No. 14391
IN THE SUPREME Cw>UHT OF THE STATE OF PKB?I'ANA
1979
IN RE THE MAFWAGE OF
.
RICHARD F SCHULTZ,
Petitioner and Respondent,
and
cAFuA JEAN SCHULTZ,
Respondent and Appellant.
Appeal fran: District Court of the Eleventh Judicial District,
Honorable R o b e r t Sykes, Judge presiding.
Counsel of Record:
For Appellant:
Hash, Jellison, O'Brien and Bartlett, Kalispell, mntana
M Dean Jellison argued, Kalispell, mntana
.
For Respondent:
Hoyt and Lewis, Great Falls, mntana
Tam L Lewis argued, Great Falls, mntana
.
Submitted: March 23, 1979
Mided: JUC 3 Q 1979
Filed: JUL 3 3 1979
Mr. Justice Daniel J. Shea delivered the Opinion of the Court.
The wife in a dissolution of marriage proceeding appeals
from the amended judgment of the Flathead County District Court
and challenges the property distribution and maintenance pro-
visions of the decree.
The parties were first married in June 1967. They were
divorced about a year and a half later, but remarried in
December 1969. The present proceeding for dissolution of
marriage was commenced in July 1977.
At the date of dissolution, the husband was 46 years old
and employed as a railroad brakeman-conductor, earning about
$1,350 per month. The wife was 37 years old and unemployed,
although she has worked as a bartender and waitress.
Both parties had former marriages. The wife had been
married three times before. She brought three minor children
into her marriages with the husband. Although she was entitled
to child support for one of her three minor children, she never
received any. The husband had been married once before, and
he entered his marriages with the wife with a single child support
obligation from his former marriage. No children were born of
the marriages between the parties.
The primary asset of the marital estate was a twenty-acre
tract of land, known as the Haskill Creek property, located east
of Whitefish, Montana, in Flathead County. A small log house
on this land served as the marital home of the parties and the
wife's children. The husband originally contracted to purchase
the real property for $11,000 before his marriages to the wife,
and approximately $5,000 of the purchase price was paid by the
husband during his marriages to the wife. At dissolution, the
court gave the Haskill Creek property a current value of $40,000.
The remainder of marital assets consisted of miscellaneous personal
property which the court valued at $7,170. The court found
that the allowable marital debts amounted to $4,280.
On July 28, 1977, the husband commenced this action for
dissolution of marriage. As trial approached, there appeared
to be no dispute as to the terms of dissolution except for the
wife's demand for a half interest in the Haskill Creek property,
for maintenance in the amount of $500 per month, and for attorney
fees.
Trial was held without a jury on December 22, 1977 and
February 16, 1978. Most of the testimony dealt with valuation
of the marital assets and the nature of the parties' relation-
ship during marriage. One of the court's findings of fact
summarized the situation as follows:
"Considerable strife, turmoil and controversy
occurred throughout the two marriages of the
parties. Drinking on the part of both parties
has contributed to the problem. The respondent
[wife] left the family home with the children
on several occasions; and the separation of the
parties dissipated the assets and monies accumulated
during the course of the marriage on the part
of both parties."
On March 23, 1978, the court awarded the Haskill Creek
property to the husband and ordered that the wife be paid
$6,000 as her interest therein. The husband was to assume
all the marital debts (except $500 owed on the wife's organ)
including the balance due on the Haskill Creek property. In
disposing of the personal property, the court apparently
attempted to award the items requested by each party and, in
order to equalize the difference in values, required the husband
to pay $235 to the wife. The court made no provision for
maintenance.
On April 3, 1978, the wife moved to amend the decree.
She sought provisions for the requested maintenance and an
increase of her interest in the Haskill Creek property from
$6,000 to $17,000. After a telephone conference with the
parties' attorneys, the court amended its findings and
conclusions with provisions to the effect that the husband
contributed approximately $20,100 toward support of the wife's
children during the marriage and that he was entitled to
consideration of this in the distribution of marital property.
The court also declared that the wife's "request for support
is denied."
The wife appeals and presents the following issues for
our review:
1. Whether, in distribution of the marital estate, the
District Court erred by considering the husband's contribution
toward support of the wife's children by a former marriage.
2. Whether the District Court erred in making no finding
of fact relative to the wife's entitlement to maintenance.
3. Whether the District Court erred by failing to dispose
of the parties' personal property.
The wife contends that the court erred by considering the
husband's contribution toward support of her minor children
in distribution of the marital property. The husband argues
that since he had no legal duty to support his stepchildren
under section 61-117, R.C.M. 1947, now section 40-6-217 MCA,
the court's consideration of support contributions was proper.
The statute upon which the husband relies states that a
stepparent is not legally bound to support his stepchildren,
"but- - receives ---
- if he them into his family and supports them
- - presumed - -he does so as a parent.
it is that - - - - . ." Section 61-
117, R.C.M. 1947, now section 40-6-217 MCA (emphasis added).
The evidence was undisputed that the husband voluntarily under-
took to support his stepchildren, and it follows therefore, that he
did so as a parent. Section 61-116, R.C.M. 1947, now section
40-6-216 MCA, provides that, "[a] parent is not bound to compensate
the other parent ... for the voluntary support of his child,
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without an agreement for compensation . . ." No such agreement
was made in this case. We conclude that the District Court
erred in considering the husband's support of his stepchildren
in disposition of the marital estate.
The wife next challenges the court's failure to make
findings of fact regarding her request for maintenance. The
court merely made the conclusion of law that the wife's "request
for support is denied." The husband contends that under
section 48-322 (I), R.C.M. 1947, now section 40-4-203 (1) MCA,
the court could only award maintenance if it found that the
wife lacked sufficient property to support herself - that
and
she was unable to support herself through appropriate employment.
He argues that since the court did not make such findings,
denial of maintenance was proper. The argument does not
respond to the issue. The mere fact that an affirmative showing
must be made as a precondition to the award, does not dispose
of the District Court's duty under Rule 52(a), Mont.R.Civ.P.,
to make findings of fact on contested issues.
In Barron v. Barron (1978), Mont . , 580 P.2d
936, 938, 35 St.Rep. 891, 894, this Court stated:
". . . the
findings of fact required by Rule 52(a)
is nothing more than a recordation of the essential
and determining facts upon which the District Court
rested its conclusions of law and without which the
District Court's judgment would lack support. There
are several reasons why it is important this record-
ation be made. The purpose of requiring findings of
fact is three-fold: 1) as an aid in the trial judge's
process of adjudication; 2) for purposes of res
judicata and estoppel by judgment; and 3) as an aid
to the appellate court on review. 5A Moore's Federal
Practice Sec. 52.06 [l] " .
Similarly, in Dahl v. Dahl (1978), Mont . , 577 P.2d
1230, 1232, 35 St.Rep. 536, 539, this Court remanded for the
District Court's failure to enter findings on requested attorney
fees. Attorney fees, like maintenance, require an affirmative
showing as a condition precedent to their award. See, section
48-327, R.C.M. 1947, now section 40-4-110 MCA; Allen v. Allen
(19781, - Mont . , 575 P.2d 74, 76, 35 St.Rep. 246, 249.
Review of the court's findings, conclusions and decree
in this case disclose no facts relating to the cited pre-
conditions contained in section 48-322(1), R.C.M. 1947, now
section 40-4-203(1) MCA. The flat assertion that "support is
denied" was inadequate to dispose of this contested issue.
Finally, the wife asserts that the District Court failed
to dispose of the parties personal property. The court findings
on disposition of the personal property are confusing. In one
finding, the court listed various household goods and other
personal property which were acquired during the marriage and
declared that the parties had an equal interest therein. The
aggregate value of these items was $3,820. In the same finding,
by separate paragraph, certain other personal property acquired
during marriage was set aside for the wife. The total value
of these items was $3,350. The next finding of fact stated that
the husband owes the wife $235, "as the difference in values for
the property held by each party."
The husband suggests that the court intended to give
each party exactly one-half of the personal property acquired
during marriage; so that the wife's $3,350 worth of personal
property, plus $235, would equal one-half of $7,170 ( $ 3 , . 3 5 0
+ $3,820). While conceivable, the court's statement
that the parties had an equal interest in the $3,820 worth
of personal property, leaves us unconvinced. On remand, the
District Court should be more explicit in its distribution of
the parties' personal property.
The cause is reversed and remanded with instructions that
the District Court distribute the marital estate without
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consideration of the husband's contributions toward support
of the wife's children. The District Court is further directed
to make specific findings of fact concerning the wife's entitle-
ment to maintenance and to clarify its distribution of the
parties' personal property.
We Concur:
-.
-1
Chief Justice
,J' Justices
Mr. Justice John C. Harrison dissenting:
I dissent. I would sustain the trial court's findings,
allow the wife an additional $235.00, and terminate the
matter without further p