No. 81-263 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

IN RE THE MARRIAGE OF 

MYRNA L. MARTENS, 

Petitioner and Respondent, 

GENE P. MARTENS, 

Respondent and Appellant. 

Appeal from: District Court of the Nineteenth Judicial District, 

In and for the County 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: a&@m 

Filed : DEG 10 1981 

Clerk 
Mr. Justice Gene B. Daly delivered the Opinion 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, in which the wife received 

two-thirds of the equity in the main marital asset, the 

residence, and the husband received one-third. e affirm 

the District Court's decree. 

Myrna and Gene Martens were married for twenty-one 

years. Myrna Martens is thirty-eight years old and employed 

as a mill worker. Gene Martens is thirty-seven years old 

and presently unemployed. The one child of the marriage has 

attained the age of majority. 

On August 28, 1980, Myrna Martens filed a petition 

for dissolution of marriage. A trial was held on the issue 

of property distribution on December 11, 1980. All of the 

marital assets except for the residence were distributed by 

the District Court in accordance with agreements made by the 

parties. 

With respect to the distribution of the main marital 

asset, the residence, the District Court made the following 

finding of fact and conclusion of 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 

his previous 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 to proceed. Wife does have a retirement 

program with her employer but the same type 

of employment was available to Respondent 
before he quit. In order for wife to maintain 

something approaching her previous life style 

it is desirable 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 Fact No. 5. 

"That the equity in the house, being 

$24,222.77, should be divided 2/3 to the 

Petitioner and 1/3 to the Respondent. In the 

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 conditions happen, 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 the house and presents three issues for review: 

1. Whether the finding of facts made with respect to 

the distribution of the equity in the house conform to the 

evidence presented at trial. 

2. Whether the District Court failed to follow the 

mandatory considerations of section 40-4-202, MCA, and 

thereby abused its discretion. 

3. Whether the District Court erred by awarding 6% 

interest on the wife's payment of equity in the house to the 

husband. 

Appellant was laid off work in August 1980. At that 

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 his work as a lift truck driver at a lumber 

mill in St. Regis but testified that he cannot return to 
this work because of knee problems. 

Based on the above evidence, the District Court found 

that appellant "simply does not wish to work at his previous 

employment." Appellant contends such a finding is reversible error since it is not supported by 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, is whether 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 simply does not wish 

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, amount and sources of income, 

vocational skills, employability, and estate of the parties; 

and the liabilities and needs of the parties. Section 40-4- 

202, MCA; In Re 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 appellant did 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 

family home. She was solely responsible for the payments 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 

she wishes to keep and maintain the family home. The record 

does not reflect such a desire on the part 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 finding has 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 dividing 
the equity in the house unequally. 

Ivloreover, we have noted in a number of cases that 

mere unequal distribution of marital assets does not suggest 

that the District Court abused its discretion by failing to 

apply properly the factors of section 40-4-202, MCA. In 

Owen, supra, we noted: 

'"Although the District Court may -- equally ---- 

divide the marital assets, such a distribution is not mandated by section 40-4-202, 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 

District Court's distribution must 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 interest on a judgment is payable at 10% per annum and 

that Williams v. Budke (1980), - Mont. , 606 P.2d 515, 

37 St.Rep. 228, allowed the 10% rate where the decree was 

silent on interest. 

Although section 25-9-205, MCA, has been applied to 

judgments arising out of a marital dissolution decree, this 

section has been applied only when the decree is silent as 

to interest. 

Here the decree is not silent as to interest. In 

Williams, we acknowledged that certain cases may arise where 
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 

District Court's abuse of discretion was 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 af firmed. 

l, / 

1r;./yt4 

Justice 

We concur: