### No. 81-42 INTHESUPREME COURTOFTHE STATEOFMONTANA 1981

INRE THEMARRIAGE OF LARRY KENNETH SELL, Petitionerand Respondent, and CAROLJEAN SELL, DefendantandAppellant.

Appeal from: District Courtof the Eleventh JudicialDistrict, Inand for theCounty of Flathead Honorable Robert Sykes,Judgepresiding. CounselofRecord: ForAppellant: Darrell S. Worm,Montana Legal Services, Kalispell, Montana ForRespondent: PatrickM. Springer, Kalispell, Montana

Submittedonbriefs: May 15,1981 Decided: ' 

### JIII~~~S~O

### Mr. Justice John Conway Harrison delivered the Opinion of the Court. The Flathead County District Court entered a decree of dissolution following a petition by husband, Larry K. 

### Sell, and a trial without a jury. Carol Jean Sell, respondent and appellant, appeals from provisions of that decree relating to the distribution of marital assets. The parties were married from July 20, 1971, until the dissolution of the marriage on May 9, 1980. They had

one child who was eight years old at the time of dissolution. From 1971 to 1980 there were several separations of unknown duration, but the final separation occurred in July 1979. Petitioner-respondent is employed by the Anaconda Copper Company with take-home wages of about $1,200amonth. The wife was working as a motel maid at the time of the dissolution and has had experience working as a licensed practical nurse. The major marital asset is a home purchased by the parties in December 1976, after they had been separated for several months. At the time of purchase, the appellant contributed $1,000 to the downpayment, and the husband contributed $850. The wife's contribution was from a sale of her former home. The parties lived in the home from December 1976 until July 1980. When they moved into the home it was unfinished. For three years they made substantial improvements to the home, most of the work being doneby the husband. The materials used to make the improvements came to approximately $5,500. Petitioner testified that he devoted at least 1,500 hours in labor to make theimprovements. In addition, he was assisted by his father who did notget any compensation forhiswork. There 

### is sharp disagreement over the extent to which the appellant assisted in the improvements. She testified that she had worked about one-half as much as her husband, while he claims she helped very 

### little. The parties eventually planned to 

### sell the house and purchase a bigger piece of property

# . Due to the improvements plus a general inflation in property values in the area, the property increased in value from the originalpurchasepriceof $28,000 toa value 

### set by the trialjudge at$55,000. This price was agreed upon by both parties. The net value of the marital estate, determined by subtracting the value of other debts from the estate, 

### is $21,000. The marital property subject to distribution by the District Court consists of the following: the family home, $55,000; proceeds from the saleof a 1976Vega, $1,500; and,

a Ventura camper, $1,500. The total assets therefore were valued at $58,000. Debts of the marital estate, owing on the house and other debts consolidated into home refinancing, were $34,000, leaving $24,000 innet assets. Two issues arebefore thisCourt: (1)Does thisCourt have jurisdiction over the appeal; and (2)did the 

### District Court abuse 

### its discretion in apportioning the marital property of theparties? The firstissue 

### stems from theDistrictCourt's order entered on September 12, 1980. The order modified the findings of fact and conclusions of law more than fifteen days after submissionof appellant's post-trial motions. Byexceeding the time period mandated by Rule 59, M.R.Civ.P., the District Court divested itself of jurisdiction to determine the motion, and its order was a nullity. Marvel Brute SteelBuilding, Inc. v. Bass (1980), Mont. I 616 P.2d 380, 37 St.Rep. 1670. The original notice of appeal from the second decree, based on that order, was untimely under Rule 5, M.R.Civ.P., and 

### we have no jurisdiction astothe second decree. SeePricev. Zunchich (1980)~ Mont. 

## ,612 P.2d 1296, 37 St.Rep. 1058. Appellant argues that this defect 

### is cured by the appellant having lodged an appeal to the firstdecree. We agree. The notice of appeal to the firstdecree was filed long after 

### its entry. However, the clerk of court inadvertently failed to file and serve the notice of entry of judgment of the firstdecree. Sincetherewas no dateto begin the time for notice of the appeal to be filed, the noticewas notuntimely. The time toappeal, therefore, did not expire, and Rule 5, M.R.App.Civ.P., was not violated. ThisCourt can assumejurisdiction over the appeal. Haywood



### v. Sedillo (1975),167Mont. 101, 535 P.2d 1014. The first and second decrees did not vary substantially, and the reasons for the appeal were identical. Respondent is not prejudiced by 

### a surprising shift in the substantivenatureof the appeal. We now turn our attention to the main issue on appeal, whether there was an abuse of discretion by the DistrictCourt in apportioning the marital assets. Appellant recognizes that the District Courts have broad discretion under Montana law in distributing marital property but argues that this discretion 

### is not unbounded.She argues that under section 40-4-202, MCA, the 

### District Court cannot act arbitrarily and must consider allcriteria under the statute so that there will be a just, equitable and reasonabledistribution. ThisCourt has a limited scope of appellate review and 

### will not intervene except when the DistrictCourt has departed substantially from thenorms of equity. In Re Marriage of Herron (1980), Mont. I 608 P.2d 97, 37 St.Rep. 387; In Re Marriage of Jacobson (1979)I Mont

# . , 600 P.2d 1183, 36 St.Rep. 1773. Appellant here alleges that the District Court departed substantially from the norms of equity and asks that this Court intervene. In In Re Marriage of Berthiaume (1977), 173 Mont. 421, 567 P.2d 1388, relying on Porter v. Porter (1970), 155 Mont. 451, 473 P.2d 538, we set the standard of review on appeal in cases involving claims that the District Court abused 

### its discretion. These reasonable and understandable guidelines were followed by the District Court. There 

### is nothing "arbitrary" in the District Court's determination, and we findno error. There was no question concerning the distribution of the bulk of personal property of the parties nor with the custodyof thechild. The only question concerns thehouse. The values of the house, the car and the camper were agreed toby stipulation. Appellant takesno issuewith thevalue of the car or the camper, and for all intents and purposes 

### is satisfied with the grant to her of the balance of her downpayment on the house. The DistrictCourt's division of the house, the remaining asset, on other than a 50-50 basis 

### isclai'med aserrorby appellant.This Court in In Re Marriage of Aanenson (1979), Mont

# . , 598 P.2d 1120, 36 St.Rep. 1525, noted: "A1though the Distr

### ict Court may equally divide the marital assets, such a distribution 

### is notmandated by section40-4- 202, MCA. See Kuntz v. Kuntz (1979),Mont., 593 P.2d 41, 36 St.Rep. 662. Section 40-4-202 

### is flexible and itvestsagood deal of discretion in the District Court. In Re Marriageof Jorgensen (1979),Mont., 590 P.2d 606, 609, 36 St.Rep. 233, 237. We have stated, before and after the adoption of the statute, that each case must be looked at individually, with an eye to its unique circumstances. Jorgensen, 590 P.2d at 609; Cook v. Cook (1972), 159 Mont. 98, 495 P.2d 591.

### " The record here indicates that the District Court made every efforttocomply with allpreviouspronouncements in marital cases. By 

### its pretrial order dated June 1980, the District Court specifically directed the parties to submit information concerning: "a. The net worth of the parties as of the filingof theComplaint. "b. Any property either claimed by right of inheritance or other qualified contribution.

I1c

# . All property that 

### is subject to distribution, including the values thereof. "d. The manner in which said distribution shallbe made." This informationwas presented by bothpartiesby way of proposed findings of fact and conclusions of law, complying with the requirements of In Re Marriage of McGill (198o)t 

### -Mont

# . - 

## , 609 P.2d 278, 37 St.Rep. 578. The District Court chose to adopt its own findings of fact and conclusions of law, rather than those submitted by either party, which indicates the District Court had the statutory requirements of section 40-4-202, MCA, in mind in arriving at

### itsdecision.

### Appellant alleges that the District Court abused 

### its discretion in distribution of the marital assets in two general ways. First, the court failed to address the factors enumerated in section 40-4-202, MCA, 

### with specificityinfindingsof factand conclusionsof lawdrawn from the evidence before it. 

### Second, the District Court acted so arbitrarily that the distribution of said marital assets under the circumstances was per 

### se inequitable. We 

### find otherwise. The court's directives to the parties and the court's findings of fact and conclusions of law show that what the District Court did does not warrant intervention. See In Re 

### Marriage of Herron (1980), Mont. 

## ,608 P.2d 97, 37 St.Rep. 387. A 

### review of the findings of fact and conclusions of law dated July 16, 1980, and the order modifying the findings and conclusions dated September 12, 1980, whether taken together or separately, and when reviewed with the remainder of the total record, show that theDistrictCourt conscientiouslygave considerationtotheelements 

### setforth in Jorgenson and cases cited therein, even if the court failed to "articulate" each item separately within its 

### findingsand conclusions. While there is 

### no question that appellant, as a housewife, acquired a vested interest in the property, the court specifically found that the wife "did not contribute by work or labor any appreciable efforts in improving the property." The 

### record indicates that appellant did not reside with the husband during the entire time period in which the improvements tothepropertyweremade. This case 

### is not unlike our recent decision wherein

### the appellant husband claimed to have made equal contributions to the "house"and therefore deserved one-half of the marital estate. In Re Marriage of Nunnally (1981), Mont. 

## , 625P.2d 1159, 38 St.Rep. 529, 531. 

### There

we found the case reflected a careful and conscientious consideration of the appropriate factors and affirmed the District Court. We find the same result should be reached here. Affirmed.

We concur: 

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