No. 13554 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

IN RE: 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 appeal by 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 

in mhking the property division and distribution as set forth 

in its decree? 

Issue 2. Whether the district court abused its discretion 

b.fai1in.g to provide for the support of the minor children of 

the parties in its decree? 

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 in June 1970. 

Both were employed and continued to be so until Pauline quit her 

job in August 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 14 months at the rate of $68 per 

week, which was deposited to the joint 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. 
At the time of the marriage the parties bought a home in 

Helena. Sifroy paid $5,500 as a down payment by cashing certificates of deposit. In August 1973 the parties purchased another 

home with 2 112 acres at Elliston, 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 Elliston property was $25,000 and at the date of 

hearing approximately $16,000 remained to be paid on the mortgage. 

The estimated value of the home and property was between $30,000 

and $35,000. 

During the period they lived at Elliston,they raised a few 

cattle. The maximum number was 27 head. 7 head were given to 

Pauline by her parents. 

Both parties testified to the ownership of various items 

of personal property and the desired distribution. 

At the time of trial the minor children were aged 5 and 3 

and were in Pauline's custody. At that time Sifroy was earning 

$821 per month and Pauline, who was working for hourly wages 

as a waitress and janitress, was making approximately $400 per 

month. 

Issue 1. Section 48-321(1), R.C.M. 1947, controls the 

trial court's consideration and disposition of the marital 

property. This statute provides: 

"Disposition of property. (1) In a proceeding for 

dissolution of a marriage, legal separation, or 

disposition of property following a decree of dissolution of marriage or legal separation by a court 

which lacked personal jurisdiction over the absent 

spouse or lacked jurisdiction to dispose of the property, 

the.court, without regard to marital misconduct, shall, 

and in a proceeding for legal separation may, finally 

equitably apportion between the parties the property and 

assets belonging to either or both however and whenever 
acquired, and whether the title thereto is in the 

name of the husband or wife or both. In making 

apportionment the court shall consider the duration 

of the marriage, and prior marriage of either party, 

antenuptial agreement of the parties, the age, health, 

station, occupation, amount and sources of income, 

vocational skills, employability, estate, liabilities, and 

need of each of the parties, custodial provisions, 

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 ,or dissipation 

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 in exchange for property acquired 

before the marriage or in exchange for property acquired 

by gift, bequest, devise, or descent; the increased value 

of property acquired prior to marriage; and property 

acquired by a spouse after a decree of legal separation, 

the court shall consider those contributions of the 

other spouse to the marriage, including the nonmonetary 

contribution of a homemaker; the extent to which such 

contributions have facilitated the maintenance of this 

property and whether or not the property disposition 

serves as an alternative to maintenance arrangements. It 

Here, the trial court in its findings of fact No. VIII, 

found : 

"That the parties accumulated real and personal 

property which is held mostly in joint tenancy. 

"The properties of the parties should be divided 

as equally as possible." 

Then, the court went on, and awarded Sifroy Che family 

home without making anif6ffsetting provision for Pauline. Under 

the evidence, the total market value of the property awarded 

Pauline amounts to less than $1,000 while that awarded Sifroy 

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

property --and such award -5s direcfly- contraryJ- to? the ;df'stri&t -court1 s 

finding of fact No. VIII, that the property should be divided as 

equally as possible. Accordingly, it amounts to a clear abuse of 

discretion by the trial court and must be reconsidered. 
In Porter v.! Porter, 155 Mont. 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 t ion : 

"* * *a reviewing court is never justified in 

substituting its discretion for that of the trial 

court. In determining whether the trial court 

abused its discretion, the question is.-not whether 

the reviewing court agrees with the trial court, 

but, rather, did the trial court in the exercise 

of .its dis&retio~i'a~t~arbitsariity',wfthout ,the: ; c3 : 

employment of conscientious judgment or exceed 

the bounds of reason, in view of all the circumstances, ignoring recognized principles resulting 

in substantial injustice." 155 Mont. 457. 

Issue 2 is directed at the failure of the trial court to 

make provisions in its judgment decree for the support and 

maintenance of the minor children. The district court did 

make its finding of fact No. VI and its conclusion of law No. 

3, providing : 

I. That the petitioner is an able-bodied person 

who is capable of contributing to the support and 

maintenance of the said minor children of the parties 

hereto. That the petitioner is at the present time 

employed by the State Motor Pool, State of Montana, 

and holding a position with that department which 

pays approximately $800 a month. That $50 a month 

per child is a reasonable sum to be contributed by 

the petitioner for the support of said minor children. 

That support payments should continue for each of 

said children until said child reaches the age of 18, 

or is emancipated, whichever should occur first." 

"3. That petitioner shall pay to respondent the 

reasonable sum of $50 per month per child for the 

support of said minor children of the parties hereto; 

that said support payments shall continue for each of 

said children until said child reaches the age of 18, 

or is emancipated, whichever should occur first; that 

the petitioner shall maintain 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 covered 
by the insurance policy presently in effect on said 

children; that, therefore, all 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 covered by the 

insurance policy presently in effect on said children, 

shall be divided equally between petitioner and 

respondent." 

The failure of the trial court to make provision in the 

decree for the support of the minor children was 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 or both parents owing 

a duty of support to a child to pay an amount 

reasonable or necessary for his support, without 

regard to marital misconduct, after considering 

all relevant factors including: 

"(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 the marriage not been dissolved; 

"(4) the physical and emotional condition of 

thechild, and his educational needs; and 

" (5) the financial resources and needs of the 

noncustodial parent. " 

On remand, the district court is directed to make an award of 

support money in its decree in conformity with section 48-323. 

Issue three concerns denial by the district court of appellant ' s motion for a new trial and the overruling of her objections 

to its findings of fact and conclusions of law. 

Section 93-5602, R:C.M. 1947, provides: 

"New trial in equity cases. No new trial shall be 

granted in equity cases, or in cases tried by the 

court without a jury, except on the grounds mentioned 

in the first, third, and fourth subdivision of section 

93-5603 ." 
Section 93-5603, R.C.M.1947, provides in relevant part: 

"When a new trial may 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 in Downs v. Downs, , Mont . , 551 P.2d 

1025, 1026, 1027, 33 St.Rep. 576, 578, 579, remanded the cause to 

the district court with directions to hold a new trial stating: 

"In view of the unreliability of the record as to 

the true net worth of defendant at the time of the 

marriage and at the time of the divorce, the judgment 

is set aside." 

Further in Downs in support of its conclusion, this Court stated: 

'I* * * This failure to fully put before the trial 

court proper valuation of all the property caused 

the trial court to make an inequitable distribution 

of the property -;insofar?: as plaintiff's needs are 

concerned .I' 

Paulinet s motions to amend the findings of fact and conclusions of law and to alter or amend the judgment 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 value 
of 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 trial court's decree is set aside and the cause is 

remanded for new trial on 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' /\.