No. 13364 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

WILLIAM R. MORSE, 

Plaintiff and Appellant, 

-vsBETTY J. MORSE, 

Defendant and Respondent. 

Appeal from: District Court of the Thirteenth Judicial 

District, 

Honorable M. James Sorte, Jud-qe presiding. 

Counsel of Record. : 

For Appellant: 

Anderson, Symmes, Forbes, Peete and Brown, Billings, 

Montana 

Weymouth D. Symmes argued, Billings, Montana 

For Respondent: 

Hon. Michael Greely, Attorney General, Helena, 

Montana 

Allen B. Chronister, Assistant Attorney General, 

appeared, Helena, Montana 

Berger, Anderson, Sinclair and Murphy, Billings, 

Montana 

Arnold A. Berger argued, Billings, Montana 

Submitted: January 25, 1977 

Decided : Z\dQV 16 1377' 

NQV I E 1gn Filed: 
Mr. Justice Daniel J. Shea delivered the Opinion of the Court: 

The husband appeals from a judgment of the District Court, 

Stillwater County, awarding certain property to the wife in a 

property distribution decree following dissolution of marriage. 

The husband raises several issues relating to the Uniform 

Marriage and Divorce Act and further claims the court failed to 

consider several factors in making its award of the marital property. One of the issues under the Uniform Marriage and Divorce 

Act is his claim that the court did not consider the wife's 

inheritance as a marital asset. Because the District Court 

was not specific in its disposition of the inheritance, we 

are compelled to reverse and remarid for a hearing on the disposition of the inheritance. As to his remaining contentions, we 

find no error. 

First, we will discuss the various other issues raised by 

the husband, and discuss last the issue of the wife's $200,000 

inheritance. 

Both the husband and wife were granted a divorce by the 

court on October 23, 1974. A trial on property disposition 

was held December 9 and 10, 1975. The court issued findings of 

fact, conclusions of law and order apportioning the marital 

property on January 19, 1976. 

The husband contends the correct law under which the court 

divided the property was that which existed at the time the trial 

was held on that matter, and hence prior to the effective date 

of the Uniform Marriage and Divorce Act in Montana, January 1, 

1976. However, section 48-341, R.C.M.1947, of that Act, states: 
"(2) This act applies to all pending actions 

and proceedings commenced prior to its effective 

date with respect to issues on which a judgment 

has not been entered * * * 

"(4) In any action or proceeding in which an 

appeal was pending or a new trial was ordered 

prior to the effective date of this act, the law 

in effect at the time of,the order sustaining 

the appeal or the new trial governs the appeal, 

the new trial, and any subsequent trial or appeal." 

Here, the trial court did not enter judgment on the property 

division until January 19, 1976, eighteen days after the effective 

date of the Uniform Marriage and Divorce Act. Section 48-341(4) 

of that Act specifies the exclusive circumstances under which 

an action would fall under pre-existing law--cases in which a 

judgment has already been entered or a new trial ordered. Subsection (4) plainly does not apply to this case as a judgment 

had not been entered when the Uniform Marriage and Divorce Act 

went into effect. We might add, however, that in the area of 

property division, the Uniform Marriage and Divorce Act provisions 

are similar to case law predating that Act. Biegalke v. Biegalke, 

Mont . , 564 P.2d 987, 34 St.Rep. 401, 405 (1977). 

Therefore the husband lost no substantial rights by coming under 

the Uniform Marriage and Di.vorce Act. 

The basis for dividing property upon dissolution of marriage 

is set out in section 48-321, R.C.M. 1947. It provides in 

relevant part that the court: 

"* * * without regard to marital misconduct, shall * * * finally equitably apportion between the 

parties the property and assets belonging to either 

or both however and whenever acquired, and whether 

the title thereto is in the name of the husband or 

wife or both. * * *'' (Emphasis supplied.) 
The statute also sets out factors which the court must consider 

in the apportionment of the property, including: 

"* * * amount and sources of income * * * needs 

of each of the parties [and] whether the apportionment is in lieu of or in addition to maintenance * * **It 

Concerning property acquired by either spouse before marriage 

or by gift, bequest, devise or descent, the statute provides 

the court shall: 

'I* * * consider thos3contributions of the other 

spouse to the marriage * * * the extent to which 

such contributions have facilitated the maintenance 

of this property and whether or not the property 

disposition serves as an alternative to maintenance 

arrangements. I I 

The husband asks this Court to disregard the specific 

language of the statute prohibiting consideration of marital 

misconduct in distributing marital property, The statute expressly forbids a consideration of marital misconduct in apportioning the marital estate. Since the intent is clear we take 

the statute as we find it. In the Matter of West Great Falls 

Flood Control and Drainage District, 159 Mont. 277, 287, 496 

P.2d 1143 (1972). It is equally clear that the husband would 

fare no better under the law pre-existing the Uniform Marriage 

and Divorce Act. Before that Act, "fault" was considered only 

in the context of a party's right to alimony and could not be 

the basis for depriving either party of property interests upon 

divorce. Johnson v. Johnson, 137 Mont, 11, 17, 349 P.2d 310 (1960). 

The husband also contends that the wife quitclaimed certain 

property to him before the dissolution of the marriage and 

accordingly, the court should not consider that property as part 

of the marital estate. He claims it was the intent of the wife 

to deliver the property to him and this was manifested by the 
execution, delivery, and filing of the deeds. However, section 

48-321 provides that a district court may equitably divide property "however and whenever acquired" and therefore the question 

of title is not controlling. This was also the law before the 

enactment of the Uniform Marriage and Divorce Act. LaPlant v. 

LaPlant, Mont . , 551 P.2d 1014, 33 St.Rep. 580 (1976); 

Downs v. Downs, Mont . , 551 P.2d 1025, 33 St.Rep. 576 

(1976); Cook v. Cook, 159 Mont. 98, 102,103, 495 P.2d 591 (1972). 

The husband contends the prospective assets and liabilities 

of the parties should be considered in a property division. While 

it is true that section 48-321 requires the court, among other 

things, to consider "the opportunity of each for future acquisition of capital assets and income", here there was no sufficient 

foundation established for the reasonable likelihood of acquiring 

future assets. As to future debts or liabilities of the parties, 

such evidence is normally too speculative, and in this case there 

was no reliable evidence by which the court could determine future 

liabilities. For the same reason, we cannot consider the possibility 

the wife will receive an inheritance from her mother sometime 

in the future. 

Because of the ambiguity of the District Court's findings 

on .the wife's inheritance of $200,000 before the dissolution of 

the marriage, we are compelled to remand the cause for a hearing 

and specific findings. It is clear under section 48-321, 

"property and assets belonging to either or both however and 

whenever acquiredl',that the $200,000 inheritance was properly 

an asset of the marital estate at the time of dissolution. The 

husband contends gnce the wife was awarded the entire $200,000 

inheritance, that he should have received a corresponding benefit 

from the remainder of the marital property. 
In his findings the trial judge noted that the wife did have 

an inheritance of $200,000. However, the judge failed to dispose 

of that inheritance in any way which would clearly show his intent. 

The order of distribution listed certain property awarded to the 

wife, and the remainder to the husband. Since the wife was not 

specifically awarded the $200,000, it could be argued the husband 

was to receive the $200,000 inheritance of the wife. But there is 

no evidence the husband asked for all or any portion of the wife's 

inheritance. Neither is there any indication from the evidence, 

findings and conclusions that the court intended to award all or 

any portion of the wife's inheritance to the husband. Moreover, 

on appeal to this Court both parties treat the inheritance as having 

been awarded to the wife. 

The confusion indicated by the record and the position of the 

parties can only be resolved by a rehearing on the issue of the 

inheritance. We stress here that, as in all decrees of property 

distribution, there is no definite formula that must be followed 

and each case must be treated on an individual basis. Biegalke v. 

Biegalke , supra. 

The wife contends the decree should be modified so that 

property awarded to her can be taken from the husband's indirect 

control. This is a matter for the District Court to consider upon 

remand of this case, and it need not be discussed here. The wife 

also contends the judgment should be set aside because the record 

did not disclose the true net worth of the husband. She did not 

cross-appeal on this issue, but raised it for the first time in her 

brief on appeal. Accordingly, she is precluded from raising this 

issue on appeal. Johnstone v. Svejkovsky, - Mont , -9 554 P.2d 

1329, 33 St.Rep. 954 (1976); Spencer v. Robertson, 151Mont. 507, 
511, 455 P.2d 48 (1968). 

We vacate the judgment of the district court and remand 

it for further proceedings consistent with this Opinion. 

We Concur: 

Justices. 
Mr. Justice John Conway Harrison concurring in part and dissenting 

in part: 

This Court in Bdegalke v. Biegalke, - Mont. , 564 P. 2d 

987, 34 St.Rep. 401 (1977), established in Montana that in cases, 

such as the instant one, the provisions of Chapter 3, Title 48, 

sections 48-301 through 48-341, R.C.M. 1947, Montana's Uniform 

Marriage and Divorce Act, apply. 

However, in apportioning the property of the parties here, 

under the provisions of section 48-321, I disagree with the 

majority. 

Here, under the facts until 1964, when the wife moved to 

England, away from the marital domicile, such a division would, 

in my opinion, have been just, for up to that time both equally 

contributed to the acquisition of the property. As I view the 

evidence, it was the defendant wife who wanted the English experience, and it was the plaintiff husband who reluctantly went 

along with her demands. It was plaintiff husband who had to 

purchase the home in England and maintain his family there. From 

1964 to 1972, with the exception of quarterly visits, and because 

of the wife's insistence on living in England, plaintiff's 

children grew up without his close supervision and guidance 

and he was denied the joy and satisfaction of seeing their daily 

development for some eight years. Under these facts one would 

assume the children would be in support of their mother, but here, 

because of her conduct, she has lost the support of all five 

children. They have returned from England to the family home in 

Absarokee and support their father's position in these proceedings. 

He has become both father and mother to them and it is to him 

they have looked to for fiscal and emotional support these last 

six years. Even under the findings of the trial court, it was 
found that after moving to England the wife contributed little 

or nothing to plaintiff father's earning capacity. 

During the marriage the parties accumulated the following 

property : 

1. Family dwelling in Absarokee, with garage 

(average appraised value) 

2. Law off ice building 

3. Morse apartments 

4. Rumaino acreage 

5. Airplane and hanger 

6. Contract proceeds (total) 

7. Morse-Edmonds-Henrickson contract 

8. Pickup and vehicles (agreed value) 

9. Home furniture (plaintiff' s estimate) 

10. Notes and mortgages receivable 

11. Value due on lumber 

12. Accounts receivable (excluding those with 

doubtful collection possibilities) 

13. Insurance (cash surrender value) 

14. Savings Account - Livingston, Montana 

15. Checking Account 

16. Bank account - Red Lodge 

17. Morse Apartments Account 

18. Bonds (including $2,500 belonging to 

wife at time of marriage) 

19. Library and equipment - law office 

20. Morse Apartments - furniture, fixtures 

21. Plaintiff's apartment furniture 

22. Wife's inheritance from father, L.B. Kratz 

The liabilities of the parties consist primarily of outstanding 

mortgages: 

1. Federal Land Bank Mortgage $25,207 

2. U.S. Bank, Red Lodge 37,195 

3. Estimated back tax liability - IRS (1971-1975) 54,000. 

In June 1972, defendant returned to Montana and took up 

residence with her parents. The divorce proceedings commenced 

shortly thereafter. Within two years, but prior to the divorce, 

her father died leaving her approximately $200,000 and in addition 

she received $9,740 as executrix of the estate. She occupies the 

family home and has full use of two family automobiles. While 

speculative in amount, she will inherit a substantial estate from 

her mother who is 82 years old. 
In spite of the above facts, the trial court made this 

distribution of property: 

"A. TO THE DEFENDANT: 

(1) Family dwelling .... together with the attached 

shed or .garage . . . 

(2) All furniture and personal property located in the 

family home other than that, claimed by the third 

party intervenor, and plaintiff' s business records. 

(3) The Morse Apartments ... 

(4) The furniture and fixtures in the Morse Apartments. 

(5) All of the money's payable and all right, title and 

interest of the plaintiff in and to the property 

described as the Morse-Edmonds-Hendrickson Contract, 

the sum being $15,360.83, or, in the alternative, a 

cash payment of $15,360.83. 

(6) One half of the United States Savings Bonds (if and 

when found). 

"B. TO THE PLAINTIFF: 

(1) All of the property of the parties not awarded to 

defendant as evidenced from the exhibits and the 

testimony and brought out during the course of the 

trial. 

(2) The Plaintiff shall pay all outstanding indebtedness 

on the mortgages that secure a loan on any property 

that was awarded to the defendant herein." 

Considering the facts of the instant case, such a distribution of property is, in my opinion, an inequitable distribution 

to the wife. No mention is made by the trial court of the $200,000 

plus inheritance in the court' s disposition formula contained in 

its conclusion of law. Totaling the values of the properties taken 

by the respective parties in such case, would yield this result: 

TO THE HUSBAND 

$173,482 (total value) 

less 62,400 (Outstanding mortgage liabilities) 

111,082 

less 24;000 (conservative estimate of predivorce tax liability) $ 87,082. 
The husband received no house or living arrangements other than 

the ability to rent an apartment owned by the wife by virtue of 

the decree. He is, as is apparent, responsible for all of the 

liabilities of the marriage, a factor to be considered under the 

express language of section 48-321. 

TO THE WIFE 

$81,621 

plus 200,000 (inheritance funds) 

plus 9,700 (executrix fee) 

$291,321 

In addition, the wife received the family home, which she now 

rents to others, despite the court having found as a fact that 

she is entitled to the use and occupancy of the Kratz home. 

Section 48-321 is a statute of broad applicability. It 

speaks of consideration of "all property however and whenever 

acquired" and expressly refers to inheritances. Other factors 

to be balanced, which would find applicability in this case are: 

amount and sources of income, needs of the parties, and opportunities for future acquisitions of capital. 

Other courts have held that, due to a.short term marriage 

or other like circumstances, a spouse seeking apportionment 

of a large sum either brought into the marriage or acquired early 

in the marriage by the other spouse, whether by inheritance or 

otherwise, does not have the same "interest1' in the sum as in 

cases where the marriage is of long duration. Here, the marriage 

lasted approximately 29 years. To deny the husband a share of 

the wife's inheritance would stand on the same footing as denying 

the wife a share of a large sum in windfall profits from the 

husband's business or investments acquired just prior to the 

divorce. 

- I1 - 
To consider inheritances per se as being beyond the 

language or intent of section 48-321, would be, in a sense, 

to cause Montana to become a de facto community property state 

in this regard. In my opinion, this is not the intent of section 

48-321. 

Here, while the husband has a better future earning potential than the wife for obvious reasons a fact which must be 

weighed in the balance, the wife does have a strong potential 

for future acquisition of capital. Both are factors which 

relate to the future needs of the parties. 

The trial judge in his findings of fact recognized the 

wife stands to receive large sums from her mother upon her death. 

The mother is presently 82 and in very poor health. The facts 

indicate a strong likelihood of such inheritance, due to the 

fact Mr. and Mrs. Kratz maintained a joint will. 

I find the holding in Smyth v. Smyth, (Okla.1947), 179 

P.2d 923, persuasive here. There the court said: 

"'Next to the fortune of which he is already 

possessed, consideration should be given to * * * 

future prospects and probable acquisition of wealth 

from any source whatever.* * *'I' 

See also: Smith v.'Smith, (Okla.1957), 311 P.2d 229; Kessinger 

v. Kessinger, 360 Mich. 528, 104 N.W.2d 192 (1960). 

In addition, I find the trial court's decision to saddle 

plaintiff husband with the obligation of all the pre-existing 

tax liabilities to be inequitable. Both owe the obligation, 

both have the ability to pay the obligation, and both should 

share in payment. 

Considering the entire record here, I would reverse due 

to what, 

but ion. 

in my opinion, an unconscionable property distrie"- 

t 

Justice . L I