No. 13091 INTHE SUPREME COURT OF THE STATE OF MONTANA

GLADYS THEW DOWNS,Plaintiff and Appellant,

ROBERT FRED DOWNS, Defendant and Respondent.

Appeal from: District Court of theThirteenth 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. Seykolaargued, Hardin, Montana For Respondent: Cate, Lynaugh, Fitzgerald and Huss, Billings, Montana Jerome J. Cate argued, Billings, Montana

Submitted: April 22, 1976 Decided:

## JtIN 2

## 81976 Ji

## rrJ2 i;

## 5C37t; Filed:Mr. Justice John Conway Harrison delivered the Opinion of the Court.

This appeal arises out of a property settlement ina divorce action in the district court, Big Horn County. The only issue before this Court iswhether the 

### trial court in

### its division of property abused itsdiscretion, ormade

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 atthe time of themarriage and had been previously married and divorced. Plaintiff was 24 years of age atthe time of themarriage. Three children were born tothe parties, one died as a result of a firethat destroyed the family ranch home in 1971. The other two children areDebbie 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 toplaintiff 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 allthe remaining property, subject to themortgages and liabilities. Atthe time of divorce plaintiff was 42 years of age. Her education consisted of one year of high school. She was working

as a waitress atthe time she married defendant. During the entire marriage she performed themany tasks necessary toraiseher family and help run a ranch operation. Her contributions to themarriage partnership were many and they undoubtedly helped the couple inacquiring considerable wealth. Plaintiff contends at the time of themarriage the value of defendant's assetswas approximately $45,000 and throughjoint efforts their present net wurth is $2,800,000. Defendant was 52 years of age atthe 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 toAlaska, an aerial spray service, oilwell production, and others. Throughout themarriage defendant kept titletohis property inhis own name except for contracts for deed conveying real property sold by defendant and upon which hiswife's name appeared as seller. Defendant contends the reasonable value of his assets atthe time of the marriage was in excess of $400,000 and that the time of the divorce his assetswere considerably less than the amount alleged by plaintiff. On appeal, the problem confronting thisCourt centers around rhe question of defendant's assets atthe time of his marriage and atthe time of the divorce. The transcript portrays him as a most evasive witness. Atthe very firstpage of the transcript, counsel for plaintiff moved topostpone the trialon 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. Inhis motion, counsel also informed the trialcourt the affidavit of an appointed appraiser of the property showed that without being fully informed of allthe property and having five or sixdays to conduct the appraisal, he could not bring back any values. This morion to postpone was denied by the court and it isobvious thetrialjudge, as well as plaintiff's counsel, lacked a fulldisclosure of the parties' assets at the time of trial. This failure to fullyput before the trialcourt proper valuation of allthe property caused the trial court tomake an inequitable distribution of the property insofar as plaintiff's needs are concerned. Too, the trialcourt was faced inmaking 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, allof which should have raised the question of credibility as a witness. ~efendant's testimony was of littleassistance to the trialjudge inmaking 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, 162Mont. 266, 511 P.2d 10; Libra v. Libra, 157 Mont. 252, 484 P.2d 748; Bloom v. Bloom, 150Mont. 511, 437 P.2d 

### 1. Further, that the court inmaking property divisions may consider property owned at the commencement of themarriage, 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, 160Mont. 125, 500 P.2d 1198; Francke v. Francke, 161Mont. 98, 504 P.2d 990. Admitted into evidence during the trialwas a financial statement submitted by defendant to the Big Horn County State Bank inApril 1974. In this record, that statement is the only indication of the net worth of defendant. Therein he listshistotal 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 themarriage. Plaintiff argues inHodgson v. Hodgson, 156Mont. 469, 482 P.2d 140, thewife 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 thejoint efforts of the parties as not unreasonable. While in allthree of the citedcases we were considering much smaller accumulations than in the instant case, an argument ismade that under the ruling of the trialcourt atthe end of a twelve year period, atan age and health period when she might need itmost, the payments willcease. Inview of the unreliability of the record as to the true net worth of defendant atthe time of the marriage and at the time of the divorce, thejudgment is setaside. We remand this cause to the districtcourt 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.