CourtListener opinion 883030

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No. 92-055
 IN THE SUPREME COURT OF THE STATE OF MONTANA
 1992

IN RE THE MARRIAGE OF
MARGARET H. BOHARSKI,
 Respondent-Petitioner,
 and
GEORGE BOHARSKI,
 FEB 2 2 1993
 Appellant-Respondent.
 A;&;,:.;,
 CLERK OF s ~ J I ; ~COURT ~ ~
 R ~ ~
 STATE OF MONTANA

APPEAL FROM: District Court of the Eleventh Judicial District,
 In and for the County of Flathead,
 The Honorable Michael H. Keedy Judge presiding.

COUNSEL OF RECORD:
 For Appellant:
 Martin J. Elison, Hardin, Montana
 For Respondent:
 James C. Bartlett, Hash O'Brien & Bartlett,
 Kalispell, Montana

 Submitted on Briefs: January 7, 1993
 Decided: February 22, 1993
Filed:
 Justice R. C. McDonough delivered the Opinion of the Court.
 Appellant George Boharski appeals from the findings of fact,
conclusions of law, and decree of dissolution of marriage entered
by the District Court of the Eleventh Judicial District, Flathead
County. We affirm.
 Appellant presented five issues for review by this Court. One
has been conceded as not properly before the Court. We frame the
balance of the issues as follows:
 1. Did the District Court err in its award of maintenance?
 2. Did the District Court err in finding appellant in
contempt of court and ordering his incarceration for 30 days.
 George and Margaret Boharski were married on July 11, 1953.
During the course of the marriage the parties had seven children,
all of whom have now reached the age of majority. In the fall of
1987, George was diagnosed as being totally and permanently
disabled. On October 10, 1989, Margaret filed a petition for
dissolution of marriage.
 On December 12, 1989, during a hearing on a conciliation
request, the District Court Judge advised Margaret to have her
attorney move the court for temporary maintenance. Margaret's
counsel subsequently moved the court for an order awarding
temporary maintenance. On March 29, 1990, the District Court
ordered temporary maintenance in the amount of $400 per month,
retroactive to October 29, 1989.
 George maintained that all of his income was disability income
which was exempt and he refused to pay the temporary maintenance.
George's income consisted of monthly social security disability
payments of $906, monthly workers' compensation benefits of
$500.40, and monthly union pension disability payments of $363.50
at the time of final decree and slightly less at time of temporary
order. George had no other sources of income.
 Pursuant to a motion by Margaret, on September 19, 1990, the
District Court found George in contempt of court for failing to
make the temporary maintenance payments. The District Court
ordered George jailed for 40 days, with 10 days suspended.
 In this same order, the court also entered a Qualified
Domestic Relations Order (QDRO) pursuant to the Retirement Equity
Act of 1984, 29 U.S.C. 5 lO562(d) (3). A QDRO is a method of
intercepting payments intended for one spouse and then directing
these payments to the other spouse. A QDRO must be made pursuant
to the existing state domestic relations laws. 29 U.S.C. 5 1056.
The QDRO in this case directed that George's union pension
disability benefits be paid directly to Margaret.
 Following George's release from jail, he discharged his
attorney and made a request to disqualify the District Court Judge.
This request was granted. A second District Court Judge assumed
jurisdiction over this matter.
 George then moved the ~istrictCourt to terminate the previous
temporary maintenance order. On October 15, 1991, the ~istrict
Court denied this motion.
 Trial in this matter began on December 12, 1991, and the
court's final decree was entered on January 3 , 1992. In the
findings of fact in the decree of dissolution, the court found the
net marital estate to be $12,116 annually, which is the annual
value of the workersf compensation benefits ($7774), and the annual
value of the union pension disability payments ($43621,
 The District Court awarded all of the workers' compensation
benefits to George. The District Court then awarded the union
pension disability benefits to Margaret, with the QDRO to remain in
place. Additionally, George was to pay to Margaret the sum of
$298.33 per month for 3 6 months out of income received by him, as

an equitable distribution of property and as maintenance. The time
period of payment was made to coincide with her eligibility in the
future for social security benefits. The court also found that
George could make all payments and maintain his lifestyle and
maintain his standard of living. George brought this appeal from
the District Court's entry of the decree of dissolution contending
that the District Court erred in determining maintenance.
 I
 id the District Court err in its award of maintenance?
 Upon reviewing a District Court's award of maintenance, this
Court will not reverse the determination of the District Court
 4
 unless the findings of fact are clearly erroneous. In re Marriage
of Eschenbacher (Mont. 1992), 831 P.2d 1353, 1355, 49 St. Rep. 393,
394. Upon reviewing conclusions of law relating to the maintenance
award, this Court will simply determine whether the lower court's
interpretation of the law was correct. Steer, Inc. v. Dep't of
Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603.
 George contends on appeal that the statutory criteria to be
applied in determining maintenance awards found at 5 40-4-203, MCA,
were not satisfied in this case. George argues in the alternative
that even if the criteria of § 40-4-203, MCA, were met, that
maintenance was still improper in that all of his income was
disability income, and therefore, exempt. George argues that the
District Court erred in awarding maintenance when his only income
was disability income.
 It is clear from the record before this Court, and in
particular from the findings of fact of the District Court, that
the requirements of 5 40-4-203, MCA, are satisfied in this case.
Margaret is in need of and is entitled to maintenance.
 However, the question before the Court is whether George's
union disability income is available for maintenance purposes. The
uncontroverted evidence at trial and throughout the entire record
of this case is that George's income from his union pension is
disability income. Georgetestified that prior to reaching the age
of 65 the only way an individual may obtain any of the monies in
the pension fund is by demonstrating a disability. Absent a
 5
 disability there is no payment from the pension fund prior to age
65. George was 58 years old.
 The District Court in this case did not make any factual
determination that the payments George receives from the pension
fund are not disability payments. However, the District Court
ordered these funds be paid to Margaret as maintenance, together
with the additional payment of $298.33 per month. The question
before the Court is whether an award of maintenance may be ordered
from the union disability income. This is a question of law.
 Margaret argues that maintenance may be so ordered. Margaret
relies on this Court's decision of In re ~arriage Cooper (1990),
 of
243 Mont. 135, 793 P.2d 810. In C o o ~ e r ,we stated that disability
benefits may be included by the District Court in determining the
value of the marital estate. Cooper, 793 P.2d at 812. However, in
Cooper the disability benefits were not awarded to the other
spouse, they were simply included in the marital estate.
Disability benefits can be considered by the District Court in
determining an equitable distribution of the marital estate.
Unfortunately, in this situation there is no marital estate apart
from the various disability payments.
 George argues that pursuant to 25-13-608, MCA, the
disability payments are exempt and may not be awarded as
maintenance. Section 25-13-608, MCA, provides in part that a
judgment debtor's disability or illness benefits are exempt from
execution. Margaret counters by arguing that \any reliance on 5