                             NO. 96-367
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                1997


IN RE MARRIAGE OF
PEGGY DUNN,
           Petitioner and Respondent,        J   1- 1 9 7
     and
HOWARD DUf\TN,
           Respondent and ~ppellant.



APPEAL FROM:     District Court of the Eighteenth Judicial District,
                 In and for the County of Gallatin,
                 The Honorable Thomas A , Olson, Judge presiding.


COUNSEL OF RECORD:
           For Appellant:
                 Ronald F. Waterman; Gouqh, Shanahan,
                 Johnson & Waterman; Helena, Montana
           For Respondent:
                 Mark E. Miller; Landoe, Brown, Planalp
                 & ~raaksma; Bozeman, Montana



                             Submitted on Briefs: February 13, 1997
                                          Decided: April 1, 1997
Filed:
Justice Jim Regnier delivered the opinion of the Court.
     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1995 Internal Operating Rules, the following decision shall not be
cited as precedent and shall be published by its filing as a public
document with the Clerk of the Supreme Court and by a report of its
result to State Reporter Publishing Company and West Publishing
Company.
     Howard Dunn appeals from the findings of fact and conclusions
of law setting forth the distribution of marital property and the
maintenance award to Peggy Dunn as ordered by the Eighteenth
Judicial District Court, Gallatin County.   We affirm.
     Three issues are before this Court:
     1.     Did the District Court err by including the business
trust property in the marital estate?
     2.     Did the District Court equitably divide the marital
property?
     3.     Did the District Court err by awarding maintenance to

Peggy?
     Howard and Peggy were married on March 28, 1958. Both Howard
and Peggy are 59 years of age.    They have three adult children,
none of whom require assistance from either parent.      Howard has
recently retired from AT&T.    Peggy worked as a homemaker and is
currently employed part-time at a nursing home.    Both Howard and
Peggy have serious health problems.   Howard had his foot amputated
due to circulation problems.   Peggy has undergone three separate
angioplasty procedures.
     Included in the marital assets was a storage business Howard
owned and operated along with his brother, Jack.            Howard and Jack
attempted to shelter the business in a "business trustN which was
sold to them by an insurance salesman. The value of Howard's share
of the business is over $100,000. Further, the income from the
business is approximately $22,000 per year. Under the terms of the
business trust, both Howard and Jack can withdraw monies from the
trust without permission of the trustees.
      In its apportionment of the marital assets, the District Court
took the following factors into account; the parties' ages, health,
occupations,    employability,       ability   to    earn       income,    and
liabilities.    Peggy was awarded the family residence, with a net
value of $84,610; half of Howard's AT&T pension and lump sum
survivorship, valued at $77,263; half of the equity in the storage
business, valued at $45,563; and designated personal property for
a total award constituting 66 percent of the marital estate.
Howard was given personal property, half of his pension, and half
of   the   equity   in   the    storage   business   for    a   total     award
constituting   34 percent of the marital estate.
     This   case    arises     from the   dissolution of        the   couple's
thirty-seven year marriage.        In determining the parties' income,
the District Court found that Peggy has a monthly income of $960
and expenses of $1735. Howard has a monthly income, excluding any
income from the storage business, of $1658 and expenses of $1625.
The District Court awarded Peggy $468 a month, one-half of Howard's
pension.    The District Court determined that Howard earned income

                                     3
of $450 per month from the storage business.      The District Court
awarded half of that amount, $225, to Peggy as maintenance. Howard
appeals.
                               ISSUE 1
     Did the District Court err by including the business trust
property in the marital estate?
     The District Court determined that the storage business owned
and operated by Howard and his brother was part of the marital
estate.    We review a district court's findings of fact and will
uphold the division of marital property unless it is clearly
erroneous.   If substantial credible evidence supports the court's
findings and judgment, this Court will not change the district
court's decision unless the court abused its discretion. A u s t i n v.

Cash (1995),274 Mont. 54, 59, 906 P.2d 669, 672; In re Marriage of

S m i t h (1995), 270 Mont. 263, 267-68, 891 P.2d 522, 525

     Howard argues that the storage unit business should not have
been included in the marital estate for two reasons. First, it was
purchased with his disability income.       Second, the storage unit
business had been transferred to a business trust with separate
trustees   and   designated   beneficiaries.    Howard   argues   that
disability payments belong to the injured spouse and are not
subject to division and distribution between the parties unless the
disabled spouse commingles the funds with the marital estate.
Howard states that there is no evidence that the business has been
commingled with other assets.
     Howard's disability argument fails for two reasons. First, it
was not raised in the dissolution proceedings and therefore, this
Court will not consider it on appeal.   In re Marriage of Binsfield

(1995), 269 Mont. 336, 344, 888 P.2d 889, 894.   Second, the record
does not support Howard's argument that he purchased the property
solely with his disability income. The record and the testimony of
both parties show that, together, Howard and Peggy paid $500 as a
down payment for the storage unit business.      The District Court
also found that Peggy was involved in the business, provided input
in management, and helped clean up the lots.
     In evaluating the storage unit business, the District Court
found that Howard and his partner, Jack Dunn, attempted to shelter
the business in a "business trust." The District Court found that
the "business trustu was not a trust at all.   Howard and Jack were
able to withdraw monies without the permission of the trustees.
Although the trust was to be held for Howard's and Jack's children
as designated beneficiaries, there was no delivery of beneficial
shares to the children, nor were they informed that they were trust
beneficiaries. Also, the trust was revocable. The District Court
found that through the use of dummy trustees and control of money,
Howard and Jack retained dominion and control over the business.
For these reasons, the business was found not to be trust property.
     We conclude that the District Court correctly included the
storage business in the marital estate. The facts demonstrate that
Howard and Jack retained dominion and control over the business.
Both could withdraw money at any time without permission of the
                                 5
trustees. The District Court properly found that the trust attempt
failed to legally divest Jack and Howard from actual ownership and
control of the business property.       Therefore, the District Court's
findings regarding the storage business are not clearly erroneous
and the District Court did not abuse its discretion in including
one-half of the equity of the storage business in the marital
estate
                                ISSUE 2

      Did the District Court equitably divide the marital property?
      As stated above, in reviewing factual findings which divide
marital property, our standard of review is "whether the district
court's findings are clearly erroneous."            In re Marriage of

Danelson (1992), 253 Mont. 310, 317, 833 P.2d 215, 219. We review

the district court's conclusions of law de novo and examine whether

the court correctly interpreted the law. Marriage of Danelson, 253

Mont. at 317, 833 P.2d at 219-20.
      The   allocation   of   marital    property   is   analyzed   under
§   40-4-202(I), MCA, which provides in pertinent part:
      In making apportionment, the court shall consider the
      duration of the marriage and prior marriage of either
      party; 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
      opportunity of each for future acquisition of capital
      assets and income. The court shall also consider the
      contribution or dissipation of value of the respective
      estates and the contribution of a spouse as a homemaker
      or to the family unit. In dividing 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 separation, the court shall
       consider those contributions of the other spouse to the
       marriage, including:
            (a) the nonmonetary contribution of a homemaker;
            (b) the extent to which such contributions have
       facilitated the maintenance of this property; and
            (c) whether or not the property division serves as
       an alternative to maintenance arrangements.
       The district court must achieve an equitable distribution of
the marital estate, not an equal distribution.     In re Marriage of

Shelton (1986), 219 Mont. 456, 459, 712 P.2d 782, 784.       We grant

the district court broad discretion to equitably apportion the
marital property. In re Marriage of Sirucek (19851, 219 Mont. 334,



       Howard argues that the District Court erred in failing to
explain why it did not divide the marital estate equally. Howard
explains that although   §   40-4-202, MCA, vests the District Court
with    broad   discretion, the District   Court   must   explain   its
rationale for the property division. Without an explanation, the
District Court's decision must be erroneous.    Specifically, Howard
questions the District Court's award to Peggy of $220,000 from the
marital estate while he was awarded only $114,000.
       A district court need not set forth a specific reason for its
equitable division. In re Marriage of Mouat (1987), 228 Mont. 430,

433, 743 P.2d 602, 604. In its apportionment of the marital assets,
the District Court took into account the following factors; the
parties' ages, health, occupations, employability, and ability to
earn income and pay liabilities.              The District Court noted that
Peggy is of questionable health and will require heart surgery. The
District    Court   also   noted       that   she   has   limited   employment
opportunities and will be eligible to retire in less than four
years.     In this case, the District Court's findings of fact
sufficiently support its ultimate property division.
       The District Court's findings as to the division of marital
property are well supported by substantial evidence in the record
and are not clearly erroneous.            We hold that the District Court
properly followed   §   40-4-202(1),MCA, and correctly interpreted the
law.
                                   ISSUE 3
       Did the District Court err by awarding maintenance to Peggy?
       Howard argues that maintenance is only required when the
spouse seeking maintenance lacks sufficient property to provide for
her reasonable needs and she is unable to support herself through
appropriate employment.      See   §    40-4-203, MCA.    Howard claims that

maintenance is not proper in this case for several reasons. Howard
asserts that Peggy's financial resources are adequate to provide
for her needs, that the award should not be unlimited in its period
of payment, and that he is unable to pay the maintenance award.
       The court awarded Peggy $225 per month in maintenance without
specifying a time limit.      Howard argues that before a court makes
an award of maintenance, there must be an equitable division of
property.     In re Marriage of Scott (1990), 246 Mont. 10, 24, 803

P.2d 620, 629. He further contends that a reversal of the property
division also requires a reversal of the maintenance award.         See In

re Marriage of ~ivian(1978), 178 Mont. 341, 583 P.2d 1072. Because

we have determined that the property division in this case was
equitable, we are not required to reverse the court's maintenance
award. See Marriage of Vivian, 178 Mont. at 345, 583 P.2d at 1075.

      A maintenance award will not be overturned unless the district
court's findings are clearly erroneous.        In re Marriage of Sacry

(1992), 253 Mont. 378, 381, 833 P.2d 1035, 1037.          Maintenance is
governed by   §   40-4-203,MCA.   That statute provides that the court
may   award   maintenance   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 . . .
           (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
      . . .
           (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, MCA.
     Substantial evidence exists to support the court's finding
that Peggy does not have sufficient income to pay her monthly
expenses. Peggy's living expenses average $1735 per month.           She
must pay rent of $500 a month and provide for her own trailer and
car insurance. From her present employment, Peggy will earn a net
monthly pay of between $861 and $960.    She will also receive half
of Howard's pension, an amount of $468 a month.     That gives her a
total of $1428 in monthly income. Comparing her income against her
expenses, she is left with a shortfall of $307. The District Court
found that Peggy will be unable to meet her needs, and thus, her
standard of living will decrease.    This Court concludes that the
District Court properly considered the factors set forth in
1 40-4-203,MCA, in determining the award of maintenance.
     Howard argues that the District Court abused its discretion in
not placing a time limit on the award of maintenance to Peggy.
Based on the evidence before it, the District Court did not
forecast a date in the future when the amount of maintenance
required would be less than $225 a month or nothing at all.        In an
exercise of its discretion, the District Court made a determination
which   provides   for maintenance   without   a   time   limit.     If
circumstances in the future change, Howard may petition the
District Court for modification of the maintenance award under
5 40-4-208, MCA.   This Court has no basis to impose a time limit on
the award for maintenance in this case.
    Howard further contends that the award of maintenance was
improper because he is unable to pay maintenance and meet his
personal expenses at the same time. He argues that his ability to
pay should be the deciding factor in determining the propriety of
a maintenance award. This is not so. While the husband's ability
to meet his personal needs is an element that should be given great
weight, it is not always the determining factor. Each case depends
on its own facts.    In re Marriage of Cole (1988), 234 Mont. 352,

358, 763 P.2d 39, 43.
     We hold that the award of maintenance by the District Court
was not clearly erroneous.




We Concur:           -

     Chief Justice
