Eschenburg v. Eschenburg, 13260
| Decision Date | 14 January 1977 |
| Docket Number | No. 13260,13260 |
| Citation | 171 Mont. 247,33 St.Rep. 1198,557 P.2d 1014 |
| Parties | Betty Gunn ESCHENBURG, Plaintiff and Respondent, v. Emil P. ESCHENBURG, Defendant and Appellant. |
| Court | Montana Supreme Court |
Small, Cummins, Hatch & Jackson, Gregory Jackson (argued), Helena, for defendant and appellant.
Hughes, Bennett & Cain, Stuart L. Kellner & John F. Sullivan, Stuart L. Kellner
(argued), Helena, for plaintiff and respondent.
Robert L. Woodahl, Atty. Gen., Denald Smith, Asst. Atty. Gen., Helena, for amicus curiae.
This is an appeal from a judgment entered in the district court, Lewis and Clark County, following a trial to the court, sitting without a jury.
This appeal stems from the granting of an absolute divorce to both parties on the grounds of irreconcilable differences, the property division, and an award of alimony to plaintiff. The divorce per se is not at issue, only the property division and alimony award are questioned by plaintiff.
At the time of trial the parties had been married thirty-two years, their four children had reached majority with one daughter still living with plaintiff, and they had acquired the following property:
A residence in Helena, Montana, with a
mortgage thereon
A residence in Virginia, with a
mortgage thereon
Stocks and securities
Paid up life insurance policies
(amounting to $50,000)
Personal property and household goods
Two automobiles (a Scout and an
Oldsmobile); and
Two unimproved lots in Virginia.
Their relative gross incomes at this time
were:
Defendant: $2000/month - Army
pension,
$1,000/month - real estate
salesman
$350/month - rental
income
----------------------
$3,350/month - Total
Plaintiff: $475/month _ Secretary.
During the first 27 years of their marriage defendant was a career Army officer, obtaining the rank of Brigadier General at the time of his retirement, and participated in three extended foreign tours of duty in World War II, Korea, and Vietnam. Throughout this time, defendant solely contributed financially to the marriage.
Plaintiff married defendant before finishing college and throughout the marriage managed the household, raised their four children (such responsibilities handled alone during defendant's foreign tours of duty), entertained at social functions, worked in the Army wifes' auxiliaries, nurseries, Red Cross relief, and as a voluntary hospital aide. She gained the secretarial employment, mentioned above, after the commencement of this action.
The complaint originally alleged mental cruelty, but was later amended, alleging irreconcilable differences. Plaintiff and defendant were the only witnesses to testify at trial. The district court granted an absolute divorce to both parties, awarded plaintiff alimony of $500/month, and divided the property, subject to any indebtedness thereon, as follows:
To the plaintiff:
The residential property in Helena, Montana.
The household goods and furnishings.
The 1972 Scout automobile.
To the defendant:
The residential property in Virginia.
The two unimproved lots in Virginia.
The 1969 Oldsmobile automobile.
The stocks and securities were to be divided in kind, or if desired, sold on the market with the proceeds so divided. This division was to be one half to each party of the remainder, after allowing for the credits of each party found by the district court in making the entire property division.
Defendant was also directed to name the plaintiff irrevocably as beneficiary to $25,000 of the paid up insurance.
Each party was to pay his or her own court costs and attorney's fees.
The defendant raises four issues:
(1) Whether the district court erred in its property division and alimony award?
(2) Whether defendant's Army pension was a proper basis for the alimony award?
(3) Whether a finding of fault on the part of defendant is necessary to allow an alimony award for plaintiff?
(4) Whether the applicable alimony statute is an unconstitutional form of sex discrimination?
It is well settled in Montana that a district court has far reaching discretion in resolving property divisions and its judgment will not be altered unless there is a clear abuse of that discretion. Cook v. Cook, 159 Mont. 98, 495 P.2d 591; Francke v. Francke, 161 Mont. 98, 504 P.2d 990; Roe v. Roe, Mont. 556 P.2d 1246, 33 St.Rep. 863.
The district court concluded that plaintiff's contributions in this 32 year long marriage were the raising of the 4 children, managing the household, entertaining at social activities and volunteering her services to other activities related to defendant's career. Furthermore, a large majority of this was performed alone while defendant was away from home pursuing that career. The district court stated that even though these contributions differed in kind, they were of equal weight to the financial contributions of defendant.
Defendant argues that the findings of the district court did not credit him enough for his financial contributions. However, we find the district court's findings in complete accord with the modern trend of Cook, Francke, and Roe to consider more than financial contributions to a marriage when dividing the property since parriage is much more than a business since marriage is much more than a business
We find no abuse of discretion in the district court's judgment which effects an equal property division based upon equal contributions by each party. As stated in Cook, this does not make Montana a community propety state. Each case depends upon its own facts and circumstances and this case warranted an equal distribution.
Nor was it an abuse of discretion for the district court to arrive ar a value of its own choosing as to the residential property, applying its own inflation value to the purchase price and not that offered by defendant. Defendant also argues the district court improperly valued the household goods and the Virginia lots. We do not agree. There was conflicting testimony on each and the district...
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