No. 80-74 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

BEVERLY J. TEFFT, 

Petitioner and Appellant, 

ALFRED E. TEFFT, 

Respondent and Respondent. 

Appeal from: ~istrict Court of the Eighth Judicial District, 

In and for the County of Cascade. 

Honorable Joel G. Roth, Judge presiding. 

Counsel of Record: 

For Appellant: 

Randono and Donovan, Great Falls, Montana 

For Respondent: 

Smith, Baillie & Walsh, Great Falls, Montana 

Submitted on briefs: February 5, 1981 

- Clerk 
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of 

the Court. 

On February 27, 1980, the District Court entered a 

decree which dissolved the marriage of petitioner and respondent, established child custody and child support, divided 

the real and personal property comprising the marital estate 

and ordered that each party pay his or her attorney fees. 

This decree was amended March 25, 1980, and from that amended 

order, petitioner appeals. 

Beverly and Alfred Tefft married on November 20, 1965. 

Alfred, a widower, had four children from his prior marriage. 

These children were adopted by Beverly following the marriage. 

Beverly and Alfred had no other children. 

Beverly is a tenured teacher working at Charles M. 

Russell High School in Great Falls, Montana. Her income for 

1978 was approximately $15,000. Alfred is a vice president 

of the Cogswell Agency, an established insurance firm in 

Great Falls. His income for 1978 from this firm was approximately $34,250. 

At the time the decree was entered the ages of the four 

children were: Gregory, 21; Terrie, 19; Tracy, 18; and 

Kristie, 17. The decree granted custody of Kristie to 

Beverly. The court ordered Alfred to pay $200 per month 

child support for Kristie, Tracy and Terrie. The decree 

recognized that Terrie suffered from a learning disability 

which slowed her educational process. Alfred's obligation 

to support the three daughters extended until each was 

graduated from high school or otherwise became emancipated. 

The decree further provided that Alfred could apply his 

daughters' social security benefits on his support obli- 
The decree ordered that Beverly was entitled to use of 

the family home until the three daughters were graduated 

from high school or otherwise became emancipated. The home 

and furnishings were then to be sold and the net proceeds 

divided equally. No specific provision was made regarding 

mortgage payments during the interim. 

The remaining real and personal property (with the exception of specified family heirlooms conceded to Alfred) 

were valued by the District Court and divided on a 50-50 

basis. Certain investment properties acquired during the 

marriage were ordered to be sold as soon as possible and the 

net proceeds divided equally. Attorney fees were made the 

responsibility of each party. 

Motions to alter or amend the decree were filed by both 

parties. The District Court amended the original decree. 

The amending order eliminated Alfred's obligation of support 

for the adult daughters, Terrie and Tracy. The order increased 

the monthly support obligation for Kristie to $250. Alfred 

could apply Kristie's social security benefits toward his 

support obligation. The social security benefits of Terrie 

and Tracy were ordered their own property, and the two were 

advised to apply for the benefits in their individual 

names. 

The amending order also altered the original decree by 

allowing Alfred to pay Beverly half of the value placed on 

the investment properties instead of selling the properties 

and dividing the proceeds. Under this amendment Beverly was 

given a judgment of $17,346.50 for her interest in the 

investment properties. 

The following issues are dealt with on appeal: 

1. Whether petitioner's motion to alter or amend the 

original decree was timely heard as prescribed by ~ule 
59 (d) (g) , M.R.Civ.P.? 

2. Whether this appeal is limited solely to the matters 

dealt with in the amending order of the District Court 

because the petitioner's notice of appeal only designated 

the amending order and not the original decree? 

3. Whether the District Court abused its discretion by 

not awarding child support for Terrie and Tracy, ages 19 and 

18, respectively? 

4. Whether the District Court erred in allowing a $200 

per month credit against child support for social security 

payments received? 

5. Whether the District Court erred in failing to 

properly value the investment properties in the marital 

estate? 

6. Whether the District Court erred by effecting a 50- 

50 property distribution of the marital estate? 

7. Whether the District Court erred in not awarding 

-. attorney fees to the petitioner? 

The first two procedural issues must be addressed at 

the outset. Rule 59 (g) , M.R.Civ.P., states that motions to 

amend a judgment must be heard and determined within the 

same time limitations which apply to motions for new trial. 

Rule 59 (d) , X.R.Civ.P. , sets forth those time limitations. 

This provision states: 

"Hearing on the motion shall be had within 10 days 

after it has been served . . . except that at any 

time after the notice of hearing on the motion has 

been served the court may issue an order continuing 

the hearing for not to exceed 30 days. In case 

the hearing is continued by the court, it shall be 

the duty of the court to hear the same at the 

earliest practicable date thereafter, and the court 

shall rule upon and decide the motion within 15 

days . . . 

"If the motion is not noticed up for hearing and no 

hearing is held thereon, it shall be deemed denied 

as of the expiration of the period time within 
which hearing is required to be held under this 

Rule 59." 

In the case at bar, petitioner filed and served a 

motion to amend on March 6, 1980. Because service was 

accomplished by mail, an additional three days must be added 

to the time limitations set forth in Rule 59 (d) . Rule 6 (e) , 

M.R.Civ.P. Therefore, the hearing on this motion to amend 

was either required to be held within 13 days, commencing on 

March 7, 1980, or was required to be continued by the court 

within 13 days, commencing with March 7, 1980. 

On March 18, 1980, the District Court, sua sponte, 

entered an order setting a hearing date on petitioner's 

motion to amend (as well as respondent's motion to amend of 

March 7, 1980) for March 21, 1980. This order was filed on 

March 19, 1980, which was the last day of the 13-day period. 

The court's order of March 18, 1980, constitutes a 

continuation of the hearing date on the motions to alter or 

amend. That order did set a hearing date within the 30-day 

period required by Rule 59(d), M.R.Civ.P. The District 

Court then ruled on the motions to alter or amend within 

five days following the hearing. Therefore, the District 

Court' s actions regarding the petitioner' s motions to alter 

or amend the original decree comply with the statutory time 

requirements set forth in Rule 59(d), M.R.Civ.P. The amending order of the District Court is valid. 

Respondent's second procedural issue concerns the scope 

of the petitioner's notice of appeal. On April 11, 1980, 

petitioner filed a notice of appeal stating that ". . . 

Beverly J. Tefft . . . hereby appeals . . . from the decision 

of Judge Joel G. Roth dated March 24, 1980, amending his 

Findings of Fact and Conclusions of Law and Decree." Respondent argues that this appeal must be limited solely to 
issues arising from the District Court's amending order 

because Rule 4(c), M.R.App.Civ.P., provides that: "The 

notice of appeal . . . shall designate the judgment or order 

appealed from." Respondent contends that the amending order 

and original decree in this action are necessarily separate 

and distinct; thus respondent argues that a specific notice 

of appeal from the original decree is required before review 

of that decree is possible. 

Respondent's contention ignores the interdependent 

nature of the amending order and the original decree. 

Finality of the original judgment must await a determination 

by the lower court regarding motions to amend or alter. 

This is evidenced by Rule 5, M.R.App.Civ.P., which suspends 

the running of the time within which an appeal must be 

taken, while a motion to alter or amend a judgment is being 

considered. The intertwinement of an amending order and an 

original judgment necessitates review of all issues contained in both; thus an appeal from either incorporates all 

issues of both for review. This holding is in keeping with 

the philosophy of modern appellate practice that technical 

defects of procedure should not bar a party from access to 

the courts. J.C. Penney, Inc. and F.W. Woolworth Co. v. 

Employment Security Division (1981) , - Mont. -I - P.2d -- , 

38 St.Rep. 694. 

The situation involving an appeal from an amending 

order, as is the case here, must be distinguished from 

situations where a party appeals from one order in a series 

of separate and distinct orders, or from one part of a 

divisible judgment. This Court has previously held that a 

failure to designate all orders or the entire judgment in 

such situations limits the reviewing court solely to the 
matters designated in the appeal notice. State v. odd 

C1945), 117 Mont. 80, 158 P.2d 299; Sperling v. Calfee 

(1888), 7 Mont. 514, 19 P. 204. However, an amending order 

and an original judgment cannot be viewed as separate and 

d i s t i n c t o r divisible and, therefore, this rule cannot be 

applied in the case at bar. Petitioner's notice of appeal 

is sufficient to preserve all issues for review. 

Petitioner's next issue on appeal concerns the District 

Court's termination of child support for the two adult 

daughters, Terrie and Tracy. Petitioner contends that such 

action constitutes error on the part of the lower court. 

However, in Chrestenson v. Chrestenson (1979), - Mont. 

- , 589 P.2d 148, 36 St.Rep. 103, this Court determined 

that a parent's legal obligation under Montana constitutional 

and statutory provisions terminated when a child became an 

adult. The Chrestenson court further noted that this determination did not contradict section 48-330(3), R.C.M., 1947, 

(now section 40-4-208, MCA) which allows: "parties to agree 

in writing or expressly provide in the decree of dissolution 

for termination of child support at an agreed upon age or 

time." Chrestenson at 150. In the case at bar, the parties 

did not reach any agreement. 

In the original decree of the District Court, respondent 

Alfred Tefft was ordered to pay $200 per month for each of 

his three daughters, who were still residing at the family 

home with petitioner Beverly Tefft. This support obligation 

was to end when each girl completed high school. ~ollowing 

the hearing regarding the motions to amend, the ~istrict 

Court altered its findings, conclusions, and decree by 

terminating the support obligation as to ~errie and Tracy. 

These daughters were 19 and 18, respectively, at the time 

the original decree was entered. Since no agreement between 

the parties existed regarding support for these adult chil- 
dren, the District Court was merely conforming its original 

decree with the law espoused in Chrestenson. This portion 

of the order of the District Court is affirmed. 

Petitioner next contends that the District Court erred 

in allowing respondent, Alfred Tefft, to apply social security 

benefits received by him on behalf of Kristie, the minor 

child, toward his support obligation. The District Court 

ordered Alfred to pay $250 per month for Kristie. The 

social security benefits receivable on behalf of Kristie 

amounted to approximately $200 per month. Thus, in effect, 

the court's order required Alfred to pay only $50 per month 

child support from his own funds. 

Section 40-4-204, MCA, sets forth relevant factors a 

court must look to in determining child support. The factors 

are: 

"(1) the financial resources of the child; 

"(2) the financial resources of the custodial parent; 

"(3) the standard of living the child would have enjoyed had the marriage not been dissolved; 

" (4) the physical and emotional condition of the 

child and his educational needs; and 

"(5) the financial resources and needs of the noncustodial parent. " 

The lower court heard testimony from both Beverly Tefft and 

Alfred Tefft. Evidence existed (although not extensive) 

regarding the factors set forth above. The District Court's 

order acknowledged that the social security benefits were 

the property of Kristie. The court determined that Kristie 

needed $250 support each month, and that $200 of such amount 

would be supplied by her own financial resources. 

Although Alfred Tefft has an income of more than $34,000 

a year and pays only $50 per month child support, this fact 

alone is not determinative that the lower court abused its 
discretion. The need of the child, as well as the noncustodial 

parent's ability to pay, must be considered. Section 40-4- 

204, MCA. We cannot say the District Court abused its discretion and, therefore, the order of support is affirmed. 

Petitioner specifies several errors regarding the 

District Court's valuation of the marital estate for purposes 

of distribution. After careful review, we find that the 

court erred in disposing of the marital estate. 

The decree provides that the family residence on 1017 

Durange, Great Falls, Montana, was to be used by Beverly and 

the three daughters until the youngest was graduated from 

high school or otherwise became emancipated. Upon such occurrence, the home and furnishings were to be sold as soon 

as possible and the net proceeds divided equally. 

No order was made regarding the $250 monthly mortgage 

payment. Under the decree Alfred has no obligation to make 

the payment. Beverly, who lives in the home, will satisfy 

this obligation thereby building future equity for Alfred. 

Such an arrangement will result in an inequitable division 

of assets at the time of sale and cannot be sustained. 

Regarding Alfred's investments, the District Court made 

the following findings, pertinent to this decision: 

Asset Current Amount Net 

Market Owed Value 

Value Thereon 

40 Acres Acquired From Amer- $ 2,500 

ican Montana Land 

American Montana Land 1/6th Unknown Unknown Unknown 

Interest 

Command Partners 1/7th $ 6,500 

Interest 

West American Lands Inc. . $12,285 $12,285 None 

1/7th Interest 

The District Court originally ordered that this property, 

along with all other investment property, be sold and the 
proceeds divided equally. In its order amending the decree, 

the District Court altered this and ordered that Alfred pay 

to Beverly half of the equity. The court failed to determine a value for one of the properties. Thus the valuation 

on which the disposition is based is inadequate, and this 

cause must be remanded. Hamilton v. Hamilton (1980), - 

Mont. , 607 P.2d 102, 37 St.Rep. 247. 

Additionally, problems arise regarding the court's 

determination of Alfred's equity in these properties, thus 

creating problems in the net worth determination. Alfred 

testified twice in this matter. In December 1979, Alfred 

stated he owned a 1/6th interest in a corporation denominated named American Montana Land. This corporation purchased 

250 acres of recreational land. Alfred testified that the 

corporation owed $26,500 on the property. He stated that 

the corporation had deeded 40 acres of the land to him 

individually. Alfred further testified he didn't know if 

any encumbrances, other than the one on the entire tract, 

existed on this 40-acre parcel. Alfred said he didn't know 

what comparable land in the same area was selling for but 

speculated that his parcel was worth $2,000-$3,000. he 

court accepted this valuation, placing a $2,500 value on the 

40 acres. The court also found that Alfred's 1/6th interest 

in the corporation had an unknown value. 

When Alfred testified in January 1980, several aspects 

of this transaction had changed. The corporation which 

owned the 250 acres of recreational land was now called West 

American Land Corporation. Alfred did not explain the 

change in corporation ownership, but apparently West American 

Land Corporation succeeded to the interest of American 

Montana Land. His interest in West American Land was 1/7th. 
NO mention was made of the 40-acre tract of land deeded to 

him. Alfred estimated that the corporation land had no 

equity. In addition to the $26,500 encumbrance originally 

testified to, Alfred stated that the land was pledged as 

security for a $60,000 note at a local bank. The record is 

unclear on whether Alfred's 40-acre tract is so encumbered. 

However, there apparently is an $86,500 debt against the 

corporate land. The District Court found that Alfred's 

interest in the West American Lands Corp. had no value 

because the value of the land did not exceed the amount of 

its encumbrance. In making this determination the court 

considered the $60r000 note to be a liability of the corporation. 

The problem resulting from this, is that the $60,000 

borrowed by West American Land was used as investment funds 

in Alfred's latest enterprise, Command Partners, franchise. 

Alfred testified that he and six other people contributed 

$6,500 each toward the purchase price of the franchise plus 

the $60,000 obtained by pledging the recreational land. In 

the District Court's findings, however, this $60,000 was not 

added as equity; although it was calculated as a liability 

in valuing the corporate stock of West American Land. The 

court found that Alfred's interest in Command Partners was 

only $6,500. 

From this testimony it is apparent that a true net 

worth of these properties was not made. Encumbrances on the 

varying properties were not clearly distinguished, nor was 

the proper equity in these proper ties calculated. 

Petitioner did not seek a maintenance award, but only 

an equitable disposition of the marital estate. The District 

Court found, regarding the relative positions of both Beverly 

and Alfred, that: 
" . . . the needs of the parties with regard to shelter, 

food, clothing, transportation, utilities, and the 

normal expenses of living are relatively equal . . . the Petitioner Beverly and Respondent Alfred have an 

equal opportunity for the future acquisition of income and capital assets but the Court finds that 

Respondent Alfred is presently earning over twice 

the amount of the income of Petitioner Beverly and 

will probably continue to do so . . . the contributions 

of the Petitioner Beverly and the Respondent Alfred 

to the family unit are equal." 

Beverly currently earns approximately $15,000 per year. 

She is paying $250 per month for mortgage payments on the 

house. Three children still reside at the family residence. 

These children do not have regular employment, thus requiring some financial help. Alfred is obligated to pay support 

for only one of the children. Reality dictates that under 

these conditions Beverly would have a very poor opportunity 

for the future acquisition of capital assets and income. 

On the other hand, Alfred earns approximately $34,000. 

He has been receiving annual raises of approximately $2,000 

per year. His position in the established insurance firm, 

Cogswell Agency, is secure. His only personal obligation 

via this dissolution is child support of $50 per month. 

Clearly, Alfred has far greater opportunity for future 

acquisition of capital assets and income. 

In light of Smith v. Smith (1981), - Mont.- , 622 P. 2d 

1022, 38 St.Rep. 146, this 50-50 distribution cannot stand. 

The court's finding that both parties have equal access to 

the future acquisition of capital is clearly erroneous and 

an abuse of discretion. Zell v. Zell (1980), - Mont. - I 

Lastly, petitioner contends that the District Court 

erred in not awarding her attorney fees. Regarding attorney 

fees, the District Court found that: 

"Although Petitioner Beverly seeks her attorney 

fees herein, the Court finds that upon consideration of the income of Petitioner Beverly and 
the property distribution ordered herein, that 

each party is able to pay his/her own attorney 

fees and costs and is responsible for his/her 

own attorney's fees and costs incurred herein." 

Based on this finding the District Court ordered each 

party to pay his or her own attorney fees. 

Petitioner argues that the District Court's improper 

determination of net worth and improper property distribution 

necessitates reversal of the trial court's decision not to 

award attorney fees to Beverly Tefft. In light of this 

Court's decision to remand regarding the issues of marital 

estate net worth and distribution, we believe it best to 

vacate the order of the District Court regarding attorney 

fees and leave it to the discretion of the trial court as to 

whether modification of the attorney fees order is necessary 

following rehearing in accordance with this opinion. 

In summary we affirm the District Court's decree as it 

relates to child support. We reverse the District Court on 

(1) failure to specifically provide for payment of the home 

mortgage, (2) failure to value all marital assets, (3) 

failure to properly calculate net worth, and, (4) failure to 

consider the husband's considerably greater opportunity for 

accumulation of future assets. 

The matter is remanded for hearing in accordance with 

this opinion. 
We concur: