concurring and dissenting.
I concur only as to the majority’s remand for additional evidence. As to the remainder of the majority decision I dissent. As stated by the' majority, the parties were divorced by decree of a Utah court in 1985 after a marriage which began in 1951. Plaintiff, Mrs. Beesley, brought this instant action three years ago seeking division of additional property not treated by the Utah court.
The uncontroverted evidence indicates Mrs. Beesley has been employed since 1962 and in 1984 earned a gross income of $19,-000 per yéar. Her net income for that year was $15,000.
Mr. Beesley retired after serving 23 years in the United States Army as a band musician. His net retirement pay is $704 per month. His only other income is a military disability benefit of $64 per month. Mr. Beesley is hearing impaired, and it is asserted that such impairment has prevented him from obtaining employment. He has attempted, without success, the teaching of music in the public schools, and has operated a private studio for the teaching of music. It was stipulated that his net income from operating the music studio was not more than $1,000 per year. At the time of trial he was unemployed, with no other income than his military pension and his disability benefit. At the time of trial Mr. Beesley lived with and cared for his aged mother.
The parties separated in 1977 when the parties were living in Georgia. Mr. Beesley left Georgia for his original home in Idaho Falls to seek employment. Mrs. Beesley insisted at trial that at the time of separation there was a de facto agreement to divide the marital assets. She asserts that the agreement contemplated that Mr. Beesley would receive $5,000 in cash for the purpose of buying a car and taking the trip west in search of employment, and that she would receive the family’s home in Georgia and 50 percent of Mr. Beesley’s retirement which at that time was approximately $600 per month. Mrs. Beesley would also receive the family automobile and the furniture and furnishing in the family home. The magistrate judge rejected Mrs. Beesley’s contention that there was such a de facto property division.
Following the separation Mr. Beesley began sending Mrs. Beesley $300 per month which Mrs. Beesley asserts was pursuant to the de facto property division agreement. Mr. Beesley hotly denied such assertion, and testified that said sum was for the benefit of Mrs. Beesley and to help the children who were on church missions. Mrs. Beesley secured a power of attorney from Mr. Beesley and sold the Georgia home, obtaining approximately $23,000 therefor. She then moved to Salt Lake City where she secured employment and purchased a home. The title to that Salt Lake City home was placed only in the name of Mrs. Beesley and her son. When news of this foul deed reached Mr. Beesley he discontinued the $300 per month payment. The proceeds from the sale of the Georgia home were invested in the Salt Lake City home, the total value of which was $59,000. The magistrate found that the equity in the Salt Lake City home was approximately $20,000.
At the conclusion of trial the magistrate attempted to balance the equities and arrive at a 50 percent division of the marital property to each party, having in mind that the Utah court had already awarded the Salt Lake City home to Mrs. Beesley. In balancing the equities the magistrate considered the marital property interests in the Salt Lake City home (as derived from the parties’ interest in the Georgia home), the value of Mr. Beesley’s military retirement, and the value of Mrs. Beesley’s retirement from her employment. The magistrate refused to consider any indebtedness accrued by either of the parties during the separation, reasoning that such did not benefit the marital community. The magistrate also .allowed as a set-off in favor of Mr. Beesley, the $16,500 which he had paid *545for 55 months at the rate of $300 per month. The magistrate then concluded, after balancing all of the accounts, that a 50-50 division of the marital property would require Mr. Beesley to pay $2,000 at the rate of $150 per month. The magistrate reasoned that no interest would be allowed thereon because Mr. Beesley did not get interest on his retirement account, and hence neither should Mrs. Beesley get interest. That reasoning has a certain amount of practical charm.
Thereafter the magistrate court, the district court, and this Court became involved in a numbers game principally revolving around the $16,500 which Mr. Beesley has already paid Mrs. Beesley. The question seems to be whether said $16,500 was paid pursuant to the de facto agreement as initially argued by Mrs. Beesley, or whether the $16,500 as argued by Mr. Beesley was an intrafamily transfer and hence Mr. Beesley is hoist on his own petard.
In my view the initial decision of the magistrate appears to have been based in substantial justice, albeit his reasoning may have been faulty. Thereunder Mrs. Beesley retains the Salt Lake home, her interest in her retirement fund, whatever other assets she may have, and unimpaired net earnings of $15,000 per year. Mr. Beesley retains his military pension rights subject to an indebtedness of $2,000 payable at $150 per month. In short, his alleged net income is reduced to approximately $550 per month.
Based on the above scenario I would agree with the majority that the matter must be remanded for further proceedings. If the facts are found to be in accord with the stark representations set out above, equity should perhaps consider an unequal and disproportionate distribution of the marital property. In my opinion, however, findings are necessary as to whether Mr. Beesley is in fact as unemployable and destitute as he asserts. There are intimations in the record that following trial Mr. Beesley, while not affluent, is less destitute than at the time of trial, and hence more able to respond to a property division more akin to 50 percent to each party.