No. 83-486 

IN THE SUPREME COURT OF THE STATE OF PONTANA 

1984 

IN RE THE MARRIAGE OF 

KARL A. GIES, 

Petitioner and Respondent, 

and 

ELSIE L. GIES, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Tenth Judicial District, 

In and for the County of Petroleum, 

The Honorable Peter L. Rapkoch, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

John Paulson, Lewistown, Montana 

Luxan & Murfitt, Helena, Montana 

For Respondent: 

Jon A. Oldenburg, Lewistown, Montana 

Submitted. on Briefs: May 10, 1984 

Decided: 31, 1984 

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

the Court. 

Elsie L. Gies (wife) appeals two orders of the Tenth 

Judicial District Court, Petroleum County, distributing 

certain marital real estate which had not been distributed in 

an earlier dissolution proceeding, and ruling that Karl A. 

Gies (husband) was not obligated to pay child support during 

the summer months. We remand for further findings and 

modification. 

The husband and wife were married August 7, 1965. In 

August, 1979 they separated. The marriage was dissolved by a 

decree of the District Court entered April 15, 1980. The 

dissolution decree adopted the provisions of a settlement 

agreement, entered into April 7, 1980, which provided for 

child custody, retention of personal property including all 

motor vehicles, disposition of all indebtedness including 

payments on the real property, future payment of health 

insurance, and child support. The agreement did not divide 

the jointly owned real property of the parties; rather, the 

parties were to provide for the division of the property by a 

separate agreement. 

The parties were unable to reach an agreement as to the 

division of their real property which consisted of the family 

home and 48.3 acres of land. On June 3, 1983 the husband 

petitioned the District Court to distribute the real 

property. 

The District Court found that both parties were 

employable and in good health and that the "need for assets 

is . . . not significantly greater for one party than for the 

other." The court determined the net value of the marital 

real property estate to be $90,034.54. The court determined 

that it was the intention of both parties that the husband 
should receive the family house. The court also found that 

the best interest of the parties and the children would be 

served if the property was not partitioned and that the 

husband offered to pay the wife in cash for her share of the 

real property. 

The District Court credited the husband for the 

$33,352.30 he spent on the property to retire the debt, and 

to defend the property since the date of separation. In 

addition he was credited $7,214.31 for money and property 

supplied to the wife over and above what was required by the 

dissolution decree. The husband was ordered to pay the wife 

one half of the remaining $49,467.93 value of the estate. 

On August 24, 1983, the wife moved the court to hold the 

husband in contempt for failure to make child support 

payments during the summer months when he had custody of the 

children. The District Court denied the motion, ruling that 

the husband had met his support obligation during those 

months by caring for the children in his custody. 

The wife appeals both orders, and raises the following 

issues: 

1. Whether the District Court abused its discretion by 

not partitioning the property? 

2. Whether the District Court erred by dividing the 

property without determining the value of the total marital 

estate? 

3. Whether the District Court erred by giving the 

husband certain credits against the equity of the parties in 

the real property? 

4. Whether the District Court erred by determining the 

issue of maintenance? 
5. Whether the District Court erred by not requiring 

the husband to make child support payments during periods of 

summer visitation? 

The wife first argues that the District Court abused its 

discretion by failing to partition the property. The 

proceeding before the court was not a partition action, 

although the court did have discretion to partition the 

property. Beck v. Beck (Mont. 1983), 661 P.2d 1282, 40 

St.Rep. 565. The court found that due to hard feelings and 

problems with visitation, the parties could not exist as 

neighbors, and that partition of the property would have an 

adverse effect on the saleability of the property. These 

findings are supported by the record. We hold the District 

Court did not abuse its discretion. 

The wife next argues that the District Court erred in 

failing to value the marital estate before dividing the 

property. It is well settled that. the District Court must 

determine and consider the net value of marital assets before 

the estate can be divided. Vivian v. Vivian (1978), 178 

Mont. 341, 583 P.2d 1072; Turner v. Turner (Mont. 1983), 670 

P.2d 568, 40 St.Rep. 1666. 

However, the facts of this case present a unique 

situation. With the exception of the real property, the 

marital estate had already been divided by the dissolution 

decree and the adopted settlement agreement. That division 

must be assumed to be equitable. In short, by virtue of the 

provisions of that agreement, the parties stood in equal 

positions before the District Court when the real property 

was to be divided. The only "marital estate" before the 

court was the marital real property estate. The District 

Court did properly value the latter. 
The wife next argues that the District Court erroneously 

credited the husband for expenditures made since the 

separation. It is well settled that a District Court has 

great discretion in dividing property, and that its judgment 

should not be altered without a showing of clear abuse of 

discretion. Zell v. Zell (1977), 174 Mont. 216, 220, 570 

P.2d 33, 35. 

We will address the credits individually: 

1. Credit of $28,814.24 for payments on the debt 

against the property. 

The wife contends that the trial court should have 

deducted from this credit an amount to offset his exclusive 

use of the property for 3 years since the separation. She 

argues that she should be credited for loss of reasonable 

rental value of the property. 

The argument is well taken. Indeed, the husband admits 

in his brief that his keeping the payments current, together 

with other lesser obligations, were "in exchange" for his 

retaining possession of the family home. 

The trial court did not explain the reason for his 

calculation of the credit. Fle must remand to the District 

Court with directions to explain in its findings and 

conclusions the basis for det-ermining this credit, and to 

modify the credit if it does not fairly reflect the wife's 

loss of her share of the rental value. 

2. Credit of $4,538.06 for out-of-pocket expenses 

incurred in a boundary dispute. 

The wife argues that the boundary dispute lawsuit arose 

prior to the construction of the house, and the obligations 

were assumed by the husband in the settlement a.greement. We 

disagree. The lawsuit was not finally settled until 1981. 

Moreover, the dissolution settlement agreement specifically 
retains to each party the assertion of rights, claims demands 

and obligations which apply to the division of the real 

property. 

3. Credit for money paid and property given in excess 

of what was required by the dissolution decree. 

The wife argues such amouilts can.not be treated as 

credits since they were gifts, citing Delaney v. Delaney 

(19811, 195 Mont. 259, 635 P.2d 1306. Again the trial court 

made no finding as to whether these payments were purely 

gratuitous or as to why they should be treated as a d.epletion 

of the marital real property estate. The trial court has 

broad discretion in weighing factors which bear on the 

question of equitable division of marital property. Its 

judgment will not be overturned if it explains its decision 

in findings and conclusions and such findings and conclusions 

are rea.sonable. 

4. Credit of $1,315.78 for 1964 Jeep Flagoneer and 

insurance settlement. 

It appears that under the settlement agreement, the wife 

was specifically entitled to all vehicles in her custody. If 

the Jeep was in her custody, the husband released all claims 

regarding it. The trial court must determine and issue 

findings showing why the wife was not entitled to the Jeep, 

or remove the credit. 

5. Credit for child support payments made while husband 

had custody. 

The wife contends the District Court erred in ruling 

that the husband was not required to make child support 

payments during periods of summer visitation. F7e agree. 

The issue is resolved by the unambiguous terms of the 

adopted settlement agreement: 
"CHILD SUPPORT: 

"The Petitioner shall pay -- to the Respondent -- the sum 

- of $150.00 a month, for each child, until such time 

as each chrld becomes of legal a.ge, marries or is 

otherwise emancipated." (emphasis added) 

The trial court abused its discretion and modified the 

plain meaning of this agreed-to provision. 

The husband argues that his care for the children while 

they are in his custody satisfies the spirit and purpose of 

the child custody provision. We disagree. Not only is the 

provision unambiguous and clear on its face, but the "spirit 

and purpose" are to help the wife meet the expenses of care 

for the children including year-round overhead such as the 

additional expense of a larger home. 

The wife also challenges the trial court's determination 

that she was not entitled to maintenance. We agree that this 

issue was not before the District Court under the petition 

for distribution of the real property. However, the 

determination is inconsequential. It is clear that - all 

obligations between the husband and wife are covered by the 

April 15, 1980 dissolution decree and the subsequent real 

property distribution. 

The August 30, 1983 child support order of the District 

Court is vacated. The case is remanded to the District Court 

for further findings and conclusions and for modifications in 

accordance with this opinion. 
We concur: 

~4A4,kd 

Chief Justice