No. 13680 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977

NAZARIA C. MARTINEZ, Petitioner and Respondent,

-vsJOSEMARTINEZ, 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

-.* '"f ic Filed: Submitted: December 2, 1977 

### Jfi;.: '-.' '"78 Decided: 

# -iMr. chief Justice Paul G. Hatfield delivered the Opinion of the Court. Appellant appeals from a District Court order of disposition ofmarital property in a dissolutionofmarriage action. In 1945,appellant,JoseMartinez,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 frontportion of the property. After the marriage, the parties in 1957built 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 smallMexican 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 sevendays 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 fronthouse and converting it into a duplex. Appellantworked for a Billings meat packing company for 16 years before becoming disabled in 1959. Appellant is almost totally blind and receives a total of $240per month from social security and his pension plan at the packing company. Prior to trial,appellantmoved to southernCalifornia where he resided with his two daughters from a prior marriage. Respondent,Nazaria Martinez, filed a petition for dissolution ofmarriage in DistrictCourt,Yellowstone County,on August22, 1975. The casewas tried on March 29, 1976. At thetime 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 61years old at the time of the trial. Only appellantand 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 inMexico. After the trial the District Court judge granted the dissolution ofmarriage and found that the real property in Billings could not be economicallypartitioned. The judge found that respondenthad contributed the fargreater portion to the improvement and resultant appreciation in value of the real property and that the small cafewas respondent's onlymeans of support, while appellanthad a $240guaranteedmonthly income. The DistrictCourt then ordered that respondentreceive title to all of the parties' real property, but that shepay appellant $4,000as 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 appellantwas substituted as of record. Because no official transcript of the dissolutionhearing was made, counsel reconstructed a "bystander's bill" which the judge certified as a reasonable and accurate transcriptof 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 transcriptof 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 recordmakes appeal more difficult, it is not a fatal error. Rule 9(c), M.R. App.Civ.P., provides procedures for making a bystander'sbill,

as a substitute for the court reporter's transcriptof the proceedings, where 

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## * * no report of the evidence or proceedings at a hearing or trialwasmade 

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## * *." 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 dispositionmust stand or fall solely on the basis of that record. Our inquiry in this case, therefore, is confined solely to whether therewas 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. Fautschv. Fautsch (1975), 166 Mont. 98, 102, 530 P.2d 1172. The trial judge did adequately consider the 

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## * * * duration of the marriage 

## * * *, the age, health, station, occupation, amount and sourcesof income,vocational skills, employability 

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## * 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 ofmarriage action,based on the above considerations, however, section 48-321 requires the trial judge to consider the 

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## * * * estate, [and] liabilities

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## * of each of the parties 

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## * *" and 

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

## * * *." There is no evidence 

### in the record (thebystander's billor exhibits) as to the value of the Billingsproperty. Although appellant testified that he and respondent owned property in Mexico, no evidencewas 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 ofmoney in those accounts. Appellant testified that he and respondent had a jointbank 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. Respondentmaintains that the Montana Departmentof Revenue 1976 appraised value of $10,030,and 1975 assessed value of $3,700 for the parties' Billingsproperty are entitled to judicial notice and support the trial judge's findingsand order. Whether or not in retrospect these figuresprovide 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 assessedvaluation were introduced as evidence at trial; nothing in the judge's findingsof 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 inMexico. 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 inMexico, thatMexican property still is of value to the owner,ispart of the owner's estate,will affect the owner's future needs, and thereforemust be considered under section 48-321. This casewell illustrates the pitfalls of proceeding to trial without a court reporter,and relying on reconstructing the trial testimony from the collective memories of the attorneysand the trial judge in the form of a bystander's bill. The only evidence in the record in this casewas the bystander's bill and three exhibits (tworent receiptsand a receipt, signed by appellant, stating that respondent had repaid appellantmoney which appellanthad 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 

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## * * * estate, (and) liabilities

## * * * of each of the parties 

## * * *n or 

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## * * * the increased value of property acquired prior tomarriage 

## * * *" aswas required under section 48-321. As stated in Fautsch at p. 102, 

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## * * This Courtwill not disburb findings of the district courtwhere supported and justified by substantial evidence. (Citationomitted.) However, this Court cannot affirm a judgmentwhere 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 -) of the parties.

Chief Justic

# DWe concur:

ustices