No. 79-109 INTHE SUPREME COURT OF THE STATE OF MONTANA 1980

IN THE MARRIAGE OF: BEVERLY DAHL

## , Petitioner and Respondent,

VS

# . ROGER DAHL, Respondent and Appellant.

Appeal from: District Court of the Eighth Judicial District, In and for the County of Cascade. Honorable Joel G. Roth, Judge presiding. Counsel of Record: For Appellant: Robert J. Ernmons, Great Falls, Montana For Respondent: Cameron Ferguson and Dola Wilson, Great Falls, Montana

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Submitted on briefs: April 25, 1980 Decided: 

## #fly

## 1

## 2 1984 Filed: 

### $Jfi-y'j~ j$&-JMr. Justice John Conway Harrison delivered the Opinion of the Court. This 

### is an appeal from 

### a decree adjudicating property rights, a cash award, and attorney fees following a divorce entered inthe DistrictCourt of the Eighth Judicial District, Cascade County, the Honorable Joel G. Roth presiding. The issues for review 

### are: 1. Did the trialcourt abuse 

### its discretion inmaking

a division of property between the parties? 2. Did the court 

### err inawarding Mrs. Dahl attorney fees? 3. Did the trial court 

### err inawarding Mrs. Dahl monies borrowed by her from her father topay a mortgage and medical expenses, when Mr. Dahl was said to be responsible and failed topay? The parties inthis action

### weremarried in 1956. Five children were born of the marriage, two of whom were minors 

### atthe 

### timeof the trialcourt's judgment on April 301 1979. InNovember 1974, 

### a decree

### was entered granting the parties

a divorce and deferring matters of support and property settlement pending further hearings. No appeal was taken from that decree. Prior tothe entry of the decree, an order 

### was entered by the court directingMr. Dahl topay the sum of $500 for child support and also tomake the house payment. In 1976, following a hearing, findings of fact, conclusions of law, and an order 

### were entered, providing for support, custody, and the division of the property. Mrs. Dahl appealed from thatorder, and thisCourt remanded the

case for further proceedings. Dahl v. Dahl (1978), Mont. 

## , 577 P.2d 1230, 35 St.Rep. 536.

### Thereafter, following a hearing, the trialcourt entered findings of fact, conclusions of law, and judgment

on ~pril 30, 1979. 

### This judgment made a property division; required Mr. 

### Dahl topay back child support; directed that he pay Mrs. 

### Dahlfsfather certain sums; awarded Mrs. 

### Dahl attorney fees; granted Mrs. 

### Dahl the custody of the minor children; and provided for support. From thisorder Mr. 

### Dahl appeals. 

### In the earlier case on appeal before thisCourt we: (1)

### ordered a 

### new trialon the issue of back support; (2) 

### directed the lower court tomake findings as towhy attorney fees

### were not awarded; and (3) 

### directed a new trialon the issue of the division of theproperty. We 

### found inour previous opinion with regard to the property division that there was no competent evidence of the value of some of the principal 

### itemsof the marital property, i.e., Dahl's Wrecking Service and property used in connection therewith. Inaddition, although the parties had been ordered to turn over specified financial records to a certifiedaccountant approved by the court, this

### was never done; and the appraisal submitted by Mr. 

### Dahl's accountant

was not certified butwas prepared by that accountant on the basis of information supplied only by Mr. 

### Dahl. Following remand, the District 

### Court entered new findings of fact, conclusions of law and judgment. ~nterestingly enough, the property was divided essentially in the same way asbefore--1lrs. Dahl received the house, and Mr. 

### Dahl 

### received the business property subject to some liens. In this instance, however, Mr. 

### Dahl appears asappellant rather than



### as respondent.In the second hearing before the DistrictCourt, Mr. Dahl did not appear or supply any information to 

### assist the trial court inreaching 

### a proper and just settlement of the parties' property. The problem that caused the appeal to be made in the firstinstance

### wasMr. Dahltsfailure to comply with the DistrictCourt's order to supply adequate figures concerning the business worth of his property. This Court r-otedin

### its earlier opinion that the 

### District Court did not have competent evidence toestablish the value of the Dahl Wrecking Service. On second hearing, Mr. Dahl again failed to supply the necessary records, although ordered todo so by the DistrictCourt. He also failed to return certain business records delivered tohim by Mrs. Dahl despite an agreement to do so. Atthe hearing on remand, Mr. Dahl failed to submit any business records showing what happened to the business 

### assets other than the land and the building. He failed to appear and to testify atthe hearing, aspreviously noted. Yet, he now appeals the DistrictCourt decision and, in effect, argues that the 

### trial court did not have sufficient evidence tomake findings concerning the business. The DistrictCourt noted that appellant had failed topresent to the court 

### a proper valuation figure for the business, but on the basis of the information presented, the court fairly divided the parties' marital property. The court found that Mrs. Dahl needed the house tomaintain a reasonable standard of living and provide a home for the minor children; that in view of her income and expenses 

### it

### was unlikely that she would be able tootherwiseprovide suitablehousing; and thatMr. Dahl, inview of his experience and skills, was capable of earning sufficient income to provide for her needs.While appellant contends that the 

### District Court's property division was unfair because his share of the par

### ties' marital assets 

### isineffectreduced by the amount of various federal and state income tax liens filed against him, 

### we note that these liens represent appellant's delinquent federal and 

### state income tax obligationsprimarily for the years 1974 through 1977. The parties 

### weredivorced in

This matter has been pending now for a period of some sixyears since the time of the original divorce. In considering the total record inboth appeals, 

### we find that the failureof appellantRoger Dahl to cooperate with the trialcourt in thismatter 

### is such 

### as to preclude the court from arriving ata better settlement of the marital estate than has now been done. Aanenson v. Aanenson (1979), 

## - Mont. 

## , 598 P.2d 1120, 36 St.Rep. 1525, 

### set forthprinciples which provide 

### a guide in settling thismatter. In Aanenson, 

### we recognized certainprinciples to be applied,



### stnting: "Although the DistrictCourt may equally divide the

### marital assets, such a distribution 

### isnot mandated by section 40-4-202, MCA. [Citations omitted.] Each casemust be looked atindividually, with an eye to 

### itsunique circumstances. [Citations omitted.

### 1 "A 

### District Court has farreaching discretion inresolving property divisions, and 

### itsjudgment 

### willnot be altered unless clear abuse of discretion 

### is shown. [Citations omitted.] The test for reviewing the District Court's discretion 

### is: Did the District Court inthe exercise of its discretion actarbitrarilywithout 

### employment of conscientious judgment, or exceed the bounds of reason inview of all of the circumstances? [Citations omitted.]" Aanenson, 558 P.2d at1123, 36 St.Rep. 

### at 1528. After reviewing the findings of factand conclusions of law 

### set forthby the DistrictCourt to 

### settle this

### matter,

### we find the above principles support 

### its findings, and they

are affirmed. The second issuebefore us concerns attorney fees. The ~istrict Court found that respondent, Mrs. Dahl, did not have sufficient income topay her attorney fees. That finding is substantiated by the evidence. No evidence 

### was introduced by Mr. Dahl concerning his current income although Mrs. Dahl testified that he was a good welder and mechanic. Mrs. Dahl made a showing of necessity for the award of fees, and the DistrictCourt fairlyconcluded that appellant should pay her attorney fees. The third issue concerns the award to Mrs. Dahl the

sums of $4,537.18 and $262.00 representing monies borrowed by her from her father topay mortgage and medical expenses. Atthe 

### timeof the divorce inApril 1974, the DistrictCourt ordered appellant tomake the parties' monthly house payments inaddition to child support for the parties' children. Atthe second hearing on thismatter, the District Court took judicial notice of this order. Appellant failed to keep these payments current and Mrs. Dahl 

### was required to borrow necessary funds from her father tomeet these payments. Over a period of 

### time, her father paid $4,537.18 to Great Falls Federal Savings and Loan to keep his daughter and her family living inthe family home. While appellant argues that there

### was no agreement on thismatter, the fact

### is that he had been ordered by the court tomake the house payments and failed to do so. At the second hearing, Mrs. Dahl's father produced cancelled checks into evidence showing how much he had advanced inthe way of payments to the savings and loan company tokeep the family in the family home.Roger ~ahl made the house payments for approximately two years as ordered, but deducted tho amounts so paid from what he was ordered topay 

### as child support. He was given fullcredit forwhatever payments he actuallymade for either child support or payments on the house, despite the unauthorized manner inwhich he made these payments. Appellantargues that the trial court converted an alleged deficiency as to the payments intoa "property division." The 

### trial court, inmaking 

### a property division, not only had the function of dividing the parties' property between them, but also tomake provision for and allocate the responsibility for the payment of debts and obligations regarding such property. Appellant's obligation tomake the house payment related toproperty awarded toMrs. Dahl--the house. Appellant argues that he should not have tomake the $4,537.18 payment because his father-in-law has no claim against him for such amount. This argument 

### isbeside the point. The District Court did not order appellant topay his father-in-law, but ordered these payments to be made to respondent, Mrs. Dahl, so that she can liveup to an agreement she has with her father topay these amounts back to him. Appellant's argument begs the issue because Dahl had been ordered tomake the house payments and topay Mrs. ~ahl alimony, which he has failed to do. Finally, appellant cites

### Williams v. Budke (19801, Mont. 

## , 606 P.2d 515, 37 St.Rep. 228, alleging that this case supports his argument that respondent's remedy was touse the statutesrelating to collecting on judgments for accrued obligations. Williamsdoes not stand for the principle that a person seeking a judgment on a delinquent obligation in

### a divorce action 

### is limited to only one remedy.The Court in that case noted that there arevarious means of enforcing orders directing thepayment of supportmoney and obligations of divorce. It isproper for the 

### District Court, as was done here, todetermine how much 

### was owed and to enter a judgment for such amount; in so doing the court avoids duplicity of proceedings. As noted inthe conclusion of respondent's brief, this has been a long divorce proceeding to say the 

### least. The parties were divorced in 1974; 

### it 

### isnow 1980. It 

### is time that the matter be laid to 

### rest and the proceedings be finally concluded inthe interestof justice. The DistrictCourt properly decided the issues appezled flom and 

### its decision 

### ishereby affirmed.



## I

We concur: 

# PA&$% 

# 4 ief Justice