                            NO.    93-335
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1994



IN RE THE MARRIAGE OF
DELILAH HANEY,
          Petitioner and Respondent,
    and
GUY L. HANEY,
          Respondent and Appellant.



APPEAL FROM:     District Court of the Eighth Judicial District,
                 In and for the County of Cascade,
                 The Honorable John M. McCarvel, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
                 Kenneth R. Olson, Attorney at Law,
                 Great Falls, Montana

          For Respondent:
                 Susan L. Weber, Attorney at Law,
                 Great Falls, Montana



                              Submitted on Briefs:     April 28, 1994
                                            Decided:   October 13, 1994
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.


     Guy L. Haney (Guy) appeals an order of the Eighth Judicial
District Court, Cascade County, which awarded Delilah Haney
(Delilah) maintenance.    We reverse.
     Guy and Delilah were married for thirty-five years.    Delilah
raised the couple's     five children who have attained the age of
majority.    Delilah filed for dissolution on June 13, 1990.    Guy
filed his response and the parties agreed to divide the marital
assets and     debts.    They could not, however, agree on the
maintenance issue; Guy argued that he should pay maintenance in the
amount of $300 per month for two years, while Delilah contended
that she should be awarded $300 per month for five years.
     Notwithstanding the contention on the part of both Guy and
Delilah that $300 per month was adequate, with the only question
being the number of years duration, the District Court awarded
Delilah permanent maintenance of $400 per month. In addition, that
amount would     increase to   $600 per month   if Delilah became
unemployed by reason of age, sickness or disease.
     The court found that Delilah worked three jobs, seven days a
week, for a net pay of $435 per month while her expenses totaled
$875.    The    court found that Guy    had   the ability to    earn
substantially more income than Delilah, referring to his snow
removal contract and various equipment which he owned.         After
deducting Guy's living expenses, the District Court concluded that
Guy would net in excess of $210 per month over and above the $300
maintenance award to Delilah. That was the apparent basis for the
District Court's conclusion that Guy had the ability to pay $400
per month maintenance to Delilah.
     Guy presents the following issue:
     Did the District Court err by awarding Delilah $400 per
     month permanent maintenance?
     It is well settled that this Court will scrutinize the
district court's legal conclusions and examine whether the court
interpreted the law correctly. In re Marriage of Danelson (1992),
253 Mont. 310, 317, 833 P.2d 215, 219-20.       After an equitable
division of marital property, a district court is required to apply
the two-prong test of 5 40-4-203, MCA, to determine whether a
maintenance   award   is appropriate.     -
                                          See   In re Marriage   of
Eschenbacher and Crepeau (1992), 253 Mont. 139, 142-43, 831 P.2d
1353, 1355-56. Section 40-4-203, MCA, provides in pertinent part:
     (1) In a proceeding for dissolution of marriage     . . .
     the court may grant a maintenance order for either spouse
     only if it finds that the spouse seeking maintenance:
          (a) lacks sufficient property to provide for
          [her] reasonable needs; and
          (b) is unable to support [herlself through
          appropriate employment     . . . .
                                           [Emphasis
          added. ]
     Here, the District Court found that Delilah worked three jobs,
seven days a week, for net pay of $435 per month while her expenses
totalled $875 per month and that she was unable to support herself
through appropriate employment.     The court, however, did not make
a finding concerning whether Delilah lacked sufficient property to
provide for her reasonable needs.         "Sufficient property" is
property which is "income-producing rather than income-consuming
property."    Marriaqe of Eschenbacher,   831   P.2d at 1356.
     In this case, a review of the record reveals that the majority
of the property awarded to Delilah was income-consuming property;
a car, the trailer house with adjoining land and household
furnishings.     However, Delilah also received income-producing
property--one-half of Guy's Teamsters pension. The court failed to
discuss the pension award and to set forth when payments could be
anticipated under the pension and to then consider the relationship
to the maintenance award.       We conclude this is a basis for
reversal.
     Without any explanation on the part of the court as to the
reason it disregarded the agreement of the parties that $300 per
month for maintenance was appropriate, the District Court awarded
Delilah permanent maintenance of $400 per month with an escalation
to $600 per month if Delilah became unemployed.
     Under Rule 54(c), M.R.Civ.P.,    "every final judgment shall
grant the relief to which the party in whose favor it is rendered
is entitled, even if the party has not demanded such relief in his
pleadings."    While that gives a broad discretion to the trial
court, the discretion under Rule 54(c) must be viewed in light of
the nature of the case. In re Marriage of Hughes (1989), 236 Mont.
427, 430, 770 P.2d 499, 501. A district court may not grant relief
not requested when the facts and issues necessary to support such
relief have not been tried and proven at trial. Matter of George
Trust (1992), 253 Mont. 341, 345, 834 P.2d            1378, 1381.   In
dissolution cases, the court's power to grant relief is strictly
statutory, and with respect to maintenance the court must make
specific findings under   § 40-4-203,   MCA.   Marriaqe of Huqhs, 7 7 0
P.2d at 501.
     In our review of the record and our application of the
statutory criteria to the evidence produced, we are unable to find
support for the exercise of the court's discretion to award
permanent maintenance when maintenance only for a term of years was
requested; to award maintenance of $ 4 0 0 per month when $ 3 0 0 per
month was requested; and finally to award an automatic escalation
to $ 6 0 0 per month if Delilah becomes unemployed.
     Accordingly we reverse and remand for consideration of this
issue in accordance with this opinion.
       Reversed and remanded.




We concur:     //--




       Chief Justi
Justice Terry N. Trieweiler specially concurring.
     I specially concur with the majority opinion which reverses

the judgment of the District Court.   However, I do not agree with
the basis for reversal set forth in the majority opinion, nor do I
agree that this case should be remanded for further proceedings.
     The effect of the positions advocated by the parties in the
District Court was to stipulate that $300 per month was a
reasonable amount of maintenance, and to further stipulate that a
duration for maintenance beyond five years was unreasonable.   The
stipulation was supported by the evidence and did not offend any
public policy.   Therefore, I conclude that it was an abuse of
discretion for the District Court to ignore the stipulation by
awarding maintenance in an amount greater than $300, and for a
duration beyond five years.
     Furthermore, based on the limited nature of the dispute in
this case, and the fact that there are already inadequate assets
with which to satisfactorily support both parties, I see no reason
for either party to exhaust more of those resources on additional
attorney fees for further legal proceedings.
     Since the District Court found that Delilah was entitled to
maintenance for longer than was stipulated to by the parties, but
failed to adhere to the limitation established by the parties, I
would reverse the judgment of the District Court and remand this
case to the District Court solely for entry of judgment awarding
maintenance to Delilah in the amount of $300 per month for a period
of five years.
     For these reasons, I specially concur with the majority's
reversal of the District Court.
