No. 81-263 INTHE SUPREME COURT OF THE STATE OF MONTANA 1981

INRE THE MARRIAGE OF MYRNA L. MARTENS, Petitionerand Respondent,

GENE P. MARTENS, Respondent andAppellant.

Appeal from: DistrictCourt of theNineteenth Judicial District, Inand fortheCounty of Lincoln, The Honorable Robert Holter, Judge presiding.

Counsel of Record: For Appellant: Donald L. Shaffer, Libby, Montana

For Respondent: David W. Harman, Libby, Montana

Submitted on Briefs: September 3, 1981 Decided: 

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Filed: 

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ClerkMr. JusticeGene B. Dalydelivered theOpinion of the Court. This is an appeal by the husband, Gene P. Martens, from a marital property distribution decree issued by the District Court of the Nineteenth Judicial District, County of Lincoln, on February 17, 1981, inwhich thewife received two-thirds of the equity in the main marital asset, the residence, and the husband received one-third. e affirm theDistrictCourt's decree. Myrna and Gene Martens were married for twenty-one years. Myrna Martens is thirty-eight years old and employed

as a millworker. Gene Martens 

### is thirty-seven years old and presently unemployed. The one childof themarriagehas attained the age of majority. On August 28, 1980, Myrna Martens filed a petition for dissolutionof marriage. A trialwas held on the issue of property distribution on December 11, 1980. All of the marital assets except for the residence were distributedby theDistrictCourt inaccordance with agreementsmade by the parties. With respect tothe distribution of themain marital asset, the residence, the DistrictCourt made the following finding of factand conclusionof law: "That the marriage is of approximately 21 years duration; during that period of time both Parties have worked and contributed to the family welfare. In addition, the Petitioner has been the person responsible for the family home. That at the present time the wife has a larger income; however, she has such larger income because the Respondent simply does not wish to work at hisprevious employment. The wife wishes to keep and maintain the family home as a dwelling for herself and it would appear that this is the most economical direction in which toproceed. Wife does have a retirement program with her employer but the same type of employment was available to Respondentbeforehe quit. Inorder forwife tomaintain something approaching her previous lifestyle it 

### isdesirable that she maintain the family home; on the other hand, Respondent has indicated little desirability on his part to maintain such standard of living.

### " Finding of FactNo. 5. "That the equity in the house, being $24,222.77, should be divided 2/3 to the Petitioner and 1/3 totheRespondent. Inthe event that the Petitioner should sell said house, remarry, and any way assign or alienate her interest therein, within five years of this date, she shall pay to the Respondent $8,074.36 plus interest thereon at the rate of 6%from this date to such date; at the end of five years, and in the event none of the foregoing conditionshappen, then the Petitioner shall pay to the Respondent his full value of equity set forth, aforegoing, plus interest upon such amount from this date at the rate of 6% per annum." Conclusion of Law No. 2. The husband appeals the unequal distribution of the equity in thehouse and presents three issues for review: 1. Whether thefinding of factsmade with respect to the distribution of the equity in the house conform to the evidencepresented attrial. 2. Whether the District Court failed to follow the mandatory considerations of section 40-4-202, MCA, and thereby abused itsdiscretion. 3. Whether the District Court erred by awarding 6% intereston thewife's payment of equity inthehouse tothe husband. Appellant was laid off work inAugust 1980. Atthat time he went to eastern Montana and obtained a job working in the oil fields for about thirty days. Appellant testified at trial that he has had problems with his knee that have hindered his ability to do physical work. Appellant

was recalled to hiswork as a lifttruck driver ata lumber mill in St. Regis but testified that he cannot return to

### thiswork because of knee problems. Based on the above evidence, the District Court found that appellant "simplydoes not wish towork at his previous employment." Appellant contends such a finding is reversible error since it is not supportedby the record. Appellant raises this contention of error in order to contest the unequal distribution of the equity in the residence. The question here, then, iswhether the District Court abused its discretion by distributing the equity in the residence unequally, in light of the undisputed testimony of the husband that his ability to do physical work has been hindered by knee problems and in light of the District Court finding that the husband simplydoes notwish to work. The criteria for reviewing the District Court's discretion is: "Did the district court in the exercise of its discretion act arbitrarily without employment of conscientious judgment, or exceed the bounds of reason in view of all circumstances." Owen v. Owen (1980), Mont.

In exercising its discretion to distribute the marital property equitably, the District Court has the duty to consider the following factors: the duration of the marriage; the age, occupation, amountand sources of income, vocational skills,employability, and estate of theparties; and the liabilitiesand needs of theparties. Section 40-4- 202,MCA; InRe Marriage of Aanenson (1979),

### -Mont. 

### - I 

### 598 P.2d 1120, 1123, 36 St.Rep. 1525;Owen, 609 P.2d at 294. The appellant contends that under Vert v. Vert (1980)I 

### Mont

# . , 613 P.2d 1020, 37 St.Rep. 1282, the

### District Court must conform its findings of facts to the evidence. According to the appellant, the District Court made no attempt to conform its findings of facts to the evidence presented and thereby abused its discretion. Appellant's contention is not supported by the record. The finding that the appellant simply does not wish to work conforms to the record in that appellantdid receive

a recall notice to return to his work at the mill. The District Court did not believe that the appellant's knee problems were so great that he could not work. The record supports the findings by the District Court that the wife has been the person responsible for the familyhome. Shewas solely responsible for thepayments on the home after the husband left for eastern Montana and made all of the house payments from August 1980 to the time of trial in December 1980. The wife testified at trial that shewishes to keep and maintain the familyhome. The record does not reflect such a desire on thepart of the appellant. The finding by the District Court that appellant did not wish to work does not indicate that the District Court arbitrarily or inequitably awarded an unequal distribution of the equity in the house, since the findinghas little, if any, importance in determining how the equity in the residence should be distributed. The distribution of the equity in the house was based on the wife's acceptance of responsibility for it in the months prior to trial, her ability to continue this responsibility, and her desire to continue to do so when the husband did not express such a desire. In light of these considerations, we cannot say that the District Court abused its discretion by dividingthe equity inthehouse unequally. Ivloreover, we have noted in a number of cases that

mere unequal distribution of marital assetsdoesnot suggest that the District Court abused 

### itsdiscretionby failing to apply properly the factors of section 40-4-202, MCA. In Owen, supra, wenoted: '"Although theDistrictCourt may

## -- equally 

### ---- divide the marital assets, such adistribution isnotmandated by section40-4-202, MCA



# . . . Section 40-4-202 is flexible and it vests a good deal of discretion in the District Court

# . . . We have stated, before and after the adoption of the statute, that each case must be looked at individually, with an eye to its unique circumstances 

# .

# .

. (Citations omitted.) In Re Marriage of Aanenson (1979), 

### - Mont

# . , 598 P.2d 1120, 1123, 36 St.Rep. 1525." 609 P.2d at 294. In light of the substantial evidence supporting the unequal distribution of the equity in the residence, the DistrictCourt's distributionmust stand. The appellant contends next that the District Court erred by allowing the wife to pay 6% interest on her payments to him for his share of the equity in the house. The appellant argues that section 25-9-205, MCA, provides that intereston ajudgment is payable at 10%per annum and thatWilliams v. Budke (1980),

### -Mont. 

## , 606 P.2d 515, 37 St.Rep. 228, allowed the 10%rate where the decree was silenton interest. Although section 25-9-205, MCA, has been applied to judgments arising out of a marital dissolution decree, this section has been applied onlywhen thedecree is silentas tointerest. Here the decree is not silent as to interest. In Williams, we acknowledged thatcertaincasesmay arisewhere

### it is equitable and within its discretion for the District Court to expressly allow 

## - no interest on installment payments. Clearly, Williams did not stand for the proposition that a 10% interest rate must be paid on all marital dissolution judgments. Where it is equitable for the District Court to award a lower rate, it is within the discretionary power to do so. Here, it cannot be said that the District Court abused its discretion by setting the interest rate at 6%per annum. The wife has made a request for attorney fees under Rule 32, M.R.App.Civ.P., claiming the appeal here was frivolous. Where there is a reasonable ground for appeal, a respondent is not entitled to recover damages under Rule 32, M.R.App.Civ.P. Erdman v. C & 

### C Sales, Inc. (1978), 176 Mont. 177, 577 P.2d 55, 59. Here the question of the DistrictCourt's abuse ofdiscretionwas reasonably in issue and the respondent's request for attorney fees on appeal must be denied. Having found no abuse of discretion, the property ,5 

### distribution decree of the District ~$u'rt is affirmed. 

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### 1r;./yt4 Justice We concur: