No. 83-179
I N TI-IE SUPREME COURT O F THE S T A T E O F MONTANA
T983
I N THE MARRIAGE OF
WAUNETA E . TURNER,
P l a i n t i f f and R e s p o n d e n t ,
and
VERNON N. TURNER,
D e f e n d a n t and A p p e l l a n t .
APPEAL FROPI: T h e D i s t r i c t C o u r t 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 C o u n t y o f L e w i s & C l a r k ,
T h e H o n o r a b l e G o r d o n R. B e n n e t t , Judge p r e s i d i n g .
COUNSEL O F RECORD:
For Appellant:
Skedd, A s h l e y , M c C a b e & Weingartner; J . M a y o A s h l e y ,
Helena, 14ontana
For Respondent :
John C o b b , A u g u s t a , Montana
-
.
S u b m i t t e d on B r i e f s : A u g u s t 18, 1 9 8 3
Decided: October 17, 1983
Filed:
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clerk
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
Vernon N. Turner (husband) appeals from the judgment of
the District Court, Lewis and Clark County, giving him only
his personal possessions in a dissolution action brought by
Wanneta Turner (wife). We affirm.
The husband and wife married in 1972. They were both in
their 50's when they married. The wife owned property near
Lincoln, Montana, in her own name, given to her by her first
husband. Mr. Turner was a commercial pilot when they
married, and continued to fly when they moved to Lincoln.
The Turners lived on the property for approximately 10 years.
The wife claims the husband made no monetary or
nonmonetary contribution to the Lincoln property. She claims
the husband did not give her money for household expenses and
failed to help maintain the condition of the house and
outbuildings. The wife alleges she had to sell some of her
personal property at the husband's insistence. Most of the
proceeds from the sales were used for the husband's flying
expenses.
The husband claims he did make monetary and nonmonetary
contibutions to the property. He cites various duties he
performed around the property, such as clearing brush,
snow-plowing the access road, and cutting thousands of
dollars of firewood to heat the home.
After a hearing, the trial court granted the
dissolution. The court awarded to the wife all property
owned by her before the marriage. The trial court granted
the husband his personal belongings. This appeal follows.
Two issues are raised by this appeal:
1. Did the trial court properly find that the husband
made no contribution to the marriage which would justify
apportionment of the wife's previously owned home?
2. Did the District Court err in not making a finding
of the net value of the marital assets, namely the Lincoln
property?
Upon consideration of the evidence and testimony, the
District Court found that the husband's position in the
marriage was that of a "parasitic freeloader" who victimized
the wife for the period of their marriage. The court
therefore ruled that the wife was entitled to outright
ownership of all the real property at her house near Lincoln.
Disposition of property in a dissolution proceeding is
governed by section 40-4-202, MCA, which provides that the
court shall "equitably apportion" the property "belonging to
either or both, however and whenever acquired." The statute
also provides that in disposing of property previously owned
by one spouse, consideration must be given to "contributions
of the other spouse" including the nonmonetary contribution
of a homemaker and the extent to which such contributions
have "facilitated the maintenance of this property."
40-4-202, MCA.
To conclude that the husband was not entitled to any
claim against the Lincoln real property, it is necessary to
find that he made - contribution equitably
no justifying
apportionment of that property. The District Court's finding
that the husband was a parasitic freeloader victimizing the
wife is just such a finding. We turn now to whether that
finding was justified.
This Court will not substitute its judgment for that of
the trial court and will not alter a judgment unless it finds
a clear abuse of discretion. Eschenburg v. Eschenburg
(19761, 171 Mont. 247, 250, 557 P.2d 1014, 1016. After
considering the record in a light most favorable to the
respondent, this Court must find substantial facts supporting
the discretionary judgment of the trial court.
It is difficult to conceive of a marriage where
absol-utely no contribution is made by one spouse. The
equitable meaning of contribution envisioned by section
40-4-202, MCA, however, is an effort of a spouse which
substantially aids in the accumulation and/or maintenance of
the marital estate. The work of a homemaker is just such an
effort and is specifically enumerated in the statute. The
marital estate would obviously be substantially depleted if
these necessary services had to be purchased. But where one
spouse's contribution is so minimal that it would not even be
self-supporting, that spouse is merely a burden. In such a
case, the value of the other spouse's previously owned
property results inspite - rather than because of, the
of,
first spouse's efforts.
In this case, the wife was not only the homemaker, but
also the chief earner. The husband's annual income was
approximately $5,000, much of which was spent by the husband
while he was away from the home. The wife paid all of the
bills, with the exception of the husband's phone bills,
bought the food and clothing, did the cooking, washing,
cleaning, and other work to provide for the home. The only
substantial effort of the husband during the ten year
marriage was to clear snow from the driveway (with the wife's
plow), and get wood for the heating of the home (with the
wife's help).
The District Court need not further substantiate its
finding of lack of contribution. The burden is upon the
husband to demonstrate his contiribution. He failed to do
SO.
We hold that under these facts the trial court did not
abuse its discretion in finding that the husband made no
contribution to the marriage within the meaning of section
40-4-202, MCA.
This is not the first case where the non-acquiring
spouse has been found to have no interest in previously owned
property. In In re the Marriage of Balsam (1979), 180 Mont.
129, 589 P.2d 652, this Court upheld such a distribution
where a trial court found that none of the value of
non-appreciated stocks was a product of contribution from the
marital effort.
The failure of the District Court to find the net value
of the Lincoln property now becomes harmless. We take care
to reemphasize the necessity of such a finding in the
equitable apportionment of property in the typical marriage
dissolution. The value of the marital assets is important
information which should be weighed in the distribution
determination. However in this case, the value of the
Lincoln property would make no difference. Whether the
property is worth $30,000 or $130,000, the husband is
entitled to exactly none of it.
The judgment of the District Court is affirmed.
concur :
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Chief Justice
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