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 JamesMcClernan, Judgepresiding.

Counsel of Record: ForAppellant: Greg J. Skakles,Anaconda, Montana For Respondent: Daniels and Mizner, Deer Lodge,Montana

Filed: Submitted on Briefs: July 8, 1980 Decided: 

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## $3Mr. Justice John C. Sheehy delivered the Opinion of the Court. Appeal is from the judgmentof the DistrictCourt, Third Judicial District, Powell County, in the dissolution of the marriage between Harry and Karen Benjamin. Appellant Karen Benjamin requests reviewby this Court of the division ofmarital assets made by the DistrictCourt 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 DistrictCourt and its conclusions in the division of themarital property, and the award of $200monthly child support to Karen Benjamin. We determine that the evidence justifies the DistrictCourt's division of themarital 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 Benjaminwere married onNovember 21, 1962 in Deer Lodge,Montana. Two childrenwere born of the marriage--Brian, born in 1965 and Kari, born in 1969. Harry Benjamin isemployed 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, 

### apickup 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 respectiveemployers. Theywere making monthly payments onmost of their property. During their separation,Karen Benjamin livedwith 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 realproperty, 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 Courtmade 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 reachesmajority, the house would be sold and the petitioner would be entitled to one-half of the equity or $16,250. The court furtherprovided in the alternative, that the house could be sold as soon as possible and the net proceeds split equallybetween 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 ofmarital property. -3-The amount of child support awarded by the District Court must again be reviewed however,because it appears that the evidence onwhich the court relied to determine the husband's incomewas not properly interpreted during the trial. The husband did not introduce,and apparentlywas not required to introduce,copies of his income tax returns whichwould reflecthis yearly earnings. Instead,the husband offered his exhibit no. 1,consistingof 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-homepay per month of $962.91, which testimonywent unchallenged when itwas received. The DistrictCourt, in its findings,adopted this testimony and determined that the husband had a net takehome pay of $962.00, fixedmonthly payments of $711.08 and living expenses of $332.00 which of course, would place the husband in aminus income position. However, if the payroll stubs reflect accurately the monthly and yearly incomeof the husband, he was earning at least $200per month more than the amount foundby the court. In addition, the court,by its order, transferred to thewife the obligation to pay the mortgage payments,which would amount to $275.77 per month. Thus, the husband's fixedmonthly payments should have been reducedby 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 Courtmust 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 thanwhere a District Court requiresmonthly 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 supportmust 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 inmarital dissolution disputes to be fully prepared at the time of trial so that the court may have before it accurate information fromwhich 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. Itbehooves counsel in that situation to meet before the trial, exchange exhibits and full information about income and expenses of the parties, and otherwiseprepare 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 obviouslyprepared in a hurry, and forwhich the underlying documentswere notavailable to counsel. The objectionsmade to the summaries in this case on the basis that no underlying documentswere made available to opposing counsel should have been sustained. Rule 1006,M.R.Evid. Suchpretrial preparationwill 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-ratedby counsel who take on such

cases. For themarried 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 fairestpossible results in each case be achieved. Themarital property disposition ordered by the District Court is affirmed. Thematter of child support is remanded to the DistrictCourt for reconsideration.

We Concur:

Chi$% Justice t -, Justice