NO. 85-33 INTHE SUPREME COURT OF THE STATE OF MONTANA 1985

INRE THE MARRIAGE OF PATRICIA ANN CHILDERS

## , Petitioner and Respondent, and GERALD C. CHILDERS, Respondent and Appellant.

APPEAL FROM: DistrictCourtof the SixteenthJudicial District, Inand for the Countyof Custer, The HonorableA. B. Martin, Judge presiding.

COUNSEL OF RECORD:

ForAppellant: Parker, Sweeney & Healow, Billings, P1lontana

ForRespondent: Kenneth R. Wilson, l4iles City, Montana

Submittedon Briefs: April4, 1985 Decided: May 13, 1985

ClerkMr. Justice Frank 3. Morrison, Jr. delivered the Opinion of the Court. The marriage of Patricia Ann and.Gerald C. Childerswas dissolved on March 2, 1984. A hearing to determine the proper division of the marital property was held October 5, 1984. An order essentially dividing the marital property evenly between the parties was issued November 1, 1984. Gerald appeals. Patricia and Gerald were married December 16, 1965. They have one daughter,Michelle, who is now eighteen years of age. Both parties worked at the outset of the marriage. Gerald suffered a work related injury in 1966 and has not worked since. He receives $383 a month in Social Security disability benefits. As a result of his injuries, Gerald received $43,000 from a FELA settlement. The couple used this money to refurbish a house and to purchase a second-hand goods store. Bothpartieshelped in the renovationof the house,whichwas purchased from Gerald's grandmother for $600,the costof the quitclaim deed. Patricia operated the family business in addition to caring for Michelle and maintaining the family home.In 1977, the parties purchased a car wash. Patricia then managed both businesses until 1979,when the storewas sold. Approximately a year and a half before the parties' marriage ended, Patricia began supplementing the family income by rebuilding junk cars at the car wash and selling them.In order to further assist in running the car wash and meeting their needs, theparties borrowed money fromGerald's father, Charles Childers. The car wash wa.s the collateral. When they were unable to repay this loan, Charles filed acollection action against them. Patricia has since transferred her interest in the car wash to Charles for $1,500. Gerald has not yet settledwith his father, nor has his father pursued his lawsuit further. At the property division hearing, the parties agreed on the value of their house, motor vehicles and household furnishings. They failed to agree on the value of Gerald's 1978 Lincoln Continental and personal property, as well as Patricia's tools. Gerald testified that disregarding his father's lawsuit, his interest in the car wash was worth $20,000. Bothparties testified that the carwash should not be included in themarital estate. The trial jud.geordered that the motor vehicles, the 1978 Lincoln Continental and the tools be sold, and the proceeds split equally between theparties. The partieswere each awarded personal property of approximately the same value. It was further ordered that the house be divided equally between the parties, either by one party buying out the other or by the house being sold and the net proceeds divided evenly between the parties. Without ever specifically stating whether the carwash was orwas not part of the marital estate, the trial judge further concluded that Gerald's interest in the car wash would be maintained by him "in order to afford an opportunity for future income." Conclusion of law 1 (D)(4)

# . Gerald claims the trial judge abused his discretion in: including the car wash as part of the marital estate; ignoring Gerald's physical condition and its effect on his ability to acquire future income;and failing to evaluate and allocate the debts of theparties. The trial judge gave the car wa.sh to appellant and divided the balance of the property evenly. The trial judgepursuant to 5 40-4-202(1), MCA, properly considered the effect of the car wash on Gerald's future income when dividing the marital estate. Although appellant was disabled,he had a sourceof income. There is no error in what was done by the trial judge. He considered the positions of the parties at the outset of the marriage, the contributions of each party to the marriage,eachparty's age,health and occupation,as well as eachparty's future prospects,allpursuant to § 40-4-202(1), MCA. He then divided the marital estate, disregarding the

car wash, equally between the parties. "It iswell settled in Montana that a district court has far reaching discretion in resolvingproperty divisions and its judgment will not be altered unless there is a clear abuse of that discretion." Eschenhurgv. Eschenburg (1976),171Mont. 247, 250, 557 P.2d 1014, 1016. We find no abuseofdiscretion in this instance. Thoughhe made no specific findings regarding the effect of Gerald's physical disability on his ability to earn a living, the trial judge obviously considered it. Findings of fact numbers 5, 6 and 7 refer to Gerald's injury and/or his FELA settlement. Conclusion of law 1 (D)(4) refers to the probability of Gerald receiving future income from the car wash. Clearly,the trial judge considered Gerald's inability to work when he divided the marital property between the parties and when he stated that Gerald would maintain his interest in the carwash. Finally,we findno error in the trial judge's treatment of the debts of the parties. Most of the debts pertain to the carwash. They are the responsibility ofwhomever has an interest in the carwash. The delinquentproperty taxeswere properly offset by an equivalent reduction in the value ofthe house. Gerald was made responsible for his own medical bills. There was no abuse of discretion by the trial judge. Affirmed.

We concur: