                            No.    88-553

          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1990



IN RE THE MARRIAGE OF SUSAN
RIDGEWAY ERNST,
     Petitioner and Appellant,
     -vs-
LENNIE RAY ERNST,
     Respondent and Appellant.




APPEAL FROM:   District Court of the Tenth Judicial District,
               In and for the County of Judith Basin,
               The Honorable Peter L. Rapkoch, ~ u d ~presiding.
                                                       e.


COUNSEL OF RECORD:
          For Appellant:
               Joan Meyer Nye, Billings, Montana
          For Respondent:
               Jo Mickelson, Dorsey      &   Whitney, Billings, Montana


                                                 Submitted:   May 5, 1990
                                                   Decided:   May 24, 1990
Justice William E. Hunt, Sr., delivered the Opinion of the Court.



     The husband in a dissolution action, Lennie Ray Ernst, appeals
from the judgment of the District Court of the Tenth Judicial
District, Judith Basin County, which ordered him to pay maintenance
support to the wife and cross-appellant, Susan Ridgeway Ernst. We
affirm and dismiss the cross-appeal.
     The issues raised on appeal are:
      (1) Whether the District Court properly complied with the
requirements of 5 40-4-203(2), MCA, by awarding the wife
maintenance in the form of monthly payments, educational expenses,
and psychotherapy costs.
      (2)  Whether an award of $30,000.00 to the wife in the
distribution of property by the District Court was a clear abuse
of discretion.
      (3)  Whether the District Court's findings, particularly
findings nos. 10, 11 and 15, are clearly erroneous.
      (4) Whether this Court has jurisdiction over the wife's
cross-appeal.
     Susan Ridgeway Ernst, the wife, and Lennie Ray Ernst, the
husband, were married in Stanford, Montana, in 1976 and were
married 11 years prior to their separation in March, 1987. Two
children were born of this marriage: Ashley Jean Ernst, who was
born on July 29, 1982, and Brandon Jacob Ernst, who was born on
August 29, 1984. At the time wife and the husband separated, the
wife was 30 years old and the husband was 32 years old.
     During the majority of their marriage, the wife and the
husband resided on the Ernst family farm located south of Stanford.
The husband has worked the family farm and developed it into a
profitable enterprise. The wife, who had been valedictorian of her
high school class, obtained one year of secretarial training and
had worked outside the home during the first years of marriage.
The wife quit her job in 1981 during her first pregnancy and has
not worked outside the home since that time.
     During their marriage, there were times when the husband was
physically abusive to the wife. The majority of these incidents
occurred during the first few years of marriage. It was common
that these incidents were precipitated by the husband's alcohol
use. The husband has been diagnosed as suffering from an episodic
alcohol abuse disorder and from an intermittent explosive
personality disorder.
     The wife has recently been diagnosed as suffering from a
paranoid mental disorder.     During the marriage, the wife was
suffering from the affects of this disorder.
     The wife filed for dissolution on April 24, 1987. A five day
trial was held in February, 1988, on the issues of custody,
property division and maintenance. Expert testimony was presented
regarding both parties1 mental disorders. Expert testimony was
also offered regarding the effects of spouse abuse syndrome. In
May of 1988, the wife's mental disorder resulted in the District
Court committing the wife to the Montana Deaconess Medical Center
in Billings, Montana, for a 30-day evaluation. On July 1, 1988,
the court entered its findings of fact and conclusions of law. A
motion to modify the findings of fact was filed by the wife on July
14, 1988.    The husband contested this motion to modify upon
jurisdictional grounds and, therefore, filed a notice of appeal on
August 16, 1988. The court ruled on the wife's motion on September
14, 1988, and the next day entered the final Decree of Dissolution.
     The husband filed a motion to amend the final decree, pursuant
to Rule 59(g), M.R.Civ.P., on September 26, 1988.        Before the
District Court had ruled on the husband's motion, the wife filed
a notice of appeal. This notice of appeal was filed on October 12,
1988. The court subsequently ruled upon the husband's motion on
November 7, 1988. The husband filed his second notice of appeal
on December 5, 1988.
     The first issue on appeal is whether the District Court
properly complied with the requirements of 3 40-4-203, MCA, by
awarding the wife maintenance in the form of monthly payments of
$800.00, educational expenses to pursue a bachelor's degree, and
psychotherapy costs.
     The appropriate standard of review for an award of maintenance
is established by statute at 1 40-4-203, MCA.       See In re the
Marriage of Barnard, - P.2d ,     47 St.Rep. 152 (1990); In re the
Marriage of Lundvall, 786 P.2d 10, 47 St.Rep. 173       (1990). An
award of maintenance is premised upon a finding by the court that
the individual seeking maintenance "lacks sufficient property to
provide for his reasonable needs; and is unable to support himself
through appropriate employment.'I Section 40-4-203 (1)(a)(b), MCA.
The District Court in this case made such a finding. The court
must then consider all relevant facts in determining an appropriate
award of maintenance.    Section 40-4-203 (2), MCA.    Some of the
relevant facts to be considered include:

     (a)   the financial resources of the party seeking
     maintenance, including marital property apportioned to
     him, and his ability to meet his needs independently,
     including the extent to which a provision for support of
     a child living with the party includes a sum for that
     party as custodian;
     (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(2), MCA.
    A specific finding by the court regarding each of these
relevant facts is not required as long as the court considered
proper information in addressing these facts and based its decision
upon substantial credible evidence.           In re Marriage of Cole, 234
Mont. 352, 763 P.2d 39 (1988).          These relevant facts are to be
considered by the court as a whole in the determination of the
final maintenance award.      Cole, 763 P.2d at 43.
      There is substantial credible evidence to support the District
Court's monthly        maintenance    award   of    $800.00    to   the    wife.
"Maintenance payments supplement the property division.I1 Cole, 763
P.2d at 42.     The ability of the property award to produce income
is    an   essential    consideration in      the   determination      of    the
appropriateness of a maintenance award. See generally Cole; In re
the Marriage of Bowman, 633 P.2d 1198, 38 St.Rep. 1525 (Mont.
1981).     At the request of both parties, the husband was given all
of the income-producing property, which included the farm and all
of its accompanying assets and liabilities. As a result, the wife
was given remaining property consisting primarily of a house,
furnishings and a car.        All of the wife's property is income-
consuming property in that it will not be able to produce income
for the wife.          In fact, this property will eventually require
repair or replacement thereby depleting the wife's property
settlement.
      Although the wife was allotted $30,000.00 by the court which
at some time could be invested by the wife and thereby become
income-producing, this amount will not come due for another six
years. In the meantime, the wife has no means of support. She has
had    little   education     or     experience     in   the    work      force.
Additionally, she is suffering from a mental disorder which could
reasonably make it difficult for her to secure a job at this time.
The only evidence submitted to the court regarding an appropriate
award for monthly maintenance was the uncontradicted statement by
the wife that she, the husband and the children spent approximately
$2,000.00 per month on living expenses while still living with the
husband.     In addition to the wife, the maintenance award must also
support the children when the wife partakes of her liberal
visitation rights.      In light of these facts, $800.00 per month is
not an unreasonable sum for the maintenance of a household.
        There is substantial credible evidence to support the court's
award of educational expenses and psychotherapy costs.            It is
undisputed that the wife suffers from a paranoid mental disorder.
Expert testimony revealed that she would need approximately two
years of psychotherapy to overcome this disorder.             Following
psychotherapy, the wife should be capable of benefiting from higher
education.        This education is necessary to enable the wife to
continue in her accustomed lifestyle.
        The husband argues that Bowman states that the maintenance
award should be struck down for failure to decree an amount
certain.     Although in Bowman we said that the type of property
awarded     and    appropriate   employment   must   be   evaluated   in
I1establishing amounts and duration of maintenance," the amount
established does not have to be certain. Bowman, 633 P.2d at 1201.
In this case, it would be impossible to accurately determine the
cost.     However, the court was concerned and therefore placed
conditional limitations on the wife. The psychotherapy will be for
two years and she must complete the degree within six years.
Further, the education must be      obtained   from a   college or
university in Montana. These conditions sufficiently identify the
costs involved.
     The husband has also argued that his ability to meet these
costs is determinative of the appropriateness of a maintenance
award.   We agree that this is an important consideration but must
be viewed in accordance with the facts of this case.    The husband
has been given all of the income-producing property in the property
settlement.    The husband will continue to be engaged in an
agricultural business that, for the past three years, has been
increasingly profitable.    It is reasonable to assume that the
husband will continue on such a track.   There is no information in
the record to     suggest that these maintenance    payments will
financially deplete the husband.    In light of the facts of this
case, the District Court's award of maintenance to the wife is
supported by substantial, credible evidence.
     The second issue is whether the award of $30,000.00 by the
District Court to the wife as part of the division of property was
a clear abuse of discretion.
      The husband argues that the District Court abused        its
discretion by awarding the wife $30,000.00, plus interest, as part
of the property distribution. The husband argues that this ruling
is inequitable in light of all of the maintenance payments the
husband has also incurred. We disagree.
     A "District Court s judgment, when based upon substantial
credible evidence, will not be altered unless a clear abuse of
discretion is shown.    In re the Marriage of Stewart, 232 Mont. 40,
42, 757 P.2d 765, 767 (1988), citing In re the Marriage of Watson,

227 Mont. 383, 739 P.2d 951 (1987).    Section 40-4-202, MCA, lists
the factors the court must consider in dividing the property assets
and liabilities between a husband and wife.    The division must be
wequitable'' when reviewing the particular facts of the case with
the factors listed.    Section 40-4-202(1), MCA.
     The District Court specifically found that the $30,000.00
award was equitable under the facts and circumstances of this case.
The court's finding regarding this $30,000.00 award reads as
follows:

     [I]t was the court's original purpose herein to divide
     the marital estate "equitably1'rather that necessarily
     llequally, as originally stated.
               l1                              Equity means,
     generally, as close to equality as possible and
     reasonable under the facts and circumstances of the
     particular case and in keeping with the principles of
     justice. These parties originally married and set out
     to share their lives and all included therein. Both used
     their wits and their goods for the good of their family.
     Each contributed equally; each must share in proportion
     to his or her contribution if possible. It is possible
     here.

     This finding indicates that the District Court did not abuse
its discretion in awarding the wife the $30,000.00. Upon reviewing
the particular facts of this case, the court concluded that each
party had essentially contributed equally to the marriage and was
entitled to as close to equal portions of the acquired property as
possible.
     The District Court also placed a value upon all of the assets
and distributed these assets in accordance with the wishes of the
parties in keeping the farm intact.    Subsequently the court found
it necessary to award the wife $30,000.00 in an attempt to equalize
the property division.     Based upon the court's findings and the
particular facts of this case, there is substantial credible
evidence to support the $30,000.00 award to the wife.
     The third      issue raised is whether the District Court's
findings, particularly findings nos. 10, 11 and 15, are clearly
erroneous.
     The husband argues that the District Court's findings are not
supported by substantial, credible evidence and, are therefore,
clearly erroneous. The particular findings that the husband argues
are unsubstantiated are:    the finding that the husband's physical
abuse of the wife during marriage was instrumental and causative
of the wife's mental and psychological problems; the finding that
on several occasions the children were witnesses to violence; and
the finding that the wife's mental disorder had not adversely
affected either child. We find that there is substantial, credible
evidence to support the findings of the District Court and they are
not, therefore, clearly erroneous.
     "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 the credibility of the witnesses."       Rule
52(a), M.R.Civ.P.     Evidence was presented at trial regarding the
wife's mental disorder and of the effects of spouse abuse syndrome.
It was indicated at trial that spouse abuse syndrome could be a
cause of the wife's disorder.       The husband's expert, Dr. Tranel,
testified that he had insufficient information at that time to
determine the exact cause of the wife's mental disorder.          Without
evidence to the contrary, the District Court's conclusion that the
physical abuse by the husband may have been one of the known causes
of the wife's mental disorder is supported by substantial credible
evidence and is, therefore, not clearly erroneous.
     The District Court found that on several occasions the
children were witnesses to violence. Testimony from primarily the
wife indicated that there was one recent occasion when the husband
threw her      against the wall while        she was holding     Brandon.
Additional testimony indicated that Ashley had been disciplined
at least twice by the husband hitting her on the back.          Although
the word useveralll
                  may not have been completely appropriate, we
hold that there is substantial, credible evidence to support the
District Court's conclusion that the children had been witnesses
to violence.    The use of the word several, if error, was harmless.
     Conflicting evidence was presented at trial concerning the
effect   the    wife's   mental   disorder     had   on   the   children,
particularly Ashley. As long as the court's findings are supported
by usubstantial though confli~ting~~
                                  evidence such findings will not
be disturbed. See In re the Marriage of Johns, 776 P.2d 839, 841,
46 St.Rep. 1249, 1251 (Mont. 1989).          Expert testimony at trial
provided very little evidence concerning the effect the wife's
disorder had on the children.      The court was in the best position
to judge the credibility of the witnesses and their testimony.
From this position the court chose to emphasize the testimony that
the wife's mental disorder had not adversely affected either child.
There is substantial credible evidence to support the District
Court's finding.
     The final issue, raised on cross-appeal by the wife, is
whether the District Court erred by refusing to award attorney's
fees to the wife.   This issue must be dismissed for failure to be
properly raised upon appeal in accordance with Rule 5(a) (4),


     Normally, the time for filing an appeal is 30 days from the
entry of judgment. Rule 5 (a)(1), M.R.App. P. However, an exception
to this filing rule exists in Rule 5(a) (4), M.R.App.P.          The
exception states, in pertinent part, that:

     (4) If a timely motion under the Montana Rules of Civil
     Procedure is filed in the district court by any party:.
     . . (iii) under Rule 59 to alter or amend the judgement;.
     . .the time for appeal for all parties shall run from the
     entry of the order denying a new trial or granting or
     denying any other such motion.   .  . A notice of appeal
     filed before the disposition of any of the above motions
     shall have no effect. A new notice of appeal must be
     filed within the prescribed time measured from the entry
     of the order disposing of the motion as provided above
     ...     (Emphasis added.)
Rule 5(a) (4), M.R.App.P.
     In this case, the final Decree of Dissolution was filed on
September 15, 1988.   As a result, the husband's notice of appeal
filed August 16, 1988, was premature and invalid.      The husband
filed a timely motion to alter or amend the decree, pursuant to
Rule 59(g), M.R.Civ.P., on September 26, 1988.   The court's order
on the motion was dated November 4, 1988, and was filed on November
7, 1988. The wife's motion for appeal, filed on October 12, 1988,
was filed prior to the court's ruling on the pending motion to
amend and is, therefore, invalid under ~ u l & (a)(4), M.R.Civ. P.   A   v-

notice of appeal was required to be filed by either party 30 days
from November 7, 1988, the date of entry of the court's order
disposing of the motion to amend. See generally In re the Marriage
of Neneman, 217 Mont. 155, 703 P.2d 164 (1987).     The wife failed
to comply with this requirement.
     AFFIRMED with dismissal of the cross-appeal.


                                                   Justice
We Concur:     /f

       Chief Justice
Justice Diane G. Barz, dissenting.

        I dissent and would remand this case to the District Court on
several grounds.     The District Court completely failed to address
or consider 5 40-4-203 (2)(b), MCA, in determining an appropriate
award of maintenance.      That factor in light of the maintenance
award in this case is very important: namely the ability of the
spouse from whom maintenance is being sought to meet his needs
while meeting those of the spouse.        Here we have the husband
required to pay $800 per month for maintenance plus the wife's
psychotherapy for two years, including hospitalizations and costs
of her college for six years without restriction. In addition, the
husband is to make house payments for the wife, completely support
the children and provide       for their counseling, and pay     for
counseling for himself.     There is no evidence whatsoever where he
is to find that kind of money other than the assertion that he is
a llsuccessfulll
              farmer.      The wife testified that she, the husband
and children spend approximately $2,000 per month and the husband
agreed but did point out that figure included farming expenses as
well.    Spending $2,000 per month and having the income or means to
spend that much are significant differences on which the record is
silent.
        In Finding of Fact N ' 10, the court found:
                            o.
                 10. Petitioner, to     one degree or
            another, suffers from a paranoid disorder
            which will require at least two years of
            intensive counseling. There is no evidence
            that this disorder has adversely affected
            either of the children of the parties hereto;
            and, at this point, it is purely speculative
             that said disorder will have an adverse effect
             in the future.
     In light of the court's finding and evidence on the five-
year-old daughter's tlemotionally
                                disturbedw condition, Finding No.
10 is not only clearly erroneous, it is preposterous.     The wife's
mental illness and her bizarre behavior because of it cannot be
ignored anymore than the husband's personality disorder as it
relates to the best interests of the children.    To say there is no
adverse effect on either of the children is a naive opinion of the
District Court and contrary to the evidence in this case.
     In Finding of Fact N ' 15, the District Court stated:
                         o.
               15. The finding is unavoidable that
          Petitioner's health problems spring from and
          are to a large extent result from her physical
          and emotional abuse and humiliation by the
          Respondent during the marriage. She is shown
          to be     intelligent, having     a   pleasing
          personality and to have been normal before her
          marriage.   She was involved to a degree in
          some very fundamentalist religious practices
          during marriage, which caused some waves, but
          don't appear to be a major force in her
          present condition. Her religious and health
          concerns appear to be coincidental or
          concurrent or even part of her problem, rather
          than causal.
That finding is clearly erroneous if the court is attempting to
find the cause of her mental illness.      Such a finding of marital
misconduct is also contrary to Montana's no-fault dissolution law.
     Dr. Tranel testified that one could not know the causes of
the wife's mental illness of a paranoid disorder, and data showing
biological     contribution,   psychological   factors   and    social
contributions to the disorder all        interact and    need   to be
considered.    Dr. Tranel also pointed out there is a strong school
of thought in his profession that believes that the mental disorder
is primarily a biochemical malfunction but it was his opinion that
that evidence alone is inconclusive.     In addition, there was no
psychiatric or medical testimony presented during the trial which
would allow the District Court to find the causative factor of the
wife's illness. In actuality it serves little purpose to find the
causative factor, particularly if it is in fact a genetic condition
which is inherited.   Regardless, treatment is necessary.
     Both Finding No. 10 and    ind ding No. 15 should be vacated or
at least modified.       It would appear, unfortunately, that the
~istrict Court Judge has not seen the last of this family's
problems in any event.




     Justice John Conway Harrison joins in the foregoing dissent
of Justice Diane G. Barz.


                                                                C




                                               Justice
          IN THE SUPREME COURT FOR THE STATE OF MONTANA


                              No. 88-553
                          ....................
IN RE THE MARRIAGE OF              1
                                   1
SUSAN RIDGEWAY ERNST,              )
                                   1
     petitioner   &   Respondent, )

                                   1
LENNIE RAY ERNST,                  1
                                   1                            W'
     Respondent   &   Appellant.   )                  ,< .      t--'
                                                        1
                                                                rJ
                          ....................          -
                                                       c-
                                                       :
                                                      ,
                                                       -J
                                                            L


     On May 24, 1990 this Court issued its opinion in the case of
In Re the Marriage of Ernst, - P.2d -, 47 St. Rep. 1034, (Mont.
1990), in which we affirmed the judgment of the District Court of
the Tenth Judicial District, ~ u d i t h Basin County, ordering
appellant, Lennie Ray Ernst, to pay maintenance support to
respondent, Susan Ridgeway Ernst. Appellant requests a rehearing.
     Appellant correctly points out that the statement in the
opinion, !!The psychotherapy will be for two years and she must
complete the degree within six years." is erroneous. The statement
should have read, '!The husband is responsible for the wife's
psychotherapy for six years.      The husband may obtain medical
insurance to cover this responsibility. The wife must complete her
educational degree within six years."
     Because the change in the language of the opinion does not
affect the decision the Petition for ~ehearingmust be denied.
     WHEREFORE, IT IS HEREBY ORDERED THAT:
     1. The following phrase shall be stricken from the original
opinion at page 7, lines 1-2: "The psychotherapy will be for two
years and she must complete the degree within six years."
     2.  The stricken phrase shall be replaced with: '!The husband
is responsible for the wife's psychotherapy for six years. The
husband may obtain medical insurance to cover this responsibility.
The wife must complete her educational degree within six years.It
     3. Appellant's petition for rehearing is DENIED.
     4. The Clerk of this Court shall mail a true and correct copy
of this Order to all   unsel of record.
     DATED this




                                               Justices


 Justice John C. Harrison and Justice Diane G. Barz would
 grant a rehearing.
