### No. 12043 INTHE SUPREMECOURT OF THE STATE OF MONTANA 1971

CAROLYNMARIE HUNNEWELL, Plaintiffand Respondent,
-vs

# - ARCHIE 

### RAY HUNNEWELL, Defendant andAppellant.

Appeal from: District Court of the TenthJudicialDistrict, HonorableLeRoy 

### L. McKinnon, Judgepresiding. Counsel of Record: 

### ForAppellant: 

### Dockery and Parrish, Lewistown,Montana. Loble, Picotte and Loble, Helena,Montana. Lester HeLoble, I1argued, Helena,Montana. For Respondent: ,argued 

### Robert L. Johnson,Lewistown,Montana. William E. Berger argued, Lewistown,Montana.



## DEC

## -9

# 1971

# Lx.p-i Filed: 

## AUG

# 311972 Submitted: October 

### 27, 1971 ~ecided :

## OEC

# -9

## 1979 ".(;[ 

### AUG

### 3

## 11972Mr. Chief Justice James T. Harrison delivered the Opinion of the Court. This is an appeal by Archie Ray Hunnewell, the defendant, from a judgment entered in the districtcourt of Fergus County following trial to the court, sittingwithout a jury. From the record it appears that plaintiff and defendant

were married in 1953. The defendant husband is 48 years of age and the plaintiff wife 36 years of age. Three children 

### were born to the couple, a girlnow 15, and two sons now 13and 8 years of age. The couple moved onto the ranch owned by defendant's father near Danvers, Montana and lived there the whole of their married lifeup until the 

### timeof their separation prior tothe divorce.The defendanthas been a rancher allhis life. He is 35 to 40 percent permanently disabled of thebody as a whole as the result of an accidental injury tohis spine sustained in 1965. Since the injury 

### tohis spine the defendant's ability to work his ranch has been impaired and it is apparent from the record he willalways require assistance todo so. The record further reveals that for some years there has been a degree of controversy in thehousehold concerning the

common facets of domestic life, the discipliningand needs of the children, the condition of the household budget and the degree of socializing and outside interests of the parties. The record alsoreveals that the defendant has been refused the exercise of hismarital prerogative for over a year and 

### a half, the plaintiff refusing to share the same bedroomwith defendant during that period. Further, it appears that plaintiff subjected defendant toridicule in the presence of the children; took extended

summer vacations tovisither mother in Seattle and thus absenting herself from the defendant and the ranch operation during the most active season of the year. The circumstances of these complaints about each other resulted inplaintiff filing for a divorce and defendant tocounterclaim forthe same relief. Upon the trialplaintiff testified toincidents which happened years before while defendant's testimony was of recent incidents. The court granted plaintiff 

### a divorce, ordered the property divided, provided for custody of the children and allowance for their support. Defendant contests allof these rulings

on this appeal. Wehave examined the record here with great care inour endeavor to find the evidence which supports the court's finding that defendantwas guilty of extreme cruelty. Wecannot find it and must thereforehold that the court abused its discretion inthisregard since there is 

### a clearpreponderance of the evidence against such finding. Conway v, Fabian, 108Mont. 287, 89 P.2d 1022. The evidence 

### inthis cause does support defendant's counterclaim for a divorce and the courtwas in error innot so finding and granting a divorce todefendant. The defendant next raises the issue of the validity of the property settlement ordered by the court. The districtcourt in its findings of fact found that atthe 

### timeof theirmarriagethe parties had brought tothemarriage about equal amounts of property and that the property since acquired had been acquired through the joint efforts of the parties. While the record supports the finding of equal initial contribution it fails tosupport the finding that the after acquired property resulted from either that or the parties joint efforts.Here the bulk of the ranch property was the land which

was in part paid forby crop share but for the most part inthe following manner: When the plaintiff and defendant were married they moved onto the Hunnewell ranch under an informal crop sharing agreement with defendant's father. Subsequently a three year leasewas signed. Upon the expiration of the leasedefen6- ant's father and stepmother entered into a contract fordeed with the parties for the sale of the ranch. While the contract fordeed was signed by both the plaintiff and defendant, the deed itself, which was executed contemporaneously, named the defendant 

### as the sole grantee. The purchase price of the ranch was $50,000 for 1,760 acres, or approximately $29 per acre. The contract furtherprovided that payment would be made on a crop sharebasis. Mr. Hunnewell died two years later and included among the assets of the estate

### was the balance outstanding on the contractof approximately $43,000. During the probate of the estate, the defendant agreed torelinquish his share in allother assets of his father's estate, which amounted to$35,404.89, and agreed topay $4,000 toeach of his two 

### sisters inexchange fortheir interest inthe contract. Itwas inthismanner that the ranch was acquired by defendant. It is a 

### wellestablished principle of law inthis state that indetermining 

### a property settlement pursuant tothe granting of 

### a divorce, the courtwillconsider the contributionsmade by the parties inacquiring the property inquestion. Libra 

### v. Libra, Mont

# . , 484 P.2d 748, 28 St.Rep. 460; and cases cited therein. It

### was, then, error for the court tofind that the plaintiff had and was entitled toa one-half undivided interest in the ranch. Plaintiff's interest based upon joint effort orcontribution was sofractional that the award of the equity in the town house inLewistown as ordered by the courtwas amply sufficient tocompensate her forher interest in the farm. Defendants contention that the court erred inordering child support payments until the children 

### are through college

on the basis that it is openended and imposes an obligation greater than defendant's duty at lawhas merit. While the court expressly provided that such payments were contingent upon their emancipation or further order of the court the children are still quiteyoung and their educational futures most uncertain; and

no necessity exists now tomake support payments for a longer period than the law provides. The court should await a later appropriate timebecause defendant's obligation tosupport his children through collegewilldepend in a large degree upon factors not yet known; the desire and ability of the childrenthemselves as

### wellasthe abilityof the defendant 

### tomake such provisions atthattime. The equity of thisprovision is then, atthis time, premature. The final assignment of error isto the denialof defendant's request for the custody of the children during the

summer months, the court granting him instead reasonable visitation rights. The record clearly indicates that allthe children still have active interests inriding horses, caring for animals, and other ranch lifeactivities. The plaintiff's denial thatthe defendantwas a fitand proper person tohave custody of the children as stated inher answer topertinent interrogatories

was that she did not favorjoint custody. The children thenselves had mixed emotions regarding the same, which is consistent with the trauma of their situation. Weunderstand events have transpired inthis respect since the original trialland the defendant father nothaving been found unfit, the court should further consider the children's custody.The cause should be remanded to the district court for modification of its findings and judgment inconformitywith thisopinion. It isWeconcur:

Associate Htices

sittinginplace of Mr. Justice John C. Harrison.

### SupplementalOpinion on Rehearing This cause was first submitted on October 27, 1971, on appeal from the district court of Fergus County. The district court had granted a decree of divorce in favor of plaintiff Carolyn Hunnewell, and further ordered that the property acquired during the marriage be divided evenly between plaintiff and defendant. Defendant Archie Hunnewell appealed and on December 9, 1971, this Court reversed the district court ordering the decree of divorce be entered for defendant. In that same opinion we ordered that the property should not be divided evenly between the parties as the evidence in the record did not support the conclusion that each party had contributed equally to themarriage. A petition for rehearingwas filed on December 23, 1971,and rehearing was held on June 14, 1972. From the showing made at the rehearing itbecame apparent that some changes needed to be made in our original opinion. That portion of the original opinion relating to the decree of divorce and the remanding of the custody of the children to the district court will stand. The statement of facts in the original opinion with the foregoing statement will be sufficient for the purposes of this supplemental opinion. The necessary change to be made in the original opinion relates to determination of how the property of the marriage is to be apportioned. Originally we held that an award of the equity in the "townhouse" would be sufficient to compensateMrs. Hunnewell for her contribution to the marriage. On rehearing itwas shown that this equity amounted to approximately $2,000,which is about the amount of money Mrs. Hunnewell contributed to the marriage in the beginning.

### While the record does support the conclusion that the bulk of themarital property was obtained by Archie's inheritance from his father and the arrangementmade between his sisters, the record also shows that Carolyn Hunnewell did make
a contribution to the marriage for which she should be compensated in a greater amount than her original contribution, Itmay be true that she did absent herself from the ranch during the peak period of activity,but it is also true that she
was present during the remaining time when she carried out the duties and responsibilities expected of a "ranch wife". Archie Hunnewell testified that Carolyn had helped with the calving on the ranch. Carolyn's testimony showed that during her presence at the ranch she did all the cooking, including the canning of gardenvegetables and cleaning for the family. She also testified she took part in the children's activities. To compensate for her contributionwe order that Carolyn Hunnewell is to receive the town house in Lewistown outright. The present encumbrance to be assumed by Archie Hunnewell who may either satisfy the mortgage and deliver the property to Carolyn
or he may continue to pay the mortgage payments until suchmortgage is satisfied. Carolyn Hunnewell is to have immediatepossession. This,plus the other property divisions ordered,will fully satisfyany further claims Carolyn Hunnewell may have on the ranch property. Shewill have no claim to any of the property Archie Hunnewell inherited from his father or any of the machinery or equipment necessary to carry on the ranching operation. The marital property also includes property,both real and personal, held in joint tenancy. These joint tenancies shall be terminated and the various items of property divided equally between the parties with the exception that Archie is to retain

### all interest in the REA stock originally acquired by his father. Carolyn Hunnewell shall be required to execute a crop share lease to Archie on her interest in the real property, formerly held in joint tenancy, annually so long asArchie complies with the conditions of said lease, any renewal and extension thereof. This lease shall be made on the usual terms of such leases in the area, and if there be dispute between the parties as to such "usual terms" the district judge shall make such determination. Should Carolyn Hunnewell choose to sell her interests Archie Hunnewell shall have the option to meet any and all bids and terms of such contemplated sale, and in any such sale the down payment shall not be more than 25% 

### of the sale price, the balance to be paid in five equal installments, one installment due each year for a period of 5 years. The purpose of this provision is to permit Archie to continue to ranch and farm the premises without being met with a sudden emergency to raisemoney, the Court being aware that all the property is presently mortgaged and such an emergency demand might cause a hardship. As to the grazing land which would not be included in a crop share lease, the same general conditions as heretofore outlined shall be contained in such lease and the compensation for the annual use for grazing purposes shall be the "usual terms" of grazing leases in the area, and if there be dispute between the parties the district judge shall set such compensation. The record reveals a dispute exists over the distribution of the remaining personal property held by the parties. So that
an equitable solution may be made we are referring thismatter back to the district court to determine the amount of suchpersonal property in the marriage and which of the parties has possession,

### and then make an equitable division. Inmaking this division that portion of the personal property which consists of antiques and heirlooms should be distributed to the party whose family originally owned the article. The property interests of the children should also be considered in making such distribution. As to the cattle, Carolyn should be given 10 head of sound cows, free and clear of any encumbrance. They shall be picked by the parties, Carolyn having the first pick, then Archie, and so on until 10 head have been selected,and they shall be rebranded by Carolyn, unless she desires to sell in which eventArchie shall have the right to meet the bid of any commercial cattle buyer agreed upon by the parties and thereby retain ownership thereof. Should the district judge desire that these settlement provisions be handled otherwise than here set forth but in the
same vein, he isprivileged to appoint a Master who shall see that they are carried out. We find no merit in the contention that the petition for rehearing was not filed within time, extensions of time are often granted by the Court to counsel in person, or by phone, without the necessity of a formal order. The cause is remanded to the district court for further proceedings in conformitywith what has been said here and in the original opinion heretofore issued.