No. 13205 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977

BARBARA J. HOUSER, Plaintiff and Respondent,
-vsJAMES A. HOUSER, Defendant and Appellant.
Appeal from: District Court of the Thirteenth Judicial District, Honorable Charles Luedke, Judge presiding. Counsel of Record: For Appellant: Joseph E. Mudd argued, Bridger, Montana For Respondent: James Reno argued, Billings, Montana

Submitted: January 26, 1977 Decided : 

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### 1977 ~iled:,!bN

### LJ 

### YjlMr. Justice Daniel J. Shea delivered the Opinion of the Court. This isan appeal by the husband from a judgment of the district court, Yellowstone County, awarding the marital home to the wife inan annulment action and declaring the husband's
name was placed on the deed only as security for the down payment loan made on the house. The sole issue raised by thehusband's appeal is his assertion the district court had no right to award to thewife property acquired intheirjoint names before the marriage. This issuewas not raised in the trialcourt. Moreover, defendant husband i n h i s answer and counterclaim to the wife's request that the property be equitably divided, alsorequested an equitable division of the property. The instant annulment was the second marriage between Barbara J. Houser and James A. Houser. During the firstmarriage they had one child, Jennifer. After the divorce the parties started dating again, and inMarch 1973 they made a down payment
on a home which Barbara was renting. Titlewas placed inboth
names asjoint tenants. James Houser, through his father, furnished the $4,000 down payment tobe repaid atthe rate of $100 per month which included a 

### 6%interest charge. InDecember 1973, Barbara and James remarried but the marriage lasted only
a few months. In 1974, Barbara Houser filed an action for annulment and asked the court toequitably divide the personal and real property acquiredby the parties. Inhis answer and counterclaim James Houser also requested the court tomake an equitable division of the property. He made no attempt to limitthe court toconsideration of property acquired after they were married.Attrial, Barbara Houser contended the $4,000 down payment
was a loan toher and James Houser's name was on the deed only
as security for the loan. James disputed the loan allegation and contended the parties agreed tojoint ownership of theproperty. Attrial, he did not contend the trialcourt had no right to divide the property; he was merely asking for a different disposition than that awarded. The district court found title to the home (subject toa mortgage for thebalance of the purchase price) was inBarbara Houser's name and James Houser's name was placed on the deed

1Ifor securitypurposes only, and was meant to secure the repayment of said loan [the down payment]

# ." By hispleadings and by his approach attrial, defendant James Houser clearly requested the district court touse 

### its equitablepowers tomake a disposition of the home. He cannot
now complain the district court had no right to do so. Epletveit
v. Solberg, 119Mont. 45, 169 P.2d 722. The district court was not compelled toorder the home sold and the proceeds divided equally between the parties, as defendant insists. Rather, the court found that defendant James Houser had no ownership rights in the property, except a security interest for repayment of the $4,000. We emphasize that James Houser did not challenge the findings of the district court. We affirm thejudgment.We Concur: 3