No. 8 6 - 3 9 8
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
IN RE THE MARRIAGE OF
MURIEL GLEE HUNDTOFT,
Petitioner and Appellant,
and
PALMER LEROY HUNDTOFT,
Respondent and Respondent.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable William J. Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Mary E. Westwood, Billings, Montana
For Respondent:
Jock West, Billings, Montana
Submitted on Briefs: Dec. 11, 1 9 8 6
Decided: February 3, 1987
Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
This appeal arises from a marriage dissolution order
entered by the District Court of the Thirteenth Judicial
District, in and for Yellowstone County. Wife challenges
several aspects of the court's distribution of the marital
estate. We affirm.
Muriel and Palmer Hundtoft were married in December
1977. Their marriage lasted a little over seven years until
December 1984, when Muriel (Wife) filed a petition for the
dissolution of their marriage. Following a bench trial, the
District Court formally dissolved the marriage in April 1986.
Wife now challenges the distribution of property
entered by the District Court. The principal assets in
dispute are items of real property contained within the
marital estate. The parties themselves largely apportioned
their personal property and do not now contest that division.
Specifically, Wife asserts that the District Court
erred in its property distribution by failing to properly
consider those statutorily mandated factors listed in
§ 40-4-202, MCA. We do not agree.
At the outset, we yet again repeat that this Court's
function on appeal is extremely limited. Section 40-4-202,
MCA, is of necessity a flexible statute which vests a good
deal of discretion in the district court. Given the infinite
varieties of factual situations presented by parties to
dissolution proceedings, trial judges must enjoy the latitude
to address each case individually, with an eye to its unique
circumstances. Wallace v. Wallace (Mont. 1983), 661 P.2d
455, 458, 40 St.Rep. 430, 434.
Upon appeal, this Court's functions are as limited as a
district court's powers are broad. Sitting as a court of
error, we will reverse a lower court's pronouncement only
upon a clear abuse of discretion. Under the test we have
developed for review of marital estate property
distributions, appellant is required to show that the
district court acted arbitrarily, without employment of
conscientious judgment or exceeded the bounds of reason
resulting in substantial injustice. In re the Marriage of
Perry (Mont. 1985), 704 P.2d 41, 43, 42 St.Rep. 1101, 1104;
In re the Marriage of Rolfe (Mont. 1985), 699 P.2d 79, 83, 42
St.Rep. 623, 626; In re the Marriage of Vert (Mont. 19841,
680 P.2d 587, 588, 41 St.Rep. 895, 896. Applying this
standard, we cannot say that the District Court abused. its
discretion.
Appellant first challenges the District Court's failure
to render specific findings of those factors listed in
5 40-4-202, MCA. While articulation of these factors is
encouraged, the absence of specific findings does not
automatically warrant remand:
It is not the lack of specific findings
which constitutes reversible error, but
the lack of substantial evidence to
support the judgment. We look both to
the District Court's express reasoning
and the evidence in the record to
determine whether ample evidence exists.
In re the Marriage of Peterson (Mont. 1984), 683 P.2d 1304,
1307, 41 St.Rep. 1252, 1256 (quoting Frazier v. Frazier
(Mont. 1984), 676 P.2d 217, 219-20, 41 St.Rep. 233, 236).
Our reading of both the record and the court's
reasoning persuades us that the court's actions were
supported by sufficient evidence.
For example, appellant contests the court's award to
Palmer (Husband) of "all the equity'' in the parties' jointly
owned real property acquired during the marriage. Basically,
this property in question consists of two residences, a house
in Harlowton, and a Billings condominium. The court awarded
the house in Harlowton to Husband, provided that he pay Wife
$3,000--one-half the value of the house. Wife received half
the equity of this house. As to the condominium in Billings,
the court found that the Husband had adequately proven that
the funds used as a downpayment could be traced directly to
liquidation of one of his pre-marital assets. This finding
is supported by the record. The court did not abuse its
discretion in its distribution of these properties.
Appellant also claims that the court failed to consider
fully the Wife's non-monetary contributions to the family
unit. While no children were born of the marriage, each
party had children from a previous marriage. However, both
parties worked, and from the testimony of the parties it is
clear that each shouldered this burden. The record simply
does not contain sufficient evidence on this point to find
abuse of discretion.
We further are not persuaded by appellant's assertion
that the court failed to consider her age, health, future
employability and lack of income producing assets. The court
noted that appellant was regularly employed as a restaurant
manager, the same type of job she has held more or less
continuously since before this marriage. Further, the court
awarded Wife two of her pre-marital, income producing assets,
a contract for deed receivable arising from the sale of her
previously owned cafe and the net equity in two rental mobile
home lots.
In short, appellant has failed to show how the District
Court exceeded the bounds of reason or failed to employ
conscientious judgment. It matters not how this Court would
decide were it the court of first impression. All that is in
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