No. 86-388 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

IN RE THE MARRIAGE OF 

CAROL VOELKEL, a/k/a CAROLYN VOELKEL, 

Petitioner and Appellant, 

and 

GLENN L. VOELKEL, 

Respondent and Respondent. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Gordon Bennett, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Jackson & Rice; Gregory Jackson, Helena, Montana 

John W. Mahan, co-counsel, Helena, Montana 

For Respondent: 

Peter Michael Meloy, Helena, Montana 

Filed: 

Submitted on Briefs: Jan. 22, 1987 

Decided: March 18, 1987 

MAR 1 8 19871 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

Carol Voelkel appeals a Lewis and Clark County District 

Court order dividing the marital property of the parties and 

establishing child custody, support and maintenance. The 

court ordered the parties to pay their own attorney fees and 

ordered the husband to pay all court costs. Two issues are 

presented on appeal: (1) Whether the District Court abused 

its discretion in dividing the marital property of the 

parties? (2) Whether the District Court abused its 

discretion by failing to award the wife reasonable attorney 

fees? We affirm. 

The parties were married in 1960, separated in March 

1984 and were divorced by court decree on February 5, 1985. 

The marriage produced five children, two of whom are minors 

and presently reside with the wife. During the marriage, the 

wife assumed primary responsibility for operation of the home 

and caring for the children. She did not work outside the 

home except for a brief time prior to the birth of the first 

child but did assist the husband in his business, performing 

occasional bookkeeping and other related tasks. The wife has 

a high school education and was training to be an executive 

secretary at the time of the District Court hearing. The 

husband worked as a carpenter from 1960 to 1969, did contract 

work from 1969 to 1973, and conducted business as "Glenn 

Voelkel Builder" until incorporating the business as "Glenn 

Voelkel Builder, Inc." in 1983. He is the sole shareholder 

of the corporation. The husband earned an average of $21,654 

from 1979 to 1983. The marital estate includes two parcels 

of real property with equity of $63,567 for the family 

residence and $7,138 for the other parcel. 
The District Court awarded joint custody of the two 

minor children and ordered husband to pay child support of 

$250 per child per month. The court awarded maintenance to 

the wife of $828 per month from March 1984, the separation 

date, to November 1985, and $350 per month from November 1985 

to June 1986, for a total. maintenance award of $19,010. The 

court gave husband a credit of $29,475 because of the 

voluntary payments he made to wife between the separation 

date and June 1985. The court further ordered. husband to pay 

the wife $17,435 to equalize the division of personal 

property and awarded husband the family home on the condition 

that he pay the wife $31,783.50 in cash as the wife's fifty 

percent share in the equity of the home. Finally, the court 

ordered the parties to pay their own attorney fees and 

ordered husband to pay all court costs. 

Section 40-4-202, MCA, gives the district court the 

discretion to equitably divide the marital property. The 

standard of review was stated in In re Marriage of McCormack 

(Mont. 1986), 726 P.2d 319, 321, 43 St.Rep. 1833, 1835: 

The District Court has far-reaching 

discretion in making property divisions. 

The reviewing court does not substitute 

its judgment for that of the trial court, 

and will not alter a judgment unless it 

finds an abuse of discretion, i .e. , that 

the trial court acted arbitrarily without 

employment of conscientious judgment or 

exceeded the bounds of reason resulting 

in substantial injustice. (Citation 

omitted. ) 

The wife disagrees with three aspects of the marital 

property distribution. First, she argues that the District 

Court did not consider the value of the husband's business 

(Glenn Voelkel Builder, Inc.) as part of the marital estate. 

We d.isagree with this contention and point to District Court 

findings #6 and #12 for support: 
VI. 

Respondent supported and maintained the 

household working as a carpenter from 

1960 to 1969, then contracting as a 

carpenter from 1969 to 1973, then doing 

business as "Glenn Voelkel Builder" until 

1983, at which time he incorporated 

himself and continued to operate as 

"Glenn Voelkel Builder, Inc. " , of which 

he is the sole shareholder. The parties 

reported total income, all of it earned 

by Respondent, of $12,965 in 1979, 

$54,744 in 1980, $34,812 in 1981, $492 in 

1982 and $5,255 in 1983 for a five-year 

average of $21,654 per year. Respondent 

could earn approximately $25,000 a year 

if employed as a construction 

superintendent. 

XII. 

The marital estate also includes Glenn 

Voelkel Builder, Inc. In evaluating the 

testimony and exhibits presented on the 

subject, we calculate the value of the 

business at something less than zero by 

deducting as assets a $41,000.00 

promissory note to the Respondent, the 

sole stockholder, and a $10,000.00 

building from which the business is 

operated but which is included as part of 

the family residence. The "going 

concern" value of the business is purely 

the name and reputation of the 

Respondent. 

The court made its findings after hearing from the 

parties' experts, both of whom essentially agreed that the 

corporation had a net negative value and no appreciable good 

will. The trier of fact has the discretion to give whatever 

weight he sees fit to the testimony of the expert. Dickerson 

v. Dickerson (1980), 188 Mont. 492, 497, 614 ~.2d 521, 524. 
We find no error since the District Court did consider the 

value of the corporation to the marital estate. 

The second aspect of the property distribution with 

which the wife disagrees is the offset or credit given to the 

husband on account of his voluntary payment ($29,475) to the 

wife from the date of separation to June 1985. The District 

Court awarded the wife monthly maintenance of $828 from March 

1984 to November 1985, the time by which the wife should have 

completed her secretarial training and obtained employment. 

The court also awarded the wife $350 monthly maintenance from 

November 1985 to June 1986, bringing the total maintenance 

award to $19,010. Since the husband voluntarily paid the 

wife $29,475 subsequent to the separation date, the court in 

its discretion decided to give the husband a credit for this 

amount. The wife claims the court's decision indebted her to 

the husband in an amount exceeding $10,000. This is not an 

accurate assessment since the record shows that the court, in 

addition to awarding a credit to the husband, ordered the 

husband to pay $49,218.50 in cash to the wife as her share of 

the equity in the family home and for the purposes of 

equalizing the personal property distribution. The District 

Court considered these matters and had the discretion to 

divide the marital property as it deemed necessary. We find 

no abuse of discretion in its determination. 

Finally, the wife argues that the court abused its 

discretion by awarding maintenance only through June 1986. 

Evidence was presented that in early 1985 the wife was 

attending a Vo-Tech school and taking classes in data 

processing, word processing, and accounting. She dropped out 

of that program later that year and entered the Adult 

Learning Center, enrolling in a secretarial office management 

course. A counselor at the center testified that by fall 

1985 the wife should have completed the course at the center. 
The court considered this testimony and other evidence before 

making its finding on the issue: 

. . . At the time of the hearing she [the 

wife] was unemployed, had a high school 

education, was functioning at an eighth 

grade level of competency and was being 

trained to be an executive secretary 

earning an anticipated five to eight 

dollars per hour. Training was to be 

completed in the fall of 1985, at which 

time her employability would be deemed 

good, with entry level salary at 

approximately $12,000 per year and a good 

prospect for advancement to $14,000 per 

year within two years. 

We see no reason to disturb the lower court ruling on the 

maintenance issue. 

The second issue is whether the District Court abused 

its discretion by failing to award. the wife reasonable 

attorney fees. Section 40-4-110, MCA, states that the court 

may, after considering the financial resources of both 

parties, order a party to pay the costs and attorney fees of 

the opposing party. In re Marriage of Rolfe (Mont. 1985), 

699 P.2d 79, 84-85, 42 St.Rep. 623, 629, discusses this 

issue: 

This Court has held tha.t in a divorce 

case a district court must indicate its 

reasons for refusing to grant attorneys 

fees. Hammeren v. Hammeren (Mont. 1982), 

663 P.2d 1152, 1154, 39 St.Rep. 2222, 

2223. In this case the District Court at 

Finding no. 37 states, "after considering 

the financial resources of both parties, 

the Court finds that both parties have 

the ability to pay their own attorney's 

fees and should do so." This is a clear 

indication of the court 's reasoning, 

therefore the denial of attorneys fees is 

upheld. " 
The District Court states in its conclusion that 

"attorney fees should be paid by the parties, court costs by 

respondent." It would appear that by awarding the wife a 

cash award of $49,218.50 the court believed that she had the 

necessary funds to pay her attorney fees. We deem it 

unnecessary to remand to the lower c 

justifying the denial of attorney fe 

Af f irmed. 

We Concur: A* ,'/