No. 80-39
I N THE SUPREME COURT O THE STATE O MONTANA
F F
1980
JAMES EBERT,
P e t i t i o n e r and R e s p o n d e n t ,
-vs-
ETHEL EBERT,
Respondent and A p p e l l a n t .
.1 from: D i s t r i c t Court of t h e Eighth J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f C a s c a d e , The H o n o r a b l e
H. W i l l i a m C o d e r , J u d g e p r e s i d i n g .
Counsel o f Record:
For Appellant:
Marra, Wenz, I w e n ~ J o h n s o n& H o p k i n s , G r e a t F a l l s ,
Montana
F o r Respondent :
David V. G l i k o , G r e a t F a l l s , Montana
S u b m i t t e d on B r i e f s : July 7, 1980
Decided : 8FP :17 ~180
Filed: S E , i !~J[I
Mr. Justice Daniel J. Shea delivered the Opinion of the Court.
Ethel Ebert appeals from that portion of a marriage
dissolution decree entered in Cascade County District Court,
affecting the property distribution, child support, and
denying her request for moving expenses and attorney fees.
Her primary contention with relation to property distri-
bution is that the trial court erroneously ruled that a
military pension is not marital property. After the entry
of the trial court order, we held in In Re Marriage of
,
Miller (1980), - Mont. - 609 P.2d 1185, 37 St.Rep. 556,
that a military pension is marital property to be considered
as part of the marital estate. This decision was rendered
before the parties filed their briefs on appeal. Unfortunately,
they did not recognize that Miller must, of necessity,
require a remand so that the issue of the military pension
can be determined again. The parties should have petitioned
this Court to dismiss the appeal without prejudice so that
the issue could again be redetermined by the trial court.
What the trial court may determine in relation to the
military pension will undoubtedly have an effect on the
remaining issues. The wife contends that the trial court
erred in allowing child support in the amount of $100 per
month for each child and in not requiring the husband to pay
the medical expenses of the children which exceed the coverage
of his military medical insurance. How the trial court
treats the military pension may affect the child support
issue. Without question, the amount of child support which
the husband can pay will depend on how the trial court
treats the military pension. While the issue of medical
coverage may not depend on the handling of the military
pension, we will not tie the trial court's hands where the
property division must be redone.
-2-
The same is true of the wife's claim that she should
have been granted maintenance in the amount of $150 per
month for two years to enable her to receive training as a
licensed practical nurse. Whether she is entitled to main-
tenance may depend, at least in part, upon how the trial
court treats the military pension.
The wife also requested that the trial court compel the
husband to pay her $1,200 for moving expenses so that she
can move back to Missouri. Again, whether she should receive
this payment may well depend on how the trial court treats
the military pension.
We will not purport to fashion a formula for consideration
and disposing of the military pension as a marital asset
where the trial court has not done so. The situation here
is undoubtedly complicated, in that the husband has not yet
retired (at least as far as we know), although he is eligible
now to do so. If he chooses not to retire presently, he
obviously will not be getting any pension benefits. This
problem has arisen in other states, and has been handled in
the context of varying fact situations. See, for example,
Shill v. Shill (1979), 100 Idaho 433, 599 P.2d 1004; In Re
Marriage of Jacobs (1978), 20 Wash.App. 272, 579 P.2d 1023;
In Re Marriage of Brown (1976), 126 Cal.Rptr. 633, 544 P.2d
561; Cearley v. Cearley (Tex. 1976), 544 S.W.2d 661. These
cases may be helpful in reaching an equitable solution in this
case.
We note that the trial court failed to rule on the
wife's request that she be given $1,200 for moving expenses.
It is, of course, possible that in light of a new property
division, the wife will not make this request. But if she
does, the trial court is directed to rule on her request. A
failure to rule on it only makes needless work for us because
-3-
w e would be compelled t o remand a g a i n f o r a d e t e r m i n a t i o n .
W e a l s o n o t e , however, t h a t the wife d i d not again ask t h e
c o u r t t o r u l e on h e r r e q u e s t a f t e r it had f a i l e d t o do s o .
She s h o u l d have done t h i s . See Rule 52, M.R.Civ.P.
The f i n a l i s s u e r a i s e d by t h e w i f e i s h e r c l a i m t h a t
t h e t r i a l c o u r t s h o u l d have o r d e r e d t h e husband t o pay h e r
attorney fees. Although t h e t r i a l c o u r t d e t e r m i n e d t h a t t h e
w i f e had s u f f i c i e n t a s s e t s t o pay them h e r s e l f , t h e s e f i n d i n g s
w e r e n o t based on t h e a c t u a l f i n a n c i a l c o n d i t i o n of t h e
wife. W e w i l l not reach t h e attorney f e e i s s u e here i n l i g h t
o f o u r d e c i s i o n t h a t t h e p r o p e r t y must be r e d i s t r i b u t e d t o
r e f l e c t t h e m i l i t a r y pension a s an asset, b u t t h e t r i a l
c o u r t i s i n s t r u c t e d t h a t i f t h e i s s u e arises a g a i n , it must
s e t f o r t h t h e r e q u i r e d f i n d i n g s and c o n c l u s i o n s a s t o why
t h e y w e r e o r w e r e n o t awarded. Kronovich v. Kronovich
(19781, - Mont. , 588 P.2d 5 1 0 , 514, 35 St.Rep. 1946,
1952.
The judgment i s v a c a t e d w i t h e x c e p t i o n t o t h e d e c r e e
g r a n t i n g d i s s o l u t i o n , and t h i s c a s e i s remanded t o t h e t r i a l
-
W e Concur:
Justices