No. 14896 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

IN RE THE MARRIAGE OF 

DOROTHY McGILL, 

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, Judge presiding. 

Counsel of Record: 

For Appellant: 

Tipp, Hoven and Skjelset, Missoula, Montana 

For Respondent: 

Lee A. Jordon, Missoula, Montana 

Submitted on briefs: November 21, 1979 

Submitted: MAR 2 7 1931) 

p,'c " - 

Filed: ' 
Mr. Justice Daniel J. Shea delivered the Opinion of the Court. 

The wife appeals from a property distribution decree of 

the Ravalli County District Court. Although she raises issues 

in relation to maintenance and an award of attorney fees, the 

primary issue is whether the trial court erred in dividing the 

parties' property before determining the net worth of the marital assets. 

The wife 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 the marital assets, 

made no provision for maintenance, and awarded the wife $500 for 

attorney fees, The wife 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 the motion for a new trial and amended its 

judgment. The wife 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 the wife 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 served more than 20 years in the United States 

Navy before retiring in November 1978. He now receives a military pension of $642.44 per month. Prior to his military 

service, the husband was an automobile salesman in Hamilton, 

Montana. In the past few years, he has experienced several 

physical problems, and intends to obtain a college education 

rather than return to selling. 
The wife 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 

family home at Stevensville where she raised the parties' 

four children. The husband voluntarily contributed child 

support until the fall of 1977. 

The court's findings of fact made in connection with its 

property division did not place an overall value 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 

sum value on the husband's military pension or value the 

parties' personal property. 

The court's judgment provided that the family home should 

be sold with the net proceeds to be equally divided between 

the parties. It further provided 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 family home, 

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) The proceeds 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 1959 Volkswagen; 

"c) The $5000 New York Life policy and the 

$10,000 New 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 in which 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.and the family home, and to state which 

items of personal property the husband could recover from the 

family home. In connection with her request for maintenance, 

the wife stated that there was 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. The wife appeals 

this order. 

The wife argues that the court could not make an equitable 

property division without first determining 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. In particular, she contends the court should 

have placed a value on the family home, 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 

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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 retirement pay. At the time of the 

court's decree, the husband was receiving net retirement pay 

of $642 per 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 sum value, but that the sum of $100 per 

month from the pension, coupled with the previous award to 

the wife, 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 the wife. Since the court was unable to determine 

the total value of husband's pension, it apparently attempted 

to equalize the incomes of parties by awarding the wife with 

$100 per month from the pension. The court found that the 

wife could reasonably be expected to earn $450 to $500 per 

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 income of approximately $550 to each party. 

The trial court's finding concerning the wife's earning 

capacity requires clarification. The court does not state 

whether the wife's prospective earnings of $450 to $500 per 

month are net or gross earning. Although we have discussed 

the wife's prospective earnings as if they were net monthly 

earnings, the trial court does not state whether this figure 

represents net or gross income. In addition, the record 

does not support the conclusion that the wife can reasonably 

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be expected to receive net monthly pay of $450 or more. Her 

present salary with the school district provides her with a 

net monthly income of $368. There was no evidence in the 

record to show that she could reasonably be expected to earn 

more than $368 per month in the future. 

The wife also asserts error in the court's failure to 

value the remaining personal property distributed by the court. 

The court apparently concluded that the residue of 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 court did not give any explanation for dividing the personal 

property as it did. 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 a whole, we are unable to 

determine any coherent plan for equitable distribution of the 

parties' property. The court awarded the wife with 50% interest 

in the parties' home, but she received only 15% of the husband's 

pension. No estimate was placed on the wife's share in the 

remainder of the parties' personal property. The trial courfs 

failure to provide in its order any overall plan 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 for maintenance 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. 

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Since it is not possible to ascertain whether the property 

division was 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 the wife 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 the wife'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 is vacated and remanded for further proceedings 

consistent with this opinion. 

We Concur: 

Chief Justice 

Justice 

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