No. 1.3260 

IN THE SUPREME COUIIT OF THE STATE OF MONTANA 

19 7 6 

BETTY GUNN ESCHENBUKG, 

Plaintiff and Respondent, 

-VS - 

EMIL P. ESCHENBURG, 

Defendant and Appellant. 

Appeal from: District Court of the First Judicial 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, Assistant Attorney General, 

Helena, Montana 

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

the Court. 

This is an appeal from a judgment entered in the district 

court, Lewis and Clark County, following a trial to the court, 

sitting without a jury. 

This appeal stems from the granting of an absolute 

divorce to both 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 are questioned by plaintiff. 

At the time of 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 in Helena, Montana, with a mortgage 

thereon; 

A residence in Virginia, with a mortgage thereon; 

Stocks and securities; 

Paid up life insurance policies (amounting to 

$50,000) ; 

Personal property and household goods; 

Two automobiles (a Scout and an Oldsmobile); and 

Two unimproved lots in Virginia. 

Their relative gross incomes at this time were: 

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 at the time of his retirement, and participated in 

three extended foreign tours of duty in World War 11, Korea, 

and Vietnam. Throughout this time, defendant solely contributed 
financially to the marriage. 

Plaintiff married defendant before finishing college 

and throughout the marriage managed the household, raised their 

four children (such responsibilities 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 at trial. 

The district court granted an absolute divorce to both parties, 

awarded plaintiff alimony of $500/month, and divided the property, 

subject to any indebtedness thereon, as follows: 

To the plaintiff: 

The residential property in Helena, Montana. 

The household goods and furnishings. 

The 1972 Scout automobile. 

To the defendant: 

The residential property in Virginia. 

The two unimproved lots in Virginia. 

The 1969 Oldsmobile automobile. 

The stocks and securities were to be divided in kind, 

or if desired, sold on the market with the proceeds so divided. 

This division was to be one half to each party of the remainder, 

after allowing for the credits of each party found by the district 

court in making 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 to pay his or her own court costs and 

attorney ' s fees. 

The defendant raises four issues: 

(1) Whether the district court 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 in Montana that a district court has 

far reaching discretion in resolving property divisions and its 

judgment will not be altered unless there is a clear abuse of 

that discretion. Cook v. Cook, 159 Mont. 98, 495 P.2d 591; 

Francke v. Francke, 161 Mont. 98, 504 P.2d 990; Roe v. Roe, 

Mont. I 

The district court concluded that plaintiff's contributions in this 32 year long marriage were the raising of the 4 

children, managing the household, entertaining at social activities and volunteering her services to other activities related 

to defendant's career. Furthermore, a large majority of this 

was performed alone while defendant was away from home pursuing 

that career. The district court stated that even though these 

contributions differed in kind, they were of equal weight to the 

financial contributions of defendant. 

Defendant argues that the findings of the district court 

did not credit him enough for his financial contributions. However, we find the district court's findings in complete accord 

with the modern trend of Cook, Francke, and - Roe to consider more 

than financial contributions to a marriage when dividing the 

property since marriage is much more than a business relationship. 

We find no abuse of discretion in the district court's 

judgment which affects an equal property division based upon 

equal contributions by each party. As stated in Cook, this does 
not 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 at a value of its own choosing as to the residential property, applying its own inflation value to the purchase price and not that offered by defendant. Defendant also 

argues the district court improperly valued the household goods 

and the Virginia lots. We do not agree. There was conflicting 

testimony on each and the district court resolved this by giving the household goods to plaintiff and the lots to defendant. 

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 ability to pay of the other. Whether or not 

defendant caused plaintiff to quit college, it is undisputed 

that she did not finish college and had limited vocational skills. 

At the time of trial plaintiff 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. 

At the 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 district court in awarding $500 per month alimony to 

plaintiff. 

Defendant argues that his Army pension is not property 

jointly acquired during the marriage and as such is not subject 

to division whereby plaintiff received a portion. What defendant fails to comprehend is that the district court made no 

property division of the pension but directed defendant to pay 

$500 per month alimony from the pension or "in lieu thereof 
from any earnings he may acquire in excess of said retirement." 

Without addressing whether this pension is jointly acquired 

property subject to property division, the pension is a source 

of income to defendant which the district court properly considered in fixing his financial ability to pay alimony as related 

to the financial needs of plaintiff. 

The district court's award of alimony is not based upon 

fault by the defendant. As defendant concedes, this Court has 

held that it is proper to award alimony when an absolute divorce 

has been granted to both parties as was the case here. Burns 

7 

v. Burns, 145 Mont. 1,/400 P.2d 642; Stenberg v. Stenberg, 161 

Mont. 164, 505 P.2d 110. As stated in Burns: 

" * * * The basis for liability for the payment 

of alimony is the granting of a divorce against 

the person required to pay it, R.C.M. 1947, B 

21-139. * * *" 

The defendant seeks to have us ignore this language because the divorce was not granted upon one of the traditional 

fault grounds, but on the ground of "irreconcilable differences". 

We reject his argument. 

The irreconcilable differences approach was established 

to base divorce upon the realistic notion that neither party to 

a broken marriage is totally to blame. By removing the fault 

concept, highly emotional courtroom confrontations can be replaced 

by a more rational approach to the divorce process and avoids as 

much unnecessary psychological and emotional stress to the parties 

as possible. Our interpretation of section 21-139, R.C.M. 1947, 

in Burns is equally applicable here. As long as the district 

court entered the divorce against both parties, the district court 

properly awarded alimony to the plaintiff. We do not believe the 

legislature intended to create the illogical situation whereby 

a party must elect to seek a divorce on the traditional fault 

grounds and be elgible for alimony, or waive alimony by proceeding 
under the modern and enlightened irreconcilable differences 

approach. 

The final issue regarding the constitutionality of 

section 21-139, R.C.M. 1947, is not properly before this Court 

and we decline to consider 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 in this action 

October 10, 1975. The district court 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 as required by Rule 38, M.R. 

App.Civ.P. 

The judgment 

We concur: / 

Justices 

Chief Justice 

~dn. Jack Shanstrom, District 

~ud~e, sitting in place of Mr. 

hustice Wesley Castles. e /"