No. 79-90 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

IN RE THE MARRIAGE OF 

HENRY DENNIS BENJAMIN, 

Petitioner and Respondent, 

-vsKAREN RUTH BENJAMIN, 

Respondent and Appellant. 

Appeal from: District Court of the Third Judicial District, 

In and for the County of Powell, The Honorable 

James McClernan, Judge presiding. 

Counsel of Record: 

For Appellant: 

Greg J. Skakles, Anaconda, Montana 

For Respondent : 

Daniels and Mizner, Deer Lodge, Montana 

Filed: 

Submitted on Briefs: July 8, 1980 

Decided : G $3 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Appeal is from the judgment of the District Court, 

Third Judicial District, Powell County, in the dissolution 

of the marriage between Harry and Karen Benjamin. Appellant 

Karen Benjamin requests review by this Court of the division 

of marital assets made by the District Court and of the 

amount of child support ordered to be paid to her as custodial 

parent. 

The issue is whether the evidence is sufficient to 

justify the findings of the District Court and its conclusions 

in the division of the marital property, and the award of 

$200 monthly child support to Karen Benjamin. We determine 

that the evidence justifies the District Court's division of 

the marital property, but that the amount of child support 

to be paid to Karen Benjamin must again be reviewed by the 

District Court. 

Harry and Karen Benjamin were married on November 21, 

1962 in Deer Lodge, Montana. Two children were born of the 

marriage--Brian, born in 1965 and Kari, born in 1969. Harry 

Benjamin is employed as a welder-fitter, earning approximately 

$18,000 annually. Karen Benjamin is employed as a secretary 

earning approximately $9,000. They entered into their 

marriage with very few assets. They separated in February 

1979. When they separated, their major assets included a 

home, a pickup and camper, an automobile, shop tools and two 

snowmobiles. They had no savings account except for their 

respective interests in employment savings and retirement 

accounts maintained by their respective employers. They were 

making monthly payments on most of their property. During 

their separation, Karen Benjamin lived with the Benjamin 

children in the family home. Harry Benjamin lived in the 

camper. 
The parties agreed that Karen Benjamin should have 

custody of the children and that Harry Benjamin should have 

reasonable rights to visitation. They were unable to agree 

on a division of their property or to the amount of child 

support. 

The District Court found the values of the personal 

property of the parties, determined the amounts owing on 

those personal properties and required the husband to pay 

outstanding debts, with the result that the net value of the 

personal property to Karen Benjamin as distributed to her 

amounted to $3,800, and as to Harry Benjamin, $4,310. The 

court ordered that each of the parties retain the benefits 

of their own employment savings and retirement accounts, 

gave the household furnishings necessary to maintain the 

home to the wife, and allowed the husband to keep his personal 

mechanical tools. 

As to the real property, the court found that the home 

had a value at the time of separation of $52,500, in which 

their equity was $32,500. The District Court made provisions 

that the wife, if she desired, keep and maintain the family 

home and pay the remaining mortgage indebtedness on it. 

When the youngest child reaches majority, the house would be 

sold and the petitioner would be entitled to one-half of the 

equity or $16,250. The court further provided in the alternative, 

that the house could be sold as soon as possible and the net 

proceeds split equally between the parties. The court 

further gave the wife the option to purchase the husband's 

property at a total value of $52,500. 

We find that the division of the marital property by 

the District Court is fair and equitable under the circumstances, 

that it takes into account the needs of the wife and children, 

and meets the criteria of section 40-4-202, MCA, respecting 

the disposition of marital property. 

-3- 
The amount of child support awarded by the District 

Court must again be reviewed however, because it appears 

that the evidence on which the court relied to determine the 

husband's income was not properly interpreted during the 

trial. 

The husband did not introduce, and apparently was not 

required to introduce, copies of his income tax returns 

which would reflect his yearly earnings. Instead, the 

husband offered his exhibit no. 1, consisting of two payroll 

deduction stubs. These show that as of July 15, 1979, he 

had earned to date $8,525.24 which was subject to deductions 

of $923.89. As of August 5, 1979, he had earned to date 

$9,366.93 which was subject to deductions of $987.18. From 

those figures, we deduce that the husband's monthly takehome pay averaged $1,170 per month. The husband's counsel 

elicited from the husband, while he was testifying, that 

exhibit no. 1 reflected a net take-home pay per month of 

$962.91, which testimony went unchallenged when it was 

received. The District Court, in its findings, adopted this 

testimony and determined that the husband had a net takehome pay of $962.00, fixed monthly payments of $711.08 

and living expenses of $332.00 which of course, would place 

the husband in a minus income position. 

However, if the payroll stubs reflect accurately the 

monthly and yearly income of the husband, he was earning at 

least $200 per month more than the amount found by the 

court. In addition, the court, by its order, transferred to 

the wife the obligation to pay the mortgage payments, which 

would amount to $275.77 per month. Thus, the husband's 

fixed monthly payments should have been reduced by that sum. 

Instead, the District Court included that sum in the fixed 

monthly payments of $711.08. 
The evidence therefore is insufficient to justify the 

amount of child support. The wife claimed that the sum of 

$250 per month per child would be necessary in order for her 

properly to support the children. 

Under Rule 52(a), M.R.Civ.P., the findings of a District 

Court must stand unless clearly erroneous. When the District 

Court's findings of the husband's income is contradictory to the 

evidence in the case or based on an erroneous interpretation 

of that evidence, the situation is no different than where a 

District Court requires monthly child support without any 

evidence of the father's monthly income. See Olson v. Olson 

(1978) , - Mont. , 574 P.2d 1004, 35 St.Rep. 175. The 

child support must be reviewed by the District Court in light 

of the true income of the husband, under the criteria set 

forth in section 40-4-204, MCA. 

One other observation is needed. It is the duty of 

counsel representing parties in marital dissolution disputes 

to be fully prepared at the time of trial so that the court 

may have before it accurate information from which to make a 

decision. Most of the appeals reaching this Court from 

marital dissolution cases, including this case, have not had 

the advantage of a pretrial conference. It behooves counsel 

in that situation to meet before the trial, exchange exhibits 

and full information about income and expenses of the parties, 

and otherwise prepare in order to save the time of the 

already overburdened District Courts engaged in the trial 

of cases. Such pretrial preparation and cooperation between 

counsel would avoid the misinterpretation of monthly income 

that occurred here, and the admission into evidence of income 

and expense summaries that were obviously prepared in a 

hurry, and for which the underlying documents were not 
available to counsel. The objections made to the summaries 

in this case on the basis that no underlying documents were 

made available to opposing counsel should have been sustained. 

Rule 1006, M.R.Evid. Such pretrial preparation will save the 

time of counsel and of the courts and a good deal of expense 

for the litigants. 

Marital dissolution cases are a headache for the courts 

and are sometimes second-rated by counsel who take on such 

cases. For the married individuals and the children involved, 

however, the consequences can be most grave. The courts, 

including this Court, owe such litigants patient consideration, 

and their counsel owe them their ablest representation, in 

order that the fairest possible results in each case be 

achieved. 

The marital property disposition ordered by the District 

Court is affirmed. The matter of child support is remanded 

to the District Court for reconsideration. 

We Concur: 

Chi$% Justice 

t -, 

Justice