No. 81-444 INTHE SUPREYS COURT OF THE STATE OF MONTANA 1982

INRE THE MARRIAGE OF JOANN D. CRABTREE, Petitioner and Appellant,

-vsGEORGE LEROY CMBTREE, Respondent and Respondent.

Appea.1from: District Court of the FirstJudicial District, In and for the County of Lewis & Clark, The Honorable Gordon R. Bennett, Judge presiding.

Counsel of Record: For Appellant: Michael T. McCabe; Skedd, Ashley, McCabe & Weingartner, Helena, Montana For Respondent: Greg Jackson, Helena, Montana

Submitted on Briefs: June 17, 1982 Decided: September 3, 1982



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### \38% Filed:Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of the Court.

This is an appeal from an amended dissolution decree entered September 30, 1981, in the District Court of the First Judicial District,Lewis and Clark County,Montana. Appellant takes issue with the court's determination of the marital estate, the court's division of the marital property and the court's award of child support to the respondent. The partieswere married September 2, 1961, in Billings, Montana. Appellant left the family home June 2, 1978. She filed a petition for dissolution June 16, 1978. Following a hearing on October 14, 1980, the court, onMarch 13, 1981, issued findings of fact, conclusions of law and a decree dissolving themarriage. Alleging changes in circumstance, appellant filed amotion to amend and motion for a new trial April 13, 1981. The court then issued the amended judgment of September 30, 1981. Appellantworked all but two years of her married life. Her incomewas used to pay babysitters and to purchase groceries and household items. At the time of the dissolution, appellant's net incomewas approximately $650 a month while her monthly expenseswere $600. Respondent also consistently worked during the marriage until suffering a stroke in June of 1977. Since then, he has been receiving social security benefits and disability income fromhis former employer, Xerox. At the time of the dissolution, respondentwas receiving $1,100 amonth tax-free. He submitted evidence of hismonthly expenses being $1,328. Findings of the District Court indicate that appellant

was 41years of age at the time of the dissolution, in goodhealth and regularly employed by the State of Montana, with excellent future employment opportunities. Respondentwas 45years of age, in poor health due to his stroke and unemployed, with a limited chance of future employment. Two childrenwere born of themarriage, Kevin George Crabtree on July 2, 1963 and Jodee Lou Crabtree onApril 27, 1964. Theywere 14years old when the parties separated, 18 and 17years of age at the time of the amended decree of dissolution and are now 19 and 18. Both children work. They spend their earnings as they please,primarily on cars and horses. The earnings are not used for their supportby respondent,the uncontested custodian of the children. Themarital estate of the parties and itsworth were stipulated to by the parties, with several exceptions. A major exception relevant to this appeal is lots 18, 19 and 20, Deer Park Hauser Summer Home Area, Lewis and Clark County,Montana. Respondent deeded thoseproperties to his children June 5 and 6, 1978. He contends he did so to insure the future security of his children in the event of his death. Appellant contends respcndentconveyed the lots to prevent her from receiving any portion of them as her share of themarital estate. Respondent testified at the hearing that he initiated the conveyances in the fall of 1977 as a direct result of his stroke. The conveyances coincidently were completed June 5 and 6, 1978, im,ediatelyfollowing appellant's departure. He also testified that although marital discord had existed for a greatdeal of time, he was unsware his wife's departure

on June 2, 1978,was a permanent one and furtherunaware of any intentof his wife to divorce him urltil the petition



### was filed June 16, 1978.Appellant testified that upon leaving the home June 2, shewrote respondent a note stating only that she would be working in Glasgow for the summer. She contends that although respondentwas not explicitly told the departurewas permanent, respondent was aware a divorce was imminent. Therefore, since the lotswere conveyed subsequent to her departure, appellant contends theywere fraudulently conveyed to deplete themarital estate. The distribution of several items of personal property is also in dispute. At the hearing, the judge inquired of appellant whether sheneeded several of the articles in dispute. She responded negatively. He then requested her to indicate which of the articles shedid need. Those articleswere awarded her. Finally, the courtdetermined that appellant should be responsible for child support in the amount of $125per month per child. Testimony was received indicating that appellant's monthly income surpassedher monthly expenses by only $50. Therefore, the child support award was deducted from appellant's share of the marital assets. The support award covered the period from the 1978 separation of the parties until each child reached the age of 18 or was graduated from high school. Appellant presents us with three issues for our review.

(1) Cid the District Court err when it failed to include in the marital estate three lots on Hauser Lake deeded the children by respondent subsequent to the separation of the parties? (2) Was the District Court's division of the marital property arbitrary and capricious?(3) Was the child support award contrary to the provisions of section 40-4-204,MCA, and not supported by substantial evidence? Absent a determination that the DistrictCourt's holdings

are clearly erroneous and an abuse of the court's discretion,

we will affirm. Tefftv. Tefft (1981), Mont. I 628P.2d 1094, 38 St.Rep. 837. There is substantial credible evidence to support the District Court. Therefore,we find the court exercised conscientious judgment in this case and affirm its decision. There is substantial evidence to support the determination that the transfer by respondentto his children of lake property valued at $32,500was not a fraudulent conveyance. Testimonypresented at trialby respondentand the children indicated that the conveyancewas made to insure the financial security of the children in the event of respondent's death. Other testimony indicated that respondent was unaware of the impending divorce when he transferred the property. Pursuant to section 40-2-202,MCA, amarried person may transfer his realproperty to another without the consent of his spouse. The DistrictCourtdid not abuse its discretion. Secondly,we find that the DistrictCourt's division of the marital property was not arbitrary and capricious. In awarding respondent a greater portion of the property, the court considered the elements required by section 40-4-202, MCA. The health and employabilityof respondent are both poor. Appellant's opportunities aremuch greater. Therefore, the dispositionwas not an abuse of conscientious judgment by the courtand it is affirmed. Finally, respondentobjects to the child support award

as being contrary to section 40-4-204, MCA, which states:"40-4-204. Child Support. In a proceeding fordissolution ofmarriage

# . . . the courtmay order either or both parents owing a duty of support to a child to pay an amount reasonable or necessary for his support, without regard tomarital misconduct, after considering all relevant factors including: "(1) the financial resources of the child; "(2) the financial resources of the custodial parent; "(3) the standard of living the childwould have enjoyed had the marriage not been dissolved; "(4) the physical and emotional condition of the child and his educational needs; and "(5) the financial resources and needs of the noncustodialparent." The District Court considered these factors and awarded child support accordingly. Although not set forth in the findings of fact, it is evident the District Court considered the financial resources of the children. Consideration of Kevin's $3,000 a year income and Jodee's $1,000 a year income is reflected in the minimal amount of supportawarded each child, $125 a month. The childrens' incomewas not contested; therefore, itwas not necessary to include a finding respecting the amount of their income. The District Court also considered the financial resources of each parent. Respondent's monthly expenses are greater than his monthly income. He is depleting his assets just trying to live. Appellant's income is only $50 greater than her expenses. For that reason, the District Court determined itwould be difficult for her to make monthly support payments and deducted the support award fromher marital assets. That ispermissible. Itwas also permissible for the District Court to award support retroactively. Hill

### v. Hill (1982),Mont. 

### , 643 P.2d 582, 39 St.Rep. 723. The opinion of the DistrictCourt is affirmed.

WeConcur:

- Chief Justice