No. 81-43 IN THE SUPREME COURT OF THE STATE OF MONTANA 1981

IN RE THE MARRIAGE OF SUSAN MARIE (HAACK)SLAYTON, Petitioner and Respondent and Cross-Appellant,

ROBERT DALON SLAYTON, Respondent and Appellant.

Appeal from: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable Diane G. Barz, Judge presiding.

Counsel of Record:

ForAppellant: Berger, Sinclair & Nelson, Billings, Montana

For Respondent: Moses Law Firm, Rlllings,Montana

Filed: Submitted on Briefs: April 22, 1981 Decided: November 9, 1981Mr. Justice Daniel J. Shea delivered the Opinion of the Court.

Robert Dalon Slayton (husband)appeals that portion of a 1980Yellowstone County DistrictCourt dissolution decree distributing the marital assets and liabilities and requiring him to pay child support. Susan Marie Slayton (wife)cross-appeals, and claims that the trial court erred by not awarding her maintenance which would allowher to continueher college education. The partiesweremarried onNovember 6, 1968, and had two sons, ages five and three. Before their marriage, thewife attended five quarters of college and then completed an airline attendant course. After their marriage, she worked fulltime until their first childwas born, and then worked parttime until their second childwas born. She then devoted herself to being a fulltimehousewife and mother until she and her husband separated inApril 1980. After their separation, she accepted temporary employmentwith the Census Bureau. When that jobwas terminated, she enrolled as a fulltimeaccounting student at Eastern Montana College. At the time of trial, shewas receiving

an education grant of $331per quarter and had taken out a $2,000 student loan to provide food and babysitters for the children. At the time of their marriage, the husband was attending an electronics schooland then served in the military. At the time of trial, he was employed as an engineering superintendent, receiving a net salary of $1,223per month, but often receiving nearly $1,500per month, depending upon the availability of overtime work.He also receives approximately $300 per quarter as the recipient of dividends from a stock portfolio trust fund. The trust was established for the duration of his father's life. Upon the death of his father,he will receive 50 percent of the trust corpus. His father ispresently 58 and in good health. Thewife did not ask to include these trust dividends in themarital estate. The parties have stipulated that the net value of their marital estate at the time of trial amounted to approximately $31,592. During theirmarriage, the parties accumulated $63,850 in assets and incurred liabilitiesof $32,258. The District Court awarded thewife $21,220 of the net estate, consisting of the following assets: onehalf the value of the familyhome ($25,000),one Ruick automobile ($6OO),the household furnitureand appliances

($9,000),and consisting of liabilities in the amounts of one-half themortgage on the family home ($13,250)and miscellaneous debts ($130). The husband received only $10,372 of themarital estate, consisting of assets in the amounts of one-half of the value of the family home ($25,000)

## , one Jeep automobile ($250), and a boat and trailer ($4,000),and consisting of liabilities in the amounts of one-half the mortgage on the family home ($13,250),and the remainder of the parties' marital debts ($5,367). The trial court expressly found that the husband had agreed to assume these liabilities. In accordancewith the parties' wishes, the court ordered that the family home be set aside for thewife and children's use until thewife remarries or the children are emancipated, at which time the home will be sold and theproceeds split equally by the parties. The trial court also required that the husband pay$200 per child per month for their support and that he maintain health insurance coverage for the children. Thehusband contends that the trial court's order distributing the marital estate was inequitable and done without considering the criteria set forth in section 40-4-202,MCA. Inparticular, he argues that there is no evidence to support a finding that he agreed to assume the majority of themarital liabilities. On the child support order thathe pay $200 a month for each of the two children, he argues that the trial court failed to make findings regarding the needs of the children,as required under section 40-4-204, MCA. In her cross-appeal,the wife argues that the trial court shouldhave ordered the husband to pay her maintenance

so that she can completeher college education. In regard to the husband's claim that the property divisionwas inequitable,we find that merely because the wife received two-thirds of the netmarital estatewhile the husband received only one-third, the division is not inequitable. We have previously affirmed a property divisionwhere one spouse has received a lesser proportion of the netmarital estate because he has been ordered to assume allmarital liabilities. Bailey v. Bailey (1979)

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### , 603 P.2d 259. Here, both spouseswere apportioned nearly equal values of the marital assets--thewife receiving approximately $34,600 invalue (less the value of the household furnishings in the husband's possession) and the husband receivinq approximately $29,250 in value (plus the value of the household furnishings in his possession). Each received half the value of the home and an automobile. The wife,who itwas agreed

was to retain the family home in which to raise the children, received the majority of the household furnishings andappliances, and the husband received the boat and trailer. We find this to be an equitable apportionment of the assets. We will uphold an unequal apportionment of the marital liabilities where there are good reasons for doing so and where the trial court has clearly identified those reasons. But here, the trial court found, with no evidentiary support that the husband had agreed to assume the great majority of the marital liabilities. It is clear from his affidavit filed pursuant to Rule 32,M.R.Civ.P., and his proposed findings that any agreement to assume these liabilitieswas conditional upon the trial court's acceptance of the remainder of his findings. The husband proposed that he would assume all the marital liabilities (includingthe full value of the - home mortgage) in exchange for the wife's acceptance of the duty, as custodian, to support the children. Therefore, it

was error for the trial court to order the husband to assume these liabilities solely upon the finding that he agreed to

assume them. Because there is no other clear indication of the reason the trial court awarded themarital liabilities to the husband,we reverse the property distribution and remand this case to the trial court for further findings. We also agree with the husband that the trial court, in awarding $200per month child support for each of the two children, failed to consider the statutory criteria set forth in section 40-4-204,MCA. The record is barren of any evidence to support the trial court's conclusion that $200 would not only sufficiently maintain the children's standard of living,but also allow enough money for the husband to meet his reasonable needs. We therefore also reverse the child supportorder and remand it to the trial court for further findings.As to the wife's cross-appeal contention that she should have been awarded maintenance to allow her to continue her education, the trial court properly found that the husband's financial resourceswill not allow him to meet that request at this time. However,because we are remanding for further evidentiary proceedings, we leave this issue open so that the trial courtmay again consider this request in light of possible changed circumstances occurring between the time of the trial court's order and the time that another hearing is held. The judgment isvacated and this cause is remanded to the District Court for furtherproceedings.

Justices