### No. 82-113 INTHE SUPREJTE COURT OF TEE STATEOF PTONTP-NA 1982

INRE THE -MARRIAGEOF: 

### LOUIEARTHUR GAUTHIER, Petitioner and Respondent, and MARY 

### E. H. GAUTHIER, Respondent and Appellant.

Appeal from: District Court of the Fourth JudicialDistrict, In and for the County ofMissoula Honorable Jack Green,Judgepresidina. Counsel of Record: For Appellant: Ferguson & 

### Mitchell,Missoula,Montana For Respondent: Datsopoulos,MacDonald & 

### Lind,Missoula,Montana



## ---- Submitted on briefs: September 23, 1982

pf- TP 

### Filed: Lb

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## 1982 Decided:December 2, 1982

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### ClerkMr. 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. Theparties weremarried on May 6, 1967 and were granted

a dissolution on December 31, 1951, after 14 years of marriage. Itwas the secondmarriage 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 thismarriage. 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, itwas sold in two separateparcels. ParcelA

was sold in 1970 for $16,000ofwhich $14,000went 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 sumpayments 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 themarriage the wife received monthly Social Security payments averaging $350, for four of her childrenwho were living with the couple. These payments

were terminated shortly before the dissolution. Once the wife reaches the age of 62 shemay be eligible to receive Social Security benefits from her deceased husband.During the marriage the parties were partners in Lou's H & H CustomMeats inMissoula. Thewife working wrapping meat, waiting on customers, keeping books and performing niscellaneous chores at their place of business. Shewas paid a salary forher labors and testified that her salary went to buy groceries and clothing for the members of the household. In 1979, shewrote 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 operationwas changed from a partnership to a soleproprietorship. Thewife also assisted in race horse training and a racing business inwhich 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 couplewas separated before the dissolution. During this period the wife took outpersonal loans for living expenses. Louie Gauthier (husband)was 60years 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 ameat cutterwith John R. Daily's,~uttrey's and Pilike's I.G.A. for a combined period of about 42years. He worked as a meatcutter throughout themarriage. His 1980 income from Lou's H & H was $8,798. He also received a monthly union pension of $118per 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 annualper capita payments and a lease on 2 1/2

acres of Flathead Lake frontage onWhite Swan Point. Lou's H & H is located in a rented building and thebusiness owns only one asset, a 1972 Ford pickup valued at between $500 and $600. The husband testified that he would

soonbe relinquishing his interest in the business for health reasons. The onlymajor 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,utilitiesand taxes. The couple both contributed to the care and maintenance of the home.The District Court decreed that each party receive their ownpersonal 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 realproperty located at 2818 West Central, Missoula, Montana, shall be sold. The underlying Contract for Deed shall eitherbe 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). "TheRespondent [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 ofthe equity in the house. The Court also ordered that after the sale of the house the husband is to pay the wife $100per month until her death or remarriage. Thewife appealed the distribution and maintenance contending that they are inequitable in light of her contributions and her husband's superior incomeproducing 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 thewife. The issues are: 1. Whether the District Court equitably distributed the parties' marital assets and awarded adequate maintenance. 2. Whether the DistrictCourt's order directing each party to pay his or her own attorney's feeswas 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 themaintenance award. The standard for reviewing the property division in a dissolution decreed by a District Court is well settled in Montana. The apportionmentmade 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 reMarriage of Brown (1978),179 Mont. 417, 422, 587 P.2d 361, 364; In reMarriage of Blair (1978), 178Plont. 220, 223-4, 583 P.2d 403, 405;Vivian v. Vivian (1978), 178Mont. 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

casemust he looked at individuallywith 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),181Plont. 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 iswhether the District Court abused its discretion when evaluating and allowing or disallowing maintenance. In re the MarrTage of Knudson (1981), -Mont

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### , 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 theproperty and awarding maintenance. ?'hesecond issue iswhether 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 requestwas supported by evidencepresented 

### by thewife at trial. This Court has held that when the District Court refuses to award attorney's fees, itmust indicate in the findings of fact why such feeswere 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 accordancewith this opinion.



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We Concur: