No. 81-444
I N THE SUPREYS COURT O THE STATE O MONTANA
F F
1982
I N R THE MARRIAGE OF
E
JOANN D. CRABTREE,
P e t i t i o n e r and A p p e l l a n t ,
-vs-
GEORGE LEROY CMBTREE,
Respondent a n d R e s p o n d e n t .
Appea.1 from: D i s t r i c t Court of t h e F i r s t 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 Lewis & C l a r k , The H o n o r a b l e
Gordon R . B e n n e t t , J u d g e p r e s i d i n g .
C o u n s e l of Record:
For A p p e l l a n t :
M i c h a e l T. McCabe; Skedd, A s h l e y , McCabe &
W e i n g a r t n e r , H e l e n a , Montana
F o r Respondent :
Greg J a c k s o n , H e l e n a , Montana
Submitted on B r i e f s : J u n e 1 7 , 1982
Decided: September 3 , 1982
. J \38%
Filed:
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion
of the Court.
This is an appeal from an amended dissolution decree
entered September 30, 1981, in the District Court of the
First Judicial District, Lewis and Clark County, Montana.
Appellant takes issue with the court's determination of the
marital estate, the court's division of the marital property
and the court's award of child support to the respondent.
The parties were married September 2, 1961, in Billings,
Montana. Appellant left the family home June 2, 1978. She
filed a petition for dissolution June 16, 1978. Following a
hearing on October 14, 1980, the court, on March 13, 1981,
issued findings of fact, conclusions of law and a decree
dissolving the marriage. Alleging changes in circumstance,
appellant filed a motion to amend and motion for a new trial
April 13, 1981. The court then issued the amended judgment
of September 30, 1981.
Appellant worked all but two years of her married
life. Her income was used to pay babysitters and to purchase
groceries and household items. At the time of the dissolution,
appellant's net income was approximately $650 a month while
her monthly expenses were $600.
Respondent also consistently worked during the marriage
until suffering a stroke in June of 1977. Since then, he
has been receiving social security benefits and disability
income from his former employer, Xerox. At the time of the
dissolution, respondent was receiving $1,100 a month tax-free.
He submitted evidence of his monthly expenses being $1,328.
Findings of the District Court indicate that appellant
was 41 years of age at the time of the dissolution, in good
health and regularly employed by the State of Montana, with
excellent future employment opportunities. Respondent was
45 years of age, in poor health due to his stroke and unemployed,
with a limited chance of future employment.
Two children were born of the marriage, Kevin George
Crabtree on July 2, 1963 and Jodee Lou Crabtree on April 27,
1964. They were 14 years old when the parties separated, 18
and 17 years of age at the time of the amended decree of
dissolution and are now 19 and 18. Both children work.
They spend their earnings as they please, primarily on cars
and horses. The earnings are not used for their support by
respondent, the uncontested custodian of the children.
The marital estate of the parties and its worth were
stipulated to by the parties, with several exceptions. A
major exception relevant to this appeal is lots 18, 19 and
20, Deer Park Hauser Summer Home Area, Lewis and Clark
County, Montana. Respondent deeded those properties to his
children June 5 and 6, 1978. He contends he did so to
insure the future security of his children in the event of
his death. Appellant contends respcndent conveyed the lots
to prevent her from receiving any portion of them as her
share of the marital estate.
Respondent testified at the hearing that he initiated
the conveyances in the fall of 1977 as a direct result of
his stroke. The conveyances coincidently were completed
June 5 and 6, 1978, im,ediately following appellant's departure.
He also testified that although marital discord had existed
for a great deal of time, he was unsware his wife's departure
on June 2, 1978, was a permanent one and further unaware
of any intent of his wife to divorce him urltil the petition
was filed June 16, 1978.
Appellant testified that upon leaving the home June 2,
she wrote respondent a note stating only that she would be
working in Glasgow for the summer. She contends that although
respondent was not explicitly told the departure was permanent,
respondent was aware a divorce was imminent. Therefore,
since the lots were conveyed subsequent to her departure,
appellant contends they were fraudulently conveyed to deplete
the marital estate.
The distribution of several items of personal property
is also in dispute. At the hearing, the judge inquired of
appellant whether she needed several of the articles in
dispute. She responded negatively. He then requested her
to indicate which of the articles she did need. Those
articles were awarded her.
Finally, the court determined that appellant should be
responsible for child support in the amount of $125 per
month per child. Testimony was received indicating that
appellant's monthly income surpassed her monthly expenses by
only $50. Therefore, the child support award was deducted
from appellant's share of the marital assets. The support
award covered the period from the 1978 separation of the
parties until each child reached the age of 18 or was graduated
from high school.
Appellant presents us with three issues for our review.
(1) Cid the District Court err when it failed to
include in the marital estate three lots on Hauser Lake
deeded the children by respondent subsequent to the separation
of the parties?
(2) Was the District Court's division of the marital
property arbitrary and capricious?
(3) Was the child support award contrary to the
provisions of section 40-4-204, MCA, and not supported by
substantial evidence?
Absent a determination that the District Court's holdings
are clearly erroneous and an abuse of the court's discretion,
we will affirm. Tefft v. Tefft (1981), Mont. I
628 P.2d 1094, 38 St.Rep. 837. There is substantial credible
evidence to support the District Court. Therefore, we find
the court exercised conscientious judgment in this case and
affirm its decision.
There is substantial evidence to support the determination
that the transfer by respondent to his children of lake
property valued at $32,500 was not a fraudulent conveyance.
Testimony presented at trial by respondent and the children
indicated that the conveyance was made to insure the financial
security of the children in the event of respondent's death.
Other testimony indicated that respondent was unaware of the
impending divorce when he transferred the property. Pursuant
to section 40-2-202, MCA, a married person may transfer his
real property to another without the consent of his spouse.
The District Court did not abuse its discretion.
Secondly, we find that the District Court's division of
the marital property was not arbitrary and capricious. In
awarding respondent a greater portion of the property, the
court considered the elements required by section 40-4-202,
MCA. The health and employability of respondent are both
poor. Appellant's opportunities are much greater. Therefore,
the disposition was not an abuse of conscientious judgment
by the court and it is affirmed.
Finally, respondent objects to the child support award
as being contrary to section 40-4-204, MCA, which states:
"40-4-204. Child Support. In a proceeding
for dissolution of marriage .
. . the court may
order either or both parents owing a duty of
support to a child to pay an amount reasonable
or necessary for his support, without regard
to marital misconduct, after considering all
relevant factors including:
"(1) the financial resources of the child;
"(2) the financial resources of the custodial
parent;
"(3) the standard of living the child would
have enjoyed had the marriage not been dis-
solved;
"(4) the physical and emotional condition of
the child and his educational needs; and
"(5) the financial resources and needs of the
noncustodial parent."
The District Court considered these factors and awarded
child support accordingly.
Although not set forth in the findings of fact, it is
evident the District Court considered the financial resources
of the children. Consideration of Kevin's $3,000 a year
income and Jodee's $1,000 a year income is reflected in the
minimal amount of support awarded each child, $125 a month.
The childrens' income was not contested; therefore, it was
not necessary to include a finding respecting the amount of
their income.
The District Court also considered the financial resources
of each parent. Respondent's monthly expenses are greater
than his monthly income. He is depleting his assets just
trying to live. Appellant's income is only $50 greater than
her expenses. For that reason, the District Court determined
it would be difficult for her to make monthly support payments
and deducted the support award from her marital assets.
That is permissible. It was also permissible for the District
Court to award support retroactively. Hill v. Hill (1982),
Mont. , 6 4 3 P.2d 5 8 2 , 39 S t . R e p . 723.
The o p i n i o n of t h e D i s t r i c t C o u r t i s a f f i r m e d .
W e Concur:
-
Chief J u s t i c e