No. 14302
IN THE SUPREME COURT OF THE STATE OF MONTANA
1979
IN RE THE MARRIAGE OF
JOY V. KAASA,
Petitioner and Respondent,
and
OSBORNE A. KAASA,
Respondent and Appellant.
Appeal from: District Court of the Seventeenth Judicial District,
Honorable Leonard Langen, Judge presiding.
Counsel of Record:
For Appellant:
McKeon and McKeon, Malta, Montana
John C. McKeon argued, Malta, Montana
For Respondent :
Burns, Solem & MacKenzie, Chinook, Montana
William M. Solem argued, Chinook, Montana
Submitted: February 7, 1979
Decided FR 7 -
A 1979
Filed: MAR 7 - I C J ~
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Joy and Osborne (Ozzie) Kaasa were married August 17,
1963. It was the second marriage for both parties. Ozzie's
first wife died in 1962, and the two children of the marriage
died in 1971. Joy's first marriage ended in divorce, and
she had custody of the two children of that marriage until
they reached majority, which occurred in 1971 and 1972.
Shortly after the parties were married, they moved into
a "primitive", four room house in Dodson, Montana, where
they resided for five years. A son, Merle, was born in
1965. In 1968, the Kaasas moved into the family home of
Ozzie's deceased wife, located one mile from Dodson.
Ozzie has spent most of his life engaged in farming and
ranching. Joy has a high school education, but lacks vocational
training. Shortly after Merle was born, Joy began working
as a bartender. She held this job for six and one-half
years, working full time three of those years. Joy has also
worked as a waitress and filling station attendant. At the
time of trial, Joy was employed selling cosmetics.
Ozzie's assets at the time of his marriage to Joy
consisted of some town lots, approximately 100 head of
cattle, 100 acres of irrigated land, and the Kaasa home
place consisting of approximately 260 acres of farmland.
Shortly thereafter, Ozzie sold the Kaasa farm and purchased
another farm consisting of 640 acres. In 1971, Ozzie
inherited a one-third share and purchased the remaining two-
thirds share of 1,500 acres of land he had been leasing from
his deceased wife's family. At the time of divorce, Ozzie's
net worth was $440,244.88.
In 1976, Joy inherited approximately $10,000.00, of
which $7,000.00 was used to improve the family home. She
received an additional $3,900.00 in September 1977. This
money was used by Joy for living expenses from September
1977 until April 1978 and to make a trip to Spokane to visit
her mother's grave.
Joy filed a petition for dissolution of marriage in
District Court, Phillips County, on November 5, 1976. She
alleged that the marriage was irretrievably broken without
reasonable prospect of reconciliation. A trial was held
September 21, 1977, with the Honorable Leonard H. Langen
presiding. The court's findings of fact, conclusions of
law, judgment and decree were entered February 28, 1978.
Based on an in-chambers interview with Merle, the court
determined that custody should rotate between the parents,
and the findings contain a monthly formula to this effect.
The formula was devised because of Merle's desire to work on
his father's farm. Ozzie was ordered to pay $75.00 per
month for child support during the months Merle resided with
Joy.
The District Court determined that the farm was a
working unit which would materially depreciate if it was
divided. In order to accomplish its finding that Joy was
entitled to one-fourth of the marital estate, or $99,138.00,
the court ordered Ozzie to convey the family home to Joy
(worth $18,000.00) , pay her $10,000.00 within 60 days of the
decree, transfer a 1974 Ford pickup to her (worth $3,482.00),
and pay Joy the balance of $67,656.00 over a period of 25
years. In addition, Joy was awarded attorney fees of $1,000.00.
Ozzie filed a notice of appeal on March 30, 1978.
Shortly thereafter, Joy requested that the District Court
order Ozzie to show cause why he should not be required to
pay temporary maintenance, support and attorney fees. The
District Court, following a hearing on the matter, ruled
that it had lost jurisdiction of the case when the notice of
appeal was filed, and refused to enter the order. However,
the court did recommend that Joy file an application with
this Court for a writ of supervisory control. Joy followed
the court's recommendation and on July 20, 1978, this Court
held in State of Montana ex rel. Joy V. Kaasa v. District
Court (1978), Mont . , 582 P.2d 772, 35 St.Rep.
1045, "that a District Court has power to award necessary
maintenance, child su~portand suit monies after judgment in
a marital diss~lutioncase, where an appeal is taken from
the judgment, during the pendency of the appeal." The
District Court entered an order on July 24, 1978, awarding
Joy temporary maintenance, child support and attorney fees
of $1,500.00.
During the hearing on the order to show cause, the
parties' son, Merle, asked to have a word with the court in
chambers. Merle told the court that he did not want to live
with his father while a certain woman was also living in the
house. The District Court amended its findings of fact in
response to "the special requests" of Merle and ordered that
custody would rotate between the parents at Merle's choosing.
Ozzie's appeal, which concerns both the decree of
dissolution and the temporary order, raises the following
issues:
1. Did the District Court abuse its discretion in
making the property division and distribution?
2. Cid the District Court abuse its discretion in
determining custcdy of the minor child?
3. Did the District Court abuse its discretion by
requiring Ozzie to pay Joy's attorney fees?
Our scope of review in appeals claiming abuse of a
trial court's discretion is set forth in Porter v. Porter
(1970), 155 Mont. 451, 457, 473 P.2d 538:
". . . [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 sub-
stantial injustice."
Concerning property divisions specifically, this Court
has said, "it is well settled that a district court has a
far reaching discretion in resolving property divisions and
its judgment will not be altered unless a clear abuse of
discretion is shown." Eschenburg v. Eschenburg (19761,
Mont . , 557 P.2d 1014, 33 St.Rep. 1198.
Ozzie contends that Joy's contribution to the marriage
does not justify the court's division of property. He
argues that Joy did not have a farming and ranching background,
and that it was his labor and financing that increased the
value of the property.
Recently, in In Re The Marriage of Brown (1978),
Mont . , 587 P.2d 361, 35 St.Rep. 1733, we said that
the wife acquired a vested interest in the ranch property,
regardless of its source and title. She did so by virtue of
her fourteen years as mother, housewife and part-time
ranchhand. In Biegalke v. Biegalke (1977), Mont.
, 564 P.2d 987, 34 St.Rep. 401, an award to the wife of
26% of the value cf the marital estate was upheld in a case
involving a farming and ranching family. Responding to a
contention identical to Ozzie's, Mr. Justice Daly wrote:
". ..The statement that she took
no active part in the farming as such,
is nct correct. This kind of selective
treatment of the record disregards the
testimony of defendant, which is credible
and was nct refuted, about doing a man's
w~rk and wearing out her wedding band
chopping wood, turning bales in the
field, chasing cattle on foot and most
important the assistance rendered while
plaintiff was periodically disabled for
periods of several months at a time with
a chronic disease. The reason she could
not spend more time in the fields seems to
be due in part to the fact plaintiff
blessed her with something like 6 children
in 8 years, the care of them somewhat limiting
the time a woman could spend out-of-doors."
Biegalke, supra at 990.
Finally, the Eschenburg case, although not involving a
farming and ranching couple, is applicable here. The
District Court equated the wife's contributions as homemaker
and mother with the husband's as breadwinner in dividing the
property and noted that while the contributions of the wife
differed in kind, they were of equal weight to the financial
contributions of the husband. Noting that each case depended
upon its own facts and circumstances, we affirmed the
District Court's distribution of property to a wife who had
been married thirty-two years, raised four children, managed
the household and volunteered her services to activities
related to her husband's career.
In Joy's case, the record shows she made substantial
contributions d~ringtwelve years of marriage to Ozzie.
Joy "performed the household chores of cooking, housekeeping
and looking after all of the children including husband's
two children by his first wife." She was employed during a
major portion of the marriage and her income was used to
purchase groceries and clothing. Joy also performed chores
when asked by Ozzie. For example, she helped move cattle
out to pasture, hauled cattle by trucks, helped with branding,
cooked for the crews, raised chickens and was responsible
for the family garden. We find that sufficient evidence
exists in the record upon which the District Court could
reasonably have relied to make the property division.
Ozzie contends the District Court improperly considered
a financial statement, dated May 27, 1975, to determine the
value of his farmland, rather than using a balance sheet
prepared for the divorce proceedings by his accountant. It
is true that the court must consider the current value of
all property acquired during the course of the marriage,
Kruse v. Kruse (1978), Mont. , 586 P.2d 294, 35
St-Rep. 1502, as Ozzie argues. However, that is precisely
what the District Court did here. Finding that the land
values in the financial statement (which had been used in an
application for credit) were inflated and that values given
the land in the balance sheet (which had been prepared
especially for the divorce proceedings) were low, the
District Court averaged the figures to arrive at the present
value of the land. We find that this procedure was not
unreasonable under the circumstances.
Ozzie's contention that the District Court failed to
consider Joy's inheritance is without merit. Finding of
fact XV states:
-7-
"Wife inherited $10,000.00 from her
mother and expects to receive an additional
$4,000.00 from her mother's estate. Wife
has invested approximately $7,000.00 of
this sum in making improvements in the house
situated on the Eroux property. Wife holds
no real or personal property in her own
name. "
The District Court complied with section 48-321(1),
R.C.M. 1947, now section 40-4-202- MCA, by considering
the inheritance in making the property division.
Turning to the issue of Merle's custody, the rule
set forth in In Re Marriage of Kramer (1978), Mont .
, 580 P.2d 439, 35 St.Rep. 700, is controlling:
"We are committed to the view that the
welfare of the children is the paramount
consideration in awarding custody.
Lee v. Gebhardt, (1977), Mon t. I
567 P.2d 466, 34 St. Rep. 810; Schiele
v. Sager, (1977), Mont . , 571
P.2d 1142, 34 St. Rep. 1358. We believe
the welfare of the children, particularly
children of the ages involved here [ll, 13, and
151, is not being served if their wishes are
not considered by the trial court. Therefore,
we hold the court should make a specific
finding, stating the wishes of the children
as to their custodian, and, if the court
determines that the children's wishes are
not to be followed, the court should state
in its findings the reason it has chosen
not to follow their wishes."
It is true, as Ozzie contends, that the District
Court did not make a specific finding in the decree
concerning Merle's wishes. However, on April 20, 1978,
the court amended its finding on Merle's custody, and
at that time stated Merle's wishes, thereby satisfying
the requirement set forth in Kramer. The District Court's
amended finding is controlling.
Finally, Ozzie challenges the award of attorney
fees to Joy in the decree of dissolution and the temporary
order.
The Uniform Marriage and Divorce Act, at section
48-327, R.C.M. 1947, now section 40-4-110 MCA, provides:
"Costs--Attorney's fees. The court from
time to time after considering the financial
resources of both parties may order a party
to pay a reasonable amount for the
cost to the other party of maintaining
or defending any proceeding under this
act and for attorney's fees, including
sums for legal services rendered and costs
incurred prior to the commencement of the
proceeding or after entry of judgment.
The court may order that the amount be paid
directly to the attorney, who may enforce
the order in his name."
Traditionally, a showing of necessity has been a
condition precedent to the exercise of the court's
discretion to award attorney fees. Whitman v. Whitman
(1974), 164 Mont. 124, 519 P.2d 966. But the lower
court's discretion in the matter will not be disturbed
if substantial evidence is found in the record to
support the award. Brown, 587 P.2d at 367.
Joy testified that she had approximately $12.00
in her bank account at the time of trial. She was
working as a cosmetic products saleslady with an
income of $100.00 to $125.00 per month. Of the
inheritance, $7,000.00 had been used previously to make
improvements on the house and the remainder had been used
for subsistence prior to trial. The $3,900.00 Joy received
after trial was used fur living expenses until temporary
maintenance was provided.
Ozzie did not pay all of Joy's attorney fees. After
considering the financial resources of both parties, the
court decided that Ozzie should "contribute" $1,000.00 and
subsequently $1,500.00 toward the payment of Joy's attorney
fees. We find that necessity was shcwn and that the District
Court did not abuse its discretion by requiring Ozzie to
assist Joy in the payment of her attorney fees.
Affirmed.
Justice
We Concur:
Chief Justice