NO. 85-33
I N THE SUPREME COURT OF THE STATE O F MONTANA
1985
I N RE THE MARRIAGE O F
P A T R I C I A ANN CHILDERS ,
P e t i t i o n e r and R e s p o n d e n t ,
and
GERALD C. CHILDERS,
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 S i x 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 C u s t e r ,
T h e H o n o r a b l e A. B. M a r t i n , Judge p r e s i d i n g .
COUNSEL OF RECORD:
For Appellant:
Parker, Sweeney & Healow, Billings, P1lontana
F o r Respondent:
K e n n e t h R. Wilson, l 4 i l e s C i t y , M o n t a n a
S u b m i t t e d on B r i e f s : A p r i l 4, 1985
Decided: May 1 3 , 1 9 8 5
Clerk
Mr. Justice Frank 3. Morrison, Jr. delivered the Opinion of
the Court.
The marriage of Patricia Ann and. Gerald C. Childers was
dissolved on March 2, 1984. A hearing to determine the
proper division of the marital property was held October 5,
1984. An order essentially dividing the marital property
evenly between the parties was issued November 1, 1984.
Gerald appeals.
Patricia and Gerald were married December 16, 1965.
They have one daughter, Michelle, who is now eighteen years
of age. Both parties worked at the outset of the marriage.
Gerald suffered a work related injury in 1966 and has not
worked since. He receives $383 a month in Social Security
disability benefits.
As a result of his injuries, Gerald received $43,000
from a FELA settlement. The couple used this money to
refurbish a house and to purchase a second-hand goods store.
Both parties helped in the renovation of the house, which was
purchased from Gerald's grandmother for $600, the cost of the
quitclaim deed. Patricia operated the family business in
addition to caring for Michelle and maintaining the family
home.
In 1977, the parties purchased a car wash. Patricia
then managed both businesses until 1979, when the store was
sold. Approximately a year and a half before the parties'
marriage ended, Patricia began supplementing the family
income by rebuilding junk cars at the car wash and selling
them.
In order to further assist in running the car wash and
meeting their needs, the parties borrowed money from Gerald's
father, Charles Childers. The car wash wa.s the collateral.
When they were unable to repay this loan, Charles filed a
collection action against them. Patricia has since
transferred her interest in the car wash to Charles for
$1,500. Gerald has not yet settled with his father, nor has
his father pursued his lawsuit further.
At the property division hearing, the parties agreed on
the value of their house, motor vehicles and household
furnishings. They failed to agree on the value of Gerald's
1978 Lincoln Continental and personal property, as well as
Patricia's tools. Gerald testified that disregarding his
father's lawsuit, his interest in the car wash was worth
$20,000. Both parties testified that the car wash should not
be included in the marital estate.
The trial jud.ge ordered that the motor vehicles, the
1978 Lincoln Continental and the tools be sold, and the
proceeds split equally between the parties. The parties were
each awarded personal property of approximately the same
value. It was further ordered that the house be divided
equally between the parties, either by one party buying out
the other or by the house being sold and the net proceeds
divided evenly between the parties. Without ever
specifically stating whether the car wash was or was not part
of the marital estate, the trial judge further concluded that
Gerald's interest in the car wash would be maintained by him
"in order to afford an opportunity for future income."
Conclusion of law 1 (D)(4) .
Gerald claims the trial judge abused his discretion in:
including the car wash as part of the marital estate;
ignoring Gerald's physical condition and its effect on his
ability to acquire future income; and failing to evaluate and
allocate the debts of the parties.
The trial judge gave the car wa.sh to appellant and
divided the balance of the property evenly. The trial judge
pursuant to 5 40-4-202(1), MCA, properly considered the
effect of the car wash on Gerald's future income when
dividing the marital estate. Although appellant was
disabled, he had a source of income.
There is no error in what was done by the trial judge.
He considered the positions of the parties at the outset of
the marriage, the contributions of each party to the
marriage, each party's age, health and occupation, as well as
each party's future prospects, all pursuant to § 40-4-202(1),
MCA. He then divided the marital estate, disregarding the
car wash, equally between the parties. "It is well settled
in Montana that a district court has far reaching discretion
in resolving property divisions and its judgment will not be
altered unless there is a clear abuse of that discretion."
Eschenhurg v. Eschenburg (1976), 171 Mont. 247, 250, 557 P.2d
1014, 1016. We find no abuse of discretion in this instance.
Though he made no specific findings regarding the effect
of Gerald's physical disability on his ability to earn a
living, the trial judge obviously considered it. Findings of
fact numbers 5, 6 and 7 refer to Gerald's injury and/or his
FELA settlement. Conclusion of law 1 ( D ) ( 4 ) refers to the
probability of Gerald receiving future income from the car
wash. Clearly, the trial judge considered Gerald's inability
to work when he divided the marital property between the
parties and when he stated that Gerald would maintain his
interest in the car wash.
Finally, we find no error in the trial judge's treatment
of the debts of the parties. Most of the debts pertain to
the car wash. They are the responsibility of whomever has an
interest in the car wash. The delinquent property taxes were
properly offset by an equivalent reduction in the value of
the house. Gerald was made responsible for his own medical
bills. There was no abuse of discretion by the trial judge.
Affirmed.
We concur: