No. 79-109 

IN THE 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 

- - 

Submitted on briefs: April 25, 1980 

Decided: #fly 1 2 1984 

Filed: $Jfi-y'j~ j$&-J 
Mr. 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 in the District Court of the Eighth Judicial District, Cascade County, the Honorable Joel G. Roth presiding. 

The issues for review are: 

1. Did the trial court abuse its discretion in making 

a division of property between the parties? 

2. Did the court err in awarding Mrs. Dahl attorney 

fees? 

3. Did the trial court err in awarding Mrs. Dahl 

monies borrowed by her from her father to pay a mortgage and 

medical expenses, when Mr. Dahl was said to be responsible 

and failed to pay? 

The parties in this action were married in 1956. Five 

children were born of the marriage, two of whom were minors 

at the time of the trial court's judgment on April 301 1979. 

In November 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 to the entry of the decree, an order was entered 

by the court directing Mr. Dahl to pay the sum of $500 for 

child support and also to make 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 that order, and this Court remanded the 

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

Mont. , 577 P.2d 1230, 35 St.Rep. 536. 
Thereafter, following a hearing, the trial court 

entered findings of fact, conclusions of law, and judgment 

on ~pril 30, 1979. This judgment made a property division; 

required Mr. Dahl to pay back child support; directed that 

he pay Mrs. Dahlfs father certain sums; awarded Mrs. Dahl 

attorney fees; granted Mrs. Dahl the custody of the minor 

children; and provided for support. From this order Mr. 

Dahl appeals. 

In the earlier case on appeal before this Court we: 

(1) ordered a new trial on the issue of back support; (2) 

directed the lower court to make findings as to why attorney 

fees were not awarded; and (3) directed a new trial on the 

issue of the division of the property. 

We found in our previous opinion with regard to the 

property division that there was no competent evidence of 

the value of some of the principal items of the marital 

property, i.e., Dahl's Wrecking Service and property used in 

connection therewith. In addition, although the parties had 

been ordered to turn over specified financial records to a 

certified accountant approved by the court, this was never 

done; and the appraisal submitted by Mr. Dahl's accountant 

was not certified but was 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 

as before--1lrs. Dahl received the house, and Mr. Dahl received the business property subject to some liens. In this 

instance, however, Mr. Dahl appears as appellant rather than 

as respondent. 
In the second hearing before the District Court, Mr. 

Dahl did not appear or supply any information to assist the 

trial court in reaching a proper and just settlement of the 

parties' property. The problem that caused the appeal to be 

made in the first instance was Mr. Dahlts failure to comply 

with the District Court's order to supply adequate figures 

concerning the business worth of his property. This Court 

r-oted in its earlier opinion that the District Court did not 

have competent evidence to establish the value of the Dahl 

Wrecking Service. On second hearing, Mr. Dahl again failed 

to supply the necessary records, although ordered to do so 

by the District Court. He also failed to return certain 

business records delivered to him by Mrs. Dahl despite an 

agreement to do so. 

At the 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 at the hearing, as previously noted. 

Yet, he now appeals the District Court decision and, in 

effect, argues that the trial court did not have sufficient 

evidence to make findings concerning the business. The 

District Court noted that appellant had failed to present 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 to maintain 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 to otherwise provide suitable housing; and 

that Mr. Dahl, in view 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 parties' marital assets is in effect reduced 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 obligations primarily for 

the years 1974 through 1977. The parties were divorced in 

This matter has been pending now for a period of some 

six years since the time of the original divorce. In 

considering the total record in both appeals, we find that 

the failure of appellant Roger Dahl to cooperate with the 

trial court in this matter is such as to preclude the court 

from arriving at a 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 forth principles which provide a guide in settling this matter. In 

Aanenson, we recognized certain principles to be applied, 

s tnting : 

"Although the District Court may equally divide 

the marital assets, such a distribution is not 

mandated by section 40-4-202, MCA. [Citations 

omitted.] Each case must be looked at individually, with an eye to its unique circumstances. 

[Citations omitted. 1 

"A District Court has far reaching discretion 

in resolving property divisions, and its judgment will not 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 in the exercise 

of its discretion act arbitrarily without employment of conscientious judgment, or exceed 

the bounds of reason in view of all of the circumstances? [Citations omitted.]" Aanenson, 

558 P.2d at 1123, 36 St.Rep. at 1528. 

After reviewing the findings of fact and conclusions of 

law set forth by the District Court to settle this matter, 
we find the above principles support its findings, and they 

are affirmed. 

The second issue before us concerns attorney fees. The 

~istrict Court found that respondent, Mrs. Dahl, did not 

have sufficient income to pay 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 District Court fairly concluded 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 to pay mortgage and medical expenses. 

At the time of the divorce in April 1974, the District Court 

ordered appellant to make the parties' monthly house payments in addition to child support for the parties' children. 

At the second hearing on this matter, 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 to meet 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 in the family home. 

While appellant argues that there was no agreement on 

this matter, the fact is that he had been ordered by the 

court to make 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 in the 

way of payments to the savings and loan company to keep 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 to pay as child support. He was given 

full credit for whatever payments he actually made for 

either child support or payments on the house, despite the 

unauthorized manner in which he made these payments. Appellant argues that the trial court converted an alleged deficiency as to the payments into a "property division." The 

trial court, in making a property division, not only had the 

function of dividing the parties' property between them, but 

also to make provision for and allocate the responsibility 

for the payment of debts and obligations regarding such 

property. Appellant's obligation to make the house payment 

related to property awarded to Mrs. Dahl--the house. 

Appellant argues that he should not have to make the 

$4,537.18 payment because his father-in-law has no claim 

against him for such amount. This argument is beside the 

point. The District Court did not order appellant to pay 

his father-in-law, but ordered these payments to be made to 

respondent, Mrs. Dahl, so that she can live up to an agreement she has with her father to pay these amounts back to 

him. Appellant's argument begs the issue because Dahl had 

been ordered to make the house payments and to pay 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 

to use the statutes relating to collecting on judgments for 

accrued obligations. Williams does 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 are various means of 

enforcing orders directing the payment of support money and 

obligations of divorce. It is proper for the District 

Court, as was done here, to determine how much was owed and 

to enter a judgment for such amount; in so doing the court 

avoids duplicity of proceedings. 

As noted in the conclusion of respondent's brief, this 

has been a long divorce proceeding to say the least. The 

parties were divorced in 1974; it is now 1980. It is time 

that the matter be laid to rest and the proceedings be 

finally concluded in the interest of justice. 

The District Court properly decided the issues appezled 

flom and its decision is hereby affirmed. 

I 

We concur: 

PA&$% 

ief Justice 

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