No. 86-292
I N THE SUPREME COURT OF THE S T A T E O F MONTANA
I N R E T H E MARRIAGE O F
ANN ROGERS,
P e t i t i o n e r and R e s p o n d e n t .
and
P A T R I C K ROGERS,
R e s p o n d e n t and A p p e l l a n t .
A P P E A L FROM: D i s t r i c t C o u r t of t h e Second 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 S i l v e r B o w ,
T h e H o n o r a b l e A r n o l d O l s e n , Judge p r e s i d i n g .
COUNSEL O F RECORD:
For A p p e l l a n t :
Johnson, S k a k l e s & Kebe; G r e g J. Skakles, A n a c o n d a ,
Montana
For R e s p o n d e n t :
H e n n i n g s e n & P u r c e l l ; M a r k A. Vucurovich, Butte,
Montana
S u b m i t t e d on B r i e f s : Feb. 13, 1987
Decided: March 1 9 , 1 9 8 7
Filed: MAR 2 1) 1987
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
The husband appeals the property distribution entered by
the District Court of the Second Judicial District, Silver
Bow County, in this dissolution of marriage. We affirm in
part and remand for reconsideration in part.
The issues are:
1. Did the District Court err in: a) ordering the sale
of the family residence and an equal division of the pro-
ceeds; b) awarding the wife all of the personal property
which she requested; c) directing the husband to pay the wife
the sum of four thousand five hundred dollars ($4,500); and
d) directing the husband to pay the wife an amount repre-
senting half of his interest in his retirement account?
2. Did the District Court err in adopting many of the
wife's proposed findings and conclusions?
The parties were married in 1967. At the time of the
marriage, the husband had a bachelor's degree and the wife
had completed several years of college. The husband complet-
ed a master's degree during the marriage, and was a school
principal in Deer Lodge earning $36,641 per year. The wife
had completed an education degree during the marriage, and
was employed as a teacher in Butte. She was earning $1,314
per month. The court described her employment situation as
"tenuous at best", because she was non-tenured and had limit-
ed experience. The parties have three teenage children, two
boys and a girl.
The District Court heard testimony from both parties on
their proposals for custody and property distribution.
Custody of the two boys was awarded to the husband, and
custody of the daughter was awarded to the wife. The husband
was ordered to pay $250 per month for the support of the
daughter.
The court awarded the wife all of the personal property
she had requested. It directed the husband to pay her $375
as his share of the cost of high school tuition for the
daughter. It also ordered him to pay the wife $4,500 as her
share of an IDS account and motor home which had been sold
during the parties' pre-dissolution separation. Further, the
court ordered the husband to pay the wife one-half of the
present value of his Teacher's Retirement Account. That
payment of $11,205 was to be made within 60 days of the
decree. The court awarded the husband the use and possession
of the parties' home in Deer Lodge until the children in his
custody reach the age of 18, when the house is to be sold and
the proceeds divided equally between the parties.
I
Did the District Court err in: a) ordering the sale of
the family residence and an equal division of the proceeds;
b) awarding the wife all of the personal property which she
requested; c) directing the husband to pay the wife the sum
of four thousand five hundred dollars ($4,500); and d) di-
recting the husband to pay the wife an amount representing
half of his interest in his retirement account?
These are all questions of the sufficiency of the evi-
dence to support the District Court's distribution of proper-
ty. In distributing marital property, a district court is
guided by S 40-4-202 (I), MCA:
In a proceeding for dissolution of a marriage ...
the court, without regard to marital misconduct,
shall ... finally equitably 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. In making apportionment, the court
shall consider the duration of the marriage and
prior marriage of either party; antenuptial agree-
ment of the parties; the age, health, station,
occupation, amount and sources of income, vocation-
al skills, employability, estate, liabilities, and
needs of each of the parties; custodial provisions;
whether the apportionment is in lieu of or in
addition to maintenance; and the opportunity of
each for future acquisition of capital assets and
income. The court shall also consider the contri-
bution or dissipation of value of the respective
estates and the contribution of a spouse as a
homemaker or to the family unit. ...
This Court will not alter the lower court's distribution of
marital property absent a clear abuse of discretion. In re
Marriage of Garst (Mont. 1983), 669 P.2d 1063, 1067, 40
St.Rep. 1526, 1530.
The husband's first contention is that the District
Court should not have ordered the family home sold after the
children in his custody reach the age of majority. He argues
that he would like to buy out the wife's interest in the
house and to continue living in it himself, and that there is
no reason not to allow him to do that.
At the dissolution hearing, the husband presented a
$45,000 appraisal of the family home and the wife gave a
$52,000 valuation. It was clear from the testimony that the
parties were unable to agree upon a value for the home. It
is also clear that the wife is entitled to an equitable share
of this marital asset. We conclude that the District Court
did not err in ordering the home sold once the children reach
age 18.
The husband also says it is inequitable that the wife
should receive one-half the proceeds of sale of the home,
since he has been making all mortgage payments since they
separated and will continue to do so until the house is sold.
However, the wife points out that husband's $397 monthly
mortgage payments can properly be considered in the nature of
rent. We conclude that it was not error for the District
Court to divide equally the proceeds of sale of the house.
Next, the husband argues that the court's division of
the parties1 personal property is in error, because the court
failed to consider the effect of its property distribution on
both parties. The court adopted the division of property
requested by the wife. The personal property consists of
modest home furnishings and personal items. In review, the
division of personal property appears reasonable and we find
no abuse of discretion in the award to the wife of those
items she requested.
Third, the husband objects to being ordered to pay the
wife $4,500 as her share of assets he liquidated during their
separation. The record shows that he sold a motor home for
$6,000 and closed out a $3,300 IDS account. He contends
these funds were necessary to cover the expenses of himself
and the three children, who were all residing with him at
that time.
There is nothing in the record to indicate why the
husband's earnings were insufficient to meet the expenses of
himself and the children during the period at issue. There
is no question that the IDS account and the mobile home were
marital property. We conclude that the District Court was
within its discretion in directing that the wife receive
$4,500 as her share of the marital assets sold.
Finally, the husband argues that the wife should receive
her share of his retirement account only when he becomes
eligible to receive his share, not now. The District Court
ordered him to pay the wife $11,205 within sixty days as her
share of his retirement account.
The evidence shows that the wife is having trouble
meeting her current expenses, and that her present employment
situation is highly tenuous. However, the uncontested asset
list of the husband shows that he has no liquid assets which
would enable him to pay the wife $11,205 in 60 days. He is
also required to pay the wife $4,500 immediately. These are
all factors which the District Court should consider in
providing for distribution of the retirement account. The
court may wish to consider structuring a payment plan for the
wife's interest in the retirement account. We remand this
matter to the District Court with instructions to consider
further the husband's ability to pay the $11,205 as a lump
sum, and the manner of payment which should be required.
Did the District Court err adopting many the
wife's proposed findings and conclusions?
The husband points out that the majority of the findings
and conclusions of the District Court are the same or similar
to those proposed by the wife. He points out that wholesale
adoption of a party's proposed findings and conclusions has
been disapproved by this Court.
However, if the findings are sufficiently comprehensive
and pertinent to the issues, and are supported by the evi-
dence presented, they will not be overturned. Parenteau v.
Parenteau (Mont. 1983), 664 P.2d 900, 903, 40 St.Rep. 815,
819. It is apparent from the changes the court has made to
the proposed findings and conclusions that it has reviewed
and evaluated the evidence presented to it. We hold that
although the court has adopted a number of proposed findings
and conclusions, it did not err in issuing its findings and
conclusions of law as it did.
Affirmed in part and remanded for further consideration
of the manner of payment to the wife of her interest in
husband's retirement account.
We Concur:
Justices