### No. 79-31 IN THE SUPREMI3 COURT OF THE STATE OF MONTANA 1980

RICHARD SCHULTZ, Petitioner and Appellant,

VS. 

### CARLA JEAN SCHULTZ, Respondent and Respondent.

Appeal from: District Court of the Eleventh Judicial District, Honorable Robert C. Sykes, Judge presiding. Counsel of Record: For Appellant: Regnier and Lewis, Great Falls, Montana For Respondent: Hash, Jellison, O'Brien and Bartlett, Kalispell,

Montana

Submitted on briefs: April 3, 1980 Decided: 

## JUb! 20 

## 1-%@ Filed: 

## JUN 2

## 0

## 1980Mr. Justice John Conway ~arrison delivered the Opinion of the Court. This 

### is the second appeal taken from 

### a petition for a dissolution of marriage and the equitable apportionment of assets of 

### a marital estate. The petition was originally filed inthe District Court of the Eleventh Judicial District, inand for the County of Flathead, the Honorable Robert Sykes presiding. The facts of the case are fullydeveloped in the 

### first appeal, In

### re Marriage of Schultz (1979), 

### -Mont. 

## , 597 P.2d 1174, 36 St.Rep. 1330, and need only be briefly discussed here. Appellant husband and respondent wife 

### were firstmarried inJune 1967, divorced a year and a half later, and remarried inDecember 1969. A petition for the dissolution of the second marriage 

### was filed on July 28, 1977. Atthat time husband 

### was 46 years old and employed as



### a railroad brakeman-conductor with net earnings of approximately $1,350 per month. Wife was 37 years old and unemployed, but had worked during the marriage as

### a bartender and 

### waitress. The primary asset of the marital estatewas a twenty-acre tractof land, known 

### as the Haskill Creek property, located 

### east of Whitefish, Montana, inFlathead County. A small log house 

### was located on the property which served 

### as themarital home of the parties during the marriages. Husband originally purchased the land for $11,000 prior to hismarriages towife, and approximately $5,000 of the purchase price was paid by husband during the marriages. On March 23, 1978, the DistrictCourt distributed the 

### marital estate. The personal property was divided equally between the parties, and husband received the Haskill Creek property but was ordered topay wife $6,000 

### as her interesttherein. Husband 

### was alsoordered to assume allmarital obligations and 

### was given credit for his contributions toward the support of wife's children. The following chart indicates the court's apportionment: DESCRIPTION VALUE TO HUSBAND 

### - -- TO WIFE (1)Real Estate $40,000 $34,000 $ 6,000 (2) Less Contract Balance & Equity (6,000) (6,000) (3) Personal Property 7,170 3,585 

### (4) Less Debts (4,280) (4,280) (5) Less Child Support Contributions (20,000) (20,000)

NET Wife contested the above apportionment inthe first appeal on the basis of issues unrelated to those raised here. Weremanded the case to the DistrictCourt to enter certain findingswith respect to the personal property of the parties and todistribute the marital 

### estate without considering husband's contributions toward the support of wife's children. Following our instructions, the District Court re-apportioned themarital 

### estate, this 

### timedividing the estate equally between the parties with respect to both real and personal property. Husband again

### was ordered to

assume allmarital obligations, and the property 

### was divided inthe following manner: DESCRIPTION VALUE TO HUSBAND 

### - TO WIFE 

### -- (1)Real Estcte $40,000 $25,190 $14,810 (2) LessContract Balance & Equity (6,000) (6,000) (3) Personal Property 7,170 3,585 3,585 

### (4) Less Debts (4,280) (4,280)

NET $18,495 $18,395An objection to this second apportionment 

### is now raised by husband inthe form of a second appeal. Husband argues that the DistrictCourt committed reversible error and abused 

### its discretionby dividing the marital 

### estate equally between the parties without considering the relative contributions of the parties. In particular, husband objects to the DistrictCourt's award towife of a greater interest in the Haskill Creek property simply by reason of her living on the property during the marriage. In considering husband's arguments, 

### we note, firstof all, that a District Court has far-reaching discretion in resolving property division disputes indissolution proceedings and that the DistrictCourt's judgment 

### willnot be disturbed unless a 

### clear abuse of discretion 

### isdemonstrated. Zellv. Zell (1977), 174 Mont. 216, 570 P.2d 33, 35; In

### re Marriage of Aanenson (1979), 

## -Mont. - 

## , 598 P.2d 1120, 1123, 36 St.Rep. 1525, 1528; Cook v. Cook (1972), 159 Mont. 98, 103, 495 P.2d 591, 593-594; Schwartz v. Schwartz (1979), Mont. 

## , 602 P.2d 175, 176; 36 St.Rep. 1980, 1981. 

### - To prevail inthis

### case, husband must show, therefore, that the DistrictCourt clearly abused 

### its discretion. The primary focus of husband's arguments concerns the DistrictCourt's apportionment of the Haskill Creek property, which 

### was acquired by husband prior tohismarriages to wife. That property consisted of 

### a twenty-acre 

### tract of partially cleared and partially uncleared land. Atthe 

### time of purchase, a small log house 

### was located upon the property, and there was second growth timber of only marginal merchantable quality. Husband and his friendsmade several substantialimprovements to the house while the parties lived there during the marriages.

### In disposing of property acquired prior to a marriage,

a District 

### Court is

### required by statute to consider: 

# ".

. . those contributions of the other spouse to the marriage, including: (a) the nonmonetary contribution of a homemaker; (b) the extent towhich such contributions have facilitated the maintenance of thisproperty, and (c)whether ornot the propertydisposition serves 

### as an alternative tomaintenance arrangements." Section 40-4-202, MCA. 

### Husband here refers tocertain conclusions made by the District

### Court for his argument thatwife was 

### not entitled to a 

### greater interestin the property because of her lack of contributions. The District

### Court concluded inits 

### conclusions of 

### lawthatwife made no substantial improvements to the Haskill Creek property and that she dissipated the 

### marital estate. The court found, however, thatby reason of wife's iiving on theproperty during the marriage and the period inwhich improvements 

### weremade, she was entitled to equal interest inthe property. In understanding the conclusions and the discretion of the District 

### Court, it 

### is

### important toconsider the findings of factentered by the court. These findingsprovide, in 

### part, a basis for the court's conclusions. Husband would have us believe, from a rather selective examination of the court's conclusions, thatwife made no contributions to the Haskill Creek property but simply lived on 

### it, and further thatwife was the sole cause and reason for the dissipation of the marital estate. 

### The findings of factindicate otlierwise. The court found factually thatboth parties 

### were responsible to some extent for the dissipation of the marital estate and thatwife made considerable sacrificeswhile living upon the property. Finding of Fact No. 19 

### stated: "Considerable strife, turmoil and controversy occurred throughout the two marriages of the parties. Drinking 

### -- on thepart of both parties has contributed 

### -- to theproblem. The respondent

### [wife] leftthe family home on several occasions; and the separation of the parties dissipated the assets and monies accumulated during the course of the marriage on thepartof both parties." (Emphasis added.) Finding of FactNo. 21 stated: "Substantialimprovements 

### weremade on the house during the marriages. The resulting living conditions

### were a problem inattempting tomaintain reasonable conditions. The respondent [wife] contributed little

### physical effort inimproving the house; but both parties neither expected nor required such efforton her part. The parties living on saidproperty, where substantial 

### improvements 

### werebeing made, required considerable sacrificeof personal comfort." We find substantial evidence in the record to support such findings. Testimony 

### was given atthe apportionment hearing regarding theparties' several conflicts and their drinking problems. It

### is 

### impossible to conclude from such testimony that the separation of the parties and the subsequent dissipation of the marital estatewas caused entirely by the actions of one party. The transcript also indicates that, while husband and his friends engaged inmost of the physical work with regard tothe improvements made upon the property, wife nevertheless did such things asbuy bedroom lights, bathroom lights and a hotwater tank for the house, staindoors and casings, clean up 

### messes during the construction, make trips intoWhitefish formaterials, ride the Caterpillar with husband inworking the property and drive the truck during haying operations. With respect tothe living conditions thatboth parties lived with during the construction, there is 

### testimony to the effect that there were considerable sacrificesmade. An entirebedroom and bathroom were 

### added, and therewere 

### no kitchen cupboards or carpeting inthe house. One friend of husband's, who provided considerable help during the con-struction, testified that the condition of the property before the startof the work was "pretty badw--"there wasn't any water, sewer, no liveable conditions--it 

### was really rough." Because of these contributions and sacrifices, we find that the District Court did not error abuse 

### its discretion in awarding wife a greater interest on the second apportionment. In affirming the discretion and decision of the Dis

### trict Court, 

### we wish toreiterate that, indissolution proceedings, ea::h Jase must be considered by District Courts individually with an eye to itsunique circumstances. Cook



### v. Cook, 159Mont. at104, 495 P.2d at59. There 

### is no fixed formula or rationale tobe applied ineach case, except that the court's exercise of discretionmust be reasonable under the particular circumstances. Biegalke v. Biegalke (1977), 172 Mont. 311, 315, 564 P.2d 987, 989. Here, both parties contributed to the maintenance of the Haskill Creek property, and both 

### were responsible for the separation, which caused 

### a dissipation of the marital estate. Therefore, 

### we find 

### no abuse of discretion, and the judgment of the DistrictCourt 

### is affirmed.

Weconcur: 

# u / 

## Qq4 P"P 

## 7=3%%'& Xhief Justice