No. 13516
IN THE SUPREME COURT OF THE STATE OF MONTANA
1978
BEVERLY KING DAHL,
Plaintiff and Appellant,
-vs-
ROGER A. DAHL,
Defendant and Respondent.
Appeal from: District Court of the Eighth Judicial District,
Honorable R. D. McPhillips, Judge presiding.
Counsel of Record:
For Appellant:
Dola N. Wilson, Jr. argued, Great Falls, Montana
For Respondent:
John M. McCarvel argued, Great Falls, Montana
Submitted: January 27,1978
Submitted: L,! ,
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
This is an appeal by plaintiff Beverly King Dahl from
a decree adjudicating property rights, child custody and support,
and attorney fees following a divorce in the District Court,
Cascade County.
Beverly King Dahl (wife) and Roger A. Dahl (husband) were
married on September 16, 1956 in Great Falls, Montana. Five
children were born as issue of the marriage whose ages at the
time of the decree herein appealed were: Lita, aye 18 and
emancipated; Ronald, age 16; Denise, age 14; Michelle, age 12;
and Jason,age 6.
The wife filed a divorce complaint on March 13, 1974. A
decree of divorce was granted on November 8, 1974. The divorce
decree contained no provisions for child custody, support, adjud-
ication of property rights, or attorney fees. This decree of
divorce is not contested in this appeal.
At the time of the divorce, the principal marital property
of the parties was a business known as Dahl's Wrecker Service
(land, buildings, vehicles, equipment and miscellaneous personal
property) and a residence (land, building, furnishings, household
appliances and miscellaneous personal property). During the
course of proceedings two Cadillac automobiles became involved.
The assets of the business, the residence, and the Cadillacs
were substantially encumbered.
Following the divorce decree, pretrial discovery was in-
stituted, numerous hearings were held, and various proceedings
transpired with reference to child custody, support, property
rights and attorney fees, some of which occurred in the concil-
iation court and some in the District Court. These proceedings
culminated in the entry in District Court of findings of fact,
conclusions of law and a decree dated July 1, 1976.
this decree the wife was awarded custody of the four
minor children subject to specified custody and visitation rights
of the husband. The wife was awarded $100 per month per child,
plus medical expenses as child support. Each party was ordered
to pay his or her own attorney fees.
The wife was awarded a 1974 Cadillac free and clear of
liens and encumbrances. She was awarded the residence and re-
quired to pay the monthly mortgage payments and taxes subject to
two conditions: (1) that her father (to whom she had deeded her
half interest in the Dahl Wrecker Service garage during the pen-
dency of proceedings) deed to her husband this half interest,
(2) that she and the children live in the residence. The decree
provided that in the event she and the children failed to reside
in the residence, it would be sold and the net proceeds divided
equally between husband and wife. She was also awarded the house-
hold furniture, furnishings, utensils and appliances.
The husband was awarded a 1975 Cadillac and required to
assume the indebtedness against it. He was also awarded all the
personal property (trucks, tools, etc.) used in connection with
Dahl's Wrecker Service and a half interest in the garage building
and was required to assume all indebtedness against it. The
decree provided that the husband receive a one-half interest in
the residence which he was required to deed back to the wife
when her father deeded to him the half interest in the Dahl Wrecker
Service garage, which her father had acquired during the pendency
of the action.
Each party was granted the right to make payments due on
real estate received by the other to prevent foreclosure and was
to receive credit thereon.
The wife has appealed from this decree. The issues for
review in this appeal can be stated in terms of whether the
District Court erred in the following respects:
(1) In cancelling past unpaid child support payments.
(2) In failing to compel discovery.
(3) In refusing to award the wife reasonable attorney
fees.
(4) In failing to find the husband in contempt of court.
(5) In its property division.
On April 25, 1974, the District Court ozdered the husband
to pay $500 per month child support commencing on that date.
Although the testimony and evidence discloses a dispute concern-
ing the amount of the delinquency, there is little question that
some amount is due, owing and unpaid. The District Court recog-
nized this in its finding of fact VII:
"Prior to the September, 1975 hearing defendant
had been paying child support and there is a
dispute just how much he may be delinquent.
Plaintiff failed to prove by a preponderance of
the evidence how much might be delinquent. Since
the divorce plaintiff has had the sole and ex-
clusive use of the house jointly owned by the
parties and the sole use thereof offsets any
delinquent child support payments."
This finding is error. A divorce decree cannot be mod-
ified to cancel past due and unpaid child support. Section 48-
330(1), R.C.M. 1947; Porter v. Porter, (1970), 155 Mont. 451, 473
P.2d 538; Kelly v. Kelly, (1945), 117 Mont. 239, 157 P.2d 780.
The April 25, 1974 order awarded both $500 per month child support
- exclusive use of the residence to the wife and children.
and Thus
there is no basis for offsetting the use of the residence against
delinquent support payments. Since the payment records of the
clerk of court and attorney's checks clearly labelled as child
support are set out as appendices to the briefs, it should not
be difficult to determine the amount of the delinquency after
their introduction in evidence and proper hearing. We set aside
finding of fact VII and remand for a new trial on this issue.
Next, the wife argues that error was committed by the
trial court in refusing to compel discovery. Although it is
somewhat difficult to follow the wife's argument here, apparently
it is based on the husband's failure to produce certain records
in response to a subpoena duces tecum at a hearing on January
15, 1975. Although the husband did not produce the records at
that time on advice of counsel, no further action to compel their
production was taken by counsel for the wife. Under such circum-
stances, the alleged error is waived.
The next issue for review is the refusal of the District
Court to award the wife a reasonable attorney's fee for the services
of her attorney. There is no indication in the findings, conclu-
sions or decree why attorney fees were not awarded. We remand
for a finding in this regard.
We find no error in the District Court's refusal to hold
the husband in contempt of court. We simply find no basis in the
record for holding him in contempt.
The final issue for review is the principal battleground
in this appeal. It is impossible to determine from the record
before us whether a just and equitable division of the marital
property was made or not. The basic difficulty is simply that
there is no competent evidence of value of one of the principal
items of marital property, i.e., DahlvsWrecking Service and
property used in connection therewith.
The District Court in its findings rejected the appraisal
of the business by the wife's appraiser as beyond the area of his
expertise. The District Court relied instead on an accountant's
appraisal which it found "not necessarily correct as of the date
hereof" in regard to personal property used in the business. Al-
though the stipulation of counsel for both parties and the ~istrict
Court's order of September 26, 1974 required that specified
financial records of the parties be turned over to a certified
accountant approved by the court who was required to prepare
certified financial statements, this was never done. The accounts
were not audited and only assets and liabilities submitted to
him were covered by the report. The financial statement was not
certified. Valuations contained therein were prepared on the
basis of the parties' 1973 Federal income tax returns and from
information supplied for purchases and sales of assets in the
eight months ending August 31, 1974. The accountant's statement
was dated October 31, 1974 while the District Court's findings,
conclusions and decree were entered July 1, 1976. The whole
document was prepared for the husband on the basis of information
furnished by him.
Under such circumstances we vacate the District Court's
property division and remand for a new trial for lack of competent
evidence supporting the same.
This cause is remanded to the District Court for further
proceedings consistent with this opinion.
Chief Justice
We concur:
Justices fl
Mr. Justice John C. Sheehy did not participate in this case.