Libra v. Libra

• Decision Date: 07 May 1971
• Docket Number: No. 11695,11695
• Citation: 484 P.2d 748,157 Mont. 252
• Parties: Kathryn R. LIBRA, Plaintiff and Appellant, v. A. L. LIBRA, Defendant and Respondent.
• Court: Montana Supreme Court

Page 748

484 P.2d 748

157 Mont. 252

Kathryn R. LIBRA, Plaintiff and Appellant, v. A. L. LIBRA, Defendant and Respondent.

No. 11695.

Supreme Court of Montana.

Submitted April 15, 1971.

Decided May 7, 1971.

William Dee Morris argued, Helena, Sandall, Moses & Cavan, Russell Fillner argued, Billings, for appellant.

Patrick F. Hooks argued, Townsend, James, Crotty & Fopp, Great Falls, Bolkovatz & Romine, William Romine appeared, Helena, for respondent.

BERNARD W. THOMAS, District Judge.^*

This is an appeal from a decree which granted plaintiff a divorce, but which favored defendant in its provision for custody of the minor children of the parties and required the conveyance to defendant of plaintiff's interest in jointly owned property. Neither party contests the decree insofar as it grants the divorce. By this appeal plaintiff attacks those provisions of the decree which relate to custody and property.

The parties were married on March 17, 1946, and became the parents of three daughters. Joyce, the eldest, was of legal age at the time the decree was entered. The second daughter, Betty, has become of full age since that time. The dispute over custody now involves only the youngest daughter, Kathrysn 12 years of age at the time of trial in 1969, who has been with her father since a date following the entry of the decree.

At the time of the divorce, defendant was 47 years of age, a practicing lawyer for almost twenty years, and the senior partner in a firm of three lawyers. Plaintiff, at that time, was 42 years of age, with some college education but no degree. For daughter, Kathryn, 12 years of age at the experience outside the home, except as an employee of the legislature during part of the 1969 session. She handled the household accounts, collected rentals, and otherwise participated in the management of certain real properties which the parties had acquired.

After a four day trial, the district court made its findings of fact and conclusions of law and entered its decree. Certain of the findings, which have adequate support in the record, are quoted as follows:

'9. That plaintiff and defendant for a period of three years prior to the commencement of this action have engaged in violent and uncontrolled verbal and physical quarrels, some of which were had in the presence of one or more of their children.

'10. That the family relationship of the parties has totally deteriorated, due in large part to plaintiff's morbid suspicion of improper conduct by defendant.

'11. That plaintiff has communicated her suspicions to the three children of the parties, to certain employees of defendant, to certain members of defendant's professional and business community, and to some of defendant's clientele and prosepective clients.

'12. That plaintiff's suspicion prompted her to make accusations that were of such a nature as to seriously damage defendant's professional integrity and dignity and to cause defendant loss of professional and business standing.

'13. That due to loss of business and due to plaintiff's failure to recognize the true financial plight of the defendant, bills in a substantial amount have been incurred by plaintiff, and defendant has become deeply obligated to meet his family and business obligations.

'14. That to enable the defendant to restore his business and credit rating, and to enable him to meet the obligations herein imposed, it is necessary that certain properties now owned by plaintiff and defendant as joint tenants, be transferred to defendant.'

The district court found plaintiff was entitled to certain items of personal property and except for those items ordered 'that the plaintiff shall forthwith execute instruments necessary for granting to the defendant such right, title and interest as she may have in each and every parcel of property, whether it be real, personal or mixed.' The court further ordered that defendant should assume and pay all family debts, pay plaintiff's counsel fees and $500 monthly alimony; awarded defendant custody of the minor daughters, and required plaintiff to seek psychiatric counseling.

Plaintiff moved for a new trial, for amended findings of fact and conclusions of law and for stay of execution pending hearing, which motions were denied

We believe that the issues presented for determination on this appeal may be stated as follows:

1. Does the district court in a divorce action have the power to divest a wife of her title and interest in specific property and to provide for alimony in lieu of the wife's property interest? The parties have also put up as an issue whether it is necessary to have findings or evidence of an implied trust for the benefit of the recipient, here the husband.

2. If the court has such power, what pleading requirements must be met before that power can be exercised?

3. If the court has such power and the pleading requirments were met in this case, did the district court abuse its discretion in exercising the power in the way it did?

4. Did the court abuse its discretion in awarding custody of the minor children to defendant?

The power of the district court to determine or adjust property interests of the parties in divorce cases has been the subject of several decisions by this Court. In earlier decisions, the view was taken that the district court had no such power in the absence of an enabling statute. Rufenach v. Rufenach, 120 Mont. 351, 185 P.2d 293; Emery v. Emery, 122 Mont. 201, 200 P.2d 251. Later, in Rogers v. Rogers, 123 Mont. 52, 209 P.2d 998, this Court upheld a judgment in a divorce action which required a money payment from wife to husband. In Johnson v. Johnson, 137 Mont. 11, 349 P.2d 310, it was held that, where the presumption of a gift is rebutted, the district court may award the wife part of what she contributed in accumulating property of the husband by requiring the husband to make a cash payment to the wife. The majority opinion in Johnson expressed the view that a divorce court is a court of equity and once equity takes jurisdiction, it will grant complete relief; also that property acquired jointly during the marriage may be divided by the court whether the title thereto is in either or both of the parties. This view was adhered to in Chapman v. Chapman, 137 Mont. 544, 354 P.2d 184, although in that case this Court found the pleadings insufficient to uphold the judgment as to the property.

In Tolson v. Tolson, 145 Mont. 87, 399 P.2d 754, this Court was asked to overrule Johnson and Chapman and revert to the rule expressed in Emery. Under the facts of Tolson, the Court found it unnecessary to make this choice. The new rules of civil procedure had become effective following Chapman, and Rule 18(a), M.R.Civ.P., permits a broad joinder of claims. Under Rule 18(a) the Court held a claim for divorce can be joined with a claim for adjudication of property rights, regardless of any previous rule restricting the authority of a court to adjudicate property rights in a divorce action. The rationale of Tolson has been followed in subsequent cases. See Bloom v. Bloom, 150 Mont. 511, 437 P.2d 1; Hodgson v. Hodgson, Mont., 482 P.2d 140, 28 St.Rep. 195. In these later cases the Court approved the allocation of properties between the parties on an equitable basis according to their contributions even though this required that title be divested from one and transferred to the other.

Plaintiff contends, in effect, that the court's action in this case cannot be based on Rule 18(a), since that rule applies only in cases where the facts show that a separate property claim, such as a claim for partition or for an implied trust, actually exists, and there is not showing of that kind here.

In this case the parties held title to three parcels of real property in joint tenancy: the family residence and an office building in Helena, and a residence formerly occupied by them at Thompson Falls. The defendant testified 'All of my real property is in my name and my wife's as joint tenants, and I did this for personal reasons and for reasons of marital * * *. I am trying to do something to help the marital situation. However, the entire contributions to all of it was mine as far as I know.' No effort was made to rebut the presumption that a gift to the plaintiff wife was made when the joint tenancy estates in these properties were created. We do not feel it necessary to determine that there is a resulting or constructive trust raised. Here, the court was using the only means available to guarantee payment of the wife's alimony. Without the conveyance of the property to reestablish the defendant's ability to pay, such an equitable solution could not be achieved under the circumstances here.

Although the district court in ...