                                       No. 85-60
                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                            1985




IN RE THE I'JARRIAGE OF
           .
VULLOY B JONES,
                 Petitioner and Respondent,
          and
LARRY JONES,

                 Petitioner and Appellant.




APPEAL FROM:     District Court of the Fourth Judicial District,
                 In and for the County of Missoula,
                 The Honorable James B. Wheelis, Judge presiding.

COUNSEL OF RECORD:

          For Appellant:
                 Ellingson   &    Moe; Jon E. Ellingson, Missoula, Montana

          For Respondent:
                 Terry A. Wallace, Missoula, Montana



                                                              --   --   -




                                           Submitted on Briefs: July 25, 1985
                                                      Decided: November 19, 1985



Filed :



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                                           Clerk
Mr.    J u s t i c e 1,. C.        Gulbrandson             d e l i v e r e d t h e Opinion o f       the
Court.


          Larry      Jones        appeals       an     order        of    the    Missoula         County

District        Court          directing        him        to     pay    his    ex-wife,      Vulloy,

$4,851.67          as     back      payments          of        maintenance        and    $2,146      as

reasonable          attorney's          fees.         The i s s u e s o n a p p e a l a r e :        (1)

w h e t h e r t h e D i s t r i c t C o u r t e r r e d i n r u l i n g t h a t h u s b a n d owed

w i f e m a i n t e n a n c e u p o n h i s c e s s a t i o n of c h i l d s u p p o r t p a y m e n t s

to    her;         (2)     whether        the      District             Court     erred      in     only

partially          enforcing wife's              promissory note                 t o husband;        and

(3)    whether           the    District Court e r r e d                 i n granting wife her

attorney's fees.                Affirmed i n p a r t and remanded.

          I n August           1979, L a r r y and V u l l o y J o n e s            filed a        joint

petition         for      dissolution           of     marriage           in    Missoula          County

District Court.                A f i n a l d e c r e e d i s s o l v i n g t h e i r m a r r i a g e was

e n t e r e d t h a t same m o n t h .          As     t h e J o n ~ s y o i n tp e t i t i o n h a d

requested,          the        final     decree        granted           full    custody      of     the

p a r t i e s 1 two minor c h i l d r e n t o t h e wife.                       The f i n a l d e c r e e

orders       the     husband          (appellant)            to    pay    $150 p e r      month p e r

child      to    the      wife       (respondent).                 In    the     paragraph        which

immediately follows t h a t provision, t h e decree s t a t e s ;

                Upon t e r m i n a t i o n of t h e c h i l d s u p p o r t
                o b l i g a t i o n , LARRY E. JONES s h a l l p a y t o
                VULLOY B. JONES t h e sum o f $ 1 0 0 . 0 0 p e r
                month, a s and f o r h e r maintenance, u n t i l
                her remarriage o r death.

These p r o v i s i o n s o f t h e f i n a l decree a l s o m i r r o r t h e language

of t h e Jones1 joint petition f o r dissolution.

          Appellant paid               the    $150 p e r month p e r c h i l d payments

u n t i l A p r i l 1980.          I n e a r l y 1 9 8 0 , r e s p o n d e n t d e c i d e d t o move

t o C a l i f o r n i a and s h e approached a p p e l l a n t f o r a $1,000 l o a n .

A p p e l l a n t a g r e e d t o l o a n r e s p o n d e n t $1,000 i f s h e would s i g n

a promissory n o t e i n h i s f a v o r f o r $2,000.
      Appellant testified that he asked respondent to sign
the $2,000 promissory note because respondent owed him well
over $1,000 prior to the $1,000 loan.                  Appellant testified
that respondent owed him over $1,000 (before the loan) for
money he had given her in addition to the child support
payments, for a pickup truck he loaned her to use, for a
trailer hitch he put on her car, and for her parking tickets
he had paid.
       Respondent testified that appellant told her he did not
expect her to pay the note but that he needed the note for
income tax purposes.        She also testified that appellant had
loaned her a pickup truck for her use.              Respondent denied or
did not remember that appellant had given her other money or
support.
       Respondent      signed     the   $2,000    promissory       note    and
appellant   then     gave   her    $1,000.       The     note    carried   14%
interest and was due on February 13, 1981.                 Respondent then
moved to California in April 1980.
       Upon respondent's move, the parties' two minor children
went to live with their father.              Appellant raised and sup-
ported the children beginning in April 1980.                    Appellant did
not make the child support payments to his ex-wife that month
or thereafter.       Appellant did not commence maintenance pay-
ments to his ex-wife until forced to do so by this lawsuit.
       In   August     1983,    respondent       filed    a     petition   for
enforcement of decree.          Respondent alleged that appellant's
child support obligations had ended in April 1980 and that,
under the terms of the            final decree, appellant owed her
maintenance from that time.             Appellant filed a response to
the   petition   and    a   counterclaim.         As     his    counterclaim,
appellant alleged that respondent had not paid the promissory
note, which was due.           Respondent answered the counterclaim
admitting that she had not made any payments on the note but
alleging that she had not received sufficient consideration
for the $2,000 note.           She further alleged that appellant
fraudulently induced her to sign the note.
        In October 1984, the District Court issued its findings
of fact, conclusions of law and order.                 The District Court
found that, under the final decree, respondent was to receive
maintenance     of     $100    each        month    upon   termination      of

appellant's child support obligation.                The court found that
appellant's child support obligation terminated in February
1980.    The court further found that appellant had made no
maintenance payments.          The court concluded that appellant
owed respondent $6,505, including interest, for maintenance
arrearages.
        The court found that respondent was entitled to recover
her reasonable attorney's fees on this action.                     The court
ruled that one-third of the recovery of $6,505 (or $2,146)
was a reasonable attorney's fee.
        Lastly, the court found that respondent owed appellant
$1,653.33, including interest, on the loan made to her by
appellant.      The    court    offset       this    amount     against   what
appellant owed respondent in maintenance arrearages.
        The first issue is whether the District Court erred in
ruling that appellant owed respondent maintenance upon his
cessation of child support payments to her.                The standard of
review    for   that   decision       is    set    forth   in   Rule   52(a),
M.R.Civ.P;
             Findings of fact shall not be set aside
             unless clearly erroneous, and due regard
             shall be given to the opportunity of the
             trial court to judge of the credibility
             of the witnesses.
This Court's       function is to review the               district court's
findings in light of the record and make certain the find-ings
are not clearly erroneous.               Carr v. Carr (Mont. 1983) , 667
P.2d 425, 40 St.Rep. 1263; Peckenpaugh v. Peckenpaugh (Mont.
1982), 655 P.2d 144, 39 St.Rep. 2132.
        The    final decree provided           that appellant would pay
respondent maintenance            upon    the termination of his child
support       obligation.         Appel-lant contends that        this    child
support obligation (the termination of which would trigger
his maintenance obligation) refers to his general duty to
support and raise his children.                Appellant correctly cites
Torma v.       Torma    (1982), 198 Mont.       161, 645 P.2d        395; and
Chrestenson v. Chrestenson               (1979), 180 Mont.       96, 589 P.2d
148, for the proposition that a parent's general obligation
to support his child ends upon that child's emancipation at

age eighteen.          See also S S 40-4-208 ( 5 ) , 41-1-101, 40-6-211,
MCA.     Appellant did meet this general obligation of support
while his children lived with him (and presumably until they
were eighteen).         Therefore, appellant asserts that the child
support obligation ended upon his youngest child's eighteenth
birthday and that his maintenance obligation arose on that
date.     The resolution of this issue hinges on whether the
child support obligation referred to in the final decree is
that general obligation cited in Torma and Chrestenson.
        In effect, the District Court found that the child
support obligation (as referred to in the final decree) was
the specific, monthly payments to be made by the appellant
and     not    appellant's        general    obligation.         Hence,   once
appellant       stopped     the    monthly   payments,     his    maintenance
obligation began.         This conclusion       is supported by the fact
that the reference in the final decree to the termination of
the    child    support obligation      followed directly after the

court's order of monthly child support payments.                 Thus, it is
inferable that the disputed child support obligation                        (the
termination of which triggered the maintenance payments) was
that obligation set up in the immediately preceding sentence.

More    importantly, the      court, in making          this ruling, was
interpreting its own final decree.              We decline appellant s
invitation       to      second     guess   the         District      Court's
interpretation of its own decree.           We hold that the District
Court's ruling, that appellant's maintenance obligation began
when    he   stopped making monthly child          support payments to
respondent, was not clearly erroneous.
        The second issue is whether the District Court erred in

only    partially      enforcing    respondent's    promissory       note    to
appellant.       In 1980, respondent signed a $2,000 promissory
note, with 14% interest, in appellant's favor.                     The lower
court    held     that     respondent    owed     appellant        $1,653.33,
including interest, up            through October       1984.      Respondent
testified that the only other consideration she received for

the note, besides the $1,000 loan, was the use of a pick-up
truck. Thus, there was evidence to support the lower court's
decision to only partially enforce the note.                       The    lower
court's ruling on this issue was not clearly erroneous and

must be upheld.
        The third issue is whether the District Court erred in
awarding respondent her attorney's fees.                Appellant contends
that    there    was     insufficient   evidence        to    establish     the
reasonableness of the amount of the award and the need for
the award.      Appellant also complains that the District Court
made    no written       findings as to the need             for the award.

Appellant cites the oft-repeated rule,              "   . . . that   written
findings    are    required    to    establish        both    the    need   and
reasonableness of an award of attorney's fees. "                    See, e.g.,
Duffey v. Duffey (Mont. 1981), 631 P.2d 697, 699, 38 St.Rep.
1105, 1107.
        There may be sufficient evidence in the record to find
that the wife had a genuine need for the award of attorney's
fees.     She testified that she lost her job upon returning to

California after what was apparently the preliminary hearing
in this case.       She also testified that she told appellant,

prior to executing the promissory note, that there was no way
she could repay him.          However, the District Court made no
findings of       fact as to the wife's             need    for an award of
attorney's fees.

        In Duffey, the trial court failed to make essential
written     findings   establishing          both     the    need    and    the
reasonableness of an award of attorney's fees.                  We held that
this failure required that we vacate the award of attorney's

fees, even though only $200 was awarded.                     Accordingly, we
vacate the trial court's award of attorney's fees in the
instant case.
        Furthermore, we       note   that     the    District Court made
findings as to the reasonableness of the amount of the award
of   attorney1s    fees.      The    court    found    that a       reasonable
attorney's fee for the recovery of $6,505 is one third of

that amount.      The court reasoned that one third is a standard
attorney's fee for the recovery of an indebtedness.
        On June 6 , 1985, this Court filed its new Rules of
Professional       Conduct     relating        to      the     Client-Lawyer
Relationship.       Rule 1.5, entitled Fees, states at section

(a):
               A   lawyer  shall              not  enter           into  an
               arrangement  for,              charge, or           collect:

                (1) a n y f e e i n a d o m e s t i c r e l a t i o n s
               m a t t e r , t h e payment o r amount o f w h i c h i s
               c o n t i n g e n t upon t h e s e c u r i n g o f a d i v o r c e
               or       upon       the   amount        of      alimony        or
               support      ...
         There     i s no evidence           in the      r e c o r d t h a t t h e r e was a

contingent         fee    agreement         between      the     respondent          and    her

attorney,       but      because      the    court      may     have     considered         the

amount r e c o v e r e d a s t h e sole b a s i s f o r t h e a w a r d , a n d b e c a u s e

of   the    lack    of    f i n d i n g s a s t o t h e need        f o r t h e award,      we
vacate      the       award      of     attorney's          fees       and     remand       for

reconsideration           by     the      trial      court       and     the        entry    of

appropriate findings of f a c t .
