No. 13554

INTHE SUPREME COURT OF THE STATE OF MONTANA 1977

INRE: THE MARRIAGE OF SIFROY J. BERTHIAUME, Petitioner and Respondent,

-vsPAULINE H

# . BERTHIAUME

### , Defendant and Appellant.

Appeal from: District Court of the First Judicial District, Honorable Peter Meloy, Judge presiding. Counsel of Record: For Appellant: 

# /;;j1& Christian, McCurdy, Ingr9,ham & Wold,

## -&-,

Montana Keith McCurdy argued, For Respondent: Garrity and Keegan, Helena, Montana Donald A. Garrity argued, Helena, Montana

. . Filed: Submitted: May 24, 1977 Decided:

### Mr. Justice John Conway Harrison delivered the Opinion of the Court:

This 

### is an appealby the wife from the provisions of a -,divorce decree granted July 14, 1976, in the district court, Lewis and Clark County, concerning property settlement and support of minor children. No issue 

### is taken to the granting of the divorce. Appellant presents three issues for review: Issue 

### 1. Whether the district court abused 

### its discretion inmhking the property division and distribution as set forth in 

### its decree? Issue 

### 2. Whether the district court abused 

### its discretion 

### b.fai1in.gtoprovide for the support of the minor children of the parties in 

### itsdecree? Issue 

### 3. Whether the district court kbused 

### its discretion by denying appellant's motion for a new trial and overruling her objections to the court's findings of fact and conclusions of law? Sifroy and Pauline Berthiaume were married inJune 1970. Both were employed and continued tobe so until Pauline quither job inAugust 1974 to take care of their two children. While employed, Pauline earned $6,100 and Sifroy $8,100 per year. Their earningswere put into a joint account and used for family purposes. Following Pauline's termination of employment, she drew unemployment compensation for 14months atthe rate of $68 per week, which was deposited to thejoint account. The parties used their total earnings for the family with the exception of $100 per montb paid by Sifroy for support of a child of a previous marriage.Atthe time of the marriage the parties bought a home in Helena. Sifroy paid $5,500 as a down payment by cashing certificates of deposit. InAugust 1973 the parties purchased another home with 2 112 acres atElliston, Montana. They borrowed $6,000 from Pauline's parents to,make the down payment, paying it back when the Helena home was sold. In addition, from the proceeds of the Helena sale they purchased some cattle. The purchase price. of the Ellistonproperty was $25,000 and atthe date of hearing approximately $16,000 remained tobe paid on the mortgage. The estimated value of the home and property was between $30,000 and $35,000. During theperiod they lived atElliston,they raised a few cattle. The maximum number was 27 head. 7head were given to Pauline by her parents. Both parties testified to the ownership of various items of personal property and the desired distribution. Atthe time of trial the minor childrenwere aged 5 and 3 and were inPauline's custody. Atthat time Sifroywas earning $821per month and Pauline, who was working forhourly wages

as a waitress and janitress, was making approximately $400 per month. Issue 1. Section 48-321(1), R.C.M. 1947, controls the trialcourt's consideration and disposition of the marital property. This statuteprovides: "Disposition of property. (1) Ina proceeding for dissolution of a marriage, legal separation, or disposition of property following a decree of dissolution of marriage or legal separationby a court which lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property, the.court, without regard tomarital misconduct, shall, and in a proceeding for legal separationmay, finally equitably apportion between the parties theproperty and assetsbelonging to either or both however and wheneveracquired, and whether the title thereto is in the name of the husband orwife orboth. In making apportionment the court shallconsider the duration of the marriage, and prior marriage of either party, antenuptial agreement of theparties, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and need of each of the parties, custodialprovisions, whether the apportionment 

### is in lieu of or in addition to maintenance, and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution,ordissipation of value of the respective estates, and the contribution of a spouse as a homemaker or to the family unit. In disposing of property acquired prior to the marriage; property acquired by gift, bequest, devise or descent; property acquired inexchange forproperty acquired before the marriage or in exchange forproperty acquired by gift, bequest, devise, or descent; the increased value of property acquired prior to marriage; and property acquired by a spouse aftera decree of legal separation, the court shallconsider those contributions of the other spouse to the marriage, including the nonmonetary contribution of a homemaker; the extent towhich such contributions have facilitated the maintenance of this property and whether ornot the property disposition serves as an alternative to maintenance arrangements. It Here, the trialcourt in itsfindings of fact No. VIII, found: "That the parties accumulated real and personal property which 

### isheld mostly injoint tenancy. "The properties of the parties should be divided as equally aspossible." Then, the court went on, and awarded Sifroy Che family home without making anif6ffsettingprovision for Pauline. Under the evidence, the totalmarket value of the property awarded Pauline amounts to less than $1,000 while that awarded Sifroy

amounts to over $17,000. Inpercentages, Sifroy apparently received well over 90 percent of the combined real and personal property

### --andsuch award-5sdirecfly-contraryJ- to? 

### the;df'stri&t -court1 

### s finding of factNo. VIII, that the property should be divided as equally aspossible. Accordingly, it amounts to a clear abuse of discretionby the trialcourt and must be reconsidered.InPorter v.!Porter, 155Mont. 451, 457, 473 P.2d 538, this Court stated the scope of review by the Supreme Court on appeal in cases involving a claim that the district court abused 

### its discre tion: 

### "*

# * *a reviewing court 

### isneverjustified in substituting 

### its discretion for that of the trial court. In determining whether the trialcourt abused 

### itsdiscretion, the question is.-notwhether the reviewing court agrees with the trialcourt, but, rather, did the trialcourt in the exercise 

### of .its

### dis&retio~i'a~t~arbitsariity',wfthout ,the:;c3 : employment of conscientious judgment or exceed the bounds of reason, inview of allthe circumstances, ignoring recognized principles resulting in substantial injustice." 155Mont. 457. Issue 

### 2 isdirected atthe failure of the trialcourt to make provisions in 

### itsjudgment decree for the support and maintenance of the minor children. The district court did make 

### its finding of fact No. VI and 

### itsconclusion of law No. 3, providing: 

### I. That the petitioner isan able-bodied person who 

### is capable of contributing to the support and maintenance of the saidminor children of the parties hereto. That the petitioner 

### is atthe present time employed by the StateMotor Pool, Stateof Montana, and holding a position with that department which pays approximately $800 

### a month. That $50 a month per child 

### is a reasonable sum tobe contributed by the petitioner for the support of said minor children. That support payments should continue for each of said childrenuntil said child reaches the age of 18, or 

### isemancipated, whichever should occur first." "3. That petitioner shallpay torespondent the reasonable sum of $50 per month per child for the support of saidminor children of the parties hereto; that said support payments shall continue for each of said childrenuntil said child reaches the age of 18, or isemancipated, whichever should occur first; that the petitioner shallmaintain in force and effect an insurance policy providing for medical and hospitalization coverage for the minor children of the parties hereto; that both petitioner and respondent are ablebodied persons capable of providing for the reasonable medical, dental and optical expenses incurred for the proper care and maintenance of the minor children of the parties hereto over and above those amounts coveredby the insurance policy presently in effect on said children; that, therefore, allmedical, dental and optical expenses incurred for the proper care and maintenance of the minor children of the parties hereto, over and above those amounts covered by the insurance policy presently in effect on said children, shallbe divided equally between petitioner and respondent." The failure of the trialcourt tomake provision inthe decree for the support of the minor childrenwas an obvious oversight and must be corrected. The controlling statute in this respect 

### is section 48-323, R.C.M. 1947: "In 

### a proceeding for dissolution of marriage, legal separation, maintenance, or child support, the court may order either orboth parents owing a duty of support toa child topay an amount reasonable or necessary forhis support, without regard tomarital misconduct, after considering allrelevant factors including: "(1) the financialresources of the child; "(2) the financialresources of the custodial parent; "(3) the standard of living the childwould have enjoyed had the marriage not been dissolved; "(4) the physical and emotional condition of thechild, and his educational needs; and 

## "(5) the financialresources and needs of the noncustodial parent. " On remand, the district court 

### is directed tomake an award of support money in its decree inconformity with section 48-323. Issue three concerns denialby the district court of appellant

# 's motion for a new trialand the overruling of her objections

to 

### its findings of factand conclusions of law. Section 93-5602, R:C.M. 1947, provides: "New trialinequity cases. No new trial shallbe granted inequity cases, or in cases triedby the court without a jury, except on the grounds mentioned inthe first, third, and fourth subdivision 

### of section 93-5603

# ."Section 93-5603, R.C.M.1947, provides in relevant part: "When a new trialmay be granted. The former verdict or other decision may be vacated and a new trial granted, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party: 

### "1. Irregularity in the proceedings of the court, jury, or adverse party, or any order of the court, or abuse of discretion, by which'either party was prevented from having a fair trial;

"-3. Accident or surprise, which ordinary prudence could not have guarded against; 4. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial

# *

# * *.Ir This Court inDowns v. Downs, , Mont

# . ,551P.2d 1025, 1026, 1027, 33 St.Rep. 576, 578, 579, remanded the cause to the district court with directions tohold a new trial stating: "In view of the unreliability of the record as to the true net worth of defendant atthe time of the marriage and atthe time of the divorce, thejudgment 

### is set aside." Further inDowns in support of its conclusion, this Court stated:

'I* 

# *

# * This failure to fullyput before the trial court proper valuation of allthe property caused the trialcourt tomake an inequitable distribution of the property -;insofar?:as plaintiff's needs are concerned .I' Paulinet

### s motions toamend the findings of fact and conclusions of law and to alteroramend thejudgment should have been granted by the district court for the reasons hereinbefore recited. As an alternative, Pauline asked for a new trial. This motion was also denied. This denial constituted an abuse of discretion in that the district court should have required testimony on the valueof the real and personal property, thus enabling it to make an equal distribution of the marital assets and provide for the support of the minor children. The trialcourt's decree is setaside and the cause is remanded for new trialon the issues of equitable division of real and personal property of the parties and for determination and inclusion in the decree of 

### a provision for the support of the minor children.

We Concur:

chiemust ice' 

## /\.