No. 14966
IN THE SUPREME COURT OF THE STATE OF MONTANA
1980
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IN RE THE MARRIAGE OF;
EVELYN VERT,
Petitioner and Appellant,
VS .
DANFORD 0 VERT,
.
Respondent and Respondent.
Appeal from: District Court of the Eighth Judicial District,
In and for the County of Cascade,
Honorable H. William Coder, Judge presiding.
Counsel of Record:
For Appellant:
Swanberg, Koby, Swanberg and Matteucci, Great Falls,
Montana
For Respondent:
Marra, Wenz, Iwen and Johnson, Great Falls, Montana
Submitted on briefs: February 27, 1980
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Filed: 4L.F
Mr. J u s t i c e D a n i e l J. Shea d e l i v e r e d t h e Opinion of t h e
Court.
The w i f e a p p e a l s from t h a t p o r t i o n o f a m a r r i a g e d i s -
s o l u t i o n d e c r e e e n t e r e d i n Cascade County D i s t r i c t C o u r t
which d i s t r i b u t e d t h e p r o p e r t y , d e n i e d h e r c l a i m f o r maintenance
and a t t o r n e y f e e s . Because t h e f i n d i n g s a r e i n s u f f i c i e n t t o
s u p p o r t t h e judgment e n t e r e d , and b e c a u s e t h e r e i s a l s o no
e v i d e n t i a r y b a s i s i n t h e r e c o r d s u f f i c i e n t upon which t o
p r e d i c a t e a f i n a l judgment, w e v a c a t e t h e judgment and
remand f o r a new h e a r i n g .
The w i f e ' s p r i m a r y c o n t e n t i o n i s t h a t t h e t r i a l c o u r t
was i n e r r o r i n d e c i d i n g t h a t t h e husband w a s e n t i t l e d t o a
f i f t y p e r c e n t s h a r e o f t h e p r o c e e d s from t h e s a l e o f t h e
f a m i l y home. I n t h i s r e s p e c t t h e w i f e a r g u e s t h a t t h e t r i a l
c o u r t f a i l e d t o p r o p e r l y c o n s i d e r and a p p l y t h e c o n t r o l l i n g
s t a t u t o r y c r i t e r i a s e t f o r t h i n s e c t i o n 40-4-202, MCA. The
w i f e a r g u e s a l s o t h a t t h e e v i d e n c e shows t h a t s h e i s p r e s e n t l y
u n a b l e t o s u p p o r t h e r s e l f and t h u s i s e n t i t l e d t o m a i n t e n a n c e ,
and f u r t h e r , t h a t s h e i s e n t i t l e d t o a t t o r n e y f e e s .
I n entering t h e decree i n t h i s case t h e t r i a l court
a d o p t e d v i r t u a l l y v e r b a t i m t h e proposed f i n d i n g s and c o n c l u s i o n s
s u b m i t t e d by c o u n s e l f o r t h e husband. With r e l a t i o n t o t h e
c o n t r o l l i n g f i n d i n g s , it d i d a d o p t v e r b a t i m t h e f i n d i n g s and
c o n c l u s i o n s s u b m i t t e d by c o u n s e l f o r t h e husband. W e have
previously set f o r t h t h e standards f o r determining t h e
s u f f i c i e n c y of t h e f i n d i n g s t o comply w i t h s e c t i o n 40-4-202,
MCA, i n t h e c a s e s of I n R e Marriage of Johnsrud (1977),
Mont . , 572 P.2d 902, 907, 34 St.Rep. 1417, 1423; and I n
R e M a r r i a g e of R e i l l y ( 1 9 7 8 ) , Mont . ,
- 577 P.2d 840,
842, 35 St.Rep. 451, 454. I t would s e r v e no u s e f u l p u r p o s e
t o a g a i n r e i t e r a t e them. S u f f i c e t o s a y t h a t measured by
t h e s e standards t h e findings here a r e woefully inadequate.
We require, pursuant to section 40-4-202, that the trial
court not simply recite the factors listed in this statute,
but rather, that the trial court apply these factors to the
evidence presented at trial and make its findings based on
this evidence and factors which it is required to consider.
It was not done here.
In determining that the family home should be sold and
the proceeds divided evenly, the trial court failed first to
consider all of the marital assets and to place a value on
them. The husband is an employee of the Montana Highway
Patrol and also of the United States Army Reserve; as such,
he is in the future, entitled to receive retirement benefits
from each. While the wife here testified that she was not
asserting a direct marital interest in these retirement
funds, the fact is that they are marital assets and must be
considered. Marriage of Cromwell (1979), 588 P.2d 1010,
1012, 36 St.Rep. 60, 63. See also In Re Marriage of Miller
(19801, - Mont . , 609 P.2d 1185, 37 St.Rep. 556, where
we held a retirement pension from the service is an asset of
the marriage and is not the sole property of the person who
performed the military duty.
Nor did the trial court properly consider the contributions
of the wife to the marital estate. The trial court found
that the wife had contributed a total of $54,000 from all
sources to the betterment of the marriage. On the other
hand, it found that the husband had contributed a total of
$142,500 from all sources to the betterment of the marriage.
There are absolutely no findings as to how the trial court
arrived at its $54,000 figure for the wife and there are
absolutely no findings as to how the trial court arrived at
its $142,500 figure for the husband. Both of them appear to
be figures pulled out of the air. They were proposed to the
trial court by counsel for the husband.
With relation to the husband, it appears that the trial
court adopted the husband's entire estimates of his own
contributions to the marriage which he had set forth in an
exhibit. There was a total lack of evidentiary support for
such exhibit. For example, the husband valued his contribution
to the marriage in the way of salary each year at $15,000
per year for eight years. The fact is that the husband's
salaries, as evidenced by the two forms admitted in relation
to certain years, was far below this. Furthermore, from
this salary the husband also paid child support for a child
from a previous marriage. It also appears that the trial
court bought the husband's estimates of the number of hours
he worked on the family home at the rate of $5 per hour
worked. But the trial court did not, however, make any
attempt to evaluate the number of hours nor place a reasonable
value of the work which the wife performed on the house and
the other duties she performed.
It is true that the husband worked throughout the
marriage and therefore was the primary source of income.
But it is also true that the wife was not exactly idle
during these married years. At the time of her marriage
here, she was 43 years old and contributed many assets to
the marriage: $16,320 representing proceeds from the sale
of her home in Broadus; $3,000 in the form of furniture and
appliances; $5,000 as the value of an automobile; $20,000
as representing proceeds from a contract for deed resulting
from the sale of her deceased former husband's business and
cash in a checking account. During the course of the marriage,
the wife repossessed the business and then sold it for
$8,500, and the installment payments plus interest amount to
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$12,000, all of which was contributed to the marriage. The
husband, on the other hand, brought into the marriage only a
few personal possessions and $4,000 in debts. The wife was
not idle at home: she performed substantial labor in remodeling
and improving the family home by erecting a chain link
fence, pouring concrete, and painting and hanging wallpaper;
she performed household chores and maintenance by mowing the
lawn and shoveling snow; she sewed clothes and curtains, and
knitted and sold sweaters; she raised a garden, canned,
traded produce for beef, and sold produce and seedlings; she
raised, killed and processed chickens and turkeys; and,
she assisted in raising her husband's children by a previous
marriage.
Although the trial court had no trouble in evaluating
the husband's contributions, we have no idea of how or why
the trial court arrived at the figure in concluding that the
wife had contributed a total of $54,000 to the betterment of
the marriage. Surely if the court could arrive at a figure
for the husband, it could arrive at a figure for the wife.
Because a new hearing must be held in relation to the
disposition of the marital assets not disposed of by agreement,
it is premature to decide the issue of maintenance. The
same is true concerning the issue of attorney fees. The
trial court can only be in a position to properly decide
these issues after it has arrived at an equitable property
division in compliance with section 40-4-202, MCA, and the
cases setting forth the method of compliance.
The judgment apportioning the marital assets is vacated
and returned for a new hearing. The trial court is instructed
to obtain a proper evidentiary basis for whatever judgment
it reaches and to enter proper findings and conclusions.
We Concur:
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C h i e f Justice
Mr. C h i e f J u s t i c e Frank I . Haswell, specially concurring:
I c o n c u r i n t h e r e s u l t on t h e g r o u n d s t h a t t h e f i n d -
i n g s a r e n o t s u p p o r t e d by t h e evidence and t h a t t h e f i n d i n g s
a r e i n s u f f i c i e n t t o support t h e judgment.
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Chief Justice