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NO. 87-325
IN THE SUPREME COURT OF THE STATE OF MONTANA

1987
IN RE THE MARRIAGE OF
JANICE B. TOW,
Petitioner and Respondent,
and
LINDLEY R. TOW,
Respondent and Appellant.

APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Michael Keedy, Judge presiding.

COUNSEL OF RECORD: For Appellant: Keller & German; Robert S. Keller, Kalispell, Montana For Respondent: Randy K. Schwickert, Whitefish, Montana
Submitted on Briefs:  Oct. 22, 1987  
Decided:  December 24, 1987  
Filed: ?$  :  1 "  40f3 -

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

Lindley R. Tow appeals from an order of the District
Court, Eleventh Judicial District, Flathead County, awarding
his ex-wife, Janice B. Tow maintenance payments and attorney
fees. We remand.

The issues on appeal are:

1.
Did the court err in its determination that the wife
required maintenance and in awarding the amount it did?


2.
Did the court err in awarding the wife attorney
fees?



Lindley and Janice Tow were married in 1948 and
divorced on May 29, 1987. They have three children all of
whom are over eighteen. At the time of separation in 1983,
both were in their late fifties. Janice is in good health.
Lindley has suffered from depression and anxiety since 1984
and is currently under a psychiatrist's care. His prognosis
for recovery is good.

Until his retirement in January, 1983, Lindley owned a
Marine Survey and Casualty Insurance Company in Minnesota.
At the outset of this action, Janice was a certified medical
technologist and had worked part-time and full-time
throughout the marriage. She ceased working in that field
twelve years ago and at present has let her certification
lapse. She has been actively involved in real estate sales
since summer, 1984, and shows considerable enthusiasm and
promise.

The couple has considerable assets. The husband had
inherited a farm located in Minnesota (known as the Brewster
farm) which he had sold in 1981 and due to the depressed farm
economy bought back and rented in 1985. This is his main

source of income. It is valued at $128,000.00. Both parties
owned 78 acres in Wisconsin with a value of $800.00 per acre.
The family home in Minnesota was sold in 1981 from which each
received $650.00 per month until February, 1987, when both
received a $13,500.00 balloon payment. Both owned personal
property and vehicles with conlbined value of over $30,000.
In addition, just before the wife filed for dissolution, the
couple bought property in Flathead County which is now listed
for sale at $165,000.00. The property settlement which is

not  being  contested  divided  the  assets  and  cash  in  the  
following manner:  
Petitioner (Janice)  Respondent (Lindley)  
Personal Property Sale of Minnesota home  
Brewster farm  
Wisconsin acreage: 40 acres to Petitioner  
38 acres to Respondent Bank account  
Projected net sale proceeds from Flathead Lake property Petitioner's  
inheritance  
Respondent's payments* on Flathead property Boat  

TOTAL: 134,397.96 268,917.06
* It was agreed that the respondent Lindley would recover his payments on the Flathead property. Petitioner's inheritance represents Janice's net inherited contribution to the marital estate. Both these amounts are to be paid out of the Flathead sale proceeds when sold. The balance will then be divided equally. Each also owns a vehicle with a stipulated equal value.
After a hearing on the petition for dissolution, the trial
court awarded the petitioner Janice maintenance of $275.00
per month for the period of January 10, 1986 through

December, 1986 and $925.00 per month thereafter. The court
also awarded petitioner attorney fees.

Lindley argues that the trial court abused its discretion in awarding Janice maintenance at all and certainly in awarding the amounts it did. First, the appellant maintains that his ex-wife's property settlement is sufficient to provide for her reasonable needs and in the alternative if it is not it is because her needs are unreasonable and she has failed to obtain appropriate emp 1 oymen t. He also contends that the court failed to consider the amount of assets available to Janice and the resources available to meet his own needs after the award of maintenance.
The appropriate standard of review has been stated by
this court several times. Most recently in Re Marriage of
Hall (Mont. 1987), 690 P.2d 685, 686, 44 St.Rep. 1321, 1323,
we stated:

At the outset, we yet again repeat that this
Court's function on appeal is extremely limited.
Section 40-4-202, MCA, is of necessity a flexible
statute which vests a good deal of discretion in
the district court. Given the infinite varieties
of factual situations presented by parties to
dissolution proceedings, trial judges must enjoy
the latitude to address each case individually,
with an eye to its unique circumstances.

As stated by this Court, our functions are as limited as the District Court's functions are broad. We have concluded that in a property distribution review in marriage dissolution, this Court will reverse a district court only upon a showing that the district court has acted arbitrarily or has comnlitted a clear abuse of discretion, resulting in either instance in substantial injustice. See -In -Re Marriage of Hundtoft and cites therein. We choose not to use the phraseology "without employment of conscientious judgment or exceeded the bounds of reason" from Hundtoft because it does not assist in reviewing the actions of the lower court.
In Re Marriage of Hall, 740 P.2d at 686.

Under $ 40-4-203 (11, MCA, maintenance may be awarded only if the spouse seeking it "lacks sufficient property to pr0vid.e for his reasonable needs; and is unable to support himself through appropriate employment . . .."
The term "sufficient property1' has been interpreted to
mean income-producing property rather than income-consuming
property. In Bowman v. Bowman (Mont. 1981), 633 P.2d 1198,
1200, 38 St.Rep. 1515, 1518; In re Marriage of Herron (1980),

186 Mont. 396, 407-08, 608 P.2d 97, 103.  The District Court  
did  not  specifically  find  what  properties  were  
income-producing  or  income-consuming.  It  is  evident,  

however, that the trial court did consider the
income-producing nature of Janice's property in determining
whether maintenance was proper. In evidence were projections
of the petitioner's income which clearly assume that wife's
properties will be sold thereby being converted into
income-producing assets. While we do not condone the trial
court's lack of a specific finding here, we will not require
it in this case. However, for future clarity and ease of
appellate review, we will require a specific finding
regarding the nature of the properties owned by the
maintenance seeking spouse.

Next appellant Lindley contends that his ex-wife's needs
are unreasonable. The District Court found that Janice's
monthly expenses totaled $2,383.32. This figure includes a
new car payment, a new house payment and $410.00 worth of
monthly business expenses. Her monthly income for 1985 was
$1,838.47. Implicit in the trial court's award of
maintenance is a finding that these were reasonable expenses.
Lack of a specific finding is not necessarily an abuse of
discretion. Marriage of Madson (19781, 180 Mont. 220, 224,
590 P.2d 110, 112. This case is on all fours with our

Opinion in In re Marriage of Forney (Mont. 1986), 716 P.2d
635, 43 St.Rep. 637, where we refused to overturn the trial
court's finding that purchase of a new car and house by the
maintenance-seeking spouse after the separation of the
parties was reasonable. Here, the appellant has provided
little evidence to establish what would be reasonable. The
wife's house is small and was priced at $39,000.00 in 1985
and it is conceded by the appellant that her new business
necessitates a newer car. These are not unreasonable.

Appellant additionally contends that the business
expenses cited by the wife and her car expense because it is
business-related are not proper expenses to be considered in
determining her reasonable needs. We find no case law on
this point and appellant cites none. We will not punish the
wife's efforts to become self-supporting by denying her
reasonable business expenses. Her income as a real estate
agent is completely commissions-based. This is to be
differentiated from the traditional salary-based job which
entails no expenses on the part of the employee.

Appellant next contends that the wife has purposely chosen inappropriate employment as a real estate agent rather than return to her past vocation as a medical technologist. Appellant is correct in noting that the term "appropriate employment'bs used in S 40-4-203 (1) (h) contains a component connected to the standard of living enjoyed by the parties during the marriage. --of Madson, 590 P. 2d at
In re Marriage -
112. The husband testified that their standard of living had
been "magnificient." Rut he also testified that to maintain
such a lifestyle he had to borrow money and sell family
assets. It is clear that neither party can maintain their
previous standard of living and there is little value in
pursuing that question further.

Appellant argues that wife should have returned to her

prior vocation as a medical technologist rather than engage in a new profession. The record shows that she did investigate the possibility of doing this type of work again but found no opportunities. She also chose not to return to this work because she had become "tired of it and feared that her performance in a profession of such a life and death nature would suffer. The District Court found that Janice was "unable to support herself by employment in a manner which would meet her needs." Although the wording differs from that of S 40-4-203, MCA, when taken with the court's recognition of Janice's concerns about becoming a medical technologist again and her efforts in her current job, it does not show an abuse of discretion in awarding maintenance. We affirm the District Court's decision to award maintenance.
The next issue concerns whether the amount and duration
of the alimony was proper. The appellant takes issue with
several of the District Court's findings of fact, in large
part arguing that the court simply ignored his lack of
resources and subsequent inability to meet his needs while
paying maintenance.

The District Court must consider all the following
factors in making a maintenance determination:

(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 during 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.



Section 40-4-203 (2), MCA.
The trial court made extensive findings concerning the
financial condition of both parties. Certain of these
findings do not conform to the statutory requirements or are
incorrect. The record shows, and the court noted, that
although Janice received less total assets from the property
settlement she received substantially the same amount of
assets as Lindley when inherited property is excluded. The
District Court failed to consider this. The court found that
the husband would receive $248,917.04 in cash and assets
available for investment while the wife would receive
$134,397.94, little of it in cash. The main difference
between what the two parties received is the husband's
inherited farm in Minnesota. One look at the division of
assets shows that the parties have substantially the same
type of assets available to them for investment. Yet the
court did not consider that the wife's assets were available
to her for investment as well. This Court recognizes that
the maintenance-seeking spouse's ability to invest his or her
assets is a valid consideration when awarding maintenance.
In re Marriage of Cannon (Mont. 1986), 723 P.2d 951, 953, 43
St.Rep. 1517, 1519.

The payor spouse's ability to meet his needs while
paying maintenance must also be considered by the trial
court. Section 40-4-203(2)(f), MCA. At the time of hearing
Lindley was living off rental monies from his Brewster farm.
He was also receiving payments of $650.00 per month from the
sale of his home in Minnesota. This gave him an annual
income of $30,422.50 for 1985 and 1986. The court found his

expenses to be $1,680.25 per month or $20,163.00 annually.
This leaves him with a surplus of $259.50 a year. It is
impossible under the facts of this case for appellant to pay
the maintenance required by the court.

The District Court noted that certain large expense
items will eventually diminish, particularly doctor bills and
property taxes, leaving Lindley with an even larger surplus.
Appellant argues that this is pure speculation and cannot be
the basis for the court's finding but his own testimony is
that his depression would eventually "clear up" given time.
This is not so speculative that the court cannot consider it
and is similar to income projections. See Gall v. Gal1

(19801, 187 Mont. 17, 20, 608 P.2d 496, 498.

One item that is perfectly concrete is the end of the
$650.00 monthly payments for the sale of the parties'
Minnesota home. Each party was to receive a balloon payment
in 1987 of $13,500.00. The District Court noted that both
parties1 incomes would decrease after 1987 but recognized
that Lindley would receive extra income from the balloon
payment with which he could meet his expenses and provide
maintenance. The record does not show that the court.
considered that Janice would also receive such a payment with
which she could meet some of her expenses. The court simply
increased the maintenance payments by $650.00 to a total of
$925.00 per month. After 1987 the husband's only income will
be from his Brewster farm for the few years until he begins
receiving social security or until the Flathead property is
sold at which time both parties would receive increased
income.

It appears to this Court that the petitioner-wife Janice
would have Lindley sell his only current source of steady
income in order to support her. We will not require him to
do this.

Appellant Lindley also contends that the court erred in awarding Janice attorney fees. The standard adopted by this Court with regard to attorney fees is one of abuse of discretion. In re Marriage of Gallinger (Mont. 19861, 719 P.2d 777, 783, 43 St.Rep. 976, 984. Due to the errors previously discussed we cannot say that the District Court's
finding  of  an  award  of  attorney  fees  is  supported  by  
sufficient evide nce.  
We  remand  this  case  to  the  District  Court  for  a  

redetermination of the amount of maintenance the husband must
pay and for reconsideration of the award of attorney fees.

/
We Concur:

Justices

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