No. 85-122
I N THE SUPREME COURT O F THE STATE O F MONTANA
1.985
I N RE THE PARRIAGE O F
SUSAN ANN WHITE,
P e t i t i o n e r and R e s p o n d e n t ,
and
WILBURN FRANKLIN WHITE,
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 N i n e t e 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 of L i n c o l n ,
T h e H o n o r a b l e R o b e r t H o l t e r , Judge p r e s i d i n g .
COUNSEL O F RECORD:
For Appellant:
S c o t t B. Spencer, L i b b y , M o n t a n a
F o r Respondent:
K e l l e r & G e r m a n ; A n n C. G e r m a n , L i b b y , Montana
- -
S u b m i t t e d on b r i e f s : A u g . 29, 1985
Decided: October 31, 1985
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Wilburn Frankl-in White appeals from the property
division entered by the District Court of the Nineteenth
Sud-icialDistrict, Lincoln County. We affirm.
There are two issues on appeal. First, did the trial
court err in dividing the marital property? Second, should
Susan have been charged with a share of the attorney's fee
incurred in defending Wilburn against charges that he
sexually abused the foster child living in their home?
Susan and Wilburn White were married on November 3,
1973. Throughout the marriage, Susan worked as a teacher and
Wilburn worked sporadically as a carpenter and millwright.
In February 1984, Wilburn was charged with sexually molesting
their foster child. The charges were filed after Susan
reported the suspected abuse to the Lincoln County Welfare
department. Wilburn was found not guilty after a jury trial.
However, in the course of his defense, Wilburn claimed he
incurred an attorney's fee of $10,000.
Susan petitioned for dissolution in February 1984. In
February 1985, the District Court entered the judgment of
dissolution and property division. The court found that at
the time of the marriage, Susan owned a home and Wilburn
owned two parcels of real estate. After the marriage, Susan
and Wilburn sold the home and one parcel of real estate.
They applied the equity from both sales to building a new
home on the remaining parcel of land. The trial court found
all the efforts of both parties were directed toward building
their new home, and that their contributions varied but were
nearly equal. In dividing the property, the District Court
allowed each party to retain the personal property each owned
prior to the marriage. The District Court ordered the family
home to be sold, and divided the marital estate equally
between the parties.
Wilburn contends that he came into the marriage with
more assets and thus he should be awarded more than half the
marital estate. Specifically, he contends the District Court
undervalued by $41,000 the land and improvements Wilburn
owned prior to the marriage on which the parties built their
home. The District Court found that Wilburn had a total
investment of $12,000 in the land and equity of approximately
$5,000. The District Court found Wilburn had made various
improvements on the land, many of which had to be redone.
There were also various building materials on the land which
the parties used in constructing their home.
It is well established that the District Court has wide
discretion in equitably dividing property and its judgment
will not be altered on appeal unless a clear abuse of
discretion is shown. Krum v. Krum (1980), 188 Mont. 498, 614
P.2d 525; Kruse v. Kruse !1978), 179 Mont. 79, 586 P.2d 294;
Eschenberg v. Eschenberg (1976), 171 Mont. 247, 557 P.2d
1014; Cook v. Cook (1972), 159 Mont. 98, 495 P.2d 591. The
test for reviewing the District Court's discretion is: Did
the District Court, in the exercise of its discretion act
arbitrarily without employment of conscientious judgment, or
did it exceed the bounds of reason in view of all the
circumstances? Krum, 188 Mont. at 503, 614 P.2d at 527.
Fredericksen v. Fredericksen (1980), 185 Mont. 548, 605 P.2d
1135; Aanenson v. Aanenson (1979), 183 Mont. 229, 598 P.2d
1120; In re Marriage of Berthiaume (1977), 173 Mont. 421, 567
P.2d 1388.
In this case, the District Court equitably divided the
property in accordance with S 40-4-202, MCA. That section
states ". . the court, without regard to marital
misconduct, shall, . . . eauitably apportion between the
parties the property and assets belonging to either or both,
however and whenever acquired and whether the title thereto
is in the name of the husband or wife or both. " Section
40-4-202, MCA.
This Court has recognized that when property acquired by
one party prior to marriage is subject to division in a
dissolution proceeding, the District Court must consider the
origin of the property. Herron v. Herron (1980), 186 Mont.
396, 608 P.2d 97. But the property acquired prior to
marriage is still subject to division. In re the Marriage of
Keepers (1984), 691 P.2d 810, 41 St.Rep. 2163. Equitable
apportionment does not require the parties be returned to
their premarital status. -
Id.
In this case, the District Court equitably divided the
marital property and based its decision on detailed findings
of fact, which must be sustained unless clearly erroneous.
Rule 52(a), M.R.Civ.P. We find the District Court did not
abuse its discretion.
The second issue on appeal is whether Susan should have
been charged with a share of the attorney's fee incurred by
Wilburn in defending himself against charges that he molested
his foster daughter. The District Court found that only
Wilburn contracted with the attorney and the attorney's fee
was his sole responsibility. On appeal, Wilburn argues he
incurred the attorney's fee as a result of Susan's action in
reporting the suspected child abuse. Wilburn contends the
attorney's fee was a debt incurred during the marriage for
which Susan should be liable. He argues the attorney's fee
is a "necessary" within the meaning of S 40-2-106, MCA, which
states:
Neither husband nor wife, as such, is answerable
for the acts of the other or liable for the debts
contracted by the other; provided, however, that
the expenses for necessaries of the family and of
the education of the children are chargeable upon
the property of both husband. and wife, or either of
them, and in relation thereto they may be sued
iointly or separately.
Black's Law Dictionary defines necessaries as, " [tlhings
indispensable, or things proper and useful, for the
sustenance of human life.'' Black's Law Dictionary 1183. (Rev.
4th ed. 1968). The concept includes food, drink, clothing,
and a suitable place to live. Edqerton v. Edgerton (1892),
12 Mont. 122, 29 P. 966; Sumner v. Mohn (1920), 47 ~ a l .App.
142, 390 P. 368. Attorney's fees incurred by one spouse to
defend himself against child abuse charges are not
necessaries within the meaning of S 40-2-106, MCA. We find
appellant's argument that he incurred the fees due to his
wife's actions in reporting the suspected abuse unavailing.
The judgment of the District Court is affirmed.
We Concur:
No. 85-122
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985
IN RE THE MARRIAGE OF
WILBURN FRANKLIN WHITE,
Respondent and Appellant,
NOV P- 1985
and
&Lee W. Adm
CLERK OF SUPREME C8UR7:
SUSAN ANN WHITE,
STATE OF MONTANA
Petitioner and Respondent.
APPEAL FROM: District Court of the Nineteenth Judicial
District, In and for the County of Lincoln,
The Honorable Robert Holter, Judge presiding.
Decided: October 31. 1985
Filed:
/-
..*..%"P.
C A P
fi7/ 57,' 2
Mr. J u s t i c e J o h n Conway Harrison concurring in part and
dissenting i n part.
After further consideration in this cause, I hereby
w i t h d r a w my signature from t h e m a j o r i t y o p i n i o n and s u b m i t
t h e following:
I c o n c u r i n t h e r e s u l t , b u t d i s s e n t on t h e second i s s u e
of not allowing t h e sharing of attorney's fees i n appellant's
defense of criminal charges. I recognize t h a t t h e s t a t u t e
d o e s n o t p r o v i d e f o r s u c h f e e s , b u t i n my w i l d e s t i m a g i n a t i o n
I cannot think of a legislator ever considering a fact
situation a s presented i n t h i s case. A p p e l l a n t was c h a r g e d
and t r i e d b y a j u r y a n d a c q u i t t e d of a m o s t g r i e v o u s o f f e n s e .
H i s whole r e p u t a t i o n and h i s f u t u r e was on t h e l i n e a n d t o
n o t a l l o w a t t o r n e y ' s f e e s h e r e i s , i n my o p i n i o n , a d e n i a l o f
fairness.