No. 13680
IN THE SUPREME COURT OF THE STATE OF MONTANA
1977
NAZARIA C. MARTINEZ,
Petitioner and Respondent,
-vs-
JOSE MARTINEZ,
Respondent and Appellant.
Appeal from: District Court of the Thirteenth Judicial District,
' Honorable C. B. Sande, Judge presiding.
Counsel of Record:
For Appellant:
Gary E. Wilcox argued, Billings, Montana
For Respondent:
Ernest F. Boschert argued, Billings, Montana
Submitted: December 2, 1977
Decided :
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Filed:
Mr. chief Justice Paul G. Hatfield delivered the Opinion of the
Court.
Appellant appeals from a District Court order of dis-
position of marital property in a dissolution of marriage action.
In 1945, appellant, Jose Martinez, purchased two lots
in Billings, Montana, for a total cost of $350. When appellant
married respondent, Nazaria Martinez, in 1955, there apparently
was a house on the front portion of the property. After the
marriage, the parties in 1957 built another small house on the
rear of the lots, appellant furnishing $2,000 and respondent
doing the building work. The couple built a garage and in 1962
remodeled and converted it into a small Mexican food cafe. The
$1,000 expense of remodeling was initially divided equally between
the parties, but respondent testified that she later repaid appel-
lant for his share of renovating the garage. Respondent has oper-
ated the restaurant, without assistance from appellant, since
about 1964. During the first year of operating the cafe, respon-
dent earned about $2,000. The gross income for the cafe in 1975
was $9,914, and respondent testified that she works seven days a
week at the cafe. Respondent also testified that, during the
time she and appellant were married, she spent $11,600 of her
own funds remodeling the front house and converting it into a
duplex.
Appellant worked for a Billings meat packing company for
16 years before becoming disabled in 1959. Appellant is almost
totally blind and receives a total of $240 per month from social
security and his pension plan at the packing company. Prior to
trial, appellant moved to southern California where he resided
with his two daughters from a prior marriage.
Respondent, Nazaria Martinez, filed a petition for dis-
solution of marriage in District Court, Yellowstone County, on
August22, 1975. The case was tried on March 29, 1976. At the
time of trial, the court reporter indicated that, due to his
work schedule, he could not report the case at the time set.
Counsel for both parties agreed to dispense with a court reporter
and waive their right to a record of the trial.
Both parties were 61 years old at the time of the trial.
Only appellant and respondent testified at the trial and their
sometimes conflicting testimony indicated that they had accumu-
lated the following assets: (1) The aforementioned lots in
Billings; (2) the front and back houses and the cafe, all located
on the lots; (3) either one or two bank accounts of between $4,200
and $4,300; and (4) real property in Mexico.
After the trial the District Court judge granted the dis-
solution of marriage and found that the real property in Billings
could not be economically partitioned. The judge found that re-
spondent had contributed the far greater portion to the improve-
ment and resultant appreciation in value of the real property and
that the small cafe was respondent's only means of support, while
appellant had a $240 guaranteed monthly income. The District Court
then ordered that respondent receive title to all of the parties'
real property, but that she pay appellant $4,000 as the reasonable
value of his contribution to the present value of the property.
The judge also allowed appellant to retain the approximately $4,300
in the savings account which was in his name.
Subsequent to the time that the judge issued his decree
and order, present counsel for appellant was substituted as of
record. Because no official transcript of the dissolution hear-
ing was made, counsel reconstructed a "bystander's bill" which
the judge certified as a reasonable and accurate transcript of
the proceedings. Appellant appeals only the disposition of the
property portion of the decree of dissolution.
Appellant raises these issues on appeal:
1. Did the district judge err in not having a court
reporter take an official transcript of the proceedings?
2. Was there sufficient evidence to support the district
judge's order for division of the marital property?
Although the lack of a court reporter's record makes
appeal more difficult, it is not a fatal error. Rule 9(c), M.R.
App.Civ.P., provides procedures for making a bystander's bill,
as a substitute for the court reporter's transcript of the pro-
ceedings, where " * * * no report of the evidence or proceedings
at a hearing or trial was made * * *." Appellant voluntarily
waived his right to a court reporter at trial and may not on ap-
peal object to the absence of a transcript of the proceedings.
Because the bystander's bill is an acceptable, if not
ideal, record, the validity of the property disposition must
stand or fall solely on the basis of that record. Our inquiry in
this case, therefore, is confined solely to whether there was
substantial evidence in the record--the bystander's bill and the
exhibits admitted at trial--to support the judge's findings of
fact and order of property disposition. Fautsch v. Fautsch (1975),
166 Mont. 98, 102, 530 P.2d 1172.
The trial judge did adequately consider the " * * * dur-
ation of the marriage * * *, the age, health, station, occupation,
amount and sources of income, vocational skills, employability
* * * and needs of each of the parties * * *" as is required by
section 48-321, R.C.M. 1947. The record and the judge's findings
of fact speak directly to these issues. Before dividing the marital
property between a contesting husband and wife in a dissolution
of marriage action, based on the above considerations, however,
section 48-321 requires the trial judge to consider the " * * *
estate, [and] liabilities * * * of each of the parties * * *" and
" * * * the increased value of property acquired prior to marriage
* * *." There is no evidence in the record (the bystander's bill
or exhibits) as to the value of the Billings property. Although
appellant testified that he and respondent owned property in
Mexico, no evidence was introduced as to the property's value,
and the court made no mention of the Mexican property in its
property disposition order. Testimony was conflicting as to the
types of bank accounts of the parties and the amount of money
in those accounts. Appellant testified that he and respondent
had a joint bank account containing about $4,200, while respon-
dent testified that there was a savings account of approximately
$4,300 in appellant's name. No bank books or other documents
were introduced into evidence to eliminate this inconsistency.
Respondent maintains that the Montana Department of Revenue
1976 appraised value of $10,030, and 1975 assessed value of $3,700
for the parties' Billings property are entitled to judicial notice
and support the trial judge's findings and order. Whether or not
in retrospect these figures provide an accurate indication of fair
market value of the Billings property, however, begs the issue.
Section 48-321, R.C.M. 1947, requires the trial judge to consider
the property values. Neither the appraised valuation nor the
assessed valuation were introduced as evidence at trial; nothing
in the judge's findings of fact or conclusions of law show that
he ever considered the assessed or appraised value of the land
prior to his property disposition order.
Respondent also maintains that the Mexican property is
irrelevant to the property disposition because it is of negligible
value and because a Montana District Court order is of no effect
in Mexico. The record is silent as to the value of the Mexican
property. The Mexican property is relevant to a property dis-
tribution because, although Montana court orders encumbering or
transferring title to Mexican property may be of no legal effect
in Mexico, that Mexican property still is of value to the owner,
is part of the owner's estate, will affect the owner's future
needs, and therefore must be considered under section 48-321.
This case well illustrates the pitfalls of proceeding
to trial without a court reporter, and relying on reconstruct-
ing the trial testimony from the collective memories of the
attorneys and the trial judge in the form of a bystander's bill.
The only evidence in the record in this case was the bystander's
bill and three exhibits (two rent receipts and a receipt, signed
by appellant, stating that respondent had repaid appellant money
which appellant had provided for converting the garage into a
cafe). There is no evidence in the bystander's bill or the ex-
hibits to show that the trial judge adequately considered the
" * * * estate, (and) liabilities * * * of each of the parties
* * *n or " * * * the increased value of property acquired prior
to marriage * * *" as was required under section 48-321. As
stated in Fautsch at p. 102, " * * * This Court will not disburb
findings of the district court where supported and justified by
substantial evidence. (Citation omitted.) However, this Court
cannot affirm a judgment where there is insufficient credible
evidence to support it. * * *" See also Downs v. Downs (1976))
Mont . I
The disposition of property order of the District Court
is vacated and the case is remanded for a new property disposition
hearing to determine the present value of the Billings and Mexico
properties, the amount of money held by the parties in joint and
individual savings accounts, and all other assets and liabilities
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of the parties.
D
Chief Justic
We concur:
ustices