No. 14896 IN THE SUPREME COURT OF THE STATE OF MONTANA 1980

IN RE THE MARRIAGE OF DOROTHYMcGILL, Petitioner and Appellant,

VS

# . WILLIAM WESLEY McGILL, Respondent and Respondent.

Appeal from: District Court of the Fourth Judicial District, In and For the County of Ravalli, Honorable Jack L.Green, Judgepresiding. Counsel of Record: For Appellant: Tipp, Hoven and Skjelset,Missoula, Montana For Respondent: LeeA. Jordon,Missoula, Montana

Submitted on briefs: November 21, 1979 Submitted: 

### MAR

### 2

## 7

## 1931) p,'c "

## - Filed: 'Mr. JusticeDaniel J. Shea delivered the Opinion of the Court. Thewife appeals from a property distribution decree of the Ravalli County District Court. Although she raises issues in relation tomaintenance and an award of attorney fees,the primary issue is whether the trial court erred in dividing the parties' property before determining the networth of themarital assets. Thewife commenced this action on June 30, 1978,by filing

a petition for dissolution. On December 22, 1978,the court dissolved the parties' marriage,and reserved the petitioner's request for an equitable property division for a later date. After conducting a hearing on this issue,the court filed an order dated April 11, 1979,which divided themarital assets, made no provision for maintenance, and awarded the wife $500 for attorney fees, Thewife filed a motion for a new trial,or amendment of the court's judgment. On May 23, 1979,the court filed

an order which denied themotion for a new trial and amended its judgment. Thewife appeals from the amended judgment. The parties were married in 1948,and had four children of the marriage, all of whom are now emancipated. At the time of the court's judgment thewife was 53 years of age and the husband was 56. During the last ten years, the parties have been separated, the husband maintains a separate residence in Seattle, Washington,while the wife resides in Stevensville, Montana. The husband servedmore than 20years in the United States Navy before retiring inNovember 1978. He now receives a military pension of $642.44 per month. Prior to hismilitary service, the husband was an automobile salesman in Hamilton, Montana. In the past fewyears,he has experienced several physical problems, and intends to obtain a college education rather than return to selling.Thewife has been employed as a secretary for the Stevensville School District for over ten years and receives net pay of $368 per month during the ten month school calendar. In the summer months, the wife has performed part-time work. During the parties' ten year separation, she has lived in the familyhome at Stevensville where she raised the parties' four children. The husband voluntarily contributed child supportuntil the fall of 1977. The court's findingsof fact made in connection with its property division did not place an overallvalue on the marital assets. The court estimated the value of the parties' house to be $60,000 to $75,000,but it did not place a lump

sumvalue on the husband'smilitary pension orvalue the parties' personal property. The court's judgmentprovided that the family home should be sold with the net proceeds to be equally divided between theparties. It furtherprovided that the wife 

# ".

. . should be awarded the following items of marital property subject to the payments by her of the security and indebtedness therein: "a) The household furnishings in said home; "b) All other items located in the familyhome, except those items of a personal nature belonging to the Respondent; "c) The 1976 Toyota; "d) New York Life account in the amount of $1500, of which she is the owner; and "e) Theproceeds from the promissory note given to her by her sister,and all her checking and savings accounts." The husband was awarded the following property: "a) The retirement pension; "b) 1968 Chevrolet and 1959Volkswagen; "c) The $5000New York Life policy and the $10,000New York Life policy; "d) All his checking and savings accounts;"e) All his interest in the Knoxville, Tennessee property for which he holds the warranty deed." The court made no provision for the maintenance of either party, and awarded the wife $500 for attorney fees. The wife filed a motion for a new trial or amendment of judgment,and a brief inwhich she sought a share of the husband's military pension, maintenance and a larger award for attorney fees. She asked the court to set a value on the husband's pension.andthe family home, and to statewhich items of personal property the husband could recover from the familyhome. In connectionwith her request for maintenance, the wife stated that therewas no evidence to support the court's finding that she could reasonably be expected to earn $450-$500 per month. The court order of May 23, 1979,denied the motion for a

new trial,but amended its judgment to award the wife $100 per month from the husband's pension. The court order affirmed the prior judgment in all other respects. Thewife appeals this order. Thewife argues that the court could not make an equitable property division without firstdetermining the parties' net worth. See, In Re Marriage of Metcalf (1979), -Mont

# . - 

## , 598 P.2d 1140, 36 St.Rep. 1559;Grenfell v. Grenfell (1979), - Mont. 

### , 596 P.2d 205, 36 St.Rep. 1100; In Re Marriage of Brown (1978), Mont

# . , 587 P.2d 361, 35 St.Rep. 1733; Vivian v. Vivian (1978), 

### -Mont

# . - 

### , 583 P.2d 1072, 35 St.Rep. 1359. Inparticular, she contends the court should have placed a value on the familyhome, and the husband's military pension. We find no error concerning the disposition of the family home. The court roughly estimated the family home's worth at $60,000 to $75,000. This estimate was supported by evidence produced at trial. A precise estimate of the home's value was not needed -4-here,where the court ordered the net proceeds from the sale to be equally divided between the parties. On the other hand, the court did not evenly divide the husband's military retirementpay. At the time of the court's decree, the husband was receiving net retirementpay of $642per month. The size of the pension increases automatically as the cost of living rises. The court concluded that the pension which terminates upon the husband's death did not have a precise lump sumvalue, but that the sum of $100per month from the pension, coupledwith the previous award to thewife, represented the wife's equitable share in the marital estate. We find that the trial court's findings of fact do not adequately support its award of only 15% of the husband's pension to thewife. Since the courtwas unable to determine the total value of husband's pension, it apparently attempted to equalize the incomes of parties by awarding the wife with $100per month from the pension. The court found that the wife could reasonablybe expected to earn $450 to $500per month, while the husband intended to rely solely on the military pension for his support. Thus, the court apparently reasoned that its award to the wife would result in net monthly incomeof approximately $550 to each party. The trial court's finding concerning the wife's earning capacity requires clarification. The court does not state whether thewife's prospective earnings of $450 to $500per month are net or gross earning. Although we have discussed the wife's prospective earnings as if they were netmonthly earnings, the trial court does not state whether this figure representsnet or gross income. In addition, the record does not support the conclusion that thewife can reasonably -5-be expected to receive netmonthly pay of $450 ormore. Her present salarywith the school district provides her with a netmonthly income of $368. Therewas no evidence in the record to show that she could reasonably be expected to earn

more than $368per month in the future. Thewife also asserts error in the court's failure to value the remaining personal property distributed by the court. The court apparently concluded that the residueof the marital estate was relatively unsubstantial and thus did not have to be valued. The record does not support such a conclusion. Husband testified that he had over $3,000 in his savings account, and the parties had an interest in numerous insurance policies. The trial courtdid not give any explanation for dividing the personal property as itdid. It is not the function of this Court to value each item in the marital estate in order to measure the fairness of the distribution. We conclude the court's failure to place a value on the parties personal property prevents us from adequately reviewing the equities here. A further comment on the court's findings is needed here. Reviewing the court's findings as awhole,we are unable to determine any coherent plan for equitable distribution of the parties' property. The court awarded thewife with 50% interest in the parties'home, but she received only 15% of the husband's pension. No estimatewas placed on the wife's share in the remainder of the parties' personal property. The trial courfs failure toprovide in its order any overallplan for the distribution of the property makes review exceedingly difficult, if not impossible. The wife argues that she is entitled to maintenance. The wife's need formaintenance can only be determined after there has been an equitable division of property. See In Re Marriage of Johnsrud (1977), 175 Mont. 117, 572 P.2d 902, 34 St.Rep. 1417. -6-Since it isnot possible to ascertainwhether the property divisionwas equitable,we cannot determine whether the court properly denied maintenance. The wife also contends that she is entitled to a larger award for attorney fees. The court found that thewife had incurred reasonable attorney fees in the amount of $1,001.92 and that the husband having a more favorable cash standing than the wife should be required to pay $500 of thewife's fees. The wife argues that the court's failure to properly apportion the parties' property indicates that it failed to consider the financial resources of both parties before awarding attorney fees. See section 40-4-110,MCA. Under the circumstances of this case, we consider it best to also vacate the attorney fee award and leave it to the discretion of the trial court as to whether the award should be modified in view of the action

we take remanding the case for appropriate findings. The judgment isvacated and remanded for further proceedings consistent with this opinion.

We Concur:

Chief Justice Justice 

# w-&:--*

Justices 

### ----