### No. 

### 1.3260 IN

### THE SUPREME COUIIT OF THE 

### STATE OF MONTANA 

### 19

### 76

BETTY GUNN ESCHENBUKG, 

### Plaintiff and 

### Respondent,

-VS

## - EMIL P. 

### ESCHENBURG, Defendant and 

### Appellant.

Appeal from: District Court 

### of the FirstJudicial District, Honorable Frank 

### E. Blair, Judge presiding. Counsel of 

### Record: For Appellant: Small, Cummins, Hatch and Gregory Jackson, Helena,

Montana Gregory Jackson argued, Helena, Montana For Respondent: Hughes, Bennett, Cain, Kellner and Sullivan,

Helena, Montana Stuart 

### L. Kellner argued, Helena, Montana For Amicus Curiae: Hon. Robert 

### L. Woodahl, Attorney General, Helena,

Montana Donald Smith appeared, AssistantAttorney General,

Helena, Montana

Submitted: October 26, 1976Mr. Chief Justice James T. Harrison delivered the Opinion of the Court. This 

### is an appeal from a judgment entered inthe district court, Lewis and Clark County, following a trialtothe court, sittingwithout 

### a jury. This appeal 

### stemsfrom the granting of an absolute divorce toboth parties on the grounds of irreconcilable differences, the property division, and an award of alimony to plaintiff; The divorce per 

### se 

### is not 

### at issue, only the property division and alimony award arequestioned by plaintiff. Atthe

### timeof 

### trial the parties had been married thirtytwo years, their four children had reached majority with one daughter 

### still living with plaintiff, and they had acquired the following property: A residence inHelena, Montana, with a mortgage

thereon; A residence inVirginia, with a mortgage thereon; Stocks and securities; Paid up lifeinsurance policies (amounting to

$50,000) ; Personal property and household goods; Two automobiles (a Scout and an Oldsmobile); and Two unimproved lots inVirginia. Their relative gross incomes 

### atthis 

### timewere: Defendant: $2,00O/month 

## - Army pension, $l,OOO/month 

## - real estate salesman $350/month 

## - rental income $3,35O/month 

### - Total Plaintiff : $475/month 

### - Secretary. During the first 27 years of their marriage defendant

was a 

### career Army officer, obtaining the rank of Brigadier General atthe time of his retirement, and participated in three extended foreign tours of duty inWorld War 11, Korea, and Vietnam. Throughout this 

### time, defendant solelycontributedfinancially to the marriage. Plaintiff married defendant before finishing college and throughout themarriage managed the household, raised their four children (suchresponsibilities handled alone during defendant's foreign tours of duty), entertained at social functions, worked in the Army wivesr auxiliaries, nurseries, Red Cross relief, and as a voluntary hospital aide. She gained the secretarial employment, mentioned above, after the commencement of this action. The complaint originally alleged mental cruelty, but

was later amended, alleging irreconcilable differences. Plaintiff and defendant were the only witnesses to testify attrial. The districtcourt granted an absolute divorce toboth parties, awarded plaintiff alimony of $500/month, and divided the property, subject toany indebtedness thereon, as follows: To the plaintiff: The residential property inHelena, Montana. The household goods and furnishings. The 1972 Scout automobile. To the defendant: The residential property inVirginia. The two unimproved lots inVirginia. The 1969 Oldsmobile automobile. The stocks and securities

### were tobe divided inkind,

or if desired, sold on themarket with the proceeds so divided. This division was tobe one half to each party of the remainder, after allowing for the credits of each party found by the district court inmaking the entire property division. Defendant was also directed to name the plaintiff irrevocably as beneficiary to $25,000 of the paid up insurance. Each party was topay his or her own court costs and attorney

### 's fees. The defendant raises four issues: (1)Whether the districtcourt erred in 

### its property -3-division and alimony award? (2) Whether defendant's Army pension was a proper basis for the alimony award? (3)Whether a finding of fault on the part of defendant 

### is necessary to allow an alimony award for plaintiff? (4) Whether the applicable alimony statute 

### is an unconstitutional form of sex discrimination? It is

### well settled inMontana that a district court has farreaching discretion inresolving property divisions and its judgment 

### willnot be altered unless there 

### is a clear abuse of that discretion. Cook v. Cook, 159 Mont. 98, 495 P.2d 591; Francke v. Francke, 161Mont. 98, 504 P.2d 990; Roe v. Roe, Mont. I The district court concluded that plaintiff's contributions inthis 32 year long marriage 

### were the raising of the 4 children, managing the household, entertaining atsocial activi

### ties and volunteering her services toother activitiesrelated todefendant's 

### career. Furthermore, a largemajority of this



### was performed alone while defendant was away from home pursuing thatcareer. The districtcourt stated that even though these contributions differed inkind, they 

### were of equal weight to the financial contributions of defendant. Defendant argues that the findings of the districtcourt did not credithim enough for his financial contributions. However, 

### we find the districtcourt's findings incomplete accord with the modern trend of Cook, Francke, and Roe toconsider more 

### - than financialcontributions toa marriage when dividing the property sincemarriage ismuch more than a business relationship. We find no abuse of discretion inthe district court's judgment which affects an equal property division based upon equal contributionsby each party. As stated inCook, thisdoesnot make Montana a community property state. Each case depends upon 

### its own facts and circumstances and this case warranted

an equal distribution. Nor 

### was it an abuse of discretion for the district court to arrive ata value of 

### its own choosing as to the 

### residential property, applying its own inflation value tothe purchase price and not that offered by defendant. Defendant also argues the district court improperly valued the household goods and the Virginia lots. Wedo not agree. There was conflicting testimony on each and the district court resolved thisby giving the household goods toplaintiff and the lots todefendant. This 

### was an equitable division. As for the alimony, neither party disagrees that such

an award depends upon balancing the financial needs of one party and the financial abilitytopay of the other. Whether or not defendant caused plaintiff toquit college, it 

### is undisputed that she did not finishcollege and had limited vocational skills. Atthe time of trialplaintiff had only a fixed net income of $375 per month from a secretarial position while incurring fixed monthly living expenses, exclusive of any house payment, of $650. Atthe same 

### time, defendant had net monthly income of $1,300 from his Army pension and an average monthly income of $1,000 as
a real estate salesman. In light of these facts

### we find no abuse by the districtcourt inawarding $500 per month alimony to plaintiff. Defendant argues that his Army pension 

### is not property jointly acquired during themarriage and as such is not subject todivision whereby plaintiff received a portion. What defendant failstocomprehend is that the districtcourtmade no property division of the pension but directed defendant topay $500 per month alimony from the pension or "in lieu thereoffrom any earnings he may acquire in excess of said retirement." Without addressing whether thispension 

### isjointly acquired property subject toproperty division, the pension 

### is a source of income todefendant which the districtcourt properly considered infixing his financial abilitytopay alimony asrelated tothe financial needs of plaintiff. The district court's award of alimony is not based upon fault by the defendant. As defendant concedes, thisCourt has held that it isproper toaward alimony when an absolutedivorce has been granted toboth parties aswas the 

### case here. Burns 7 v. Burns, 145Mont. 1,/400 P.2d 642; Stenberg v. Stenberg, 161 Mont. 164, 505 P.2d 110. As stated inBurns: 

### " 

## * * 

## * The basis for liability for the payment of alimony is the granting of a divorce against the person required topay it, R.C.M. 1947, 

### B 21-139. 

## * * *" The defendant seeks tohave us ignore this language because the divorce was not granted upon one of the traditional fault grounds, but on the ground of "irreconcilabledifferences". We reject his argument. The irreconcilabledifferences approach was established tobase divorceupon the realistic notion that neither party to

a broken marriage is totally toblame. By removing the fault concept, highly emotional courtroom confrontations can be replaced by a more rational approach tothe divorce process and avoids as much unnecessary psychological and emotional 

### stress to the parties

aspossible. Our interpretationof section 21-139, R.C.M. 1947, inBurns is equally applicable here. As long as the district court entered the divorce against both parties, the districtcourt properly awarded alimony to the plaintiff. We do not believe the legislature intended tocreate the illogical situation whereby

a party must 

### elect to seek a divorce on the traditional fault grounds and be elgible for alimony, orwaive alimony by proceedingunder the modern and enlightened irreconcilable differences approach. The final issue regarding the constitutionalityof section 21-139, R.C.M. 1947, 

### is not properly before this Court and 

### we decline toconsider it because defendant has failed to comply with Rule 38, M.R.App.Civ.P. Clontz v. Clontz, 166 Mont. 206, 531 P.2d 1003; Grant v. Grant, 166 Mont. 229, 531 P.2d 1007. The defendant filed his notice of appeal inthisaction October 10, 1975. The districtcourt record was filed on February 2, 1976. Notice of the constitutional challenge was not filed until September 2, 1976, the same date 

### as the filing of his reply brief. This does not comply with the notice in

### writing of the constitutional challenge asrequired by Rule 38, M.R. App.Civ.P. The judgment

We concur: 

# /

Justices Chief Justice

~dn. Jack Shanstrom, District ~ud~e, sitting inplace of Mr. husticeWesley Castles.

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