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NO. 88-254
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988

IN RE THE MARRIAGE OF JANICE JOHNSON COLE , Petitioner and Respondent, and SHERWIN GARY COLE, Respondent and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas Olson, Judge presiding.

COUNSEL OF RECORD: For Appellant: Drysdale, McLean, Nellen & Nellen; A. Susanne Nellen, Bozeman, Montana For Respondent: Morrow, Sedivy & Bennett; Edmund P. Sedivy, Jr., Bozeman, Montana
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Submitted on Briefs: Aug. 11, 1988
Decided: October 20, 1988

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Clerk

Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.

The husband in a dissolution action appeals from a
decree of the Eighteenth Judicial District Court, Gallatin
County. We affirm the District Court and remand for a
determination of reasonable attorney's fees incurred by the
wife on this appeal.

The issues raised on appeal are:

1.
Whether the District Court properly considered the factors delineated in the Montana maintenance statilte, $ 40-4-203, MCA, when it awarded maintenance to the wife.

2.
Whether the maintenance award i.s based on substantial credible evidence.


The parties were married on July 18, 1975. Shortly
after the marriage, in January, 1976, the husband, his
brother and his father formed a farming partnership. The
husband and his brother each received a 25 percent share in
the business and their father retained the remaining
interest.

Prior to December 29, 1987, the partnership was indebted
to Norwest Bank of Billings in the amount of approximately
$574,000, plus $55,000 interest. On December 29, 1987, one
day before the dissolution hearing that is the subject of
this appeal, the partners restructured their loan with the
bank. The agreement does not increase the amount of the
original debt but gives the partners the authority to borrow
additional funds up to a total approximate debt of $748,000.

The loan agreement allows the partners to take draws of
$5,500 per month, with $2,500 going to the father and the
husband and his brother splitting equally the remaining
$3,000. No other salaries are drawn by the partners and no

bonuses are given. The loan agreement requires that all

profits be applied toward the debt or the purchase of new

equipment.

The District Court found that the husband's share of the
partnership was a minority interest in a closely-held family
business and for that reason was not saleable to an outside
buyer.

The District Court valued the partnership at $1,019,733,
and the husband's 25 percent share at $254,933. The court
then reduced the value of the interest by 30 percent to take
into account the share's nonmerchantability, the
partnership's high debt load and a discount for machinery.
The court concluded that, after the 30 percent reduction, the
husband's interest equaled $178,453. The court found that
his share of the debt was $158,440.

The husband also owns a 50 percent interest in 105 acres
of farmland. He and his brother purchased the land in 1985
with a $130,000 loan. Unfortunately, land values dropped.
The husband' s interest in the land, $50,000, is presently
valued at less than his share of the debt, $64,000. The
partnership farms the land, although it pays no rent for the
acreage.

The wife is 34 years old. She has a degree in home
economics from Montana State University. During the
marriage, she regularly worked outside the home in addition
to her duties as homemaker. She has been employed as a
teacher, travel agent, employment counselor and door-to-door
salesperson. She has also engaged in business ventures,
although with little success. Her earnings have averaged
approximately $4.00 per hour. In 1987, she earned $5,203
selling cable television subscriptions in Colorado and
Nevada.

The wife filed a petition for dissolution of marriage on
October 7, 1986. A one day hearing was held on December 30,
1987. The District Court issued its findings of fact and
conclusions of law on February 24, 1988.

The trial court awarded the parties joint custody of
their one son, Wesley, age 10. The court gave temporary
physical custody of the son to the husband while the wife
moved to another area to look for a new job. Once the wife
is settled, she may apply to the court for physical custody
of the child. The husband has agreed to pay child support of
$250 per month in the event physical custody of the child is
given to the wife. The wife is not required to pay child
support while Wesley resides with the husband.

The court divided the property of the parties, awarding
the wife assets valued at a total of $12,975. The award
included a 1985 Jeep and camper, a 1953 Chevrolet limousine,
and various household furnishings. The wife was also ordered
to pay $9,250 in liabilities, leaving her with a net of
$3,725.

The court granted the husband his entire interest in the
partnership as well as his interest in the 105 acres of land.
In addition, the husband was awarded several household items,
a 1981 BMW, and the family home. The court found that the
home had a value of $48,000 but was mortgaged at $52,231.
The total value of the assets awarded to the husband equaled.
$290,403. The husband was ordered to assume liabilities of
$293,671, including the partnership debt and the mortgages on
the house and the farmland. Subtracting the liabilities from
the assets, the husband received a negative net of $3,268.

The District Court also ordered the husband to pay
maintenance to the wife in the sum of $500 per month for 10
years. The husband contends this award of maintenance was
improper because the District Court failed to consider the

factors set out in

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