                                   No.     92-125
               IN THE SUPREMECOURT OF THE STATE OF MONTANA
                                         1992


IN RE THE MARRIAGE OF
RICHARD W. OVERTURF,
               Petitioner   and Appellant,
         and                                                   ,,lr.1 ._,'1 'pJ2
                                                                    1,.
RUBY N. OVERTURF,
                                                                          L; ii




APPEAL FROM:          District  Court of the Thirteenth Judicial District,
                      In and for the County of Carbon,                                             t
                      The Honorable G. Todd Baugh, Judge presiding.


COUNSELOF RECORD:
               For Appellant:
                      Kevin T. Sweeney, Sweeney & Healow,                 Billings,
                      Montana
               For Respondent:
                      Dane C. Schofield,        Peterson     & Schofield,            Billings,
                      Montana


                                           Submitted       on Briefs:         June 4, 1992
                                                             Decided:             July   9, 1992
Filed:
Justice       John Conway Harrison                  delivered             the Opinion         of the Court.

        Richard         W. Overturf              (Richard)         commenced dissolution                    of      his
marriage        to      Ruby N. Overturf                  (Ruby)      in    the      Thirteenth          Judicial
District,         Carbon County,              Montana.            The District              Court     signed         the
Final       Decree of Dissolution                 on November 28, 1989.                     Ruby later         moved
for     reconsideration             of     the     dissolution             decree      to     provide         for     an
award of maintenance                 or recalculation                of entitlement                to retirement
benefits.            The District          Court         granted      the motion            and awarded Ruby
$340 per month in maintenance.                             Richard         appeals         and we reverse.
          The issue       on appeal           is whether           the District             Court     erred         when
awarding       Ruby $340 per month in maintenance.
          The parties'           marriage         spanned approximately                     twenty-two         years
and began when the couple                        married       in the Philippines                    on April         7,
1966.        Richard      was a career             officer         in the United             States      Navy and
progressed           through      the military            hierarchy         until      he reached         the rank
of Lieutenant            Commander.           Ruby never            obtained         any formal         education
beyond        the       eighth       grade         but      was      licensed          as      a     barber          and
beautician.             Throughout          the marriage              Ruby performed                hair-cutting
services        in barber         shops or beauty               parlors        and at times             was self-
employed performing                 similar        services.
          The parties            had no children                together             and lived         apart         for
approximately            six years;         Richard          in Red Lodge,            Montana and Ruby in
Virginia        Beach,         Virginia.           Despite         this     long      separation,          neither
party       initiated          dissolution           proceedings             until         May of       1988 when
Richard       filed      for     dissolution.
          There       was no provision               for       maintenance            in     the     dissolution
                                                           2
decree,           apparently                  due         to      the        property                division             provisions                 they

agreed            upon.                 Accordingly,                         the          decree                addressed                 Richard's

anticipated                military                pension             and the           percentage                   of distribution                     to

each      party.                Based             on an estimated                        monthly                retirement                income          of

$1,830.18,             the         court           determined                that        when Richard                    retired             from        the

Navy,      Ruby should                   receive               30 percent                or $549 per month,                          and Richard

should          receive                the         remaining                 70     percent.                      During            the       pending

dissolution,                    Richard                 was     undergoing                 a medical                   evaluation                  for         a

possible           disability                     retirement.                     Richard             was eventually                      diagnosed

with      degenerative                       disk         disease             and        was          involuntarily                    discharged

from      the      Navy with                 a medical                 disability.
          As a result                   of        Richard's                medically                 disabled            designation,                    the

Navy       informed                Ruby            in     a      letter             dated            December              12,        1990,          that

according             to     the       Uniformed                 Services            Former                Spouse's            Protection                Act
(the       Act)            (Public            Law         97-252),                 she      would               receive             $46.50          on         a

monthly           basis.               The drastic                     reduction                in     Ruby's            entitlement                 came

about       because              the     Act            excludes             entitlement                   to     payments            made under

a disability                designation.                        Since         Richard's                designation                  as medically

disabled,             he        received                 $1,134            per      month             in     disability.                     Of      that

amount,           approximately                          $979         is     considered                    "disability                 retirement

pay"       while             $155            is         designated                  as      "non-disability                           disposable

retirement             pay."            Therefore,                    Ruby is            only         entitled            to     30 percent               of

the     non-disability                       disposable                    retirement                pay,        or    $46.50          per     month.

          Based            on    this             drastic             reduction,                 on January                    7,     1991,          Ruby

moved           the         court             and             filed          a      motion                 entitled                 "Motion              for

Reconsideration.*'                                That          motion             requested                    modification                  of         the


                                                                              3
dissolution             decree       to    provide              for      maintenance              or,         in       the
alternative,             recalculation           of       Ruby's         entitlement           to         retirement
benefits         in order       to equitably           divide          the marital           property.
         The District             Court,     the      Hon. Todd Baugh presiding,                              granted
Ruby's     motion        and amended the decree:                      requiring         Richard       to pay Ruby
maintenance         of     $340 per month              (30 percent               of Richards              disability
retirement         income of $1,134)               in addition            to the $46.50             she received
directly         from     the     Navy as her             portion         of      Richard's          retirement.
Richard        now appeals         to this       Court.
         We previously            have said        that       "this      Court's         function          on appeal
is    limited       to     a determination                 of    whether          the     district            court's
findings         are clearly         erroneous."                In re Marriage              of Eide            (1991),
250 Mont.         490,     493,     821 P.2d 1036,              1038.
         The      parties'          original           dissolution                decree       contained                no
provision         for    maintenance.            Therefore,              the controlling                  statute       is
5 40-4-203(l),             MCA, which          reads      as follows:
         In...         a proceeding    for   maintenance   following
         dissolution  . . . the court may grant a maintenance order
         for either   spouse only if    it  finds   that the spouse
         seeking maintenance:
               (a) lacks sufficient                       property          to     provide          for      his
         reasonable  needs: and
               (b) is unable to supporthimselfthrough                                      appropriate
         employment.   . . .
Section        40-4-203(l),          MCA; also         see In re Marriage                    of Dunn (1991),
248 Mont.         95, 98, 809 P.2d 571,                   573.
         After     a review         of the      record          we find          that    Ruby did            not meet
the    requisite             elements      of      the        statute          and      therefore,             is      not
entitled         to a maintenance          award.           The record            indicates          that      Ruby is
                                                          4
able to provide                    for     her reasonable                 needs through                earned         income and
property           obtained              in the dissolution.                       Ruby obtained               real     property
including            a residence             in Virginia              Beach, Virginia                  and lake property
in North           Carolina            at Lake Gaston Estates.                             Further,       Ruby is able to
continue           offering              barber        services          which       is appropriate               employment.
Ruby's        own testimony                  indicates             that     she can make approximately                          $70
per      week         performing              barber           services              at     her        current         place        of
employment,                 although          the        amount           could         fluctuate            depending         upon
patronage.
         Ruby stated                in her deposition                     that      she requires              $700 per month
to cover           her          expenses.           We also          note        that      Ruby's       affidavit          states
that     her monthly                need is $832.71.                        Her approximate                  monthly       income
totals        just         over      $800 which            is derived               from:      barber          services        ($70
or     more          per         week),       Naval           retirement                  income        ($46.50),          Social
Security             ($355),             IRA and various                    other         sources.             Therefore,           it
cannot        be said             that     she is unable                  to support          herself,           nor does she
lack     sufficient                property             to provide           for        her reasonable                needs.
         Because Ruby fails                            to meet the requirements                         of     § 40-4-203(l)
(a)      and        (b),         MCA, it          is     unnecessary                for     us to        progress         to    the
standards             set        forth      later        in the same statute                       at 5 40-4-203(2)(a)
through            (f),         MCA.
         We also                 note       that        the        record          indicates            that      Richard           is
currently                 on the         Navy's         "Temporary            Disability               Retirement          List."
His status                is to be reviewed                   on a eighteen                month basis           with     a final
evaluation                 to     be completed                in     five        years.           At     the     end of        five
years,        if     Richard             has not been designated                          as I'Permanently             Disabled"

                                                                     5
he could          begin        receiving               his     normal       retirement            pay.      Accordingly,

Ruby      would      then          be     entitled             to      approximately           $549       per     month,       as

previously           estimated,                  which          is     30 percent         of      Richard's          regular

monthly      retirement                 pay.
       Failing            to       meet          the         necessary          standards           for     an     award       of

maintenance,              we return              this         matter       to   the    District           Court    to   enter

findings          consistent              with         this      opinion.          Reversed.




We concur:                     I
