No. 12043 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1971 

CAROLYN MARIE HUNNEWELL, 

Plaintiff and Respondent, 

-vs - 

ARCHIE RAY HUNNEWELL, 

Defendant and Appellant. 

Appeal from: District Court of the Tenth Judicial District, 

Honorable LeRoy L. McKinnon, Judge presiding. 

Counsel of Record : 

For Appellant : 

Dockery and Parrish, Lewistown, Montana. 

Loble, Picotte and Loble, Helena, Montana. 

Lester He Loble, I1 argued, Helena, Montana. 

For Respondent : 

,argued 

Robert L. Johnson, Lewistown, Montana. 

William E. Berger argued, Lewistown, Montana. 

DEC - 9 1971 Lx.p-i Filed : AUG 3 11972 

Submitted: October 27, 1971 

~ecided : OEC - 9 1979 ".(;[ 

AUG 3 1 1972 
Mr. 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 district court of Fergus 

County following trial to the court, sitting without 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 girl now 15, and two sons now 13 and 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 life up until the time of their separation prior to the 

divorce. 

The defendant has been a rancher all his life. He is 

35 to 40 percent permanently disabled of the body as a whole as 

the result of an accidental injury to his spine sustained in 

1965. Since the injury to his spine the defendant's ability to 

work his ranch has been impaired and it is apparent from the 

record he will always require assistance to do so. 

The record further reveals that for some years there 

has been a degree of controversy in the household concerning the 

common facets of domestic life, the disciplining and needs of 

the children, the condition of the household budget and the 

degree of socializing and outside interests of the parties. 

The record also reveals that the defendant has been 

refused the exercise of his marital prerogative for over a year 

and a half, the plaintiff refusing to share the same bedroom 
with defendant during that period. 

Further, it appears that plaintiff subjected defendant 

to ridicule in the presence of the children; took extended 

summer vacations to visit her 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 in plaintiff filing for a 

divorce and defendant to counterclaim for the same relief. 

Upon the trial plaintiff testified to incidents 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 all of these rulings 

on this appeal. 

We have examined the record here with great care in our 

endeavor to find the evidence which supports the court's finding that defendant was guilty of extreme cruelty. We cannot find 

it and must thereforehold that the court abused its discretion 

in this regard since there is a clear preponderance of the evidence against such finding. Conway v, Fabian, 108 Mont. 287, 

89 P.2d 1022. 

The evidence in this cause does support defendant's 

counterclaim for a divorce and the court was in error in not so 

finding and granting a divorce to defendant. 

The defendant next raises the issue of the validity of 

the property settlement ordered by the court. The district court 

in its findings of fact found that at the time of their marriage 
the parties had brought to the marriage 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 to support 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 for by crop share but for the most part in the 

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 lease was signed. Upon the expiration of the lease defen6- 

ant's father and stepmother entered into a contract for deed 

with the parties for the sale of the ranch. 

While the contract for deed 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 further provided that payment would be made on a crop share basis. 

Mr. Hunnewell died two years later and included among 

the assets of the estate was the balance outstanding on the contract of approximately $43,000. 

During the probate of the estate, the defendant agreed 

to relinquish his share in all other assets of his father's 

estate, which amounted to $35,404.89, and agreed to pay $4,000 to 
each of his two sisters in exchange for their interest in the 

contract. It was in this manner that the ranch was acquired by 

defendant. 

It is a well established principle of law in this state 

that in determining a property settlement pursuant to the granting of a divorce, the court will consider the contributions made 

by the parties in acquiring the property in question. Libra v. 

Libra, Mont . , 484 P.2d 748, 28 St.Rep. 460; and cases 

cited therein. 

It was, then, error for the court to find that the plaintiff had and was entitled to a one-half undivided interest in 

the ranch. Plaintiff's interest based upon joint effort or contribution was so fractional that the award of the equity in the 

town house in Lewistown as ordered by the court was amply sufficient to compensate her for her interest in the farm. 

Defendants contention that the court erred in ordering 

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 law has merit. While the court 

expressly provided that such payments were contingent upon their 

emancipation or further order of the court the children are still 

quite young and their educational futures most uncertain; and 

no necessity exists now to make support payments for a longer 

period than the law provides. The court should await a later 

appropriate time because defendant's obligation to support his 

children through college will depend in a large degree upon 

factors not yet known; the desire and ability of the children 
themselves as well as the ability of the defendant to make such 

provisions at that time. The equity of this provision is then, 

at this time, premature. 

The final assignment of error is to the denial of 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 all the children still 

have active interests in riding horses, caring for animals, and 

other ranch life activities. The plaintiff's denial that the 

defendant was a fit and proper person to have custody of the 

children as stated in her answer to pertinent interrogatories 

was that she did not favor joint custody. The children thenselves had mixed emotions regarding the same, which is consistent 

with the trauma of their situation. 

We understand events have transpired in this respect 

since the original trialland the defendant father not having 

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 in conformity with 

this opinion. 

It is 
We concur: 

Associate Htices 

sitting in place of Mr. Justice 

John C. Harrison. 
Supplemental Opinion 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 the marriage. A petition for rehearing was filed on December 

23, 1971, and rehearing was held on June 14, 1972. 

From the showing made at the rehearing it became 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 "town house" would be sufficient to compensate Mrs. Hunnewell for her contribution to the marriage. On rehearing it was 

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 the marital property was obtained by Archie's inheritance from his father and the arrangement made 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, 

It may 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 

garden vegetables and cleaning for the family. She also testified she took part in the children's activities. 

To compensate for her contribution we 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 such mortgage is satisfied. Carolyn Hunnewell is to have immediate possession. This, plus the other property divisions ordered, will fully 

satisfyany further claims Carolyn Hunnewell may have on the ranch 

property. She will 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 as Archie 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 raise money, 

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 this matter 

back to the district court to determine the amount of such personal 

property in the marriage and which of the parties has possession, 
and then make an equitable division. 

In making 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 event Archie 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 is privileged 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 conformity with what has been said here and in 

the original opinion heretofore issued.