                                           No, 12027

          I N THE SUPREME COURT O THE STATE O M N A A
                                 F           F OTN

                                                 1972

                            -   -- -   -   - -   -




BENNETT H. STEIN,

                          P l a i n t i f f and A p p e l l a n t ,



HILDEGARDE B. STEIN,

                          Defendant and Respondent.



Appeal from:      D i s t r i c t Court o f t h e S i x t h J u d i c i a l D i s t r i c t ,
                  Honorable C. B. Sande, Judge p r e s i d i n g .

Counsel o f Record:

          For Appellant :

              P a t r i c k F , Hooks argued, Townsend, Montana 59644.

          F o r Respondent:

              Swanberg, Koby and Swanberg, G r e a t F a l l s , Montana 59401,
              Ray F, Koby a r g u e d , Great Fa 11s , Montana 59401.



                                                                Submitted:       J u n e 1 9 , 1972

                                                                      Decided:   JUL 1 9 1972.
Filed :
            JhlL 1 9 1972
Mr. Chief Justice James T. Harrison delivered the Opinion of
the Court.
    This is an appeal by the plaintiff from an order modifying
alimony payments entered in the district court of Park County.
The cause was heard in oral argument and an opinion handed down
on September 24, 1971.    Thereafter a petition for rehearing was
filed, granted, and the case was reheard.   The opinion of Sep-
tember 24, 1971, is hereby withdrawn and this opinion substituted.
    The plaintiff, Bennett H. Stein, filed an application to
modify the terms of a divorce decree.   He alleged material changes
in the circumstances of the parties, seeking elimination or sub-
stantial reduction in the monthly alimony payments which amount
to $4,800 annually and permanent relief from the ordered assumption
of the monthly mortgage payments on the former family residence
in Livingston, Montana, amounting to $2,040 annually.
   After a hearing held in the district court without a jury
the court entered its order granting a readjustment of the alimony
payments by $100 a month annually for two years and thereafter
increasing the payments by $20 a month annually for 10 years and
thereafter restoring the original amount, $400 per month; and
denying by its silence the requested modification of the mortgage
payment.
    Plaintiff and defendant were married in November 1939 in
Chicago, Illinois.    Throughout the years of their marriage the
plaintiff was engaged solely in the ranching and livestock busi-
ness.   The couple had five children, all of them having reached
their majority at the time of the divorce except for the youngest
son, Peter, who is now past 21 years of age.
   After 27 years of marriage, a decree of absolute divorce was
granted each party.
    The gravamen of plaintiff's appeal is that changed financial
circumstances so substantial and so undisputed, required a
modification order consistent with such changed financial cir-
cumstances.   His net worth has decreased from $142,000 at the
time of the entry of the divorce decree to $58,000 at the time
of the hearing.   Also at that time some of his contracts were
pledged to secure his indebtedness and receipts from another
contract were required to make payments upon a place he had
purchased but which had no income therefrom during the previous
taxable years.    Further, that his disposable income in 1969 was
but $3,317.36.    He and his present wife pay $50 a month for a
home without telephone or television; require about $400 per
month for their living expenses.     His only other earned income
has been his compensation as a State Senator and a relatively
small amount from a trust set up by his mother.
   At the time of the divorce in 1966 the defendant wife was not
employed but she has been employed since 1967 and earns approxi-
mately $12,000 per year and receives an additional $1,200 for teach-
ing at night school.    She has tenure in her teaching position and
she appears to have a present net worth of $21,721, which includes
the equity of $15,000 in the home.
    The plaintiff refers our attention to our holding in Daniels
v. Daniels, 147 Mont. 57, 409 P.2d 824:
       " * * * Under our law the final judgment granting
       alimony 'may be enforced by the court by such
       order or orders as in its discretion it may from
       time to time deem necessary, and such order or
       orders may be varied, altered, or revoked at the
       discretion of the court.' R.C.M. 1947, § 21-137.
       'Where a divorce is granted for an offense of
       the husband, the court may compel him * * * to
       make such suitable allowance to the wife for her
       support during her life, or for a shorter period,
       as the court may deem just, having due regard to
       the circumstances of the parties respectively,
       and the court may, from time to time, modify its
       orders in these respects * * * . I Section 21-139.
       Thus, we see that under our law there is no guaran-
       tee of an annuity to a divorced wife. The trial
       judge in the ambit of his discretion must weigh
       the relative circumstances of the parties in light
       of the evidence presented in determining whether
       conditions demand a variation, alteration, or
       revocation of alimony and support payments. We
       will look critically at that determination only
       if it is shown to be unsupported by the evidence
       before the trial court of the changinq situations
       of the parties. The delicate decision is one of
       balancing the needs of the wife for support and
       maintenance against the husband's honest ability
       to provide." (Emphasis added.)
    It is quite evident from the facts heretofore related that
plaintiff does not have his former ability to provide, though
this is not the fault of the defendant since the original decree
required her to deed all her right and interest in the property
to the plaintiff.   Plaintiff urged upon the court at the hear-
ing that his present inability to pay was due to the capital in-
vestment required in acquiring and maintaining the ranch he
presently operating.   While the soundness of the investment and
successes of its operation at all times subsequent to the original
decree has been within the exclusive province of the plaintiff,
we must be mindful of the needs of the defendant and she clearly
is in no imminent need of great assistance for her support.
    Guided by our decision in Daniels we should consider the needs
of the wife, there being no guarantee of an annuity for her, bal-
anced against the husband's ability to provide, and weigh the
relative circumstances of the parties.   We feel therefore that her
alimony payments should be reduced to an amount which would not
be a burden to plaintiff and would permit the court, if future
conditions change, to make an adjustment to provide for such
changes.
   As to the required payments on the house, here the record
discloses that at the time of the original decree the defendant
was not employed and was awarded the custody of a minor child
and the house in question was the actual residence of the defend-
ant.
    At the time of the hearing as heretofore stated the record
discloses the defendant is employed, the child has reached his
majority, and the house is no longer used as a residence by
either the defendant or her son.
    Thus the failure to grant the modifications requested by the
plaintiff was, we find, an abuse of discretion.   We find that
the defendant having demonstrated no present need for the house
in question the plaintiff should be relieved of the obligation
of the monthly mortgage payment.
   We therefore direct the district court to modify its order
of modification by reducing the alimony payment to the sum of
$150 per month and eliminate
to make the monthly mortgage           the house.
    It is so ordered.



                                          Chief Justice
