No. 13091 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

GLADYS THEW DOWNS, 

Plaintiff and Appellant, 

ROBERT FRED DOWNS, 

Defendant and Respondent. 

Appeal from: District Court of the Thirteenth Judicial District, 

Honorable Charles Luedke, Judge presiding. 

Counsel of Record: 

For Appellant: 

Lucas, Jardine & Monaghan, Miles City, Montana 

James P. Lucas argued, Miles. City, Montana 

Kronmiller and Seykora, Hardin, Montana 

James E. Seykola argued, Hardin, Montana 

For Respondent: 

Cate, Lynaugh, Fitzgerald and Huss, Billings, Montana 

Jerome J. Cate argued, Billings, Montana 

Submitted: April 22, 1976 

Decided : JtIN 2 8 1976 

Ji rrJ 2 i; 5C37t; Filed : 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This appeal arises out of a property settlement in a 

divorce action in the district court, Big Horn County. 

The only issue before this Court is whether the trial 

court in its division of property abused its discretion, or made 

an inequitable division of the assets, most of which were acquired 

during the 19 years of the parties' marriage. 

Plaintiff and defendant were married in 1956. Defendant 

was 34 years of age at the time of the marriage and had been 

previously married and divorced. Plaintiff was 24 years of age 

at the time of the marriage. Three children were born to the 

parties, one died as a result of a fire that destroyed the family 

ranch home in 1971. The other two children are Debbie Diane, age 

16 and a son Ricky Ray, age 12. 

Plaintiff filed for divorce, custody of the children, 

alimony, and a division of property. Defendant filed a cross 

complaint. Custody of daughter Debbie Diarte was awarded to 

plaintiff, together with $200 per month child support, plus an 

award to plaintiff of 32 acres of land (including the family home 

valued between $30,000 and $70,000), household contents, auto, 

plus $250,000, payable in installments over a period of 12 years. 

Defendant was awarded custody of son Ricky Ray and all the remaining property, subject to the mortgages and liabilities. 

At the time of divorce plaintiff was 42 years of age. Her 

education consisted of one year of high school. She was working 

as a waitress at the time she married defendant. During the entire 

marriage she performed the many tasks necessary to raise her 

family and help run a ranch operation. Her contributions to the 
marriage partnership were many and they undoubtedly helped the 

couple in acquiring considerable wealth. Plaintiff contends at 

the time of the marriage the value of defendant's assets was 

approximately $45,000 and through joint efforts their present net 

wurth is $2,800,000. 

Defendant was 52 years of age at the time of the divorce. 

He has successfully engaged in a variety of businesses, including 

a livestock operation, farm and ranching, a truck line from 

Seattle to Alaska, an aerial spray service, oil well production, 

and others. Throughout the marriage defendant kept title to his 

property in his own name except for contracts for deed conveying 

real property sold by defendant and upon which his wife's name 

appeared as seller. Defendant contends the reasonable value of 

his assets at the time of the marriage was in excess of $400,000 

and that the time of the divorce his assets were considerably 

less than the amount alleged by plaintiff. 

On appeal, the problem confronting this Court centers 

around rhe question of defendant's assets at the time of his 

marriage and at the time of the divorce. The transcript portrays 

him as a most evasive witness. At the very first page of the 

transcript, counsel for plaintiff moved to postpone the trial on 

the grounds that interrogatories due from defendant had not been 

delivered on time and when they were received they were evasive, 

incomplete and prevented an adequate discovery process. In his 

motion, counsel also informed the trial court the affidavit of an 

appointed appraiser of the property showed that without being fully 

informed of all the property and having five or six days to conduct the appraisal, he could not bring back any values. This 

morion to postpone was denied by the court and it is obvious the 
trial judge, as well as plaintiff's counsel, lacked a full disclosure of the parties' assets at the time of trial. 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. 

Too, the trial court was faced in making its decision 

with the problem of interpreting and evaluating the credibility 

of defendant as a witness. Throughout the testimony of defendant, 

he was evasive and gave unfair and incorrect answers, all of which 

should have raised the question of credibility as a witness. 

~efendant's testimony was of little assistance to the trial judge 

in making a fair division of the property. 

This Court in a number of recent opinions concerning the 

trial court's power to divide property accumulated during the 

marriage, has held the division should be on an equitable basis 

regardless of who had title to the property. Aksamit v. Aksamit, 

162 Mont. 266, 511 P.2d 10; Libra v. Libra, 157 Mont. 252, 484 

P.2d 748; Bloom v. Bloom, 150 Mont. 511, 437 P.2d 1. Further, 

that the court in making property divisions may consider property 

owned at the commencement of the marriage, financial contributions, 

the efforts of the parties, including the performance of duties 

and responsibilities requested of a wife. Cook v. Cook, 159 

Mont. 98, 495 P.2d 591; Hunnewell v. Hunnewell, 160 Mont. 125, 

500 P.2d 1198; Francke v. Francke, 161 Mont. 98, 504 P.2d 990. 

Admitted into evidence during the trial was a financial 

statement submitted by defendant to the Big Horn County State 

Bank in April 1974. In this record, that statement is the only 

indication of the net worth of defendant. Therein he lists his 
total assets at $3,371,007; his liabilities at $489,000; and his 

net worth at $2,882.007. 

Plaintiff argues that the award to her compared to the 

net assets of defendant when computed into percentages would 

mean an award of only 9.56%. If one were not to discount the 

$175,000 award to a value of $100,612.21, plaintiff would receive 

approximately 12.2% of the property accumulated during the marriage. 

Plaintiff argues in Hodgson v. Hodgson, 156 Mont. 469, 482 P.2d 

140, the wife received 70% of the accumulated assets, in - Cook 

she received 69% and that in Johnson v. Johnson, 137 Mont. 11, 

349 P.2d 310, the Court spoke of an equal division of that accumulated under the joint efforts of the parties as not unreasonable. 

While in all three of the cited cases we were considering much 

smaller accumulations than in the instant case, an argument 

is made that under the ruling of the trial court at the end 

of a twelve year period, at an age and health period when she 

might need it most, the payments will cease. 

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. 

We remand this cause to the district court with directions 

to hold a new trial. 
We concur: 

Justices 

\ B 

Hon. R.D. McPhillips, District 

Judge, sitting for Mr. Chief Justice 

James T. Harrison.