No. 14936
IN THE SUPREME COURT OF THE STATE OF MONTANA
1980
IN RE THE MARRIAGE OF
KENNETH E. BOSACKER,
Petitioner and Respondent,
VS .
ROSEMARY A. BOSACKER,
Respondent and Appellant.
Appeal from: District Court of the Thirteenth Judicial District,
Honorable C. B. Sande, Judge presiding.
Counsel of Record:
For Appellant:
Moses, Tolliver and Wright, Billings, Montana
For Respondent:
Richter and Lerner, Billings, Montana
Submitted on briefs: January 24, 1980
Decided : I'M'?1 7 1989
Filed: MAR 1 7 I-$&
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
Rosemary A. Bosacker appeals from an order of the
District Court of Yellowstone County wherein the Court decreed
maintenance and a division of the marital property.
The parties to this action were married on October 15,
1955, in Great Falls, Montana. The marriage was dissolved by
the District Court on September 26, 1977. One child of the
marriage was then of legal age, and the custody of the other
child was awarded to the wife with support to be paid by the
husband. The issues of maintenance and division of marital
property were reserved until trial. By the time of trial, the
other child had reached majority.
Prior to the trial the parties had divided and distributed
some of the marital property. Each party had received $6,647 from
the sale of the family home. Also, each party had received
$13,626 out of the proceeds from the sale of other real property.
The wife received about $2,000 from a bank account, a 1973 Pontiac
worth $2,400, and approximately $11,000 worth of other personal
property. The District Court found that the wife had received
$35,700 and the husband had received $33,824 in assets from the
marriage. The husband was left the responsibility of paying for
$37,571 worth of joint liabilities of the marriage.
At the time of trial the District Court held $18,500 of
marital assets which had not been divided. The wife was awarded
$4,500 of this and the husband was awarded the remainder plus
interest accrued.
One of the daughters of the marriage received approximately
$45,753 as a gift from the parties prior to the dissolution of
marriage. At the trial she testified that she intended to use
much of this money to provide a down payment for a house in which
she and her mother could live.
'
The husband had worked for Greyhound Corporation fourteen
and one-half years prior to the marriage and fifteen and one-
half years during the marriage. At the time of trial he was
receiving $389 per month from a retirement fund. At the time
of trial the wife was employed by the State Liquor Store and
grossed $693.33 per month. She was also awarded $100 per month
to be paid by the husband out of his retirement money. The Dis-
trict Court found that with the above income and the wife's skills
as a bookkeeper, furniture finisher and store clerk that she
could support herself in the community. The District Court also
concluded that the property division would give over 50% of the
assets minus the liabilities to the wife.
The wife presents two issues on appeal:
(1) Did the District Court err in determining the net
worth of the parties?
(2) Were the findings of fact made by the District Court
supported by the evidence?
The husband presents the following issue:
(1) Did the District Court err in granting maintenance
to the wife?
The division of marital property pursuant to a dissolution
of marriage is controlled by section 40-4-202, MCA. This Court
has said on numerous occasions that the District Court is required
to determine the net worth of the parties at the time of the
divorce before dividing the property. Herring v. Herring (1979), I
Mont . , 602 P.2d 1006, 36 St.Rep. 2052, 2053; Grenfell v.
Grenfell (1979), Mon t . , 596 P.2d 205, 207, 36 St.Rep. 1100,
1103; Brown v. Brown (1978), Mont. , 587 P.2d 361, 365,
35 St.Rep. 1733, 1738; Vivian v. Vivian (1978), Mont . I
583 P.2d 1072, 1074, 35 St.Rep. 1359, 1361; Martinez v. Martinez
(19781, Mont. , 573 P.2d 667, 35 St.Rep. 61.
In Martinez we said:
"Before dividing the marital property between a
contesting husband and wife in a dissolution of
marriage action, based on the above considera-
tions, however, section 48-321 requires the trial
judge to consider the ' ... estate, [and] lia-
bilities .. . of each of the parties... I II
Mont. at , 573 P.2d at 669, 35 St.Rep.
at 63-64.
In the instant case the District Court did not make a
specific finding of fact as to the net worth of the marital
property. It must be noted, however, that there were findings
as to the value of assets which had been divided prior to trial,
the value of the assets divided by the District Court following
the trial and the joint liabilities of the marriage. The cumu-
lative effect of these findings is equivalent to a finding of
the net worth of the parties at the time of the divorce.
The wife next contends that there are five findings of
the District Court which are not supported by the evidence.
In considering the sufficiency of the evidence to support
a District Court's findings we are guided by the following lang-
uage :
"We will not substitute our judgment for that of
the trier of fact, but rather will only consider
whether substantial credible evidence supports
the findings and conclusions. Those findings will
not be overturned by this Court unless there is a
clear preponderance of evidence against them. We
will view the evidence in a light most favorable
to the prevailing party, recognizing that substan-
tial evidence may be weak or conflicting with other
evidence, yet still support the findings." Cameron
v. Cameron (1978), Mont. , 587 P.2d 939, 945,
35 St.Rep. 1723, 1729.
The wife contends that the finding of fact concerning the
value of the marital estate is not supported by the evidence. In
particular she disputes the value of $11,000 which pertains to
certain items of personal property of the marriage which the wife
received. The husband testified that he arrived at the $11,000
figure by adding together the prices paid for the items and de-
ducting an amount for depreciation. The wife testified that she
had several of the items appraised and that their value was "a
little over $3,000.00." The husband's testimony constitutes
sufficient evidence to support the District Court's finding
that these assets are worth $11,000. As a consequence, there
was no abuse of discretion.
The wife next contends that there was not sufficient
evidence to support the finding that the daughter, Kaye Bosacker,
intended to use the $45,753 gift to provide her mother with a
place to live. During the trial, Kaye Bosacker testified as
follows:
"Q. What do you intend to do with this $45,753.00,
Kaye? A. I would like to use it as a down payment
on a home, because my mother and I are now living
in a duplex, and I want a home badly, and it would
make us a nice down payment.
"Q. And would you let your mother live in your
house with you? A. Yes, the house would be in my
name, and then after she died then the house would
still remain mine."
Given this testimony, there was no abuse of discretion in making
the above finding.
The wife next contends that there is insufficient evidence
to support the finding concerning the total joint liabilities to
be paid by the husband. In particular the wife objects to the
inclusion of $10,000 worth of lumber used in building a house as
a liability. The husband presented a list of liabilities to the
District Court which detailed the debts of the parties. This
list of liabilities totals $37,541.74. This is the amount found
by the District Court to be the total liabilities of the parties.
The only item on this list which refers to lumber is a debt of
$773.16. There is no mention of a $10,000 liability for lumber.
The $773.16 figure is supported by a check which the husband had
written to a lumber company. Under such circumstances, there is
substantial evidence to support the finding.
The wife next contends that the District Court erred in
finding that t h e property division resulted in her receiving "over
fifty percent ( 5 0 % ) of the assets minus the liabilities." The
District Court found that the wife received approximately $35,700
prior to the trial and the husband received approximately $33,824.
In addition, there was $18,500 to be divided by the Court of
which the wife received $4,500. There were liabilities of $37,571
resulting in a net estate of $50,453. Of this the wife received
approximately $40,200. The District Court was justified in find-
ing that the wife received over 50% of the net assets.
The wife next contends that the District Court erred in
finding that the wife shall have "sufficient income . . . to
support herself." We agree with the District Court. The wife is
working and bringing home a salary. She is to receive $100 per
month from the husband. She has no minor children to support and
apparently her housing needs will be supplied by her daughter.
Given these facts it was not an abuse of discretion for the Dis-
trict Court to find that the wife will be able to support herself.
The wife next contends that the District Court abused its
discretion in awarding her only $4,500 out of the $18,500 cash
on hand. Given the manner in which the other property was divided
and the fact that the husband must pay the liabilities, the District
Court did not abuse its discretion in so dividing this money.
Finally, the husband contends that the District Court erred
in awarding the wife $100 maintenance per month. Pursuant to sec-
tion 40-4-203, MCA, such an award is well within the District Court's
discretion. We find no error in the award of maintenance to the
wife.
Affirmed .
Chief Justice
w--gL-%
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