text:
    IN RE THE MARRIAGE OF SANDY J. MALQUIST, Petitioner/Respondent, and DALE H. MALQUIST, Respondent/Appellant.
    No. 94-022.
    Submitted on Briefs July 12, 1994.
    Decided September 20, 1994.
    51 St.Rep. 914.
    266 Mont. 447.
    880 P.2d 1357.

      For Appellant: Dale H. Malquist, Lincoln, (pro se)
    For Respondent: Donald A. Garrity, Helena.
    For Amicus: Daniel Minnis, Montana Legal Services, Helena.
   JUSTICE NELSON

delivered the Opinion of the Court.

Dale Malquist (Dale) appeals from the Findings of Fact, Conclusions of Law and Order entered by First Judicial District Court, Lewis and Clark County on November 15, 1993. The order awarded Sandy Malquist (Sandy) a judgment in the amount of $2,429.74, and attorney fees in the amount of $300. The order also denied Dale’s motion for sanctions. We affirm in part and remand for further proceedings consistent with this opinion.

Dale raises four issues on appeal:

1. Whether the District Court erred when it refused to offset the minor child’s accrued medical bills by her Social Security Disability benefits.

2. Whether the District Court erred by failing to credit Dale’s medical costs arrearage by the money Sandy received from the benefit auction held by the Snow Warriors Snowmobile Club.

3. Whether the District Court erred by not compelling Sandy to comply with Dale’s discovery requests.

4. Whether the District Court erred by granting attorney fees.

BACKGROUND

The decree ending Dale and Sandy’s marriage was entered on November 3, 1986. The parties had two minor children, Darcy and Sara, at the time the decree was entered, and Dale was ordered to pay child support in the amount of $125 per month for each child. Dale was also ordered to provide medical insurance for the children and to pay for any medical expenses not covered by insurance.

In May of 1990, Dale began receiving Social Security disability benefits. As a result of Dale’s disability, Sara, who was still a minor, was also awarded monthly Social Security benefits in the amount of $488 retroactive to October 1, 1988. Sara received a lump sum payment of $7,900 from the retroactive benefit award.

On December 5, 1990, Dale filed a petition asking the District Court to review the child support order contained in the decree. Dale requested that he be relieved from having to pay the child support obligation for Sara, as a result of her receiving Social Security benefits. Dale also requested that he be relieved from his obligation to provide health insurance for Sara, and that he be relieved from having to pay all health care costs retroactive to October 1, 1988. In a written order dated January 22, 1991, the District Court relieved Dale of his child support obligation, and ordered that Dale be responsible for one-half of any medical costs incurred by Sara. The court did not retroactively relieve Dale of his obligation to pay medical expenses from the date of the decree to the date of the order.

On April 12, 1993, Sandy filed a motion requesting, among other things, that Dale be required to pay all past due medical bills that he was responsible for according to the District Court’s prior rulings. The District Court granted the motion, and found that Dale was responsible for $888.98 as a result of a previous judgment, and $2,429.74 for his portion of health care costs accruing after that judgment. Dale appeals from this ruling. Other facts will be presented as necessary for discussion of the issues.

1. OFFSET FOR SOCIAL SECURITY BENEFITS

Dale argues that the District Court should have credited the lump sum payment Sara received from the Social Security Administration against his medical costs arrearages. Dale states that he presumed the benefits paid to Sara were replacing any payments required of him. However, the District Court concluded that Dale was responsible for all of Sara’s medical costs under the terms of the original decree, and one half of Sara’s medical bills under the terms of its January 22, 1991 order. This Court reviews conclusions of law to determine whether the district court’s interpretation of the law was correct. Burris v. Burris (1993), 258 Mont. 265, 269, 852 P.2d 616, 619. We conclude that the District Court was correct in concluding that Dale was responsible for accrued medical costs according to the terms of its prior rulings.

This Court has determined that Social Security benefits may be treated as a contribution from the disabled obligor parent toward the support of the children. In re Marriage of Durbin (1991), 251 Mont. 51, 58, 823 P.2d 243, 247. However, § 40-4-208(1), MCA, provides “a decree may be modified by a court as to maintenance or support only as to installments accruing subsequent to actual notice to the parties of the motion for modification.” Accordingly, a court cannot credit a child’s receipt of Social Security benefits on behalf of a disabled parent toward that parent’s child support obligation until the parent moves to modify the decree. Marriage of Durbin, 823 P.2d at 247.

In the instant case, Dale moved to modify his child support and medical care costs obligation on December 5,1990. The District Court by its order of January 22,1991, relieved Dale of his obligation to pay child support, and limited his obligation for Sara’s health care costs to one-half of such expenditures. Sara received the lump sum award shortly before Dale filed his motion for modification. Therefore, pursuant to § 40-4-208(1), MCA, Dale’s child support and medical care costs obligation could only be modified back to December 5,1990, when Dale gave notice of his motion for modification. In re Marriage of Bolt (1993), 259 Mont. 54, 60, 854 P.2d 322, 325.

We hold that the District Court was correct in concluding that Sara’s receipt of Social Security benefits did not automatically relieve Dale from his obligation to pay his share of Sara’s medical bills that he was responsible for according to the terms of the previous court orders.

2. FUND RAISER OFFSET

In March of 1991, the Ponderosa Snow Warriors, a snowmobile club located at Lincoln, Montana held a fund raiser to help pay for Sara’s medical expenses. As a result of the benefit, Sandy received approximately $5,000. Sandy did not use the money to pay for Sara’s past medical expenses, and Dale argues that the District Court abused its discretion by not ordering the money raised to offset the medical costs arrearage.

According to the terms of the decree and the January 22,1991 order of the District Court, Dale was responsible for a share of the medical costs. If Dale wanted to relieve himself of this obligation, Dale was required by law to petition the court for modification. Section 40-4-208, MCA. Because Dale failed to petition the court for a modification subsequent to Sandy’s receipt of the fundraiser money, we hold that the District Court did not abuse its discretion by refusing to offset the medical costs arrearage by $5,000.

3. DISCOVERY REQUESTS

The third issue Dale raises concerns whether the District Court erred by not compelling Sandy to comply with Dale’s discovery requests. As stated earlier in the opinion, the District Court modified the terms of the original decree concerning child support and medical costs on January 22,1991, and ordered Dale to pay one-half of Sara’s medical costs.

On April 12, 1993, Sandy moved the court for a hearing to determine why Dale had not made the required payments under both the original decree and the January 22, 1991 order, and to order him to make immediate payment of the medical costs previously incurred. On April 27, 1993, Dale served Sandy with a discovery request. In response to the request, Sandy filed a motion for sanctions under Rule 11, M.R.Civ.P., alleging that the discovery request was prepared and served in response to Sandy’s April 12, 1993 motion for an order to show cause. Dale then filed a motion to compel discovery and noticed the matter for hearing on June 16,1993. Although Dale appeared for the June 16 hearing, neither Sandy nor her attorney appeared.

On June 21,1993, Dale moved for sanctions against Sandy for her failure to appear at the June 16, 1993 hearing, pursuant to Rule 37, M.R.Civ.R Sandy responded to the motion on June 23,1993, alleging that Dale’s discovery requests were and are totally irrelevant to the question of why Dale has failed to make payments required by the decree and the January 22, 1991 order.

On November 15, 1993, the District Court issued its Findings of Fact, Conclusions of Law and Order regarding the above motions. The court concluded that while the discovery requests concerning the snowmobilers’ fund raiser, did relate to the medical costs issue, Dale had failed to move to modify the prior orders of the court requiring him to pay for a portion of these costs. The court found that the remaining discovery requests did not relate to the issues before the court. Therefore, the court denied Dale’s motion to compel and both parties’ motions for sanctions.

In interpreting the trial comb’s rulings on discovery issues, this Court will reverse the trial judge only when his or her judgment may materially affect the substantial rights of the appellant and allow the possibility of a miscarriage of justice. Massaro v. Dunham (1979), 184 Mont. 400, 405, 603 P.2d 249, 252; Granite County v. Komberec (1990), 245 Mont. 252, 261, 800 P.2d 166, 171.

The District Court has inherent discretionary power to control discovery based on its authority to control trial administration. State ex rel. Guar. Ins. v. District Court (1981), 194 Mont. 64, 67-68, 634 P.2d 649, 650. “Control over pretrial discovery is best exercised by the District Court which is in a better position than this Court to supervise the day to day operations of pretrial discovery.” State ex rel. Guar. Ins., 634 P.2d at 650.

In the instant case we conclude that the District Court’s denial of Dale’s motion to compel did not materially affect his substantial rights. Any discovery Dale might have received concerning the fund raiser would not have changed his obligation to pay medical costs under the original decree or the January 22, 1991 order. Dale was responsible for paying the accrued medical costs regardless of the status of the fundraiser money. The remaining discovery requests had nothing to do with issues before the court, and therefore could not have affected his responsibility to pay for the health care costs as previously ordered by the District Court.

We hold that the District Court’s discovery ruling did not materially affect Dale’s substantial rights and that the court did not abuse its discretion in denying his motion to compel discovery.

4. ATTORNEY FEES

Finally, Dale argues that the District Court erred by granting attorney fees to Sandy when she was represented by a pro bono attorney who was representing her at the request of Montana Legal Services Association. Sandy responds that Dale owns substantial assets; receives full Social Security disability payments; has forced her to enlist the aid of the court to collect small sums of money that lawyers would not find economical to pursue; has failed to pay her attorney fees awarded as a result of a previous court appearance in this case; and that any attorney fees awarded should be paid directly to Montana Legal Services Association.

Dale’s assertion raises two separate issues: (1) whether the District Court abused its discretion by awarding attorney fees in the first instance; (2) whether a pro bono attorney or Montana Legal Services Association may seek and accept on behalf of an indigent client attorney fees and costs under § 40-4-110, MCA.

As to the first issue, Sandy requested that she be awarded $1,000 in attorney fees. The District Court stated that Sandy failed to provide the court with evidence supporting the reasonableness of the $1,000 fee, but awarded her $300 in attorney fees, nevertheless. The court concluded that Sandy was entitled to $300, in light of Dale’s continuing failure to provide medical insurance for the children or to pay his share of the medical bills.

Section 40-4-110, MCA, allows the district court to discretionarily award attorney fees and costs in certain domestic relation matters. In re Marriage of Dzivi (1991), 247 Mont. 165, 167-68, 805 P.2d 567, 568. Section 40-4-110, MCA, provides:

The court from time to time, after considering the financial resources of both parties, may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under chapters 1 and 4 of this title and for attorney’s fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment. The court may order that the amount be paid directly to the attorney, who may enforce the order in his name.

In interpreting that section, we have required that before a court awards attorney fees under the statute, the petitioning party must make a showing of necessity. In addition, the award must be reasonable and must be based on competent evidence. In re Marriage of Barnard (1990), 241 Mont. 147, 154, 785 P.2d 1387, 1391; In re Marriage of Laster (1982), 197 Mont. 470, 479, 643 P.2d 597, 602; Wilson v. Bean (1981), 192 Mont. 426, 427-28, 628 P.2d 287, 289. To make a showing of reasonableness a hearing must be held allowing for oral testimony, the introduction of exhibits, and the opportunity to cross-examine. Marriage of Barnard, 785 P.2d at 1391. If the award of attorney fees is supported by substantial evidence, we will not reverse the award upon appeal. Marriage of Barnard, 785 P.2d at 1391-92.

In its Conclusions of Law, the District Court stated that Sandy did not submit any evidence to support the amount of the attorney fees requested or the reasonableness of the fees. Therefore, under the rules set forth in our previous cases, we must reverse the District Court’s award of $300 in attorney fees and remand for an evidentiary hearing in order to determine necessity, in order to consider the statutory criteria, and for a determination of the reasonableness of the fees requested.

In so doing, however, we must also address the second issue mentioned above — Dale’s argument that Sandy is not entitled to an award of attorney fees at all because she is represented by a pro bono attorney at the request of Montana Legal Services Association. Dale argues that pro bono attorneys and, presumably, Legal Services attorneys, represent indigent litigants as a “community service” and have, therefore, no expectation of payment or right to collect attorney fees from the opposing party. Implicit in Dale’s argument is the proposition that Sandy would receive a windfall if the court awarded attorney fees to her when she did not incur any obligation of payment or debt as a result of her obtaining legal representation. Dale’s position has support in our prior case law.

This Court has previously held that a trial court cannot award attorney fees pursuant to § 40-4-110, MCA, to a party represented by a legal services attorney. Thompson v. Thompson (1981), 193 Mont. 127, 129, 630 P.2d 243, 244. In Thompson, we reasoned that “the authority of the court to order the payment of an attorney’s fee in a divorce action does not exist for the protection of the attorney, but is strictly for the benefit of the client.” Thompson, 630 P.2d at 244. Therefore, we affirmed the district court’s ruling which denied the award of attorney fees to the former wife who was represented by Montana Legal Services Association. Thompson, 630 P.2d at 244. In our decision we reasoned that a party who was represented by a legal services attorney could not show a personal necessity to seek payment from the former spouse. Thompson, 630 P.2d at 244.

When this Court decided Thompson, the case law governing awarding fees to legal services organizations was not fully developed. Subsequent to our decision, however, the majority of jurisdictions ruling on this issue have held that legal services organizations are entitled to attorney fees both in family law cases and in non-family law cases. See e.g., In re Marriage of Ward (Cal.App. 1992), 4 Cal.Rptr.2d 365; Beeson v. Christian (Ind. 1992), 594 N.E.2d 441; In re Marriage of Gaddis (Mo.App. 1982), 632 S.W.2d 326 (family law cases); Shands v. Castrovinci (Wis. 1983), 340 N.W.2d 506 (landlord tenant); Kleine-Albrandt v. Lamb (Ind.App. 1992), 597 N.E.2d 1310 (wage claim).

We also conclude that policy considerations which were not discussed in our opinion in Thompson militate in favor of allowing the district courts to discretionarity award attorney fees to pro bono attorneys and to Montana Legal Services Association on behalf of indigent clients, providing the statutory criteria of § 40-4-110, MCA, and the evidentiary requirements mentioned above are otherwise satisfied. Accordingly, under the circumstances, it is necessary that we reconsider our decision in Thompson.

At the outset, we do not distinguish between litigants represented by pro bono attorneys and those represented by Montana Legal Services Association. The same considerations, discussed hereafter, apply. The deciding factor is not the status of the attorney providing the professional services, but that the indigent client is financially unable to pay for legal representation in a domestic relations proceeding where representation is a practical requirement.

In Thompson, our decision to deny the award of attorney fees to individuals represented by legal services agencies was based on the concept of “personal necessity.” Thompson, 630 P.2d at 244. We reasoned that an award of fees was not necessary because the wife who was awarded attorney fees did not incur a debt as a result of obtaining legal representation. While true as far as it goes, that is only one, but not necessarily, the most important or the determinative consideration in resolving this issue.

We live in a society where, next to health care, competent legal service is likely the most essential, yet most costly, professional service that most people from time to time require. That is certainty no more evident than in domestic relations cases wherein the court’s decision will likely involve important property questions and will forever alter the personal relationships and obligations of the litigants to each other. More importantly, however, at issue in many such cases are the relationships of children to their parents and the fundamental rights of those children to food, clothing, shelter, education, medical care, support, and to a safe and reasonably stable home life. The multiplicity of laws and often technical court rules and procedures governing domestic relations cases combined with the emotionally charged nature of such proceedings, present a mine field to the litigant who is too poor to hire competent counsel.

Legal Services Corporation is a publicly funded agency whose purpose is to ensure that economic barriers to legal assistance are minimized and whose overall objective is to provide equal access to our country’s system of justice. 42 U.S.C. § 2996. In fulfilling that mandate, Legal Services works to develop pro bono programs which, presumably, will provide services to greater numbers of eligible clients and thereby advance the purposes of the Legal Services Corporation Act. See, 45 C.F.R. 1614.1(a). To that end, as in this case, Montana Legal Services Association refers many domestic relations cases to attorneys willing to take the case without charging a fee to the indigent client.

It is important to point out that the regulations promulgated pursuant to the Legal Services Corporation Act, permit legal services agencies to request and accept a fee awarded or approved by a court or administrative body. 45 C.F.R. § 1609.5. This regulation helps insure that eligible clients are able to obtain appropriate and effective legal assistance. 45 C.F.R. § 1609.1.

Unfortunately, the number of indigent litigants appears to be growing, while the numbers of attorneys willing to do domestic relations work for an affordable fee seem to be decreasing. The net result of that unfortunate state of affairs is that already financially strapped and understaffed legal services organizations must deal with ever expanding case loads and, of necessity, must increasingly rely on members of the bar who are willing to render legal assistance to indigent domestic relations clients, pro bono, to pick up the overflow.

Moreover, many attorneys, in fulfilling their professional responsibilities to provide public interest legal service as required by Rule 6.1 of Montana’s Rules of Professional Conduct, provide representation to indigent domestic relations clients at a reduced charge or for no charge, without a request from Montana Legal Services Association.

Section 40-4-110, MCA, broadly allows the trial court to discretionarily award attorney fees in domestic relations cases “... after considering the financial resources of both parties.” Furthermore, our statute allows the court to "... order that the amount [awarded] be paid directly to the attorney, who may enforce the order in his name.” Importantly, there is nothing in the statutory language which precludes a district court from awarding attorney fees in an appropriate case merely because the attorney representing the indigent party has agreed to not charge the client for his or her professional services. Equally important, there is nothing in the statute that makes the litigant who would, otherwise, be required to pay attorney fees, the third party beneficiary of the Legal Services or pro bono attorney’s agreement with the indigent client..

While awarding attorney fees to the indigent client represented by Montana Legal Services Association or a pro bono attorney, would, in fact, be a windfall to the client, that result can be easily avoided by the court simply awarding the fee directly to Legal Services or to the attorney, as is permitted by § 40-4-110, MCA. On the other hand, refusing to award attorney fees in favor of the indigent client because of the status of his or her attorney, where the opposing litigant is financially able and would otherwise be charged with the indigent party’s fees and costs under the statute, represents a windfall to the non-indigent litigant.

Presumably, if Montana Legal Services Association and pro bono attorneys can recoup from the non-indigent litigant those fees and costs for which he or she would, otherwise, be liable under the statute, that organization and those attorneys will be financially better able to provide more legal services to the increasing numbers of indigent litigants who need such services. Moreover, non-indigent litigants who might be encouraged to simply “run up the other party’s bill” with vexatious conduct and frivolous court proceedings, might be less inclined to do so knowing that the court has the statutory discretion to award the indigent party’s attorney fees and costs against the offending party.

Recognizing the validity of those considerations and the legislature’s grant to the district courts of broad discretion to award attorney fees in domestic relations cases, we are also persuaded by the post-Thompson decisions of other jurisdictions that our focus in that case was, in retrospect, too narrow. Those courts have concluded that the broader principle of providing equal, access of justice to all warrants the award of fees to individuals represented by legal services organizations. See for example, Marriage of Swink, (Colo.App. 1991), 807 P.2d 1245; Benavides v. Benavides (Conn.App. 1987), 526 A.2d 536; In re Marriage of Gaddis (Mo.App. 1982), 632 S.W.2d 326.

For example, the Connecticut court which considered this issue in Benavides reasoned as follows:

We are aware that indigents are represented by legal services attorneys in a large number of family relations matters. It would be unreasonable to allow a losing party in a family relations matter to reap the benefits of free representation to the other party. A party should not be encouraged to litigate under the assumption that no counsel fee will be awarded in favor of the indigent party represented by public legal services; or as in this case, that a reasonable fee will be discounted for the same reason. Tut in another way, the public should be relieved from the financial burden of obtaining an indigent plaintiff’s divorce or successfully defending against a husband’s complaint, to the extent that the husband is able to pay all or part of her attorney’s fees. The taxpayer has an interest in recovering where possible a portion of the costs in these situations.’
An award of counsel fees that does not discriminate against non profit legal service entities will encourage non profit counsel to expend its resources in the representation of those clients who are unable to afford private counsel in disputed child custody and child support enforcement litigation. The purposes of such acts as the Uniform Child Custody Jurisdiction Act... are advanced and are made more available to the poor where there is an expectancy that the nonprofit legal services will recoup at least part of its resources through an award of counsel fees to its client. Furthermore, a realization that the opposing party, although poor, has access to an attorney and that an attorney’s fee may be awarded deters noncompliance with the law and encourages settlements. (Citations omitted.)

Benavides, 526 A.2d at 538.

Similarly, in Marriage of Swink, 807 P.2d 1245, the Colorado court addressed this same issue under a statute nearly identical to § 40-4-110, MCA. The trial court denied the wife’s request for attorney fees as she was represented by a pro bono attorney at the request of a legal services agency. The appellate court overturned the trial court holding that a showing of debt incurment was not necessary since the statute allowed an award for “legal services rendered.” Marriage of Swink, 807 P.2d at 1247.

Simply stated, an award of attorney fees under § 40-4-110, MCA, is authorized when, giving due consideration to the financial resources of both parties, the requesting party shows necessity — i.e. the inability to pay for legal representation — and reasonableness of the fees requested. Whether a party incurs debt is irrelevant, and necessity is unrelated to the status of the attorney who delivers the legal services.

Accordingly, for the reasons aforementioned, we conclude that it is appropriate we overrule our decision in Thompson to the extent our decision in that case prohibits a discretionary award of attorney fees under § 40-4-110, MCA, in favor of a party represented by Montana Legal Services Association or a pro bono attorney.

We hold that a district court may discretionarily award attorney fees under the criteria set forth in § 40-4-110, MCA, to either Montana Legal Services Association or to a pro bono attorney representing the requesting party providing that such party demonstrates the necessity for and reasonableness of the fees requested.

Affirmed in part and remanded for further proceedings consistent with this opinion with respect to Issue No. 4.

CHIEF JUSTICE TURNAGE, JUSTICES HUNT, TRIEWEILER and WEBER concur.


source: Caselaw Access Project

author: JUSTICE HARRISON

license: Public Domain

text:
    IN THE MATTER OF L.F. and D.F., Youths in Need of Care.
    No. 93-641.
    Submitted on Briefs June 2, 1994.
    Decided September 20, 1994.
    51 St.Rep. 900.
    266 Mont. 461.
    880 P.2d 1365.

      For Appellant: Paul E. Toennis; Oliver, Graves, Toennis & Gustafson, Billings.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Mike Wellenstein, Ass’t Attorney General, Helena.
    For Guardian Ad Litem: Damon Gannett; Gannett Law Firm, Billings.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Appellant, E.F., appeals the Thirteenth Judicial District Court, Yellowstone County, order which transferred legal custody of her two children to the Department of Family Services (the Department) for six months. We affirm.

The sole issue presented is whether the District Court erred when it concluded that appellant’s retention of custody at the present time would likely result in emotional and physical damage to her children.

Appellant is the natural mother bf D.F. and L.F. D.F. was born December 12, 1987, and L.F. was born June 6, 1992. The natural fathers of D.F. and L.F. did not participate in the temporary custody proceedings.

Appellant was in a recovery program for alcohol and drug abuse prior to the birth of her son, L.F. Unfortunately, during her pregnancy she relapsed into using sedatives and marijuana. Appellant herself had admitted to the Department that she had taken a valium and smoked marijuana a week before L.F. was born. On June 12, 1992, the Department filed a petition for temporary investigative authority (TLA) to investigate appellant’s history of drug use and to monitor the welfare of her children. On June 18,1992, the District Court granted the TIA and then filed an order for protective services and order to show cause.

D.F.’s foster mother noted unusual behavior for a child of D.F.’s age, and reported these incidents to the Department during the TLA investigation. Several counselors and doctors observed and examined D.F. Most of the doctors and counselors were in agreement that D.F. was a traumatized, fearful, and confused child. Some conceded that, although there was a possibility that D.F. had been sexually abused, interviewing a four-year-old entails special training and technique to avoid “coaching” the four-year-old into a false confession.

The Department, as part of its stated policy to investigate any “roommate situation,” investigated G.M., a man with whom the appellant and her children were residing. D.F. had indicated that she felt uneasy around G.M., and also had made some negative statements to the Department about G.M. that the Department concluded warranted investigation. The appellant and her children had already moved out of G.M.’s home in July, 1992 because the Department had been, as appellant stated, “focusing in on G.M.” instead of appellant’s drug and alcohol abuse which appellant felt were her real problems. By moving out, appellant felt that the Department would refocus on her addictions and not on G.M. During the Department’s investigation of G.M., appellant was made aware that if she moved back in with G.M. she would risk having her children removed from her care. Soon after that admonition from the Department, on August 14, the appellant and her two children were found in G.M.’s home. At that time, the children were temporarily removed from appellant’s care and placed in a foster home.

On September 8, 1992, appellant filed an application for order to show cause in the District Court requesting that the Department show cause why her children should not be returned to her physical custody. The District Court, upon stipulation of the parties, extended the initial TIA period another 90 days — until December 9, 1992. On December 10, 1992, the Department filed a petition seeking adjudication of appellant’s two children as youths in need of care, temporary custody for six months, and continued authority for foster care placement. Evidentiary hearings were held on these motions and both parties submitted proposed findings of fact and conclusions of law. On June 27, 1993, the District Court granted the Department’s request for temporary custody of the children for six months. Appellant appeals.

Did the District Court err when it concluded that appellant’s retention of custody of her two children at the present time would likely result in emotional or physical damage to the two children?

Appellant, a Native American, is an enrolled member of the Mandan, Hidatsa, and Arikara Tribes of the Fort Berthold Reservation — also referred to as the Three Affiliated Tribes. Appellant’s two children are both enrollable members. In accordance with the Federal Indian Child Welfare Act of 1978,25 U.S.C. §§ 1901-1963 (ICWA), the Tribes were notified of the proceedings concerning appellant’s children. The Tribes filed a motion to intervene in the child custody proceedings pursuant to ICWA, 25 U.S.C. § 1911(c). There is no indication of further involvement on the part of the Tribes in the District Court record. However, because both children are enrollable members of the Three Affiliated Tribes, and the mother is an enrolled member, we apply the ICWA standard for foster care placement of the children.

The applicable standard of review under ICWA for foster care placement of an Indian child is whether clear and convincing evidence exists, including testimony of qualified expert witnesses, to support the determination that “continued custody of the child by the parent ... is likely to result in serious emotional or physical damage to the child.” 25 U.S.C. § 1912(e).

Several qualified doctors and social workers testified about D.F. One of the doctors testified concerning D.F.’s statements that she had been injured by a “hammer” on her “pee-pee” by a man. When shown an anatomically correct picture of a man, D.F. identified the penis of the man in the picture as being a “hammer.” She also colored in the vaginal and perianal area on an anatomically correct picture of a girl, indicating that those same areas on her own body were touched by a “hammer.” Another doctor, after questioning and observing D.F., concluded that she was a traumatized child, raised in an environment surrounded by violence, chemical abuse, and inconsistent caretakers. This doctor also indicated that D.F.’s statements were, in general, sometimes confusing and “overlaid,” and, therefore, her statements concerning the “hammer” hurting her “pee-pee” could possibly be interpreted in other ways that would not indicate sexual abuse. However, regardless of whether sexual abuse had occurred, the majority of D.F.’s doctors and counselors concluded that she was a traumatized child.

Appellant selected a counselor to interview D.F. That counselor testified that D.F. was an “unattached” child who desperately needed a stable, secure environment immediately in order to prevent irreparable damage. The foster mother of D.F. and L.F. also testified. She stated that when she first began caring for L.F. his ribs were showing and he vomited after eating. Now he is greatly improved. The foster mother also stated that D.F. still appears to have no concept of belonging with anyone and often “flinches” when people are too physically close to her. One of the social workers testified that, during a visit with appellant, D.F. and L.F., appellant was not attentive to L.F. During that visit L.F. had accidentally hit himself in the mouth with a plastic key and was crying from the pain. Appellant did not respond on her own initiative. The social worker felt the need to comfort L.F., and placed the child in appellant’s arms. On another visit, the social worker testified that appellant did not pick up or cuddle L.F. until fifty minutes into the visit.

Appellant’s chemical dependency counselor testified that appellant had not completed her aftercare program because appellant could not afford to pay for the entire program. The counselor recommended that another chemical dependency evaluation be performed to assess whether appellant was drug-free since so much time had elapsed since her last evaluation. The counselor testified that because of appellant’s relapse during her last pregnancy, it is essential that she complete her aftercare program and be reevaluated.

In addition to the evidence presented by the expert witnesses, the District Court record includes a sworn statement taken from appellant in the hospital after she had been physically abused by J.W., her former boyfriend. The statement indicates that D.F. was present and watched as J.W. physically abused her mother. J.W. then physically abused D.F.

In order to terminate the parental rights of an Indian parent, as distinguished from placing the child in foster care, the evidence must indicate “beyond a reasonable doubt” that the continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child. 25 U.S.C. § 1912(f). When, however, as here, the decision has been made to place the children in foster care for several months rather than terminate the mother’s rights, the lesser “clear and convincing” burden is used to protect the best interests of the children. People in Interest of S.R. (S.D. 1982), 323 N.W.2d 885, 886-87. Here, as in Interest of S.R., although the trial court did not specifically state the ICWA standard of proof, we hold that a careful review of the record, including the testimony of several qualified experts, indicates that the “serious emotional or physical damage” requirement of 25 U.S.C. § 1912(e) was proven by clear and convincing evidence. See Interest of S.R., 323 N.W.2d at 887. Accordingly, we affirm the District Court’s conclusion that legal custody of appellant’s children be transferred to the Department for a period of six months.

JUSTICES GRAY, HUNT, TRIEWEILER and WEBER concur.


author: JUSTICE HUNT, JUSTICE NELSON,

text:
    IN RE THE MARRIAGE OF MARK D. DAVIES, Petitioner and Respondent, and MARGARET M. DAVIES, Respondent and Appellant.
    No. 93-205.
    Submitted on Briefs April 28, 1994.
    Decided September 21, 1994.
    51 St.Rep. 929.
    266 Mont. 466.
    880 P.2d 1368.

      For Appellant: Robert F. James, James, Gray & McCafferty, Great Falls.
    For Respondent: Mort Goldstein, Goldstein Law Firm, Havre.
    For Amicus Curiae: Jody McCormick and CynthiaFord, Women’s Law Caucus, University of Montana School of Law, Missoula.
   JUSTICE HUNT,

delivered the Opinion of the Court.

Appellant Margaret M. Davies appeals from a final judgment and decree entered April 2, 1993, in the Seventeenth Judicial District, Blaine County, dissolving her marriage to Mark D. Davies and dividing the marital estate.

We affirm in part, reverse in part, and remand to the District Court for further proceedings in accordance! with this opinion.

Margaret raises the following issues:

1. Did the District Court err in dividing the marital estate, including the refusal to award Margaret a portion of the cash value of Mark’s stock in two closely held family corporations?

2. Did the District Court err in discounting the values of stock in the closely held corporations?

3. Did the District Court err in its award of maintenance?

4. Did the District Court err in allowing Mark to call a vocational expert?

5. Did the District Court err in refusing to admit Exhibit DDD?

6. Did the District Court err in awarding Margaret her attorney fees without holding a separate hearing after the trial?

Margaret Davies and Mark Davies were married on June 26,1970. There were two children bom of the marriage, Jeni, age 21, and Ian, age 18. Both parties graduated from Montana State University in 1970. Mark received a degree in Agricultural Business and Margaret received a degree in Fine Arts. Following graduation, the parties married and moved to Mark’s family ranching operation near Chinook.

The Davies ranching operation consists of two separate ranches, the Davies Ranch Company and the S BAR B Ranch. The Davies Ranch was acquired in 1950, and title was placed in the Davies Ranch Company, a Montana corporation incorporated on January 2, 1950. On January 10,1950, the stockholders entered into a restrictive stock agreement which provided that there could be no transfer of stock except to other members of the Davies family. Counsel for the parties stipulated that the net value of the Davies Ranch is $1,530,150.

As of the date of the filing of the petition for divorce in 1991, there were 435 outstanding shares of Davies Ranch Corporation stock which were distributed as follows:

Joyce Y. Davies (Mark’s mother) 184
Joyce Y. Davies for life with remainder to her four sons 115
Jack W. Davies 41
Mark D. Davies 25
Dan K Davies 27
Mark D. Davies, as trustee for the benefit of Jeni and Ian 16

Mark’s 25 shares were received by gift or inheritance during his marriage to Margaret. The court valued the stock at $3518 per share by dividing the net worth of the Davies Ranch ($1,530,150) by 435 outstanding shares. Using the formula set forth in the restrictive stock agreement, the court discounted the book value by 50 percent, resulting in a current value of $1759 per share. The court set the current value of Mark’s shares at $43,975.

The S BAR B Ranch was acquired by the Davies family in 1963. It was incorporated as a Montana corporation on March 8, 1963. On March 9, 1963, the shareholders entered into a restrictive stock agreement restricting the sale or transfer of corporation stock to anyone outside of the immediate Davies family. Counsel for the parties stipulated that the net worth of the S BAR B Ranch is $4,104,532. As of the date of the filing of petition for divorce, there were 2024 outstanding shares of S BAR B Ranch stock which were distributed as follows:

Jack W. Davies 346.2
Mark D. Davies 346.2
Rick D. Davies 316.2
Dan K Davies i 326.2
Joyce K. Davies 131.2
Joyce K Davies life estate remainder to her sons 548

The court valued the stock at $2028 per share by dividing the net value of the S BAR B Ranch ($4,104,532) by the 2024 outstanding shares. Applying the formula set forth in the restrictive stock agreement, the court discounted the book value by 50 percent for a current value of $1014 per share. Of Mark’s 346.2 shares of S BAR B Ranch stock, 318.2 were acquired by gift or inheritance, and 18 were acquired by purchase. The court set the current value of Mark’s shares at $332,795.

Mark is the president and general manager of the Davies Ranch Company and vice president of the S BAR B Ranch Company. He has written employment agreements which grant him broad powers to make purchases of machinery and livestock, to spend money for repairs, and to buy and sell cattle.

The parties separated in April 1990. On May 16,1990, Mark filed a petition for dissolution. With each party represented by counsel, the matter was heard by the court. On April 2, 1993, the court entered its judgment and “Findings of Fact, Conclusions of Law, and Decree of Divorce.” The decree provides as follows:

(1) Include a provision for making payments previously set forth in these findings. ¡
(2) Provide for maintenance to be paid to [Margaret] as follows: (a) $2200 per month for thirty months beginning April 1, 1993. ,
(b) $1800 per month for thirty months beginning April 1, 1995.
(c) $1400 per month for thirty months beginning March 1, 1998.
(3) [Margaret] is now included on Mark’s health insurance policy. Mark shall keep her on that policy as long as possible, and shall make arrangements for equal health coverage on another policy for her when the present one expires, so far as she is concerned. Mark shall pay the premiums therefor, so that she has health insurance coverage for a period up to at least April 1,1995.
(4) I have recommended in my Findings that [Margaret] should obtain a complete medical examination, a complete physical and mental examination. If she elects to do this, Mark shall pay the cost of this additional treatment not covered by insurance, up to $3500.
(5) If the examination recommends further treatment or counseling, Mark shall pay the cost of this additional treatment, not covered by insurance up to $2500.
(6) I have recommended that following the physical and mental examinations and treatment, that Margaret should submit to an examination by a qualified career guidance person to suggest the career to which she is most likely to achieve success. Mark shall cover up to $500 of the cost of this.
(7) If it is recommended by the guidance counselor that Margaret shall enroll in some qualified school so that she can receive the training necessary to qualify her for the employment, Mark shall pay up to $1500 of such training.

ISSUE 1

Did the District Court err in dividing the marital estate, including the refusal to award Margaret a portion of the cash value of Mark’s stock in the closely held family corporations?

We note that the record discloses minor errors in the figures submitted by Mark and incorporated in the findings of fact and conclusions of law, and we remand for correction of these errors.

In distributing the marital estate, the court relied primarily on the proposed findings of fact and division of marital assets submitted by Mark. The court divided the marital assets into Categories A, B, C, and D. With the exception of some miscellaneous items listed in Category A, the assets listed in Categories A, B, and C are shares of stock in either the Davies Ranch Company or the S BAR B Ranch Company. The value of the stock as listed has been discounted 50 percent.

Category A lists property Mark owned before the marriage. Included in Category A are miscellaneous items valued at $1000 and 171 shares of stock in the S BAR B Ranch Company valued at $181,089.

Category B lists property gifted to or inherited by Mark during the marriage. Included in Category B are 25 shares of Davies Ranch Company stock valued at $44,750, 157.2 shares of S BAR B Ranch stock valued at $166,471, and 6 shares of Davies Ranch Company stock held by Mark for his children valued at $21,199.

Category C lists speculative or contingency value property gifted to or inherited by Mark during the marriage. Mark has a contingency interest as one of four designated beneficiaries in a living trust made by his mother which is revocable at any time during her lifetime. Mark’s contingency interest in the trust is funded with shares of Davies Ranch Company stock valued at $101,000. Mark’s mother received a life estate through the estate distribution of her late husband. Her husband’s estate provided that at her death, the four sons would receive in equal shares Davies Ranch Company and S BAR B Ranch Company stock. The court valued Mark’s share at $106,483.

Category D consists of property acquired and debts accrued during the marriage by mutual effort. Margaret does not dispute the distribution of the Category D assets.

The total pre-tax value of the assets listed in Categories A, B, and C is $631,936. Of this amount, the court distributed $631,936 to Mark. Margaret attacks the court’s distribution of these assets.

“Our review of marital property divisions is whether the district court’s findings of fact are clearly erroneous.” In re Marriage of Nordberg (1994), [265 Mont. 352], 877 P.2d 987, 991; In re Marriage of Maedje (1994), 263 Mont. 262, 265-67, 868 P.2d 580, 583, (citing In re Marriage of McLean / Fleury (1993), 257 Mont. 55, 61, 849 P.2d 1012, 1015). “If substantial credible evidence supports the court’s findings and judgment, this Court will uphold the district court’s decision unless there is an abuse of discretion.” Nordberg, 877 P.2d at 991. Substantial evidence is defined as “evidence that a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.” Barrett v. Asarco Inc. (1990), 245 Mont. 196, 200, 799 P.2d 1078, 1080.

Distribution of the marital estate is determined by the guidelines in § 40-.4-202(l), MCA, which provides in part:

In a proceeding for dissolution of a marriage ... the court, without regard to marital misconduct, shall... finally equitably apportion between the parties the property and assets belonging to either or both, however and whenever acquired and whether the title thereto is in the name of the husband or wife or both.

This language indicates that the court must consider all of the shares in both ranch corporations in dividing the marital estate. In re Marriage of Herron (1980), 186 Mont. 396, 608 P.2d 97. The statute continues:

In dividing property acquired prior to the marriage; property acquired by gift, bequest, devise, or descent... property acquired before the marriage or in exchange for property acquired by gift, bequest, devise, or descent; the increased value of property acquired prior to marriage; and property acquired by a spouse after a decree of legal separation, the court shall consider those contributions of the other spouse to the marriage, including:
(a) the nonmonetary contributions of a homemaker;
(b) the extent to which such contributions have facilitated the maintenance of this property; and
(c) whether or not the property division serves as an alternative to maintenance arrangements.

Section 40-4-202(1), MCA.

This part of the statute sets forth the criteria for equitable distribution of the marital estate. The statute requires the court to consider the contributions of the nonacquiring spouse including the nonmonetary contributions of a homemaker. In re Marriage of Jorgensen (1979), 180 Mont. 294, 299, 590 P.2d 606, 610. The statute grants the district court broad discretion to apportion the marital estate equitably to each party under the circumstances. Nordberg, 877 P.2d at 991 (citing In re Marriage of Zander (1993), 262 Mont. 215, 221, 864 P.2d 1225, 1230).

We have held that “[i]f the contribution of the non-owning spouse has not facilitated the maintenance of property brought into the marriage by the other spouse, the district court may exclude that property from the marital estate.” In re Marriage of Gallagher (1991), 248 Mont. 100, 809 P.2d 579; see Jorgensen, 590 P.2d at 609-10. However, prior acquired and gifted property may be included in the marital estate but only after the court has considered the contributions of the other spouse, including the nonmonetary contributions of a homemaker. If the contributions of a homemaker have facilitated the maintenance of the property, the court may include that property in the marital estate for distribution. Lewis v. Lewis (1982), 198 Mont. 51, 54, 643 P.2d 604, 606; Jorgensen (1979), 180 Mont. 294, 299, 590 P.2d 606, 610; see also In re Marriage of Staudt (1985), 216 Mont. 196, 700 P.2d 175.

The court held that Margaret was not entitled to any portion of the stock listed in Categories A, B, or C because she had nothing to do with increasing the value of either of the two ranch corporations. By incorporating Mark’s proposed findings into its decree, the court adopted his contention that during their 23 year marriage Margaret “did not contribute either as a salaried employee of the Davies Ranch or as a wife or as a mother in any way that resulted in actual maintenance of the value of any of the stock interests that [Mark] received through gift and or inheritance.”

The record does not support the court’s finding. During the 19 years Margaret lived on the ranch, she was engaged in the rigorous activities of a ranch wife. Margaret was responsible for the general maintenance of the Davies Ranch house, as well as the cook house. She did the yard work and landscaping on the family residence, and supervised three extensive renovations. Margaret’s work as a ranch hand during round-ups included: bottle feeding calves, vaccinating and cooking during branding time, weighing cattle, operating scales at the stock yard, and riding as a herder during the grazing round-up.

In addition, she fed the horses and the cattle, plowed winter roads, drove a grain truck to get pellets, purchased ranch groceries, and drove to town to pick up parts and supplies. Margaret babysat the children of employees and drove employees to medical appointments.

Margaret sewed and cooked for the family, drove the children to school, and participated in their school and extra-curricular activities. Included in these activities were: coaching little league, running school track meets, serving as president of the Chinook PTA and as a 4-H sewing leader. She is also a former president, vice president, secretary-treasurer, and state director of the Cowbelles, the auxiliary to the Montana Stockgrowers Association. Mark acknowledged that because Margaret was involved in the above activities he was free to devote his time to ranching.

This Court has often considered the effect of the nonmonetary contributions of a homemaker on the marital estate. In Maedje, 868 P.2d at 583, we held that the wife was entitled to one-half of the appreciated value of two properties the husband brought to the marriage. The wife contributed to the maintenance and appreciation of these assets by remodeling and painting buildings on the various properties, performing daily housekeeping duties, and keeping the marital financial records.

In In re Marriage of Westland (1993), 257 Mont. 169, 848 P.2d 492, the wife raised the children, maintained the home, fed the ranch hands, and served as a ranch hand and a bookkeeper. We concluded that the district court did not err in awarding the wife a portion of the property the husband brought to the marriage because the wife’s contribution clearly facilitated the maintenance and growth of all marital assets.

In Larson v. Larson (1982), 200 Mont. 134, 649 P.2d 1351, we held that the district court erred in its evaluation of the marital estate by excluding the husband’s prior acquired property. We found that while the wife’s homemaking services and nonmonetary contributions may not have been rendered in the field, she was the primary care provider for the couple’s children. This allowed the husband to maintain his ranch duties without taking time from those duties to care for his children.

In In re Marriage of Miller (1989), 238 Mont. 197, 777 P.2d 319, the wife cared for the family home, raised three children, assisted in various farm duties, and worked outside the home at various jobs. We held that the lower court abused its discretion in finding that the wife’s contributions to the farm and ranch operation were negligible.

In In re Marriage of Jacobson (1979), 183 Mont. 517, 600 P.2d 1183, the wife performed the duties of a ranch wife for over 25 years. Although she did not participate in the outside work, she cared for the couple’s two sons, devoting significant time to their completion of school. In addition, she kept the ranch books and occasionally drove to town to pick up supplies. This Court affirmed the district court’s finding that the parties made equal contributions to the marital estate.

In In re Marriage of Glass (1985), 215 Mont. 248, 697 P.2d 96, the husband argued that the district court unrealistically inflated the value of the wife’s nonmonetary contribution to the marital estate. We affirmed the district court. The wife worked on the ranch for several years. Even after she moved to town, she still contributed to the marital estate as homemaker, wife, and mother.

The rule is settled that an equitable distribution does not require a 50/50 distribution of the marital assets. Nordberg, 877 P.2d at 992; In re Marriage of Bowman (1987), 226 Mont. 99, 734 P.2d 197. It is equity, not equality, that guides a court’s discretion in dividing the marital estate. In re Marriage of Fitzmorris (1987), 229 Mont. 96, 745 P.2d 353. The record shows that Margaret spent 19 years performing the duties generally associated with those of a ranch wife. Those contributions as a homemaker facilitated the maintenance of the property listed in Categories A, B, and C and there is no substantial credible evidence to the contrary.

We hold that the District Court erred in dividing the marital estate including its refusal to award Margaret a portion of the cash value of Mark’s stock in two closely held family corporations.

We remand for further proceedings to determine an equitable distribution of the marital estate in accordance with this opinion.

ISSUE 2

Did the District Court err in discounting the values of stock in the closely held corporations?

The District Court discounted the value of Mark’s stock in the two ranch corporations by 50 percent pursuant to restrictive stock agreements. Margaret argues that the court’s valuation of the stock ignores the underlying value of the corporation. In addition, Margaret asserts that although Mark is a minority shareholder, he runs the day-to-day operation of both ranch corporations, and therefore, the discount does not reflect Mark’s ability to control both corporations.

Mark is a minority shareholder in both closely held ranch corporations. Mark argues that as a minority shareholder his power is limited to the voting power of his percentage of shares. The record shows otherwise.

Mark was named president of the Davies Ranch and vice-president of the S BAR B Ranch by resolution of their respective boards of directors. Each resolution invests in Mark identical powers. Mark is authorized to borrow money, to purchase equipment, to execute notes, and to sell or assign any corporate property. The court found that Mark had been granted broad powers. Joyce Davies, Mark’s mother, testified that Mark ran the day-to-day operations of the ranch.

We have previously approved the practice of discounting stock in a closely held corporation. In re Marriage of Milesnick (1988), 235 Mont. 88, 765 P.2d 751. However, a district court need not discount the stock in a close corporation in all instances. Milesnick, 765 P.2d at 757; see In re Marriage of Johnston (1986), 223 Mont. 383, 726 P.2d 322; In re Marriage of Buxbaum (1984), 214 Mont. 1, 692 P.2d 411. “A discount for a minority interest is appropriate when the minority shareholder has no ability to control salaries, dividends, profit distribution, and day-to-day corporate operations.” Milesnick, 765 P.2d at 757.

In In re Marriage of Danelson (1992), 253 Mont. 310, 833 P.2d 215, we addressed the issue of discounting the value of stock held in two ranch corporations. In the first trial, the district court discounted the value of the stock by 40 percent. In the second trial, the district court refused to discount the net value of the stock. We affirmed. The district court found that the husband had and would continue to have full control over the corporate affairs, and that the husband had no intention of selling or otherwise disposing of the corporation.

In Johnston, 726 P.2d at 322, we held that the district court did not err when it failed to discount the minority stock in a ranch corporation. A discount would not have accurately reflected a minority stockholder’s lack of ability to control salaries, dividends or other corporate benefits. Also, the shares were valued by looking to the underlying value of the corporation. Johnston, 726 P.2d at 325.

We have held that discounting is appropriate when the market value of the stock is being estimated because there is no market value on which to rely. Buxbaum, 692 P.2d at 414. In the present case, the value of the corporation was determined by the value of the underlying assets, and it would be inconsistent to discount the minority share of the value of the corporate assets. Buxbaum, 692 P.2d at 414.

Mark relies on Jorgensen, 590 P.2d at 606, to support his argument that the discount was proper. In Jorgensen, the stockholders in a closely held family corporation entered into a written agreement restricting the sale of shares to remaining shareholders and fixing the price per share at $750. We affirmed the district court’s valuation of $750 as set forth in the restrictive agreement. However, Jorgensen is distinguishable from the present case in that the restrictive agreement in Jorgensen set a dollar value for the stock, rather than discounting it by a percentage. At trial, the court heard expert testimony as to the value of the stock. The expert established a range of $600 per share to $1300 per share. Evidence was admitted of a third-party offer to purchase the company at $600 per share. We held that given the range of values offered as evidence, the district court did not abuse its discretion in fixing the value of the shares at $750. However, setting a dollar value per share in a restrictive agreement is different than setting a percentage discount. By setting the value per share at $750, it is possible that the wife received the actual value, and perhaps more, of the underlying assets. Had the value of the minority shares been discounted by a percentage, the wife would never have received the actual value of the underlying assets. As opposed to being a case about the appropriateness of discounting the underlying value of stock, Jorgensen addresses the reasonableness of the dollar value assigned to minority shares pursuant to a restrictive agreement.

The record shows that Mark had broad powers regarding financial decisions made for both corporations. It is clear that Mark ran the day-to-day operations of both ranches. Mark testified that he intends to continue managing the ranching corporations until he retires, and that he has no intention of selling his shares of stock. The underlying value of the corporations is not in question. The parties stipulated as to those values. Discounting the value of the minority shares by 50 percent was inappropriate.

In Issue 1, we held that Margaret is entitled to a portion of the cash value of the stock in the two ranch corporations. Margaret is also entitled to the actual underlying value of that stock, rather than the discounted value.

We hold that the District Court erred in discounting the value of stock in a closely held corporation, and we remand for a determination in accordance with this opinion.1

ISSUE 3

Did the District Court err in its award in the amount and duration of maintenance?

This Court will not reverse the district court’s award of maintenance unless the findings are clearly erroneous. In re Marriage of Eschenbacher (1992), 253 Mont. 139, 142, 831 P.2d 1353, 1355; In re Marriage of Eide (1991), 250 Mont. 490, 493, 821 P.2d 1036, 1037.

In awarding maintenance, the district court is governed by § 40-4-203, MCA, which provides in part:

(2) The maintenance order shall be in such amounts and for such periods of time as the court deems just, without regard to marital misconduct, and after considering all relevant facts including:
(a) the financial resources of the party seeking maintenance, including marital property apportioned to him ....

The statute provides that the district court must consider the amount of marital property apportioned to the party seeking maintenance. We remand the issue of maintenance for further consideration by the District Court. ;

ISSUE 4

Did the District Court err in allowing Mark to call a vocational expert?

The court allowed Mark’s counsel to call a vocational rehabilitation expert to rebut Margaret’s testimony as to her unemployability. Margaret’s counsel objected because the expert was not named in discovery responses. The court called for a continuance and allowed counsel for both parties to interview the expert.

Our standard of review relating to discretionary trial court rulings is whether the trial court abused its discretion in allowing the evidence. Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470, 475, 803 P.2d 601, 603-04.

There is nothing in the record to suggest that the trial court abused its discretion in allowing the evidence.

We hold that the District court did not err in allowing Mark to call a vocational expert.

ISSUE 5

Did the District Court err in refusing to admit Exhibit DDD?

The court refused to admit Exhibit DDD, a diary offered as proof of Margaret’s contribution to the operation of the ranches and maintenance of the marital assets.

Our standard of review relating to discretionary trial court rulings is whether the trial court abused its discretion in allowing (or not allowing) the evidence. Steer, 803 P.2d at 603-04.

The court determined that the material contained in the diary was a written record of the detailed testimony Margaret had just delivered and was unnecessary. There is no evidence in the record to show that the court abused its discretion.

We hold that the District Court did not err in refusing to admit Exhibit DDD.

ISSUE 6

Did the District Court err in awarding Margaret her attorney fees without holding a separate hearing after the trial?

Reasonable attorney fees are allowed if both parties’ financial resources are considered. Buxbaum, 692 P.2d at 415; § 40-4-110, MCA.

An award of attorney fees must be based on a hearing allowing for oral testimony, the introduction of exhibits, and an opportunity to cross-examine in which the reasonableness of the attorney fees claimed is demonstrated.

In re Marriage of Aanenson (1979), 183 Mont. 229, 236, 598 P.2d 1120, 1124.

We hold that the District Court erred in awarding Margaret her attorney fees without holding a separate hearing after the trial, and we remand for a determination in accordance with this opinion.

Affirmed in part, reversed in part, and remanded for further proceedings.

JUSTICES HARRISON and TRIEWEILER concur.

JUSTICE NELSON,

specially concurring.

I concur in the result reached by the Court in this case not only for the reasons set forth in our opinion, but also for an additional reason not discussed.

We have time and time again paid lip service to the oft-stated but usually ignored rule that, while not error per se, district courts should not adopt verbatim the findings of fact and conclusions of law of the prevailing party. In re Marriage of Nikolaisen (1993), 257 Mont. 1, 5, 847 P.2d 287, 289 (citing In re Marriage of Hurley (1986), 222 Mont. 287, 295-96, 721 P.2d 1279, 1285). The reason underlying the rule is that “[e]rror occurs when the court accepts one party’s proposed findings of fact without proper consideration of the facts and where there is a lack of independent judgment by the court.” In re Marriage of Kukes (1993), 258 Mont. 324, 328, 852 P.2d 655, 657 (citing In re Marriage of Callahan (1988), 233 Mont. 465, 472, 762 P.2d 205, 209).

This case presents a perfect illustration of what happens when the rule is observed in the breach. Here, the District Court adopted by reference a fourteen page portion of the proposed findings of fact submitted by counsel for Mark and simply photocopied and attached those as Exhibit Ato the court’s Findings of Fact, Conclusions of Law, and Decree of Divorce. Included in Exhibit A appears the following:

The court further finds that Margaret Davies should be awarded maintenance for a specified period of time to encourage and impress upon her that it is necessary for her to get on with her life and to stop looking to her husband and the court for unrealistic expectations.
In making the division of property, the court has considered the matters stated in § 40-4-202, MCA [sic] in making the determination of maintenance the court has considered the matters stated in § 40-4-203, MCA. The court finds that Margaret Davis is a pleasant appearing attractive person who has the ability both physically and emotionally to acquire continuing commercial education and training to enable her to find appropriate employment, in addition to the education and training that she has already received. [Emphasis added.]

It is bad enough when attorneys inject gender bias and sexual stereotyping into legal proceedings; it is unacceptable when the court wholly or partially premises its decision on such erroneous preconceptions. While that was, perhaps, not the court’s intention in the instant case, nevertheless, in adopting verbatim, by reference, Mark’s counsel’s view that the wife’s physical appearance should play some part in resolving property distribution and maintenance issues, the court has made that insupportable proposition its own.

Like other courts and organized bars, this Court and the Montana State Bar have recognized the harm caused by gender bias and sexual stereotyping in court proceedings. To that end, this Court has appointed a Gender Bias Task Force which is charged with the duty of examining “the extent to which gender bias ... affects participants in the judicial system, such as ... litigants ... and members of the public who come into contact with the courts of Montana.” In the Matter of the State Bar of Montana’s Gender Fairness Steering Committee, No. 90-231 (1990) (Petition and Order).

While that task force has not completed its report, it is safe to say that if attorneys and members of the judiciary entertain preconceptions about a party because of the party’s gender, and worse, then act upon those stereotypes, the entire legal process is invariably tainted and debased.

Article II, Section 4 of our Montana Constitution recognizes and guarantees the individual dignity of each human being without regard to gender. Every attorney and every judge in Montana is sworn to uphold that constitutional right. Attorneys: § 37-61-207, MCA; Judges: Art. Ill, Sec. 3, Mont. Const., and § 2-16-211, MCA. There is simply no justification for injecting gender bias and sexual stereotyping into any legal proceeding in this state. It is morally wrong; it violates the constitution; it will not be tolerated.

While Mark’s counsel argues that his — and by adoption, the court’s — comments were “complimentary and encouraging,” I suggest that few women would agree. I suspect that most women would find such statements demeaning and patronizing. I wonder what the reaction would have been if the court had concluded that Mark should get substantially less property because he is a good looking guy and, by implication, will likely find a new wife; that he should stop whining; and that he should get on with his life.

In its Petition to the Supreme Court, the State Bar of Montana’s Gender Fairness Steering Committee listed four forms of gender bias: a) denying rights on the basis of gender; b) subjecting people to stereotypes about the proper behavior of men and women which ignore their individual situations; c) treating people differently on the basis of gender in situations in which gender should be irrelevant; and d) subjecting men and women as a group to a legal rule, policy, or practice which produces worse results for them than for the other group. All four forms of gender bias; are implicated in any decision in which the counsel and the court litigate and decide issues wholly or partially on the basis of the physical appearance and attractiveness of one of the litigants.

The various sections of the Montana Uniform Marriage and Divorce Act and our substantial body of case law set forth in detail the legal requirements under which matters of property distribution, maintenance, custody, support and-visitation are to be litigated and decided in dissolution actions in this state. Gender bias and sexual stereotyping have absolutely no part in the process; they are not part of the equation. The court has no obligation to, and, indeed, may not favor the female litigant in order to protect “the little woman;” nor is it proper for the court to disadvantage the female party by wholly or partially deciding contested dissolution issues on the basis that she is physically attractive and, by implication, will likely remarry soon. Moreover, it is patently improper that counsel suggest that the court should do so.

Simply put, gender bias and sexual stereotyping have no place in the jurisprudence or in the courtrooms of this state. The fact that such misconceptions were improperly injected into this case lends further support to our decision here. Accordingly, I concur.

JUSTICE GRAY joins in the foregoing special concurrence of JUSTICE NELSON.