In Re the Marriage of Dalley

                                   No. 8 7 - 5 4 8
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                        1988




IN RE THE MARRIAGE OF
CAROL C. DALLEY,
                 Petitioner and Appellant,
         and
MARK F. DALLEY,
                 Respondent and Respondent.




APPEAL FROM:     District Court of the Thirteenth Judicial District,
                 In and for the County of Yellowstone,
                 The Honorable G. Todd Baugh, Judge presiding.
COUNSEL OF RECORD:
         For Appellant:
                 Davidson   &   Poppler; Doris M. Poppler, Billings,
                 Montana
         For Respondent:
                 Sandall, Cavan, Smith         &   Grubbs; John J. Cavan,
                 Billings, Montana



                                       Submitted on Briefs:        March 31, 1 9 8 8
                                          Decided:       June 7, 1.989
Filed:   gua y


                                       Clerk
Mr. Justice R.   C. McDonough delivered the Opinion of the
Court.

     This appeal from the Thirteenth Judicial District
involves the division of a marital estate in a dissolution
proceeding. Appellant Carol C. Dalley (Carol) contends that
the District Court erred in arriving at her share of the
estate, and respondent and cross-appellant, Mark F. Dalley
(Mark) makes the same claim in regard to his share on
cross-appeal. We affirm the division made by the District
Court.
     The issues presented for review on appeal are as
follows:


     (1)    Whether the Court abused its discretion in
apportioning the parties' marital assets?
     (2) Whether the Court erred in failing to award Carol
assets traceable as gifts from her relatives.
     (3)   Whether the Court erred in failing to date the
value of the parties' assets in 1976?
     The issue presented on cross-appeal is:

     Whether the Court abused its discretion in arriving at
Mark's share of the marital assets?

     The relevant facts are briefly as follows: The parties
married on June 28, 1946, and the lower court dissolved the
marriage by interlocutory order on April 10, 1987.       The
property division went to trial on April 23, 27, 28, and 30,
1987.   After the trial on November 10, 1987, the District
Court's decree divided the parties' assets. Under the decree
Carol received property valued at $766,988.60, and Mark
received property valued at $379,001.40.
     The lower court made extensive findings on the
contributions of the parties toward acquiring and maintaining
the assets in the marital estate.      In summary, the lower
court found that: in the early years of the marriage both
parties worked and contributed their income to the expenses
of the marriage; that later Carol cared for the parties'
children and Mark worked to support the family; that gifts of
money, stock, and financial assistance to Carol from her
father, aunt, and uncle before the marriage, and other gifts
from her father during the marriage, were used during the
marriage to suppl-ement the parties' income; that the parties'
bought and sold a Billings tavern during the marriage; that
Carol started her own business during the marriage; that the
parties own their own home; that Carol holds investment
assets which produce income from interest and dividends; that
Carol acquired other investment assets with investment
earnings; that Mark was gifted stock from Carol's father
during the marriage and used the stock and his share of sale
proceeds from the tavern to borrow money for a business
venture which has lost money; that since 1975 the parties
contributed separately to a joint account used to cover
household expenses; that in 1976 the parties began to file
individual income tax returns; that from 1975 to 1986, Carol
contributed $112,076.93 to family living expenses while Mark
contributed $53,550; and that in the near future Carol would
receive an inheritance from her deceased father's estate.
     The lower court listed the parties' assets as follows:

                               ASSETS

      1.   6,672   shares   Arnoco                   $497,064
      2.     667   shares   Cypress Minerals           14,174
      3.   1,185   shares   Lehman Brothers            19,849
      4.     160   shares   Mont. Power Co. Preferred   4,280
         Tax exempt bonds-face value $155,000   183,966
         Money Market Account                    13,808
         IRA (wife)                              15,455
         CD                                      60,000
         1978 Oldsmobile                          3,000
         Manpower, Inc.                          15,000
         CD                                     100,000
         IRA (husband)                            7,500
         Mont. Power Co. (Husband-savings)        4,328
         Cash value life insurance                5,066
         Contract-sale of poker & keno machines 42,000
         1981 Chrysler                            3,000
         Country Club membership                  5,000
         Money Market CD                         87,000
         Family home and contents per Ex. C      70,000
                          TOTAL ASSETS   ....   $1,1501490

The lower court did not list Carol's expected inheritance as
an asset in the marital estate.
     From the total asset figure the lower court subtracted
Mark's liabilities of $180,252, to arrive at a net value of
the parties' assets of $970,238.     The District Court then
made the division as follows:

         Asset items 1 and 2 shall be wife's because
    these are stocks gifted to her by her family and
    the proceeds of stock splits and spinoffs from
    those gifts.
         Asset items 3 through 10 shall be wife's but
    the values of asset items 3 through 10 shall be
    divided 70% to wife and 30% to husband because she
    has been substantially more instrumental in the
    acquisition,    preservation,     management    and
    accumulation of these assets and because gifts from
    her family were also important to her ability to
    put together these assets; 30% to husband fairly
    reflects his contribution to preservation of these
    assets.
         Asset items 11 through 18 are set over to
    husband because these items have been managed by
    him and it is necessary that he have these items to
    achieve an equitable apportionment.
         Asset item 19 is set over to wife but the
    value thereof shall be equally split for this is an
     equitable apportionment of the family home and its
     contents.
          The liabilities, items 20 and 21 are set over
     to husband because he is responsible for their
     creation and continued existence and he has the
     assets which are pledged as security for their
     payment.

                          Issue I.
     Carol contends that the lower court abused its
discretion in dividing the parties' assets.        First, she
argues that the division is unfair because the majority of
her share is traceable to gifts from her relatives. Carol
also contends under this issue that the lower court failed to
consider her father's contribution to the construction of the
family home, and failed to consider her right to half the
proceeds from the sale of the tavern in Billings.
     In reviewing a district court's division of marital
property this Court will reverse a district court:

     only upon a showing that the district court has
     acted arbitrarily or has committed a clear abuse of
     discretion, resulting in either instance in
     substantial injustice.
In re the Marriage of Hall (Mont. 1987), 740 P.2d 684, 686,
44 St.Rep. 1321, 1323.
     We reject Carol's contentions on this issue because S
40-4-202, MCA, gives the lower court the discretion to
consider factors in addition to the source of the property.
In re the Marriage of Vance (1983), 204 Mont. 267, 275, 664
P.2d 907, 912. Here, the lower court found that:

         Wife's investments have been substantially
    more successful than husband's and the generosity
    of her family has played a substantial part in the
    accumulation of the assets the parties own.    But
    husband worked and earned a good income during the
    entire marriage.   That income and wife's income
     have been used by the parties to rear the children,
     support the family, and to some extent, have aided
     wife in accumulating, saving, maintaining and
     increasing those assets managed by her.

In addition to this finding, the lower court also found that
Carol would be more likely to acquire greater capital assets
than Mark, that Carol would shortly receive a substantial
inheritance, and that Mark had contributed to the acquisition
and maintenance of the family home and the tavern.      These
findings are supported by substantial evidence, they weigh in
favor of distributing a portion of assets contested by Carol
on   appeal  to Mark,     and they demonstrate that the
contributions of Carol's relatives were considered.     Thus,
there is no clear abuse of discretion here, and we affirm on
this issue.

                          Issue 11.
     Carol maintains that inasmuch as spouses may conduct
financial transactions independently, (see §§ 40-2-301 to-
302, MCA; § 40-2-202, MCA; § 40-2-106, MCA), and inasmuch as
Mark's  contribution to acquiring and maintaining her
investment assets was minimal, we should conclude that the
District Court abused its discretion by not awarding more of
the investment assets to Carol. Carol fails to specify which
assets should have been awarded to her under this theory, but
we must assume from the facts of this case that the assets
she complains of are the items numbered 3-10 in the lower
court's asset list. Carol received 70% of these assets, and
Mark received 30%.
     First, in regard to the statutes cited, the "application
of these statutes to married couples is undeniable, but there
is no intimation that they are at all controlling upon
dissolution of the marriage by di.vorce."      Cook v. Cook
(1972), 159 Mont. 98, 102, 495 P.2d 591, 593.     We hold here
that they do not control over the more particular provisions
of 5 40-4-202, MCA. Thus, we are not persuaded to reverse by
their citation.
     Second, Carol contends that we should follow the
rationale employed by the Oklahoma Supreme Court in
Mothershed v. Mothershed (Okla. 1985), 701 ~ . 2 d 405, a
dissolution property dispute where the Court stated:
     The gift of property to a spouse during marriage is
     considered separate property of such spouse and
     upon divorce it cannot be considered as having been
     acquired by the joint industry, or efforts of the
     parties to the subject marriage.     ...    I' If one
     spouse brings separate property to the marriage,
     increased or enhanced value of the property will
     not constitute jointly acquired property during
     coveture unless the enhancement value was the
     result of joint efforts, skill or funds of both
     spouses.I'


Mothershead, 701 P.2d at 408 (quoting Templeton v. Templeton
(Okla. 1982), 656 P.2d 250, 252).    We have held similarly
that where none of the value of gifted property is a product
of contribution from the marital effort, the District Court
can justifiably find that the non-acquiring spouse has no
interest in the property.     In re the Marriage of Herron
(1980), 186 Mont. 396, 404, 608 P.2d 97, 101. However, we
also stated in Herron that in determining:
     the exact distribution of this type of marital
     asset, no set formula can be established as to how
     the assets should be equitably distributed.   Each
     case has to be decided on its own merits.

Herron, 608 P.2d at 100.
     As stated in regard to the first issue, the lower court
awarded some of Carol's investment assets to Mark because of;
Carol's superior ability to acquire capital assets and her
recent inheritance, Mark's current indebtedness, and Mark's
contributions of income during the marriage which to some
extent aided Carol's investment ventures. The consideration
of these facts as affecting the distribution of gifted
property is proper under S 40-4-202, MCA, and the facts
themselves distinguish this case from Herron. Thus, there is
no clear abuse of discretion on this issue and we affirm.

                        Issue 111.
     Carol contends that the District Court abused its
discretion by failing to value the marital assets in 1976.
She maintains that in 1976 the parties terminated their
marital relationship and began to change their financial
status due to individual initiative.    Thus, according to
Carol, In re the Marriage of Wagner (Mont. 1984), 679 P.2d
753, 41 St.Rep. 409, mandates valuation of the assets in
1976. Mark responds that the marriage relationship was not
terminated in 1976, and that Wagner may be distinguished from
the case at hand.
     First, in Wagner, this Court held that the parties'
unique financial circumstances mandated a valuation of
marital assets two years before the date of formal legal
dissolution because: (1) the assets were acquired after the
marital relationship was irretrievably broken, (2) the
disparity of the parties' business acumen resulted in a
change of the parties' financial status after the separation
so that selection of the later date would create an unjust
distribution. Wagner, 679 P.2d at 758.     In this dispute,
unlike in Wagner, the evidence preponderates against a
finding that the marriage was irretrievably broken in 1976.
The parties here lived together and shared expenses until
June of 1986 when Carol filed her petition for dissolution.
Thus, there is no separation of the parties and their assets
as in Wagner, and the rule from Wagner does not apply.
Furthermore, the award of some of the appreciation of Carol's
investment holdings is supported by the findings we have
referred to in the first two issues. Thus, we affirm on all
issues presented on Carol's appeal.

     On cross-appeal Mark contends that the District Court
failed to properly value his contribution to the parties'
asset accumulation. Specifically, Mark contends that as the
chief breadwinner of the family, his contributions of income
entitle him to a larger portion of the marital assets. We
reject this contention.       The record shows that Carol
contributed her labor as homemaker during much of the period
that Mark claims credit for as the "chief breadwinner", and
the record also reveals that gifts to Carol - Mark of stock
                                            and
from Carol's relatives furthered the establishment and
accumulation of marital assets.      Section 40-4-202, MCA,
mandates consideration of Carol's contribution and the
contribution of her relatives. Thus, the District Court did
not abuse its discretion by undervaluing Mark's contribution.
     Mark also argues that the District Court should have
included the value of Carol's expected inheritance in the
marital estate. A district court may commit error by failing
to consider an expected inheritance in distributing the
marital estate. In re the Marriage of Alt (Mont. 1985), 708
P.2d 258, 260, 42 St.Rep. 1621, 1626.       However, property
gifted during the marriage may be excl-uded from the marital
estate where an objecting spouse can claim no contribution to
the property's value.    Becker v. Becker (Mont. 1985), 707
P.2d 526, 528, 42 St.Rep. 1541, 1544. It follows from Becker
that an expectation of property where an objecting spouse can
claim no   contribution may   be properly   excluded   from the
marital estate.   That is the case here,     and the District
Court properly excluded Carol's   expected inheritance.   All
issues are affirmed.




                                   Justice
                                                          4