No. 13849
IN THE SUPREME COURT OF THE STATE OF MONTANA
1978
IN RE THE MARRIAGE OF
ROLLAND C. HEBEL,
Petitioner and Appellant,
-vs-
MARGARET C. HEBEL,
Respondent and Respondent.
Appeal from: District Court of the Fifth Judicial District,
Honorable Frank E. Blair, Judge presiding.
Counsel of Record:
For Appellant:
A. Michael Salvagni arqued, Bozeman, Montana
For Respondent:
Berg, Angel, Andriolo and Ilorgan, Bozeman, Montana
Ben E. Berg argued, Bozeman, Montana
Submitted: January 31, 1978
Decided T r I & - 1$78
Mr. ~usticeDaniel J. Shea delivered the Opinion of the Court.
Rolland C. Hebel appeals from an order of the District
Court, Madison County, awarding his former wife $20,000 as the
disposition of marital property in a dissolution of marriage action.
Rolland and Margaret Hebel were married in 1975. The
marriage lasted approximately 18 months. There was a wide dis-
parity in assets between the parties prior to their marriage.
The husband's assets then included 97 acres of land in Madison
County worth between $125,000 and $150,000, 160 head of cattle,
4 draft horses, 2 vehicles and various pieces of farm machinery.
The husband was employed at a talc mine in Cameron, Montana, taking
home approximately $750 per month.
Before the marriage the wife's assets included a trailer
house being purchased in monthly installments, one vehicle, a one-
third interest in a lot in Pony, Montana, worth approximately $300,
three lots in New Mexico worth $3,000, a one-third interest in a
nonproducing mining claim, and approximately $2,300 in a savings
account. The wife managed the Norris Bar in Norris, Montana, for
which she received between $400 and $700 per month in wages plus a
"working interest" in the bar amounting to approximately $4,000
per year.
The husband sold all the cattle, one horse, and 20 acres
of land during the marriage. The wife sold her house trailer,
spent $1,900 of her savings and gave up her job at the Norris Bar,
forfeiting her working interest therein, while she was married.
At the time of the property disposition hearing, the hus-
band had assets of between $100,000 and $125,000 and liabilities
of approximately $15,000. He was taking home $750 per month in
wages and reported monthly expenses of $640. The wife's assets
amounted to approximately $4,000 and she was taking home monthly
wages of approximately $340. She reported expenses averaging $385
per month.
The husband is in good health. The wife suffers from
a heart condition which interferes with her ability to work and
will ultimately require surgery. Prior to the marriage the wife
had group health insurance coverage and during the marriage she
was covered under her husband's plan. She is currently unable to
procure health insurance and has medical expenses averaging $50
per month. The wife's heart condition existed and was known by
the husband prior to the marriage.
Following the hearing the District Court entered findings
of fact, conclusions of law, and a decree awarding the wife a lump
sum settlement of $20,000, payable within five years of entry of
the decree with annual interest of 6 percent payable in semi-annual
installments. To secure the wife's settlement award the District
Court imposed a lien in her name upon the husband's real property.
In an opinion accompanying its decree, the District Court
allocated specific portions of the $20,000 award: (1) $1,900 for
the wife's investment of that amount of her savings in the marriage;
(2) $12,000 for the wife's working interest in the Norris Bar which
she forfeited during the marriage; (3) $4,500 for the wife's con-
tribution as a spouse and a homemaker; and (4) $1,600 for the dis-
parity in age, health, strength and earning capacity.
The issue on appeal is whether the District Court abused
its discretion in awarding the $20,000 lump sum settlement payable
within five years at 6 percent annual interest.
The husband first contends the settlement award is, in
effect, a taking of property he acquired prior to the marriage
and argues the ~istrictCourt failed to follow guidelines for the
disposition of such property set forth in section 48-321, R.C.M.
1947.
The District Court did not award any real property to the
wife and specifically rejected ordering the sale of any such
property in satisfaction of the settlement. In any event, section
43-321, R.C.M. 1947, provides that a District Court may equitably
divide property "however and whenever acquired", and therefore
the question of title is not controlling. Morse v. Morse, (1977),
Mont . , 571 P.2d 1147, 34 St.Rep. 1334, 1337.
As to the apportionment of property "belonging to either
or both", section 48-321 provides the District Court shall consider:
" * * * the duration of the marriage, and prior
marriage of either party * * * the age, health,
station, occupation, amount and sources of in-
come, vocational skills, employability, estate,
liabilities, and needs of each of the parties
* * * whether the apportionment is in lieu of
or in addition to maintenance, and the oppor-
tunity of each for future acquisition of capital
assets and income. The court shall also consider
the contribution or dissipation of value of the
respective estates, and the contribution of a
spouse as a homemaker or to the family unit.
* * *I1
As to the disposition of property acquired by one spouse prior to
the marriage, section 48-321 provides the court shall consider:
" * * * those contributionsofthe other spouse
to the marriage, including the nonmonetary con-
tribution of a homemaker; the extent to which
such contributions have facilitated the main-
tenance of this property and whether or not the
property disposition serves as an alternative
to maintenance arrangements."
The husband has not shown that the District Court ignored
the above guidelines in awarding the $20,000 lump sum settlement.
Although the marriage was not long-lived, the wife did suffer a
depletion of resources in spending most of her savings and giving
up her working interest in the Norris Bar during the course of the
marriage. While she was not a full-time homemaker, the wife did
abandon full-time employment in an effort to save the marriage.
Other undisputed testimony established that the wife's physical
condition precludes strenuous activity, limiting her employability
and earning capacity.
As this Court has often stated, a District Court has far-
reaching discretion in resolving property divisions and its judg-
ment will not be altered unless a clear abuse of that discretion
is shown. Cromwell v. Cromwell, (1977), Mont . , 570 P.2d
1129, 34 St.Rep. 1193, 1194; Zell v. Zell, (1977), Mont . I
570 P.2d 33, 34 St.Rep. 1070, 1074. Since the District Court did
not arbitrarily dispose of the marital property under the circum-
stances of the present case, its disposition was not an abuse of
discretion.
The husband next contends the interest provision of the
settlement award is in effect a maintenance award, and argues the
District Court did not follow guidelines set forth in section 48-322,
R.C.M. 1947, in determining that the wife was entitled to such
maintenance.
The wife requested maintenance. The decree, however, does
not grant it. The decree does give the husband the option of paying
the settlement upon entry of the decree or at any time up to five
years thereafter. The interest provision is brought into play only
in the event the husband chooses to defer payment and only so long
as such payment is deferred.
While the District Court determined the wife had met the
threshold requirements for an award of maintenance found in section
48-322, R.C.M. 1947, in finding she "lacks sufficient property to
provide for her reasonable needs and she is unable to support
herself by appropriate employment", the interest provision here
cannot be properly characterized as maintenance. There is, there-
fore, no basis for the husband's claim that the District Court
abused its discretion in granting the wife interest on any deferred
payment of the lump sum settlement. The factors supporting the
settlement award also support the provisional interest award.
The judgment of the District Court is affirmed.
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We Concur:
- 1
Chief Justice
Justice John C. Sheehy did not participate in this case.