No. 13853
I N THE SUPFENE C O W O THE STATE QF I43NTANA
F
1978
IN RE THE MAEUUAGE CIF
W m DUKE C P N R
L AE E ,
Petitioner and Appellant,
-vs-
DARYL MAX CAPENER,
Respondent and Respondent.
Appeal f r m : D i s t r i c t Court of the Fourth Judicial D i s t r i c t ,
Honorable Edward Dussault, Judge presiding.
Counsel of Record:
For Appellant:
Jordan, Sullivan and Baldassin, Missoula, mntana
For Respodent:
Mulroney, Delaney and Dalby, Missoula, Wntana
- -
Filed :
Jilt -.y
f.Ii.4
--
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court .
Appeal by the appellant wife from a decree and judgment
entered in a dissolution of marriage action, insofar as
judgment relates to provisions for maintenance of the appellant
wife. The decree was entered on December 30, 1976 in the
Fourth Judicial District, Missoula County. This cause was
submitted on briefs.
Appellant, Velma Duke Capener, age 45 and respondent,
Daryl Max Capener, age 46, married June 5, 1953 in Logan,
Utah. They had four children, one of whom was of age at the
time of trial, and three of whom were minors, Steven D. Capener,
17; Scott Lee Capener, 15 1/2; and Shaun Michael Capener, 12.
Respondent husband is a dentist, practicing through a personally
owned professional corporation in Missoula.
When the parties married, the wife had been attending
her second year of college, but she discontinued further
schooling for herself in order to work fulltime, sometimes at
two jobs, to help her husband finish school and acquire his
professional education. Upon his graduation, he opened a
dental office, but she continued to work for about twelve years
after her marriage, interrupted from time to time by childbirth.
Gradually his business income increased, and at his insistence,
she gave up engaging in any gainful occupation during the last
ten years of their marriage. About a year before the dissolu-
tion action commenced, she received a degree in Business
Administration from the University of Montana and was working
towards a master's degree at the time of the divorce. It does
not appear that she has earned any income as yet as a result of
her further education.
Whatever assets the marital unit accumulated came about
during their marriage and not through inheritance or other
sources.
Husband's income had become substantial from his thriving
dental practice. In 1974, he formed his professional corpora-
tion, with himself and his wife as the officers. He drew
$2,000 each two weeks as a salary, and received bonuses,
reimbursements for auto expenses, travel and continuing legal
education and other expenses. He leased dental equipment,
his personal property, to his professional corporation. There
was evidence in the trial, excepted to by the appellant wife,
which indicates his average income for the three years immediately
preceding the dissolution of about $35,000 each year after taxes.
The marital assets consisted of a family home, owned
jointly but subject to a mortgage, some motor vehicles, house-
hold equipment and furniture, but principally the value of the
assets of the professional corporation. The District Court
ordered the sale and equal division between the parties of the
net proceeds of the home; each party was to keep the motor
vehicles in his or her own possession, the furniture and house-
hold goods were to go to the wife, and the assets of the
professional corporation to the husband. Custody of the minors
was given to the wife, with monthly payments for their support
required of the husband in the sum of $200 per month for each
child or the total of $600 per month. The wife was to receive
$500 per month for one year.
The difficulty that this Court faces on this appeal is
that the District Court did not make findings and conclusions
which would reflect facts upon which this Court could base a
proper appellate review. The only finding of fact which the
Court makes with respect to the assets of the parties is Finding
No. 4 which recites "that the parties have acquired various
assets which must be distributed". The only conclusion of
law respecting the division of the marital property is Con-
clusion no. 3 which states "that the assets of the parties,
as of this date, should be reasonably divided in an equitable
manner". After making those findings, the Court proceeded in
a final decree to make the provisions which we have above
stated.
After entry of the decree, appellant wife moved the
District Court to make adequate findings of fact amend
the same or to grant a new trial. This motion was deemed denied
because it was not acted upon within the required time (Rule
59(d) Montana Rules of Civil Procedure) and so wife appealed.
The issues raised by appellant wife may be principally
stated as follows:
1. The Court failed to make adequate findings of fact
with respect to the assets and property of the
parties.
2. The Court failed to make adequate conclusions of
law respecting the division of the marital property
of the parties.
3. The evidence is insufficient to support the alimony
award made by the District Court or the division
of marital property.
4. The District Court erred in allowing evidence per-
taining to "disposable income" of the appellee
husband.
Rule 52(a) of the Montana Civil Procedure requires that
the District Court in cases tried without a jury shall find the
facts specially and state separately conclusions of law thereon
and direct the entry of the appropriate judgment.
In Estate of Craddock, (1977) Mont . , 566
P.2d 45, 46, 34 St. Rep. 487, 490, this Court stated:
"Rule 52(a) M.R.C.I.V.P. makes it mandatory
that the District Court make findings of fact
and conclusions of law in all actions tried
upon the facts without a jury. Absent findings
of fact and conclusions of law, this Court is
forced to speculate as to the reason for the
District Court's decision. Such a situation
is not a healthy basis for appellate review.
For this reason, we reverse the District
Court's order and again remand this case to
the District Court with instructions to make
findings of fact and conclusions of law, * * *."
See also Jensen v. Zook Bros. Const. Co., et al. (1977)
Mont . , 568 P.2d 555, 557, 34 St. Rep.,
1022.
Section 48-322, R.C.M. 1947, relating to maintenance
for a spouse, and Section 48-323, R.C.M. 1947, relating to
child support payments, are both parts of the Uniform Marriage
and Divorce Act, enacted in 1975. These statutes set forth
the factors upon which the District Court must make its
determination of both maintenance and child support. The
pertinent factors in those statutes, with findings of fact
to support them, should be set out in the District Court's
decision for otherwise the appellate court has nothing upon
which to base its review. Jensen v. Zook Bros. Const. Co.,
et al., supra. It is important to the parties moreover,
because under section 48-330, R.C.M. 1947, the statute
providing for modification and termination of provisions for
maintenance or support, the District Court can grant such
modification or termination only if there is a showing of
circumstances making the payments unconscionable. Unless
proper findings and conclusions are entered in the first
instance, the modification proceedings, should such occur,
would be meaningless because there would be nothing upon
which the Court could act, absent the proper findings and
conclusions.
Moreover, because the findings do not reflect what assets
of the parties the court considered, we cannot proceed on an
appellate level to determine the propriety of the division
of the assets. We hold, therefore, that it is necessary to
return this case to the District Court for the purpose of
making the required factual determination under section 48-322,
R.C.M. 1947. At this point we can only speculate as to the
reasons the Court limited the maintenance payments to the wife.
See Cromwell v. Cromwell, (1977) - Mont . , 570
P.2d 1129, 34 St. Rep. 1193.
During the trial, counsel for the husband, elicited from
the husband figures as to his "disposable income" from a
memorandum that had been prepared by the accountant for the
husband. The accountant was not present to testify, and
the original tax returns of the husband were not produced as
evidence. The accountant's memorandum, respondent's exhibit
no. 2, was never offered or admitted into evidence. Such
evidence was clearly hearsay (Rule 801(c), Montana Rules of
Evidence). In the retrial on the issue of income or monies
available to the husband, such testimony should come from the
husband's own personal knowledge based on his tax returns, or
if an exhibit is used, from the person preparing it who will
be subject to cross-examination.
No appeal is taken on this case on the award of custody
of the minor children or from the decree dissolving the
marriage. Accordingly, that portion of the decree relating
to maintenance for the wife and division of the marital property
are returned to the District Court for appropriate findings
and conclusions on these issues. Further testimony shall be
taken to reflect the present conditions of the parties relating
to these items, consistent with this Opinion. Counsel for the
parties are urged to proceed with all due haste in view of the
time that has elapsed since the entry of the decree of
dissolution.
Effective on the date this Opinion is filed with the
Clerk of this Court, the temporary order of the District
Court, pendente lite, dated December 15, 1975, is reinstated
to the extent that, beginning August 1, 1978, husband shall
pay wife monthly the sum of $750 for her maintenance, and the
further sum of $150 monthly for each minor child of the parties
residing with the mother, until the further order of the
District Court, or until final judgment is against entered in
the cause.
Costs to the appellant.
WE CONCUR:
c Justice
TA--a-4. g L- ? ?
L -J J
chief Justice
Justices
Mr. Justice Daniel J. Shea deems himself disqualified from
acting and did not participate I in this case.