### 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 JudicialDistrict, In and for the County of Cascade. Honorable Joel G. Roth, Judgepresiding. Counsel of Record: ForAppellant: Randono and Donovan,Great Falls,Montana For Respondent: Smith, Baillie & 

### Walsh, Great Falls,Montana

Submitted on briefs: February 5, 

### 1981



# - ClerkMr. JusticeFrank B. Morrison, 

### Jr., delivered the Opinion of the Court.

On February 27, 1980, the DistrictCourt 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 orher attorney fees. This decree was amended March 25, 1980, and from that amended order, petitioner appeals. Beverly and Alfred Tefftmarried on November 20, 1965. Alfred, a widower, had four children from his prior marriage. These childrenwere adopted by Beverly following themarriage. Beverly and Alfred had no other children. Beverly 

### is a tenured teacher working atCharles M. Russell High School inGreat 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. 

### Hisincome for 1978 from this firm

### was approximately $34,250. Atthe 

### 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 thatAlfred could apply his daughters' social security benefits on his support obli-The decree ordered that Beverly was entitled touse of the family home until the three daughters 

### were graduated from high school or otherwise became emancipated. The home and furnishings were then tobe 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 toAlfred)

were valued by the DistrictCourt and divided on a 50-50 basis. Certain investment properties acquired during the marriage were ordered tobe sold as soon aspossible and the net proceeds divided equally. Attorney feeswere made the responsibility of each party. Motions to alter or amend the decree were filed by both parties. The DistrictCourt amended the original decree. The amending order eliminated Alfred's obligation of support for the adultdaughters, 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 topay 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 aredealtwith on appeal: 1. Whether petitioner's motion to alter or amend the original decree was timely heard asprescribed by ~ule

### 59(d) (g)

## ,M.R.Civ.P.? 2. 

### Whether thisappeal 

### is limited solely to the matters dealtwith inthe amending order of the DistrictCourt because the petitioner's notice of appeal only designated the amending order and not the original decree? 3. 

### Whether the District Court abused 

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

### and 

### 18, respectively? 4. 

### Whether the District

### Court erred inallowing a $200 per month credit againstchild 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 DistrictCourt erred by effecting a 50- 50 property distribution of the marital estate? 

### 7. Whether the DistrictCourt erred innot awarding



### -. attorney fees to the petitioner? The firsttwo procedural issuesmust be addressed at the outset. Rule 59(g)

## , M.R.Civ.P., states thatmotions to amend a judgment must be heard and determined within the

same 

### time limitations which apply tomotions for new trial. Rule 59 (d)

## , X.R.Civ.P. 

## , sets forth those 

### timelimitations. This provision states: "Hearing on themotion shallbe had within 10 days after ithas been served 

# . .

# . except that atany time after the notice of hearing on themotion has been served the courtmay issue an order continuing the hearing for not toexceed 30 

### days. 

### In case the hearing iscontinued by the court, it shallbe the duty of the court tohear the same atthe earliestpracticable date thereafter, and the court shall rule upon and decide the motion within 15 days

# . . . "If the motion 

### isnot noticed up for hearing and no hearing 

### isheld thereon, 

### it shallbe deemed denied as of the expiration of the period 

### timewithinwhich hearing 

### isrequired to be held under this Rule 59." In the case atbar, 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 setforth inRule 59(d)

# . Rule 6

### (e)

## , M.R.Civ.P. Therefore, the hearing on thismotion to amend

was either required to be held within 13days, 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 (aswell 

### as respondent's motion to amend of March 

### 7, 1980) forMarch 21, 1980. This order was filed on March 19, 1980, which was the lastday 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 datewithin the 30-day period required by Rule 59(d),M.R.Civ.P. The 

### District Court then ruled on themotions 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 inRule 59(d),M.R.Civ.P. The amending order of the DistrictCourt 

### isvalid. 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 originaldecree in this action 

### are necessarily separate and distinct; thus respondent argues that a specific notice of appeal from the originaldecree 

### isrequired before review of that decree 

### ispossible. 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 regardingmotions to amend or alter. This 

### isevidenced by Rule 

### 5, M.R.App.Civ.P., which suspends the running of the 

### timewithin which an appeal must be taken, while a motion to alter or amend a judgment isbeing considered. The intertwinement of an amending order and an originaljudgment necessitates review of allissues contained inboth; thus an appeal from either incorporates all 

### issues of both for review. This holding 

### is inkeeping with thephilosophy of modern appellatepractice 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 situationswhere a 

### party appeals from one order in

### a series 

### of separate and distinctorders, or from one part of a divisible judgment. This Court has previously held thata failure todesignate allorders or the entirejudgment in such situations limitsthe reviewing court solely to the

### matters designated inthe appeal notice. State

### v. odd 

### C1945), 117 Mont. 80, 158 P.2d 299; Sperling v. Calfee (1888), 7Mont. 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, thisrule cannot be applied inthe case atbar. Petitioner's notice of appeal 

### is sufficienttopreserve allissues 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, inChrestenson 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 statutoryprovisions terminated when a child became an adult. The Chrestenson court further noted that thisdetermination didnot contradict section 48-330(3), R.C.M., 

### 1947, (now section 40-4-208, MCA) 

### which allows: "parties to agree inwriting or expressly provide in the decree of dissolution for termination of child support atan agreed upon age or time." Chrestenson at150. In the case at

### bar, theparties did not reach any agreement. In the original decree of the DistrictCourt, respondent Alfred Tefftwas ordered topay $200 per month for each of his three daughters, who were 

### still residing 

### atthe family home with petitioner Beverly Tefft. This support obligation

was toend when each girlcompleted 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, atthe 

### time the original decree

### was entered. Since no agreement between theparties existed regarding support for these adultchil-dren, the District Court 

### wasmerely conforming 

### its original decree with the law espoused inChrestenson. This portion of the order of the District Court 

### is affirmed. Petitioner next contends that the DistrictCourt erred inallowing 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, ineffect, the court's order required Alfred topay only $50 per month child support from his own funds. Section 40-4-204, MCA, sets forth relevant factors a courtmust look to indetermining 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 themarriage 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 courtheard testimony from both Beverly Tefft and Alfred Tefft. Evidence existed (althoughnot 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 

### itsdiscretion. The need of the child, as

### well as the noncustodial parent's ability topay, must be considered. Section 40-4- 204, MCA. We cannot say the DistrictCourt abused 

### its discretion and, therefore, the order of support 

### is affirmed. Petitioner specifies several errors regarding the DistrictCourt's valuation of themarital estate forpurposes of distribution. After careful review, 

### we find that the court erred indisposing of themarital 

### estate. The decree provides that the family residence on 1017 Durange, Great Falls, Montana, was tobe 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 tobe sold as soon

aspossible and the netproceeds divided equally. No order 

### wasmade regarding the $250 monthly mortgage payment. Under the decreeAlfred has no obligation tomake the payment. Beverly, who lives in the home, 

### will satisfy thisobligation thereby building future equity forAlfred. Such an arrangement

### willresult inan inequitable division of assets atthe 

### timeof sale and cannot be sustained. Regarding Alfred's investments, the DistrictCourt made the following findings, pertinent to this decision: Asset Current Amount Net Market Owed Value Value Thereon 40 AcresAcquired From Amer- $ 2,500 icanMontana Land American Montana Land 1/6th Unknown Unknown Unknown Interest Command Partners 1/7th $ 6,500 Interest WestAmerican Lands Inc.

. $12,285 $12,285 None 1/7th Interest The DistrictCourt originally ordered that thisproperty, along with allother investment property, be sold and theproceeds divided equally. In 

### its order amending the decree, the District Court altered thisand ordered thatAlfred 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 

### isbased 

### is inadequate, and this

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

## - Mont. 

## , 607 P.2d 102, 37 St.Rep. 247. Additionally, problems ariseregarding the court's determination of Alfred's equity in these properties, thus creating problems inthe net worth determination. Alfred testified twice inthismatter. In December 1979, Alfred stated he owned a 1/6th interest 

### ina 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 inthe same area was selling forbut speculated that his parcel was worth $2,000-$3,000. he court accepted thisvaluation, placing a $2,500 value on the 40 acres. The court also found thatAlfred's 1/6th interest in the corporation had an unknown value. When Alfred testified inJanuary 1980, several aspects of this transaction had changed. The corporation which owned the 250 acres of recreational land was now calledWest American Land Corporation. Alfred did not explain the change incorporation ownership, but apparently West American Land Corporation succeeded to the interestof American Montana Land. Hisinterest inWest American Land was 1/7th.NO mention 

### wasmade 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 DistrictCourt found thatAlfred's interest in the WestAmerican Lands Corp. had no value because the value of the land did not exceed the amount of 

### itsencumbrance. Inmaking this determination the court considered the $60r000note 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 inAlfred's latestenterprise, Command Partners, franchise. Alfred testified thathe and six other people contributed $6,500 each toward the purchase price of the franchiseplus the $60,000 obtained by pledging the recreational land. In the DistrictCourt's findings, however, this $60,000 was not added asequity; although 

### it was calculated as a liability invaluing the corporate stock of West American Land. The court found thatAlfred's interestinCommand 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 inthese 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 assetsbut the Court finds that Respondent Alfred 

### ispresently earning over twice the amount of the income of Petitioner Beverly and 

### willprobably continue todo 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 

### ispaying $250 per month for mortgage payments on the house. Three children 

### stillreside atthe family residence. These children do not have regular employment, thus requiring some financial help. Alfred 

### isobligated topay support for only one of the children. Reality dictates thatunder 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 ischild support of $50 per month. Clearly, Alfred has far greater opportunity for future acquisition of capital assets and income. Mont.- In lightof Smith v. Smith (1981), 

# - , 622 P.

### 2d 1022, 38 St.Rep. 146, this 50-50 distribution cannot stand. The court's finding thatboth parties have equal access to the future acquisition of capital 

### isclearly erroneous and

an abuse of discretion. Zell

### v. Zell 

### (1980), 

## - Mont.

## - I



### Lastly, petitioner contends that the DistrictCourt erred innot awarding her attorney fees. Regarding attorney fees, the District Court found that: "Although Petitioner Beverly seeks her attorney fees herein, the Court finds thatupon consideration of the income of Petitioner Beverly and

### the property distribution ordered herein, that each party 

### isable topay his/her own attorney fees and costs and 

### isresponsible for his/her own attorney's fees and costs incurred herein." Based on this finding the DistrictCourt ordered each party topay his orher own attorney fees. Petitioner argues that the DistrictCourt's improper determination of networth and improper property distribution necessitates reversal of the trial court's decision not to award attorney fees to Beverly Tefft. In lightof this Court's decision toremand regarding the issuesof marital estatenetworth and distribution, we believe 

### itbest 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 inaccordance 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 tovalue allmarital assets, (3) 

### failure toproperly calculate networth, and, (4) 

### failure to consider the husband's considerably greater opportunity for accumulation of future assets. The matter 

### isremanded for hearing inaccordance with this opinion.

### We concur: