No. 81-444 

IN THE SUPREYS COURT OF THE STATE OF MONTANA 

1982 

IN RE THE MARRIAGE OF 

JOANN D. CRABTREE, 

Petitioner and Appellant, 

-vsGEORGE LEROY CMBTREE, 

Respondent and Respondent. 

Appea .1 from: District Court of the First Judicial 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 

. J \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 parties were 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, on March 13, 1981, 

issued findings of fact, conclusions of law and a decree 

dissolving the marriage. Alleging changes in circumstance, 

appellant filed a motion to amend and motion for a new trial 

April 13, 1981. The court then issued the amended judgment 

of September 30, 1981. 

Appellant worked all but two years of her married 

life. Her income was used to pay babysitters and to purchase 

groceries and household items. At the time of the dissolution, 

appellant's net income was approximately $650 a month while 

her monthly expenses were $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 from his former employer, Xerox. At the time of the 

dissolution, respondent was receiving $1,100 a month tax-free. 

He submitted evidence of his monthly expenses being $1,328. 

Findings of the District Court indicate that appellant 

was 41 years of age at the time of the dissolution, in good 
health and regularly employed by the State of Montana, with 

excellent future employment opportunities. Respondent was 

45 years of age, in poor health due to his stroke and unemployed, 

with a limited chance of future employment. 

Two children were born of the marriage, Kevin George 

Crabtree on July 2, 1963 and Jodee Lou Crabtree on April 27, 

1964. They were 14 years old when the parties separated, 18 

and 17 years 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 support by 

respondent, the uncontested custodian of the children. 

The marital estate of the parties and its worth 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 those properties 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 respcndent conveyed the lots 

to prevent her from receiving any portion of them as her 

share of the marital 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,ediately following appellant's departure. 

He also testified that although marital discord had existed 

for a great deal of time, he was unsware his wife's departure 

on June 2, 1978, was a permanent one and further unaware 

of any intent of his wife to divorce him urltil the petition 

was filed June 16, 1978. 
Appellant testified that upon leaving the home June 2, 

she wrote respondent a note stating only that she would be 

working in Glasgow for the summer. She contends that although 

respondent was not explicitly told the departure was permanent, 

respondent was aware a divorce was imminent. Therefore, 

since the lots were conveyed subsequent to her departure, 

appellant contends they were fraudulently conveyed to deplete 

the marital estate. 

The distribution of several items of personal property 

is also in dispute. At the hearing, the judge inquired of 

appellant whether she needed several of the articles in 

dispute. She responded negatively. He then requested her 

to indicate which of the articles she did need. Those 

articles were awarded her. 

Finally, the court determined that appellant should be 

responsible for child support in the amount of $125 per 

month per child. Testimony was received indicating that 

appellant's monthly income surpassed her 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 District Court's holdings 

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

we will affirm. Tefft v. Tefft (1981), Mont. I 

628 P.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 respondent to his children of lake 

property valued at $32,500 was not a fraudulent conveyance. 

Testimony presented at trial by respondent and the children 

indicated that the conveyance was 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, a married person may transfer his 

real property to another without the consent of his spouse. 

The District Court did not abuse its discretion. 

Secondly, we find that the District Court'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 employability of respondent are both 

poor. Appellant's opportunities are much greater. Therefore, 

the disposition was not an abuse of conscientious judgment 

by the court and it is affirmed. 

Finally, respondent objects to the child support award 

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

for dissolution of marriage . . . the court may 

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 

to marital 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 child would 

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 

noncustodial parent." 

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 support awarded each child, $125 a month. 

The childrens' income was not contested; therefore, it was 

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 

it would be difficult for her to make monthly support payments 

and deducted the support award from her marital assets. 

That is permissible. It was 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 District Court is affirmed. 

We Concur: 

- Chief Justice