Marriage of Brown, In re

• Decision Date: 27 November 1978
• Docket Number: No. 14057,14057
• Citation: 587 P.2d 361,179 Mont. 417,35 St.Rep. 1733
• Parties: In re the MARRIAGE OF Glenda Lou BROWN, Petitioner and Appellant, and Benjamin Lee Brown, Respondent and Respondent.
• Court: Montana Supreme Court

Page 361

587 P.2d 361

179 Mont. 417

In re the MARRIAGE OF Glenda Lou BROWN, Petitioner and Appellant and Benjamin Lee Brown, Respondent and Respondent.

No. 14057.

Supreme Court of Montana.

Submitted Oct. 13, 1978.

Decided Nov. 27, 1978.

James A. Tulley, argued, Big Timber, Paulson & Tulley, Big Timber, for petitioner and appellant.

Lee Overfelt, argued, Billings, for respondent and respondent.

SHEEHY, Justice.

Appellant, Glenda Lou Brown, brought this action in District Court, Thirteenth Judicial District, Stillwater County, seeking a dissolution of her marriage from respondent, Benjamin Lee Brown. After a trial without a jury, judgment dated August 22, 1977, was entered dissolving the marriage, awarding appellant custody of the youngest child, child support in the amount of $75 per month, personal property she had removed from the family home, an automobile, and $25,000 as her share of the marital property. Respondent was awarded custody of the three older children and the bulk of the marital property.

Glenda Lou was thirty-four years of age and Benjamin was approximately thirty-eight years of age at the time the judgment of the District Court was entered. In July 1961, they began a common law marriage between them. At the time of the dissolution the parties had four children, all boys aged fifteen, seven, six and two years.

When they began living together Glenda and Benjamin lived in Anaheim, California. There Benjamin was employed by an equipment company and Glenda as a clerk-typist. The parties pooled their respective earnings and used them to pay their living expenses. Glenda continued to work until the birth of the parties' first son, approximately one year after they began to live together. When they left California in 1963, they had accumulated no estate and took no substantial savings accounts or other assets with them.

In April 1963, Benjamin was requested by his father to come to Montana. His father owned a ranch north of Reed Point, Montana, and wanted his son to come back and run it for him. The parties left California in April 1963 and moved to the ranch. From that time until her separation from Benjamin in 1976, Glenda was not employed outside the home.

Benjamin's father, who was elderly, lived approximately thirty miles away and occasionally Glenda would clean his house and prepare meals for him. Glenda was never employed outside the home during the course of the marriage; she had the homemaking and child raising responsibilities. In addition, Glenda would, as needed, help Benjamin with the ranch work, taking part in the calving, fence repair, livestock, building maintenance, and running errands.

Benjamin's father died in 1967. Upon his death, he left the ranch by will to Benjamin. His father had previously gifted a portion of the ranch to Benjamin. Benjamin sold a portion of the property passing by the will to satisfy bequests to his sisters and mother. The ranch was willed to Benjamin as sole owner and no joint tenancy was ever established between Glenda and Benjamin. Benjamin acquired no other real property than that devised to him by his father.

At the time of the devise of the ranch, it was valued at $104,500. By the time of trial, it had appreciated to a value between $350,000 to $450,000. Benjamin's income tax returns for 1973, 1974 and 1975 show income from the ranch to be approximately $18,000, $15,000 and.$19,000 respectively. These figures are prior to any capital gains deduction for reporting purposes and reflect net farm income as indicated in respondent's return. The ranch is free and clear of any encumbrance and respondent has very little outstanding debt.

When the parties separated Glenda kept custody of the youngest child, took her personal effects and took $5,100 that was in the joint savings account. Glenda also had some cattle that were in her name which were sold by appellant for $1,400. At the time of the trial, Benjamin continued to occupy the ranch premises and to operate the ranch. He had retained custody of the three older children and had hired a live-in housekeeper.

Glenda had moved to Big Timber and had obtained employment as a waitress at a local cafe, earning approximately $650 per month. Glenda testified that if she received custody of the children, she planned to move to southern Illinois to a community of about 8,000 people where her mother lived and would attend college part-time.

During the trial, the court took testimony from a court investigator concerning the suitability of each parent for custody and ordered a supplemental investigation on that matter. The court also conducted an in-chambers interview of two of the children (the oldest child had expressed a preference to remain with his father), which was not recorded nor were the attorneys for appellant or respondent present. In its findings and conclusions, the District Court determined that while both parties were good parents, the wholesome environment of the ranch and the character of respondent indicated it would be in the best interests of the three older children to remain on the ranch in the care and custody of their father. The court in making this determination apparently relied in part on its unrecorded in-chambers interview with the children.

The District Court further found that all of the real property which Benjamin currently owns passed to him in sole ownership via devise from his father. The court found Glenda to be an active working rancher's wife during the marriage and determined that Glenda was entitled to a sum of $25,000 as her equitable share of the property payable in installments. The court found it in the best interests of the youngest child to be placed in the custody of Glenda and awarded $75 per month child support. The District Court made no maintenance award, finding Glenda financially capable of supporting herself and paying her own attorney's fees.

The issues presented by this appeal are as follows:

1. Did the District Court equitably divide the property acquired during the marriage as provided for in section 48-321, R.C.M.1947?

2. Did the District Court abuse its discretion by not awarding maintenance and by reducing child support from that temporarily awarded?

3. Did the District Court properly award custody of the minor children considering the rebuttable presumption favoring the mother as custodial parent?

4. Did the District Court properly grant custody of two of the children to respondent basing its determination in part upon unreported in-chambers interviews without counsel for the parties present and upon a supplemental report made pursuant to section 48-335(1), R.C.M.1947, which was not served on Glenda?

5. Did the District Court properly award attorney's fees?

After consideration of the issues presented, we find the District Court did not equitably divide the marital assets and thus abused its discretion. Further, we find the District Court erred in not making a record of the in-chambers interview of the children and not making specific findings of their custodial wishes.

The standard for reviewing the property division in a dissolution decreed by a District Court is well settled in Montana. The apportionment made by the District Court will not be disturbed on review unless there has been a clear abuse of discretion as manifested by a substantially inequitable division of the marital assets resulting in substantial injustice. In Re Marriage of Blair (1978), Mont., 583 P.2d 403, 405, 35 St.Rep. 1256; Vivian v. Vivian (1978), Mont., 583 P.2d 1072, 1074, 35 St.Rep. 1359; Eschenburg v. Eschenburg (1976), 171 Mont. 247, 557 P.2d 1014, 33 St.Rep. 1198; Porter v. Porter (1970), 155 Mont. 451, 473 P.2d 538. We find the division of the marital assets in this case was substantially inequitable and thus constituted an abuse of discretion.

A review of the District Court's findings relative to the marital assets reveals the court found decisive the fact the property owned by respondent was acquired directly or indirectly through inheritance and was solely in Benjamin's name. Findings of fact No. 3 and 12. However a consideration of the applicable statute and of decisions of this Court makes clear the source of and title to marital property is irrelevant to division of such property upon dissolution of the marriage. Section 48-321(1), R.C.M.1947, states:

"In a proceeding for dissolution of a marriage . . . the court . . . 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 . . ."

We have held District Courts have the power to divide property on an equitable basis regardless of the fact that title to the property is vested in only one of the parties. Downs v. Downs (1976), 170 Mont. 150, 151, 551 P.2d 1025, 1026; In Re Marriage of Reilly (1978), Mont., 577 P.2d 840, 35 St.Rep. 451. Furthermore, this Court has held an inheritance received during the marriage is a marital asset. Morse v. Morse (1977), Mont., 571 P.2d 1147, 1149, 35 St.Rep. 1334; Vivian v. Vivian, supra.

Therefore, the fact the ranch property which constitutes the whole of the marital assets was inherited solely by Benjamin and is in his name alone, is not a controlling consideration in the division of these marital assets.

The decisions of this Court following the enactment of the Uniform Marriage and Divorce Act declare that as a housewife, the wife acquires a vested interest in the property accumulated by the parties during the marriage. In Re Marriage of Reilly, supra; In Re Marriage of Johnsrud (1977), Mont., 572 P.2d 902, 905, 34 St.Rep. 1417; Biegalke v. Biegalke (1977), Mont., 564 P.2d 987, 34 St.Rep. 401; Eschenburg v. Eschenburg, supra; Downs v. Downs, supra. In Eschenburg, the District Court equated the wife's contributions as homemaker and mother with the husband's as breadwinner in dividing...