No. 82-113
IN THE SUPREJTE COURT OF TEE STATE OF PTONTP-NA
1982
IN RE THE -MARRIAGE OF:
LOUIE ARTHUR GAUTHIER,
Petitioner and Respondent,
and
MARY E. H. GAUTHIER,
Respondent and Appellant.
Appeal from: District Court of the Fourth Judicial District,
In and for the County of Missoula
Honorable Jack Green, Judge presidina.
Counsel of Record:
For Appellant:
Ferguson & Mitchell, Missoula, Montana
For Respondent:
Datsopoulos, MacDonald & Lind, Missoula, Montana
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Submitted on briefs: September 23, 1982
Decided: December 2, 1982
Filed:
p f- TP
Lb - 2 1982
v
, -Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
This is an appeal by Mary E. H. Gauthier (wife) from a
decree of dissolution issued by the Fourth Judicial District,
Missoula County, dissolving the marriage of the parties and
dividing their property.
The parties were married on May 6, 1967 and were granted
a dissolution on December 31, 1951, after 14 years of marriage.
It was the second marriage for each party. The wife's
first marriage ended in the death of her husband and the
husband's first marriage ended in dissolution. Each party
had five children at the date of their marriage but no
children were born of this marriage.
At the time of the dissolution the wife was 51 years
old. She had been a wife and homemaker. Before the marriage
she owned a 240 acre ranch in Lake County, Montana. During
the marriage, it was sold in two separate parcels. Parcel A
was sold in 1970 for $16,000 of which $14,000 went toward a
downpayment on the couple's new home and $2,000 to the
underlying contract on parcel B. Parcel B was sold in 1973
for $100,000, $10,000 lump sum payments were made from 1973
to 1976 the balance at $4,000, plus interest annually until
1993. Approximately $36,000 remained as principle as of the
date of the decree.
Throughout the marriage the wife received monthly
Social Security payments averaging $350, for four of her
children who were living with the couple. These payments
were terminated shortly before the dissolution. Once the
wife reaches the age of 62 she may be eligible to receive
Social Security benefits from her deceased husband.
During the marriage the parties were partners in Lou's
H & H Custom Meats in Missoula. The wife working wrapping
meat, waiting on customers, keeping books and performing
niscellaneous chores at their place of business. She was
paid a salary for her labors and testified that her salary
went to buy groceries and clothing for the members of the
household. In 1979, she wrote herself a check from Lou's H
& H for wages and supplies she had purchased for the business.
At this time, she discontinued working at Lou's H & H.
Soon thereafter, the operation was changed from a partnership
to a sole proprietorship.
The wife also assisted in race horse training and
a racing business in which she and her husband were collaterally
engaged. In 1980, she had a gross income of $11,000, however,
she sustained a loss due to the expense of race horse care
and training.
The couple was separated before the dissolution.
During this period the wife took out personal loans for
living expenses.
Louie Gauthier (husband) was 60 years old at the time
of the dissolution. He came into the marriage without
assets. Before buying H & H Custom Meats in 1979, he was
employed as a meat cutter with John R. Daily's, ~uttrey's
and Pilike's I.G.A. for a combined period of about 42 years.
He worked as a meatcutter throughout the marriage. His 1980
income from Lou's H & H was $8,798. He also received a
monthly union pension of $118 per month, which will continue.
As an enrolled member of the Confederated Salish and ~ootenai
Tribes of the Flathead Reservation he is entitled to benefits
including annual per capita payments and a lease on 2 1/2
acres of Flathead Lake frontage on White Swan Point.
Lou's H & H is located in a rented building and the
business owns only one asset, a 1972 Ford pickup valued at
between $500 and $600. The husband testified that he would
soon be relinquishing his interest in the business for
health reasons.
The only major asset of the marriage was a house,
purchased, in 1369, located in Missoula. The wife provided
the downpayment from the sale of her land and provided
the furniture for the home. The husband paid the monthly
mortgage installment of $249.50,utilities and taxes. The
couple both contributed to the care and maintenance of the
home.
The District Court decreed that each party receive
their own personal property and the husband receive all the
interest in Lou's H & H. The court directed a horse trailer
and walker acquired by the parties be sold and the proceeds
divided equally.
The Court also recognized the wife's contribution of
the downpayment on the house and in recognition of the
husband's superior income-producing ability the Court ordered
that:
"The jointly owned real property located at
2818 West Central, Missoula, Montana, shall
be sold. The underlying Contract for Deed
shall either be assumed by the buyer or paid
at the time of sale. The Respondent [wife]
shall receive the first $15,000 of the net
proceeds of the sale. The remaining net proceeds
shall be distributed as follows: Two-thirds
(2/3) to the Respondent (wife) and one-third
(1/3) to the Petitioner (husband).
"The Respondent [wife] shall be entitled
to the furniture and effects located in
the hone."
If the house is sold at its appraised value, the wife
will receive $15,000 downpayment, $24,400 as 2/3 the equity
in the house and the husband would receive $12,200 as 1/3 of
the equity in the house.
The Court also ordered that after the sale of the house
the husband is to pay the wife $100 per month until her
death or remarriage.
The wife appealed the distribution and maintenance
contending that they are inequitable in light of her contributions
and her husband's superior income producing abilities. She
also appeals the District Court's unsubstantiated denial of
her requested attorney's fees.
We affirm the decree of the District Court with regard
to the property distribution and monthly payments and remand
the case to the District Court for substantiation of the
denial of attorney's fees to the wife.
The issues are:
1. Whether the District Court equitably distributed
the parties' marital assets and awarded adequate maintenance.
2. Whether the District Court's order directing each
party to pay his or her own attorney's fees was adequately
substantiated.
With regard to the first issue section 40-4-202, MCA,
governs the distribution of marital assets and section 40-4-
203, MCA, governs the maintenance award.
The standard for reviewing the property division in a
dissolution decreed by a District Court is well settled in
Montana. The apportionment made by the District Court will
not be disturbed on review unless there has been a clear abuse
of discretion as manifested by a substantially inequitable
division of the marital assets resulting in substantial
injustice. In re Marriage of Brown (1978), 179 Mont. 417,
422, 587 P . 2 d 361, 364; In re Marriage of Blair (1978), 178
Plont. 220, 223-4, 583 P.2d 403, 405; Vivian v. Vivian (1978),
178 Mont. 341, 583 P.2d 1072, 1074. In re the Marriage of
Schultz (1982), - Mont. -I - P.2d -
- , 39 St.Rep.
1435, 1439. The District Court must consider the statutory
criteria and equitably apportion the marital assets. Each
case must he looked at individually with an eye to its
unique circumstances. Schultz, 39 St.Rep. 1435, 1440.
In addition, section 40-4-202, t4CA, calls for an equit-
able division of the marital estate by the court regardless
of however or whenever acquired or in whose name the property
is held. In re the Marriage of Houtchens (1979), 181 Plont.
70, 73, 592 P.2d 158, 160; Schultz, 39 St.Rep. 1435, 1440.
There appears to be no abuse of discretion with regard
to the division of the marital property. The District Court
CI
heard evidence on all factors outlined in section 40-x-202,
MCA, and divided the property accordingly, giving reasons
for the division in the findings of fact and conclusions of
law.
The standard of review of maintenance awards is whether
the District Court abused its discretion when evaluating and
allowing or disallowing maintenance. In re the MarrTage of
Knudson (1981), - Mont . - 622 P.2d 1025, 1027, 37
,
St.Rep. 147, 152. The District Court, after hearing the
evidence, applied the factors set forth in the statute and
referred to them in the findings of fact and conclusions of
law. The District Court did not abuse its discretion in
distributing the property and awarding maintenance.
?'he second issue is whether the District Court properly
disallowed the award of attorney's fees.
The District Court summarily denied the wife's request
for attorney's fees. The request was supported by evidence
presented by the wife at trial.
This Court has held that when the District Court
refuses to award attorney's fees, it must indicate in the
findings of fact why such fees were not awarded. Bowman v.
,
Bowman (1981), - Mont. - 633 P.2d 1198, 1202, 38 St.Rep
1515, 1520. The District Court failed to follow this
procedure. The attorney's fees requested by the wife should
be considered on remand, and if denied, the denial must be
substantiated.
The decree of the District Court is affirmed except
with regard to the unsubstantiated denial of attorney's
fees. This cause is remanded to the District Court for
amendment of the judgment in accordance with this opinion.
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We Concur: