No. 14896
IN THE SUPREME COURT OF THE STATE OF MONTANA
1980
IN RE THE MARRIAGE OF
DOROTHY McGILL,
Petitioner and Appellant,
VS .
WILLIAM WESLEY McGILL,
Respondent and Respondent.
Appeal from: District Court of the Fourth Judicial District,
In and For the County of Ravalli,
Honorable Jack L.Green, Judge presiding.
Counsel of Record:
For Appellant:
Tipp, Hoven and Skjelset, Missoula, Montana
For Respondent:
Lee A. Jordon, Missoula, Montana
Submitted on briefs: November 21, 1979
Submitted: MAR 2 7 1931)
p,'c " -
Filed: '
M r . Justice Daniel J. Shea delivered the Opinion of the Court.
The wife appeals from a property distribution decree of
the Ravalli County District Court. Although she raises issues
in relation to maintenance and an award of attorney fees, the
primary issue is whether the trial court erred in dividing the
parties' property before determining the net worth of the mari-
tal assets.
The wife commenced this action on June 30, 1978, by filing
a petition for dissolution. On December 22, 1978, the court
dissolved the parties' marriage, and reserved the petitioner's
request for an equitable property division for a later date.
After conducting a hearing on this issue, the court filed an
order dated April 11, 1979, which divided the marital assets,
made no provision for maintenance, and awarded the wife $500 for
attorney fees, The wife filed a motion for a new trial, or amend-
ment of the court's judgment. On May 23, 1979, the court filed
an order which denied the motion for a new trial and amended its
judgment. The wife appeals from the amended judgment.
The parties were married in 1948, and had four children
of the marriage, all of whom are now emancipated. At the time
of the court's judgment the wife was 53 years of age and the
husband was 56. During the last ten years, the parties have
been separated, the husband maintains a separate residence in
Seattle, Washington, while the wife resides in Stevensville,
Montana.
The husband served more than 20 years in the United States
Navy before retiring in November 1978. He now receives a mili-
tary pension of $642.44 per month. Prior to his military
service, the husband was an automobile salesman in Hamilton,
Montana. In the past few years, he has experienced several
physical problems, and intends to obtain a college education
rather than return to selling.
The wife has been employed as a secretary for the
Stevensville School District for over ten years and receives
net pay of $368 per month during the ten month school calendar.
In the summer months, the wife has performed part-time work.
During the parties' ten year separation, she has lived in the
family home at Stevensville where she raised the parties'
four children. The husband voluntarily contributed child
support until the fall of 1977.
The court's findings of fact made in connection with its
property division did not place an overall value on the
marital assets. The court estimated the value of the parties'
house to be $60,000 to $75,000, but it did not place a lump
sum value on the husband's military pension or value the
parties' personal property.
The court's judgment provided that the family home should
be sold with the net proceeds to be equally divided between
the parties. It further provided that the wife
". . . should be awarded the following items of
marital property subject to the payments by her
of the security and indebtedness therein:
"a) The household furnishings in said home;
"b) All other items located in the family home,
except those items of a personal nature
belonging to the Respondent;
"c) The 1976 Toyota;
"d) New York Life account in the amount of $1500,
of which she is the owner; and
"e) The proceeds from the promissory note given
to her by her sister, and all her checking
and savings accounts."
The husband was awarded the following property:
"a) The retirement pension;
"b) 1968 Chevrolet and 1959 Volkswagen;
"c) The $5000 New York Life policy and the
$10,000 New York Life policy;
"d) All his checking and savings accounts;
"e) All his interest in the Knoxville, Tennessee
property for which he holds the warranty deed."
The court made no provision for the maintenance of either party,
and awarded the wife $500 for attorney fees.
The wife filed a motion for a new trial or amendment of
judgment, and a brief in which she sought a share of the
husband's military pension, maintenance and a larger award
for attorney fees. She asked the court to set a value on
the husband's pension.and the family home, and to state which
items of personal property the husband could recover from the
family home. In connection with her request for maintenance,
the wife stated that there was no evidence to support the
court's finding that she could reasonably be expected to earn
$450-$500 per month.
The court order of May 23, 1979, denied the motion for a
new trial, but amended its judgment to award the wife $100
per month from the husband's pension. The court order affirmed
the prior judgment in all other respects. The wife appeals
this order.
The wife argues that the court could not make an equitable
property division without first determining the parties' net
worth. See, In Re Marriage of Metcalf (1979), - Mont . -, 598
P.2d 1140, 36 St.Rep. 1559; Grenfell v. Grenfell (1979), -
Mont. , 596 P.2d 205, 36 St.Rep. 1100; In Re Marriage of
Brown (1978), Mont . , 587 P.2d 361, 35 St.Rep. 1733;
Vivian v. Vivian (1978), - Mont . - 583 P.2d 1072, 35
,
St.Rep. 1359. In particular, she contends the court should
have placed a value on the family home, and the husband's
military pension.
We find no error concerning the disposition of the family
home. The court roughly estimated the family home's worth at
$60,000 to $75,000. This estimate was supported by evidence produced
at trial. A precise estimate of the home's value was not needed
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here, where the court ordered the net proceeds from the sale
to be equally divided between the parties.
On the other hand, the court did not evenly divide the
husband's military retirement pay. At the time of the
court's decree, the husband was receiving net retirement pay
of $642 per month. The size of the pension increases automatically
as the cost of living rises. The court concluded that the
pension which terminates upon the husband's death did not
have a precise lump sum value, but that the sum of $100 per
month from the pension, coupled with the previous award to
the wife, represented the wife's equitable share in the
marital estate.
We find that the trial court's findings of fact do not
adequately support its award of only 15% of the husband's
pension to the wife. Since the court was unable to determine
the total value of husband's pension, it apparently attempted
to equalize the incomes of parties by awarding the wife with
$100 per month from the pension. The court found that the
wife could reasonably be expected to earn $450 to $500 per
month, while the husband intended to rely solely on the
military pension for his support. Thus, the court apparently
reasoned that its award to the wife would result in net
monthly income of approximately $550 to each party.
The trial court's finding concerning the wife's earning
capacity requires clarification. The court does not state
whether the wife's prospective earnings of $450 to $500 per
month are net or gross earning. Although we have discussed
the wife's prospective earnings as if they were net monthly
earnings, the trial court does not state whether this figure
represents net or gross income. In addition, the record
does not support the conclusion that the wife can reasonably
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be expected to receive net monthly pay of $450 or more. Her
present salary with the school district provides her with a
net monthly income of $368. There was no evidence in the
record to show that she could reasonably be expected to earn
more than $368 per month in the future.
The wife also asserts error in the court's failure to
value the remaining personal property distributed by the court.
The court apparently concluded that the residue of the marital
estate was relatively unsubstantial and thus did not have to be
valued. The record does not support such a conclusion. Husband
testified that he had over $3,000 in his savings account, and
the parties had an interest in numerous insurance policies. The
trial court did not give any explanation for dividing the personal
property as it did. It is not the function of this Court to
value each item in the marital estate in order to measure the
fairness of the distribution. We conclude the court's failure
to place a value on the parties personal property prevents us
from adequately reviewing the equities here.
A further comment on the court's findings is needed here.
Reviewing the court's findings as a whole, we are unable to
determine any coherent plan for equitable distribution of the
parties' property. The court awarded the wife with 50% interest
in the parties' home, but she received only 15% of the husband's
pension. No estimate was placed on the wife's share in the
remainder of the parties' personal property. The trial courfs
failure to provide in its order any overall plan for the distri-
bution of the property makes review exceedingly difficult, if
not impossible.
The wife argues that she is entitled to maintenance. The
wife's need for maintenance can only be determined after there
has been an equitable division of property. See In Re Marriage
of Johnsrud (1977), 175 Mont. 117, 572 P.2d 902, 34 St.Rep. 1417.
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Since it is not possible to ascertain whether the property
division was equitable, we cannot determine whether the court
properly denied maintenance.
The wife also contends that she is entitled to a larger
award for attorney fees. The court found that the wife had
incurred reasonable attorney fees in the amount of $1,001.92
and that the husband having a more favorable cash standing
than the wife should be required to pay $500 of the wife's
fees. The wife argues that the court's failure to properly
apportion the parties' property indicates that it failed to
consider the financial resources of both parties before awarding
attorney fees. See section 40-4-110, MCA. Under the circumstances
of this case, we consider it best to also vacate the attorney
fee award and leave it to the discretion of the trial court as
to whether the award should be modified in view of the action
we take remanding the case for appropriate findings.
The judgment is vacated and remanded for further proceedings
consistent with this opinion.
Justice
We Concur:
Chief Justice
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