                               No. 8 7 - 2 6 8

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1988




IN RE THE MARRIAGE OF
MARJORIE A. STEVENS DOW,
                Petitioner and Appellant,
       and
KENNETH WILLIAM DOW,
                Respondent and Respondent.




APPEAL FROM:    The District Court of the Fourth Judicial District,
                In and for the County of Ravalli,
                The Honorable Douglas Harkin, Judge presiding.

COUNSEL OF RECORD:
       For Appellant:
                 Paulette C. Ferguson, Missoula, Montana
       For Respondent:
                 Charles H. Recht, Hamilton, Montana



                                    Submitted on Briefs:    Nov. 24, 1 9 8 7
                                       Decided: February 2 2 ,   1988




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


      Marjorie Stevens Dow filed a petition for dissolution of
marriage.     After a hearing, the District Court, Fourth
Judicial District, Ravalli County entered findings of fact
and conclusions of law and an order on February 26, 1987.
Petitioner appeals. We affirm in part, reverse in part and
remand with instructions.
      The issues on appeal are:
      1. Did the trial court err by failing to award wife any
share of husband's assets acquired before the marriage?
      2. Did the trial court err by failing to award wife
maintenance?
      Marjorie A. Stevens and Kenneth W. Dow were married on
January 12, 1983.    This was the third marriage for both of
them and the second marriage to each other. After 3 years
this last marriage was dissolved on February 18, 1986.
      Wife is 66 years of age and in fair health but with
progressive vision difficulties. She is not employed now but
worked in clerical positions for several years. She owns her
home.
      Husband is 70 years of age and also in fair health. He
suffered a heart attack in 1982 and had surgery, but appears
to have fully recovered. His income is a pension he receives
as a retired law enforcement officer.
      The wife came into the marriage with her own home worth
$105,000, Guarantee Security life certificates worth $31,000,
and miscellaneous furniture and other assets.      The husband
came into the marriage with his pension, and some escrow
accounts, two vehicles worth $9,000, and a checking account
of $18,000.   He also has an investment account worth $70,000
for the children from his first marriage.
     Two weeks after the parties' remarriage both executed
wills to which waivers signed by the other party were
attached. The following waiver by the wife was entered into
evidence :
                         FlAIVER
    I, MARJORIE STEVENS DOW, hereby specifically waive
    my right as a surviving spouse to ALL RIGHTS in the
    property or estate of my husband, KENNETH PI. DOW,
    except such property, if any, which I may acquire
    as a surviving joint tenant of my husband, and such
    property as may be specifically devised by me. It
    is my intention by this Waiver to also waive my
    rights to the elective share, homestead allowance,
    exempt property and family allowance from the
    property or estate of my husband.
         DATED this 24th day of January, 1983.
The District Court divided the estate by returning each
party's property to them. No maintenance was awarded.
    The District Court in its finding of fact no. 20 found
that the wife had stated she would make no claim against the
husband's property and that she signed a release to that
effect, referring to the waiver. Appellant contends that the
court improperly interpreted this waiver and that it
improperly influenced the court's property division and the
decision to refuse maintenance. We agree.
     The waiver in question is a waiver of all rights to the
husband's property that the wife may have at his death.
     Section 72-2-102, MCA, in Montana's version of       the
Uniform Probate Code, reads as follows:
    The right of election of a surviving spouse and the
    rights of the surviving spouse to homestead
    allowance, exempt property, and family allowance or
    any of them may be waived, wholly or partially,
    before or after marriage, by a wri.tten contract,
     agreement, or waiver signed by the party waiving
     after fair disclosure. Unless it provides to the
     contrary, a waiver of "all rights" (or equivalent
     language) in the property or estate of a present or
     prospective    spouse   or   a  complete   property
     settlement entered into after or in anticipation of
     separation or divorce is a waiver of all rights to
     elective    share,   homestead  allowance,   exempt
     property, and family allowance by each spouse in
     the property of the other and a renunciation by
     each of all benefits which would otherwise pass to
     him from the other by intestate succession or by
     virtue of the provisions of any will executed
     before the waiver or property settlement.
     A reading of the official comments to this section
reveals that one of the purposes of this statute is to ensure
parties who enter into second and later marriages that the
property brought into the second marriage from the first
marriage will go to issue of the prior spouse instead of to a
later spouse.
     A survey of Montana and other jurisdictions adopting the
Uniform Probate Code reveals no case on point. It is clear,
however, that the kind of waiver involved here was meant to
operate upon the death of the spouse and not in the event of
marriage dissolution. Wife waived her rights "as a surviving
spouse."   She is not a surviving spouse. It is the law of
judicial construction that if the language of a contract or
agreement is clear on its face the court must enforce it as
it is written. Wortman v. Griff (1982), 200 Mont. 528, 536,
651 P.2d 998, 1002; Schulz v. Peake (1978), 178 Mont. 261,
267, 583 P.2d 425, 428; Gropp v. Lotton (1972), 160 Mont.
415, 421, 503 P.2d 661, 664.
     We hold that it was error for the District Court to
consider the waiver as a release from the wife of all claims
to the marital property in the event of a dissolution.
     In addition to her argument on the waiver, appellant
argues that she is entitled to a greater share of the marital
assets because the couple lived in her home, thereby saving
the husband rent and contributing significantly to the
maintenance of his assets. Because of this contribution on
her part the husband was able to save about $1,000 per month
and to increase his bank account accordingly.
     When dividing property acquired before the marriage the
court must consider the nonmonetary contribution of the
homemaker and the extent to which this contribution has
helped maintain prior-acquired property.    Section 40-4-202,
MCA.    In Re Marriage of Jacobson (1979), 183 Mont. 517,
521-22, 600 P.2d 1183, 1186. The District Court found that
the wife did not contribute significantly to the preservation
of the husband's property and was not persuaded by wife's
argument that the husband saved significant amounts of money
by living in her home. There is substantial evidence that a
large amount of the monies in husband's accounts came from
transferring between other accounts and the cashing in of
some investments.    The District Court did not abuse its
discretion with regard to these findings.
     Appellant also faults the court's finding that wife did
not resign from her job at her husband's request. She argues
that her resignation was in reliance on the marriage and is a
valid factor the court must consider to divide the property
equitably.   There was conflicting testimony on this point.
This Court will not substitute its discretion for that of the
trial court.    The evidence is sufficient to uphold this
finding.
     Although we hold that the District Court erred in
considering the waiver, it was harmless, and we affirm the
court's division of property.
     For her second issue, appellant asks that we hold that
the trial court abused its discretion in not awarding her
maintenance.    The trial court found that the wife had
sufficient property under   §   40-4-203, MCA, to provide for her
reasonable needs.
     The main asset of the wife is her home which is a
non-income producing asset. The term "sufficient property"
has been interpreted by this Court to mean income-producing
property.   In re Marriage of Laster (1982), 197 Mont. 470,
477, 643 P.2d 597, 601. Although the wife's total property
award amounts to $145,500.00, she receives only $3,462.97 per
year from it as income. She additionally receives $3,000.00
per year from Social Security. Even with this supplemental
income, this may not be sufficient to support her.
     For an award of maintenance a spouse must lack
sufficient property - be unable to support himself through
                     and
employment.   Section 40-4-203, MCA.   The trial court found
that the wife was employable. While there is evidence of her
employability before the marriage there is almost no evidence
as to her current employability. This needs clarification.
We reverse and remand for a redetermination of the award of
maintenance consistent with this opinion.
     Affirmed in part, reversed in part and remanded with
instructions.
                                       /'



We0 Concur :
Mr. Justice L. C. Gulbrandson, dissenting.


      In   my   opinion,   the   majority   has   misconstrued   the
rulings and findings of the trial court in holding that it
was error for the trial judge to consider the described
waiver as a release of all claims to the marital property in
the event of a dissolution of marriage.        The perti nent
portions of findings of fact no. 20 are as follows:
            ...  Wife stated to Husband and to
           Husband's children that each of the
           parties would maintain separate property.
           Wife also stated that- she would never
           make a claim on Husband's property and
           releases were signed to that effect and
           attached to the wills prepared by the
           parties   ...
      Nowhere in the findings of fact, conclusions of law and
order did the trial judge indicate that he considered the
signed release as a waiver of all claims in the event of a
dissolution.   It is obvious that he referred to the signed
releases only after he found that the wife had stated to
husband and his children that each party would maintain
separate properties and that she would never make a claim on
husband's property.   In findings of fact no. 23, the trial.
judge found:
           Due to the short duration of the
           marriage, the parties' intention not to
           make a claim against the other's property
           and the fact that the property of the
           marital estate was largely acquired prior
           to the marriage, it is equitable that
           each party's property be returned to
           them.
      I do not disagree with the majority's comments
regarding § 72-2-102, MCA, although they seem superfluous in
light of the majority's affirmance of the order that "each
party's property be returned to them."
      I do disagree, however, with the reversal of the order
denying maintenance to the wife and the remand for
clarification of wife's current employability.    The record
discloses that wife has a substantial checking account, a
vacant lot valued at $15,000, a residence valued at $90,000,
automobile, and investment certificates valued at $31,000.
There is substantial evidence in the record to support
finding of fact no. 25.
           Wife is not entitled to maintenance as
           the property distribution provides for
           her reasonable needs and she is able to
           obtain limited employment.




      Mr. Chief Justice J. A. Turnage and Mr. Justice R. C.
McDonough join in the forgoing dissent of Mr. Justice L. C.
Gulbrandson.
