No. 81-42 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

IN RE THE MARRIAGE OF 

LARRY KENNETH SELL, 

Petitioner and Respondent, 

and 

CAROL JEAN SELL, 

Defendant and Appellant. 

Appeal from: District Court of the Eleventh Judicial District, 

In and for the County of Flathead 

Honorable Robert Sykes, Judge presiding. 

Counsel of Record: 

For Appellant: 

Darrell S. Worm, Montana Legal Services, Kalispell, Montana 

For Respondent: 

Patrick M. Springer, Kalispell, Montana 

Submitted on briefs: 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 $1,200 a month. 

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 done by 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 the 
improvements. In addition, he was assisted by his father 

who did not get any compensation for his work. 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 original purchase price of $28,000 to a value 

set by the trial judge 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 sale of a 1976 Vega, $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 in net assets. 

Two issues are before this Court: (1) Does this Court 

have jurisdiction over the appeal; and (2) did the District 

Court abuse its discretion in apportioning the marital 

property of the parties? 

The first issue stems from the District Court's order 

entered on September 12, 1980. The order modified the 

findings of fact and conclusions of law more than fifteen 

days after submission of appellant's post-trial motions. By 
exceeding 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 Steel Building, 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 as to the second decree. See Price v. 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 first decree. We 

agree. The notice of appeal to the first decree 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 first decree. Since there was no date to 

begin the time for notice of the appeal to be filed, the 

notice was not untimely. The time to appeal, therefore, did 

not expire, and Rule 5, M.R.App.Civ.P., was not violated. 

This Court can assume jurisdiction over the appeal. Haywood 

v. Sedillo (1975), 167 Mont. 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 

substantive nature of the appeal. 

We now turn our attention to the main issue on 

appeal, whether there was an abuse of discretion by the 

District Court 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 all criteria 

under the statute so that there will be a just, equitable 

and reasonable distribution. This Court has a limited scope 

of appellate review and will not intervene except when the 

District Court has departed substantially from the norms 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 find no error. 

There was no question concerning the distribution of 

the bulk of personal property of the parties nor with the 

custody of the child. The only question concerns the house. 

The values of the house, the car and the camper were agreed 

to by stipulation. Appellant takes no issue with the value 

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 District Court's division of 

the house, the remaining asset, on other than a 50-50 basis 

is clai'med as error by appellant. 
This Court in In Re Marriage of Aanenson (1979), 

Mont . , 598 P.2d 1120, 36 St.Rep. 1525, noted: 

"A1 though the Distr ict Court may equally 

divide the marital assets, such a 

distribution is not mandated by section 40-4- 

202, MCA. See Kuntz v. Kuntz (1979), Mont., 

593 P.2d 41, 36 St.Rep. 662. Section 

40-4-202 is flexible and it vests a good deal 

of discretion in the District Court. In Re 

Marriage of 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 effort to comply with all previous pronouncements 

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 

filing of the Complaint. 

"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 

shall be made." 

This information was presented by both parties by 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 its decision. 
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 

specificity in findings of fact and conclusions of law drawn 

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 the District Court 

conscientiously gave consideration to the elements set forth 

in Jorgenson and cases cited therein, even if the court 

failed to "articulate" each item separately within its 

findings and 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 to the property were made. 

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. , 625 P.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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