Vivian v. Vivian, 14168

• Decision Date: 13 September 1978
• Docket Number: No. 14168,14168
• Citation: 35 St.Rep. 1359,583 P.2d 1072,178 Mont. 341
• Parties: Elizabeth Pearl VIVIAN, Petitioner and Appellant, v. Robert Wilber VIVIAN, Respondent and Cross-Appellant.
• Court: Montana Supreme Court

Page 1072

583 P.2d 1072

178 Mont. 341

Elizabeth Pearl VIVIAN, Petitioner and Appellant, v. Robert Wilber VIVIAN, Respondent and Cross-Appellant.

No. 14168.

Supreme Court of Montana.

Submitted on Briefs Aug. 3, 1978.

Decided Sept. 13, 1978.

Joseph C. Engel, III, Butte, for petitioner and appellant.

McCaffery & Peterson, Butte, for respondent and cross-appellant.

HASWELL, Chief Justice.

This is an appeal by the wife from the amended findings of fact, conclusions of law and decree of dissolution entered by the Silver Bow County District Court on November 8, 1977, concerning the distribution of marital property and award of maintenance for her. The husband cross-appeals on the maintenance issue. No issue is taken as to the granting of the divorce.

The parties were married on September 1, 1947. The parties had six children as a result of this marriage; two of whom were minors at the time of the trial in this case, but who have since been emancipated by marriage or reached the age of majority. The parties separated in July, 1976.

The husband earns approximately $18,000 per year as an employee of the Montana Power Company. The wife, during the period of their marriage, has never worked outside the family home. However, after her separation from her husband, she was offered a job as a janitress for the Butte Schools. She declined to take the job due to her health. The wife is a diabetic and has hypertension. She is on medication and under a doctor's care for both conditions.

The marital assets consisted of a family home and furnishings, a boat, 225 shares of Montana Power stock, some monies in a Montana Power Company credit unit and savings plan, and a savings account in the First National Bank of Butte. In 1975, the husband received a $13,726.15 inheritance from his mother's estate.

The parties built their home approximately 20 years ago for $8,500. Both parties have had the home appraised. The wife's appraiser valued it at $36,000. The husband's appraiser gave it a value of $29,000. The court, in its findings, averaged the two appraisals which gives the home a value of $32,500.

The wife filed a petition for divorce in October, 1976. During the pendency of the action, the District Court ordered the husband to pay $200 a month to the wife for her support and maintenance. The matter came on for a hearing on April 15, 1977.

The District Court entered findings of fact and conclusions of law on October 27, 1977. Thereafter, these findings and conclusions were amended, and as amended were entered on November 8, 1977. In its findings the court found that the husband was able and capable of paying $100 per month for one year to the wife; that the husband's inheritance was expended to enhance the value of the home; that the home was worth $32,500; that the $13,726.15 inheritance should be deducted from the value of the home ($32,500 - $13,726.15 = $18,773.85); and that the parties are entitled to an equal distribution of the marital assets, excluding the home furnishings and the boat which were given to the husband. The court entered the decree in accordance with these findings. In the decree, the husband was ordered to pay appellant wife $15,542.26 in cash for her share of the marital assets. Following the denial of her motion for new trial or to vacate the findings and conclusions, the wife brings this appeal and the husband cross-appeals.

The wife in her appeal raises two issues which are:

1. Whether the District Court erred in its distribution of the marital property.

2. Whether the District Court erred in the amount and duration of maintenance awarded to appellant wife.

In his cross-appeal the husband raises the issue of whether the court erred in making any award of maintenance to the wife.

"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." (Citations omitted.) Eschenburg v. Eschenburg (1976), Mont., 557 P.2d 1014, 1016, 33 St.Rep. 1198.

" * * * a reviewing court is never justified in substituting its discretion for that of the trial court. In determining whether the trial court abused its discretion, the question is not whether the reviewing court agrees with the trial court, but, rather, did the trial court in the exercise of its discretion act arbitrarily without the employment of conscientious judgment or exceed the bounds of reason, in view of all the circumstances, ignoring recognized principles resulting in substantial injustice." Porter v. Porter (1970), 155 Mont. 451, 457, 473 P.2d 538.

Utilizing this standard of review here, we hold that the District Court abused its discretion in its distribution of the marital property.

We believe that to have a proper distribution of the marital property, the trial court must first determine the net worth of the parties at the time of their divorce. In Re Marriage of Kramer (1978), Mont., 580 P.2d 439, 35 St.Rep. 700; Downs v. Downs (1976), 170 Mont. 151, 551 P.2d 1025. Here, the parties themselves cannot agree as to what the court found their net...