### No, 12196 IN

### THE SUPREME COURT OF WE STATE OF MONTANA 1972

- - - 

### WALTER FRANCKE

## , Plaintiff and Appellant,

SANDRA JEAN

### FRANCKE, Defendant and Respondent,
Appeal from: District Court of the Thirteenth .Tudicial. District, Honorable Jack 

### D. Shanstrom, Judge presiding. Counsel of 

### Record

### : For Appellant: 

### Sandall, Moses and Cavan, Billings, Montana, Charles 

### F, Moses and K, D. 

### Tolliverargued, Billings,

Montana. For Respondent: 

### Longan and Holmstrom, Billings, Montana. Robert W, 

### Holmstrom argued, Billings, Montana.

Submitted: 

### October 27, 1972 Decided: "?-3 

# JAN^ 197, Filed:

# ,fr\T1 5 

# . *,ivir. Justice (;tine 

### B. 3aiy delivered the Opinion of the Court.
This is an appeal from the property settlement award ina divorcejudgment entered September 20, 1971, infavor of each party against the other inthe district court of Stillwater County, following trialto the court sittingwithout 

### a jury. The action
was commenced by plaintiff Dr. Walter Francke and defendant Xrs. Sandra Jean Francke counterclaimed for divorce. The Franckes have three children, a son now 

### I1 years old,
a son now 10 years old, and a daughter now 9 years old. The decree, with the wife's consent, granted custody of the oldest 

### child to thehusband and custody of the two younger children
to thewife, The wife was granted a monthly alimony award of $1,000 until death or remarriage, and $150 per month support for each of the two children inher custody. Provision was rnade for thehusband topay allmedical and dental expenses of aL1 three children. In addition, the husband was ordered to designate the wife irrevocable beneficiary of $50,000 in life insurmce toprotect the alimony. Each party admits to this Court that the alimony award has been terminated by remarriage,. The property settlement ordered by the court directed -:hts iB~fiEe to set over t:o thehusband her interest in thejointly
'7eid property and directed the husband topay thewife the cash
;urn of $60,000; $30,000 tobe due in 1971and $10,000 each year 

### tor three successive years. The decree further ordered the husband to set over his interest in some household furniture and his interest in an automobile used by the wife. It appears that ;:he bulk of the husband's estatewas acquired after the marriage, ~riirough his financial contribution and was held almost entirely Irs sole ownership by him. Motion for a new trialwas made on thebasis that the judgment governing the property settlement was ~loc supported by the evidence, The motion was denied and this appealwas taken.Plaintiff presents 5ut one issue on appeal, whe~hes the svidencejustifies the award to defendant wife of $60,000 in lieu of property, when the court also awarded the wife alimony. The judgment of divorce, support, alimony, custody and other property awards arenot challenged on appeal, From therecord, it appears that Dr. Francke began his n~edical practice inBillings in 1955. 

### In 1959, he married Mrs. Francke at Charleston, West Virginia. At that time he had zstablished a successfulpractice. At the time of the marriage Dr. Francke was approximately 40 years old; Mrs. Francke was 22 years old. The evidence isinconflict on matters of financial worth, however, the trialcourt found in itsfinding of fact No, 

### 8 that plaintiff averaged in excess of $81,000 per year taxable income during the past four years; that during the course 3f the marriage plaintiff acquired property valued inexcess of $250,000; that the parties lived in a luxurious home, traveled, and did allthings compatible with their financialposition. The court found that defendant, three years prior toher mdrriage, received the Miss Congeniality award at the Miss ~merica Pageant in 1956, resulting in appearances on national television as an actress; that she had partially completed her s~udiesin clothing design and was employed by a national company in a public relations capacity, receiving 

### a very substantial income; that as a result of the marriage she has not engaged in these occupations and now isunable toresume her career. The court further found that of the property accumulated by plaintiff during the course of the marriage only two parcels sf land were injoint tenancy and the balance inplaintiff's
name alone; that during the course of the marriage defendant aided piaintiff in furtheringhis professional careerby participation in social activities, medical auxiliaries and inpreparation of medical exhibits for radiological conventions.

### 7 he district court apparently considered more in this case than mere financial contributions. The law has never confined 'joint efforts' to such a narrow meaninn. The marital partnership ---- - ismore than a businzss relation. The pecuniary and proprietary fruits of the marriage are frequently acquired by joi-nt effort, even though actual financial outlaymay be more the contribution of one spouse than the other. 

### his holding does not make Montana a community property state. There isno required percentage of allocation tobe applied inallcases. Each casemust be looked at- by the trialcourt individuallywith an eye to itsunique circumstances. Under the circumstances here, we arenot compelled to state that equal division of the property is an inequitableresult." (Emphasis supplied). Plaintiff's contentions arenot valid in light of the pronouncements inCook. Each case must be viewed individually and each isas different as are the persons and their lives that are involved. Mrs. ~unnewell'ssituation as a ranch wife would not be the same asMrs. ~rancke's as thewife of a radiologist, whose income is derived from referrals from physicians. Thereforeher socialparticipation, entertainment, and work inthe medical association auxiliarieswould be more significant than if shewere married to a general practitioner,
or of very littlesignificanceif she were a ranch wife. In ocher words, the generalizations argued by plaintiff cannot con-
,- '.LO~

.- 

# . Conceding allparties give up something when they decide

LO marry, the court would have to look to the individual case. Some wives can stepback into their priorjobs or careers and
some cannot. It would seem the trialcourt atthe time of the divorce looks at this aspect of the parties' lives as a contributing factor tothe determination interms of abilityto proceed toreenter gainful employment. We do not feel the argument as to the adequacy of the child suppurt award or itsinclusion in the discussion isrelevant. Therefore, we willnot comment on it. After a close examination of allof the circumstances in the record, 

### we feel the award appealed from issupported by the record and the applicable law,

### The judgment of 

### the trial court is affirmed.

'~ssociateJustice 

## t 

# /

# 7 Chief Justice