No. 13680 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

NAZARIA C. MARTINEZ, 

Petitioner and Respondent, 

-vsJOSE MARTINEZ, 

Respondent and Appellant. 

Appeal from: District Court of the Thirteenth Judicial District, 

' Honorable C. B. Sande, Judge presiding. 

Counsel of Record: 

For Appellant: 

Gary E. Wilcox argued, Billings, Montana 

For Respondent: 

Ernest F. Boschert argued, Billings, Montana 

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Filed: 

Submitted: December 2, 1977 

Jfi;.: '- .' '"78 

Decided : 

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Mr. chief Justice Paul G. Hatfield delivered the Opinion of the 

Court. 

Appellant appeals from a District Court order of disposition of marital property in a dissolution of marriage action. 

In 1945, appellant, Jose Martinez, purchased two lots 

in Billings, Montana, for a total cost of $350. When appellant 

married respondent, Nazaria Martinez, in 1955, there apparently 

was a house on the front portion of the property. After the 

marriage, the parties in 1957 built another small house on the 

rear of the lots, appellant furnishing $2,000 and respondent 

doing the building work. The couple built a garage and in 1962 

remodeled and converted it into a small Mexican food cafe. The 

$1,000 expense of remodeling was initially divided equally between 

the parties, but respondent testified that she later repaid appellant for his share of renovating the garage. Respondent has operated the restaurant, without assistance from appellant, since 

about 1964. During the first year of operating the cafe, respondent earned about $2,000. The gross income for the cafe in 1975 

was $9,914, and respondent testified that she works seven days a 

week at the cafe. Respondent also testified that, during the 

time she and appellant were married, she spent $11,600 of her 

own funds remodeling the front house and converting it into a 

duplex. 

Appellant worked for a Billings meat packing company for 

16 years before becoming disabled in 1959. Appellant is almost 

totally blind and receives a total of $240 per month from social 

security and his pension plan at the packing company. Prior to 

trial, appellant moved to southern California where he resided 

with his two daughters from a prior marriage. 

Respondent, Nazaria Martinez, filed a petition for dissolution of marriage in District Court, Yellowstone County, on 

August22, 1975. The case was tried on March 29, 1976. At the 
time of trial, the court reporter indicated that, due to his 

work schedule, he could not report the case at the time set. 

Counsel for both parties agreed to dispense with a court reporter 

and waive their right to a record of the trial. 

Both parties were 61 years old at the time of the trial. 

Only appellant and respondent testified at the trial and their 

sometimes conflicting testimony indicated that they had accumulated the following assets: (1) The aforementioned lots in 

Billings; (2) the front and back houses and the cafe, all located 

on the lots; (3) either one or two bank accounts of between $4,200 

and $4,300; and (4) real property in Mexico. 

After the trial the District Court judge granted the dissolution of marriage and found that the real property in Billings 

could not be economically partitioned. The judge found that respondent had contributed the far greater portion to the improvement and resultant appreciation in value of the real property and 

that the small cafe was respondent's only means of support, while 

appellant had a $240 guaranteed monthly income. The District Court 

then ordered that respondent receive title to all of the parties' 

real property, but that she pay appellant $4,000 as the reasonable 

value of his contribution to the present value of the property. 

The judge also allowed appellant to retain the approximately $4,300 

in the savings account which was in his name. 

Subsequent to the time that the judge issued his decree 

and order, present counsel for appellant was substituted as of 

record. Because no official transcript of the dissolution hearing was made, counsel reconstructed a "bystander's bill" which 

the judge certified as a reasonable and accurate transcript of 

the proceedings. Appellant appeals only the disposition of the 

property portion of the decree of dissolution. 

Appellant raises these issues on appeal: 
1. Did the district judge err in not having a court 

reporter take an official transcript of the proceedings? 

2. Was there sufficient evidence to support the district 

judge's order for division of the marital property? 

Although the lack of a court reporter's record makes 

appeal more difficult, it is not a fatal error. Rule 9(c), M.R. 

App.Civ.P., provides procedures for making a bystander's bill, 

as a substitute for the court reporter's transcript of the proceedings, where " * * * no report of the evidence or proceedings 

at a hearing or trial was made * * *." Appellant voluntarily 

waived his right to a court reporter at trial and may not on appeal object to the absence of a transcript of the proceedings. 

Because the bystander's bill is an acceptable, if not 

ideal, record, the validity of the property disposition must 

stand or fall solely on the basis of that record. Our inquiry in 

this case, therefore, is confined solely to whether there was 

substantial evidence in the record--the bystander's bill and the 

exhibits admitted at trial--to support the judge's findings of 

fact and order of property disposition. Fautsch v. Fautsch (1975), 

166 Mont. 98, 102, 530 P.2d 1172. 

The trial judge did adequately consider the " * * * duration of the marriage * * *, the age, health, station, occupation, 

amount and sources of income, vocational skills, employability 

* * * and needs of each of the parties * * *" as is required by 

section 48-321, R.C.M. 1947. The record and the judge's findings 

of fact speak directly to these issues. Before dividing the marital 

property between a contesting husband and wife in a dissolution 

of marriage action, based on the above considerations, however, 

section 48-321 requires the trial judge to consider the " * * * 

estate, [and] liabilities * * * of each of the parties * * *" and 

" * * * the increased value of property acquired prior to marriage 

* * *." There is no evidence in the record (the bystander's bill 
or exhibits) as to the value of the Billings property. Although 

appellant testified that he and respondent owned property in 

Mexico, no evidence was introduced as to the property's value, 

and the court made no mention of the Mexican property in its 

property disposition order. Testimony was conflicting as to the 

types of bank accounts of the parties and the amount of money 

in those accounts. Appellant testified that he and respondent 

had a joint bank account containing about $4,200, while respondent testified that there was a savings account of approximately 

$4,300 in appellant's name. No bank books or other documents 

were introduced into evidence to eliminate this inconsistency. 

Respondent maintains that the Montana Department of Revenue 

1976 appraised value of $10,030, and 1975 assessed value of $3,700 

for the parties' Billings property are entitled to judicial notice 

and support the trial judge's findings and order. Whether or not 

in retrospect these figures provide an accurate indication of fair 

market value of the Billings property, however, begs the issue. 

Section 48-321, R.C.M. 1947, requires the trial judge to consider 

the property values. Neither the appraised valuation nor the 

assessed valuation were introduced as evidence at trial; nothing 

in the judge's findings of fact or conclusions of law show that 

he ever considered the assessed or appraised value of the land 

prior to his property disposition order. 

Respondent also maintains that the Mexican property is 

irrelevant to the property disposition because it is of negligible 

value and because a Montana District Court order is of no effect 

in Mexico. The record is silent as to the value of the Mexican 

property. The Mexican property is relevant to a property distribution because, although Montana court orders encumbering or 

transferring title to Mexican property may be of no legal effect 

in Mexico, that Mexican property still is of value to the owner, 
is part of the owner's estate, will affect the owner's future 

needs, and therefore must be considered under section 48-321. 

This case well illustrates the pitfalls of proceeding 

to trial without a court reporter, and relying on reconstructing the trial testimony from the collective memories of the 

attorneys and the trial judge in the form of a bystander's bill. 

The only evidence in the record in this case was the bystander's 

bill and three exhibits (two rent receipts and a receipt, signed 

by appellant, stating that respondent had repaid appellant money 

which appellant had provided for converting the garage into a 

cafe). There is no evidence in the bystander's bill or the exhibits to show that the trial judge adequately considered the 

" * * * estate, (and) liabilities * * * of each of the parties 

* * *n or " * * * the increased value of property acquired prior 

to marriage * * *" as was required under section 48-321. As 

stated in Fautsch at p. 102, " * * * This Court will not disburb 

findings of the district court where supported and justified by 

substantial evidence. (Citation omitted.) However, this Court 

cannot affirm a judgment where there is insufficient credible 

evidence to support it. * * *" See also Downs v. Downs (1976)) 

Mont . I 

The disposition of property order of the District Court 

is vacated and the case is remanded for a new property disposition 

hearing to determine the present value of the Billings and Mexico 

properties, the amount of money held by the parties in joint and 

individual savings accounts, and all other assets and liabilities 

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of the parties. 

Chief Justic D 
We concur: 

ustices