No. 83-53
I N THE SUPREME COURT OF THE STATE OF MONTANA
1983
I N RE THE MARRIAGE OF
VALLINA RUTH HOLSTON,
P e t i t i o n e r and R e s p o n d e n t ,
-vs-
ROBERT BRUCE HOLSTON , J R . ,
R e s p o n d e n t and A p p e l l a n t .
APPEAL FROM: D i s t r i c t C o u r t of t h e E l e v e n t h 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 F l a t h e a d ,
T h e Wonorable R o b e r t C . S y k e s , Judge p r e s i d i n g .
COUNSEL OF RECORD:
For Appellant:
P a t r i c k M. S p r i n g e r , K a l i s p e l l , Montana
F o r Respondent:
James D. M o o r e , K a l i s p e l l , M o n t a n a
S u b m i t t e d on B r i e f s : June 30, 1 9 8 3
Decided: September 2, 1983
Filed: SEP 2 - 1983
Clerk
Mr. Chief Justice Frank I. Ha.swel1 delivered the Opinion of
the Court.
Robert Holston appea.1~the Flathead County District
Court's property distribution pursuant to his dissolution of
marriage. We affirm.
Robert Bruce Holston and Vallina Ruth Holston were
married on May 21, 1970, and lived together as husband and
wife until approximately April 1981. Two children were born
as issue of this marriage.
Both parties are teachers. The wife is presently
working in Montana, and the husband is working in Alaska.
During the marriage Robert held various part time positions
in addition to teaching and both husband and wife were
involved in the enterta.inment business. On July 2, 1981,
Vallina filed a petition for dissolution. The marriage was
dissolved orally by the District Court on January 5, 1982,
then by order on March 5, 1982. Custody of the minor
children was granted to Vallina and Robert was ordered to pay
$150 per month per child for their support.
In its findings of fact and conclusions of law, the
District Court found that the value of the marital personal
property was $12,198 and awarded Vallina a portion thereof
va-lued at $8,345. Robert was awarded the remaining personal
property valued at $3,853. The net value of the residence
was $38,058. The parties also owned three rental houses
which were valued at $39,155. Vallina was awarded the
residence and Robert was awarded the rental units. Vallina
paid all marital debts; thus, Robert was ordered to reimburse
her for one-half thereof. This amount was set off against an
amount Vallina owed Robert.
Robert appeals the property distribution and raises two
issues for our consideration:
1. Did the District Court abuse its discretion by
failing to include all marital assets in the marital estate?
2. Did the District Court abuse its discretion in
apportioning the marital estate?
Robert first argues that the District Court abused its
discretion by not including Vallina's retirement benefits in
the marital estate. The District Court further abused its
discretion by not considering his nonmonetary contributions
to the real property, thereby diminishing the value of his
portion of the marital estate.
Vallina first asserts that no testimony was offered
with respect to her retirement fund; hence the District Court
was correct in not including it in the marital estate.
Second, she asserts that Robert's nonmonetary contributions
outside the home placed a greater homemaking and child care
burden on her while she maintained full time employment,
thereby offsetting Robert's nonmonetary contributions.
The standard for reviewing the property division in a
dissolution decree 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 the Marriage of Schultz (1982), - Mont .
-, 649 P.2d 1268, 1271, 39 St.Rep. 1435, 1439; In re
Marriage of Brown (1978), 179 Mont. 417, 422, 587 P.2d 361,
364; In re Marriage of Blair (1978), 178 Mont. 220, 223-224,
583 P.2d 403, 405; Vivian v. Vivian (1978), 178 Mont. 341,
343-344, 583 P.2d 1072, 1074. Abuse of discretion is further
indicated by a trial court's arbitrary action without
employment of conscientious judgment or in excess of the
bounds of reason resulting in substantial injustice. In re
Marriage of Martens (1981), Mont . -, 637 P.2d 523, 38
St.Rep.2135; In re Marriage of Creon (1981), - Mont . I
635 P.2d 1308, 38 St.Rep. 1828.
In addition, section 40-4-202, MCA, calls for an
equitable 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 Mont. 70, 73, 592 P.2d 158, 160; Schultz, 649
P.2d at 1272, 39 St.Rep. at 1440. Retirement benefits are
properly included within the marital estate and are subject
to this apportionment. Kis v. Kis (1982), - Mont . -, 639
P.2d 1151, 39 St.Rep. 119.
Also, nonmonetary contributions in the form of
maintaining and improving property can be considered in
ascertaining and apportioning the marital estate. Section
40-4-202(1)(b), MCA. This Court has recognized that such
contributions affect the marital estate. In re Marriage of
Sell (1981), - Mont . , 638 P.2d 222, 38 St.Rep. 950;
Nunnally v. Nunnally (1981), Mont. , 625 P.2d 1159,
38 St.Rep 529.
Robert asserts that since his retirement benefits were
withdrawn to purchase one of the rental houses and such
houses were part of the marital estate, Vallina's retirement
benefits should also be part of the estate. We hold the
District Court did not abuse its discretion by not including
the wife's retirement benefits in the marital estate simply
because no evidence regarding the benefits was presented at
trial. In Karr v. Karr (1981), Mont . -, 628 P.2d 267,
38 St-Rep. 506, the husband argued that certain personal
property should have been included in the marital estate.
This Court held that the District Court was correct in not
including the property because the parties had entered into a
personal property division agreement and, like this case, -
no
evidence was adduced - trial with respect - -
at to such property.
Furthermore, we reject Robert's contention that his
nonmonetary contributions were not considered in determining
the marital estate. His labor contributed to the value of
the marital real property and this is reflected in the total
appraised value of the property; hence, such contributions
were part of the estate. In another context, we find that
Robert's nonmonetary contributions caused him to be away from
his home and family maintenance duties. This increased the
burden on Vallina to provide such services which would offset
the increased contributions of Robert.
Robert also contends that the District Court abused its
discretion in apportioning the marital estate. While the
findings and conclusions here do not expressly designate a
basis for the District Court judgment, we cannot find that
there was an abuse of discretion as a substantially equal
apportionment of the marital property was ordered. An abuse
of discretion is manifested by a substantially inequitable
division of the marital estate. Brown, supra; Blair, supra;
Vivian, supra; Schultz, supra. Here, the District Court
awarded Vallina the residence and a portion of the personal
property valued at $46,403, and Robert was awarded the rental
units and personal property valued at $43,008. The wife
paid marital debts of $2,225.37. The wife was ordered to pay
husband $587.23. From these facts, it appears the value of
the wife's portion of the marital estate is substantially
equal to the husband's and does not in and of itself indicate
an abuse of discretion.
Moreover, the husband does not specifically allege why
this apportionment resulted in substantial injustice to him.
In light of the substantially equal distribution of property,
Robert argues that the District Court abused its discretion
in apportioning the estate. We cannot overturn an equal
distribution of marital property on that basis alone without
some indication of unreasonableness or lack of employment of
conscientious judgment.
Affirmed.
~ LChief IJustice ~ Q / ~ w
-- !I~
We concur:
$+P{&;A~
J tices