort
of the marital partners, is, strictly speak-
ing, not alimony. * * * Where property is
acquired during marriage by the joint efforts
of the parties, it should be divided between
the spouses according to what is just and rea-
sonable. * * * This division is a distribu-
tion of property in kind or where that is
impracticable the value of the interest in
property in money can be adjudged payable in
a gross amount or in installments where that
method is suitable. * * * " 460 S.W.2d 826.
In Clark, the wife contended that the property awarded to her
on division of the couple's horse breeding and trading business
should be granted in kind rather than in cash. The court disagreed,
stating:
" * * * We have here a business estate, the
division or forced liquidation of which could
materially depreciate its value and could de-
stroy the basis of the husband's earning capa-
city. In those circumstances it is proper to
allow the wife the value of her share in cash,
payable in installments. * * * " 487 S.W.2d 275.
For similar but non-Uniform Marriage and Divorce Act cases, see also,
Vaughn v. Vaughn, (S. Dak. 1977), 252 N.W.2d 910, reported in 3 Family
Law Reporter 2446; and Wilcox v. Wilcox, (1977 Ind.App.), 365 N.E.2d
792, 3 FLR 2599.
Under the Uniform Marriage and Divorce Act, there is a need
to distinguish between a property right in the marital estate, and
the maintenance provisions. Upon dissolution of marriage the property
interest vests in the spouse to whom it is awarded. On the other
hand, an award of maintenance is related only to the "needs" of the
spouse seeking maintenance, and ceases, for example, upon the happen-
ing of certain events,such as death. Section 48-322 does not dis-
tinguish between permanent and rehabilitative maintenance. The right
to maintenance continues as long as the need exists but, under set-
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tion 48-32>7f), R.C.M. 1947, this must be balanced with the needs
of the other party. Under any circumstances, one is not entitled to
maintenance unless he fulfills the requirements of section 48-322.
Absent any evidence and findings under section 48-322, there is
simply no basis to award maintenance.
It appears here the parties were confused as to the nature
of maintenance. The record seems to indicate the wife did not object
to the property division because she anticipated income in the form
of maintenance to supplement this property award. There is no indi-
cation in the record as to whether she regarded the maintenance as
a property right she would be getting in exchange for giving up the
business property, or whether she was confining her claim to main-
tenance strictly to a situation where she could continue to show her
need for it.
The wife demanded maintenance in the minimum amount of
$600.00 per month and the maximum of $1,000.00 per month to continue
re-
either until her/marriage or death, or until she reached the age
of 62. There is some indication, however, that perhaps she was
looking at maintenance more in the nature of a property interest in
that she sought to peg her maintenance to a certain percentage of
the husband's gross salary. Whatever the situation, the nature of
her claim is not at all clear. Neither party proceeded on the basis
that it was the duty of the District Court to first make an equi-
table division of the marital estate before determining whether
the wife should also receive maintenance.
Since we cannot determine from the findings and record that
the case was properly tried and considered under the provisions of
the Uniform Marriage and Divorce Act, we remand for a redetermination
of the disposition of the parties' marital estate. The District
Court is instructed to make specific findings of fact on each element
delineated in section 48-321, R.C.M. 1947, as well as any other
factors which it considers in dividing the property. Without such
findings we cannot determine how the District Court arrived at its
ultimate property division.
We cannot effectively reach the secondary matter of mainte-
nance until there is a more equitable determination of the parties'
interests. As we stated earlier, an award of maintenance is allowed
only where a spouse has insufficient assets to cover living expenses
(section 48-322(1)(a)) and cannot have appropriate employment for
the reasons stated in section 48-322(1)(b). The needs of the spouse
as to maintenance can only be determined after there is an equitable
division of the marital estate.
The last issue is that of attorney fees. The wife requests
an award for fees incurred for the trial. The District Court denied
them because she did not request them in her pleadings. Section 48-
327, R.C.M. 1947, allows the District Court to award attorney fees
to a party in a dissolution of marriage procedding. while this
section does not require attorney fees to be prayed for, nevertheless
we deem it good practice to request such fees in the pleadings. The
Montana Rules of Civil Procedure do apply to the Uniform Marriage
and Divorce Act unless otherwise provided. Section 48-315, R.C.M.
1947. Since we remand this case for a determination of property
interests, the wife has the right to move to amend her pleadings and
make an appropriate request for attorney fees.
The judgment is vacated and remanded for redetermination of
the marital estate in a manner consistent with this opinion.
We Concur:
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Justices