                                                          No. 94-119
                            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                                             1995


IN RE THE MARRIAGE OF
LONA "DIANNE" CHEW,
                        Petitioner and Appellant,
          and
RAYMOND CHEW,
                        Respondent and Respondent



APPEAL FROM:                      District Court of the Nineteenth Judicial District,
                                  In and for the County of Lincoln,
                                  The Honorable Robert S. Keller, Judge presiding.


COUNSEL OF RECORD:
                        For Appellant:
                                  S. Charles Sprinkle, Douglas              & Sprinkle, P.C.,
                                  Libby, Montana
                        For Respondent:
                                  Stephen H. Dalby, Sverdrup & Barnes, Libby, Montana

                              .,)~ .,., ;;, r;-:q\
    i’-.   .;   ‘:,’   ‘Z       ,.;            :,
                                             ,~      ;g   Submitted on Briefs:    December 8, 1994
    jj;
                             - _^A,-                                   Decided:   January 18, 1995




                                                             Clerk
Chief Justice J. A. Turnage delivered the Opinion of the Court.

        The parties' marriage was dissolved by the District Court for
the Nineteenth Judicial District, Lincoln County, Montana.            Lona

"Dianne" Chew appeals and Raymond Chew cross-appeals. We vacate in

part,    but otherwise affirm the judgment of the District Court.

        The issues are:

        1.     Did the District Court's method of dividing the marital

estate constitute an abuse of discretion?

        2.     Do the restrictions imposed against Dianne with respect to

maintenance constitute an abuse of discretion?
        3.      Is the award of maintenance to Dianne an abuse of

discretion?

        Lona    "Dianne"   Chew   (Dianne)   and Raymond Chew (Ray) were

married for approximately twenty-five years.           Their children are

now     adults.     Ray and Dianne agreed to a disposition of their

personal       property.   However,   they disagreed on the disposition of

their real property and on whether Dianne is entitled to mainte-

nance.

        At the time of trial, Ray received $824 per month in Social

Security benefits, $466.76 per month in disability benefits, and
$890.55 per month from the sale of property in California. He has

been unable to work since 1980 as a result of an injury and will

not be employable in the foreseeable future.         Dianne was seasonally

employed as a fire prevention aide for the Montana Department of

State Lands.         At the time of trial,     she had undergone a double

mastectomy and was preparing for related cosmetic surgery.

                                         2
        The District Court declared that property owned by the parties

in Utica, Montana,          and in California was not part of the marital
estate.    The Utica property is a partial interest in a ranch which

Dianne inherited.           The court declared it to be her sole property.

The California property is a home deeded to Ray by his mother, who

moved in with Ray and Dianne when she was no longer able to take

care of herself.        The home has been sold under a contract, with a

balloon payment due in August 1996.               The court declared it to be

Ray's sole property.

        The court awarded Ray possession of the family home in Libby,

Montana.        It ordered him to pay Dianne one-half of the sale price

of the family home less certain deductions; however,                it did not

require Ray to do this until he receives the balloon payment on the

California property in 1995 or 1996.              The court also ordered Ray to

pay Dianne one-half of his $466.76 monthly pension benefit for

life.     It ordered him to pay Dianne $850 per month in maintenance

for four years "unless         she   dies, remarries or cohabits with another

(for the greater portion of any six month period), in which case

Ray's    duty    to   pay   maintenance   shall    cease."   Additionally,   the

court ordered Ray to pursue a claim for workers' compensation and
awarded Dianne one-half of the value thereof.

                                        Issue 1

        Did the District Court's method of dividing the marital estate

constitute an abuse of discretion?
        In apportioning a marital estate, a district court must

        finally equitably apportion between the parties the
        property and assets belonging to either or both, however

                                           3
        and whenever acquired and whether the title thereto is in
        the name of the husband or wife or both.

Section 40-4-202(l), MCA.       This Court reviews findings of fact

which divide marital property under a clearly erroneous standard.

In re Marriage of Barker (1994), 264 Mont. 110, 113, 870 P.2d 86,

88.
        Dianne states she does not dispute the amount of the court's

division of property, but she challenges the delay in payment for

her interest in the family home.          She also objects that her

interest in the home is unsecured and is contingent upon the

balloon payment on the California property.

        At the time of trial, the family home had not been appraised,

but the parties agreed that each was entitled to half of its value

and that Ray wanted to buy out Dianne's         interest.     The   court

determined that the home should be appraised and that the appraised

value would be the sale price as between the parties.        It ordered

Ray to pay Dianne one half of the net equity, after first deducting

the cost of the appraisal and the security interest against the

home.     Payment for Dianne's equity, together with interest at the

rate of 5 percent per annum, is to be made when Ray "receives the

balloon payment on the California property (in 1995 or 1996)."

        As Dianne admits, her stake in the family home is not entirely

unsecured--she has the court's order of dissolution.        Further, the

court specified that Ray will pay Dianne for her share of the value

of the family home "in 1995 or 1996,"    and awarded her interest from

the date she was required to move out of the home until she is paid

for her interest in it.
                                    4
      Faced with the absence of an appraised value of the        family

home at the time of trial, the parties'      agreement that each was
entitled to half its value,   and Ray's desire to buy out Dianne's

interest in the home despite his disability and limited income, we

conclude the court arrived at an equitable result.       We hold that
the District Court did not abuse its discretion in its division of

the marital   estate by failing to require Ray to pay Dianne

immediately for her interest in the family home.

                                 Issue 2

      Do the restrictions imposed against Dianne with respect to

maintenance constitute an abuse of discretion?

      Ray concedes this issue.     In In re Marriage of Bross (19931,

256 Mont. 174, 180, 845 P.Zd 728, 731-32, we stated that "[albsent

a showing of changed circumstances which would justify a modifica-

tion of maintenance, maintenance will not automatically terminate

when a recipient spouse cohabits with another individual."          We

therefore vacate the provision of the District Court's order which
provides that the maintenance obligation shall cease if Dianne

"cohabits with another (for the greater portion of any six month

period) .'I

                                 Issue 3

      Is the award of maintenance to Dianne an abuse of discretion?

      Under § 40-4-203, MCA, maintenance may be awarded only if the

court finds that the spouse seeking maintenance (1)      lacks suffi-

cient property to provide for her reasonable needs,       and (2)   is

unable to support herself through appropriate employment or is the

                                    5
custodian of a child whose needs make             it appropriate that the
spouse not be required to seek employment outside the home. on

cross-appeal,       Ray argues that the District Court did not make the

prerequisite findings to award maintenance.

        When it is obvious from the findings and conclusions that the

court     considered the character       of a    spouse's property before

granting a maintenance award, specific findings regarding the

nature of the property are not required.            In re Marriage of Cole

(1988),    234 Mont. 352, 356, 763 P.2d 39, 42.          Dianne's income-

producing property appears to consist of her one-half interest in

Ray's     monthly    disability   benefit,    or $233.38 per month.    The

itemized list of personal property which the District Court awarded

to Dianne was not substantial and was not of a nature to provide

support.     There was no evidence that Dianne's interest in the ranch

in Utica, Montana, was       income-producing.    And, as discussed above,

the court delayed distributing to Dianne the cash representing her

interest in the family home.

        The court found that Dianne's income for the previous twelve

months was $2,980.20, which was              lower than in previous years

because she lost time from work due to her double mastectomy.          The

court found that, based upon Dianne's average earnings for 1991 and

1992,    her income is approximately $346 per month.        By any reason-

able standard, that is not enough to provide for her needs, which

will include housing and health insurance.           Given Dianne's recent

surgeries, her age! and her work experience, it is clear without
additional findings that it may take some time for her to obtain

more lucrative employment.
        The court included in its findings, conclusions, and judgment

a short memorandum stating:

        The Court is not unmindful of the efforts put forth by
        Dianne and the inconvenience occasioned to her by virtue
        of the presence of [Ray's mother], and this is reflected
        in the determination of maintenance.

While this memorandum does not address the factors which determine

whether an award of maintenance is appropriate, we conclude that it

is   not a basis    for      reversal.   We conclude that the findings

discussed above address Dianne's lack of sufficient            income-

producing    property   to    provide for her reasonable needs and her

present inability to support herself through appropriate employ-

ment.
        With the exception of the provision vacated under Issue 2, we

affirm the decision of the District Court.




We concur:
