No. 82-113 

IN THE SUPREJTE COURT OF TEE STATE OF PTONTP-NA 

1982 

IN RE THE -MARRIAGE OF: 

LOUIE ARTHUR GAUTHIER, 

Petitioner and Respondent, 

and 

MARY E. H. GAUTHIER, 

Respondent and Appellant. 

Appeal from: District Court of the Fourth Judicial District, 

In and for the County of Missoula 

Honorable Jack Green, Judge presidina. 

Counsel of Record: 

For Appellant: 

Ferguson & Mitchell, Missoula, Montana 

For Respondent: 

Datsopoulos, MacDonald & Lind, Missoula, Montana 

---- 

Submitted on briefs: September 23, 1982 

p f- TP 

Filed: Lb - 2 1982 

Decided: December 2, 1982 

, - v Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

This is an appeal by Mary E. H. Gauthier (wife) from a 

decree of dissolution issued by the Fourth Judicial District, 

Missoula County, dissolving the marriage of the parties and 

dividing their property. 

The parties were married on May 6, 1967 and were granted 

a dissolution on December 31, 1951, after 14 years of marriage. 

It was the second marriage for each party. The wife's 

first marriage ended in the death of her husband and the 

husband's first marriage ended in dissolution. Each party 

had five children at the date of their marriage but no 

children were born of this marriage. 

At the time of the dissolution the wife was 51 years 

old. She had been a wife and homemaker. Before the marriage 

she owned a 240 acre ranch in Lake County, Montana. During 

the marriage, it was sold in two separate parcels. Parcel A 

was sold in 1970 for $16,000 of which $14,000 went toward a 

downpayment on the couple's new home and $2,000 to the 

underlying contract on parcel B. Parcel B was sold in 1973 

for $100,000, $10,000 lump sum payments were made from 1973 

to 1976 the balance at $4,000, plus interest annually until 

1993. Approximately $36,000 remained as principle as of the 

date of the decree. 

Throughout the marriage the wife received monthly 

Social Security payments averaging $350, for four of her 

children who were living with the couple. These payments 

were terminated shortly before the dissolution. Once the 

wife reaches the age of 62 she may be eligible to receive 

Social Security benefits from her deceased husband. 
During the marriage the parties were partners in Lou's 

H & H Custom Meats in Missoula. The wife working wrapping 

meat, waiting on customers, keeping books and performing 

niscellaneous chores at their place of business. She was 

paid a salary for her labors and testified that her salary 

went to buy groceries and clothing for the members of the 

household. In 1979, she wrote herself a check from Lou's H 

& H for wages and supplies she had purchased for the business. 

At this time, she discontinued working at Lou's H & H. 

Soon thereafter, the operation was changed from a partnership 

to a sole proprietorship. 

The wife also assisted in race horse training and 

a racing business in which she and her husband were collaterally 

engaged. In 1980, she had a gross income of $11,000, however, 

she sustained a loss due to the expense of race horse care 

and training. 

The couple was separated before the dissolution. 

During this period the wife took out personal loans for 

living expenses. 

Louie Gauthier (husband) was 60 years old at the time 

of the dissolution. He came into the marriage without 

assets. Before buying H & H Custom Meats in 1979, he was 

employed as a meat cutter with John R. Daily's, ~uttrey's 

and Pilike's I.G.A. for a combined period of about 42 years. 

He worked as a meatcutter throughout the marriage. His 1980 

income from Lou's H & H was $8,798. He also received a 

monthly union pension of $118 per month, which will continue. 

As an enrolled member of the Confederated Salish and ~ootenai 

Tribes of the Flathead Reservation he is entitled to benefits 

including annual per capita payments and a lease on 2 1/2 

acres of Flathead Lake frontage on White Swan Point. 

Lou's H & H is located in a rented building and the 
business owns only one asset, a 1972 Ford pickup valued at 

between $500 and $600. The husband testified that he would 

soon be relinquishing his interest in the business for 

health reasons. 

The only major asset of the marriage was a house, 

purchased, in 1369, located in Missoula. The wife provided 

the downpayment from the sale of her land and provided 

the furniture for the home. The husband paid the monthly 

mortgage installment of $249.50,utilities and taxes. The 

couple both contributed to the care and maintenance of the 

home. 

The District Court decreed that each party receive 

their own personal property and the husband receive all the 

interest in Lou's H & H. The court directed a horse trailer 

and walker acquired by the parties be sold and the proceeds 

divided equally. 

The Court also recognized the wife's contribution of 

the downpayment on the house and in recognition of the 

husband's superior income-producing ability the Court ordered 

that: 

"The jointly owned real property located at 

2818 West Central, Missoula, Montana, shall 

be sold. The underlying Contract for Deed 

shall either be assumed by the buyer or paid 

at the time of sale. The Respondent [wife] 

shall receive the first $15,000 of the net 

proceeds of the sale. The remaining net proceeds 

shall be distributed as follows: Two-thirds 

(2/3) to the Respondent (wife) and one-third 

(1/3) to the Petitioner (husband). 

"The Respondent [wife] shall be entitled 

to the furniture and effects located in 

the hone." 

If the house is sold at its appraised value, the wife 

will receive $15,000 downpayment, $24,400 as 2/3 the equity 

in the house and the husband would receive $12,200 as 1/3 of 
the equity in the house. 

The Court also ordered that after the sale of the house 

the husband is to pay the wife $100 per month until her 

death or remarriage. 

The wife appealed the distribution and maintenance 

contending that they are inequitable in light of her contributions 

and her husband's superior income producing abilities. She 

also appeals the District Court's unsubstantiated denial of 

her requested attorney's fees. 

We affirm the decree of the District Court with regard 

to the property distribution and monthly payments and remand 

the case to the District Court for substantiation of the 

denial of attorney's fees to the wife. 

The issues are: 

1. Whether the District Court equitably distributed 

the parties' marital assets and awarded adequate maintenance. 

2. Whether the District Court's order directing each 

party to pay his or her own attorney's fees was adequately 

substantiated. 

With regard to the first issue section 40-4-202, MCA, 

governs the distribution of marital assets and section 40-4- 

203, MCA, governs the maintenance award. 

The standard for reviewing the property division in a 

dissolution decreed by a District Court is well settled in 

Montana. The apportionment made by the District Court will 

not be disturbed on review unless there has been a clear abuse 

of discretion as manifested by a substantially inequitable 

division of the marital assets resulting in substantial 

injustice. In re Marriage of Brown (1978), 179 Mont. 417, 

422, 587 P.2d 361, 364; In re Marriage of Blair (1978), 178 
Plont. 220, 223-4, 583 P.2d 403, 405; Vivian v. Vivian (1978), 

178 Mont. 341, 583 P.2d 1072, 1074. In re the Marriage of 

Schultz (1982) , - Mont. -I - P.2d -- , 39 St.Rep. 

1435, 1439. The District Court must consider the statutory 

criteria and equitably apportion the marital assets. Each 

case must he looked at individually with an eye to its 

unique circumstances. Schultz, 39 St.Rep. 1435, 1440. 

In addition, section 40-4-202, t4CA, calls for an equitable division of the marital estate by the court regardless 

of however or whenever acquired or in whose name the property 

is held. In re the Marriage of Houtchens (1979), 181 Plont. 

70, 73, 592 P.2d 158, 160; Schultz, 39 St.Rep. 1435, 1440. 

There appears to be no abuse of discretion with regard 

to the division of the marital property. The District Court 

CI 

heard evidence on all factors outlined in section 40-x-202, 

MCA, and divided the property accordingly, giving reasons 

for the division in the findings of fact and conclusions of 

law. 

The standard of review of maintenance awards is whether 

the District Court abused its discretion when evaluating and 

allowing or disallowing maintenance. In re the MarrTage of 

Knudson (1981), - Mont . - , 622 P.2d 1025, 1027, 37 

St.Rep. 147, 152. The District Court, after hearing the 

evidence, applied the factors set forth in the statute and 

referred to them in the findings of fact and conclusions of 

law. The District Court did not abuse its discretion in 

distributing the property and awarding maintenance. 

?'he second issue is whether the District Court properly 

disallowed the award of attorney's fees. 

The District Court summarily denied the wife's request 

for attorney's fees. The request was supported by evidence 
presented by the wife at trial. 

This Court has held that when the District Court 

refuses to award attorney's fees, it must indicate in the 

findings of fact why such fees were not awarded. Bowman v. 

Bowman (1981), - Mont. - , 633 P.2d 1198, 1202, 38 St.Rep 

1515, 1520. The District Court failed to follow this 

procedure. The attorney's fees requested by the wife should 

be considered on remand, and if denied, the denial must be 

substantiated. 

The decree of the District Court is affirmed except 

with regard to the unsubstantiated denial of attorney's 

fees. This cause is remanded to the District Court for 

amendment of the judgment in accordance with this opinion. 

- -2 

We Concur: