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 : .luN 2 9 1977 

~iled:,!bN L J Yjl 
Mr. Justice Daniel J. Shea delivered the Opinion of the Court. 

This is an appeal by the husband from a judgment of the 

district court, Yellowstone County, awarding the marital home 

to the wife in an 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 the husband's appeal is his 

assertion the district court had no right to award to the wife 

property acquired in their joint names before the marriage. 

This issue was not raised in the trial court. Moreover, defendant 

husband i n h i s answer and counterclaim to the wife's request 

that the property be equitably divided, also requested an 

equitable division of the property. 

The instant annulment was the second marriage between 

Barbara J. Houser and James A. Houser. During the first marriage 

they had one child, Jennifer. After the divorce the parties 

started dating again, and in March 1973 they made a down payment 

on a home which Barbara was renting. Title was placed in both 

names as joint tenants. James Houser, through his father, 

furnished the $4,000 down payment to be repaid at the rate of 

$100 per month which included a 6% interest charge. In December 

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 to equitably divide the personal and real property 

acquired by the parties. In his answer and counterclaim James 

Houser also requested the court to make an equitable division of 

the property. He made no attempt to limit the court to consideration of property acquired after they were married. 
At trial, Barbara Houser contended the $4,000 down payment 

was a loan to her 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 to joint ownership of the property. 

At trial, he did not contend the trial court 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 to a 

mortgage for the balance of the purchase price) was in Barbara 

Houser's name and James Houser's name was placed on the deed 

1 I for security purposes only, and was meant to secure the repayment of said loan [the down payment] ." 

By his pleadings and by his approach at trial, defendant 

James Houser clearly requested the district court to use its 

equitable powers to make a disposition of the home. He cannot 

now complain the district court had no right to do so. Epletveit 

v. Solberg, 119 Mont. 45, 169 P.2d 722. The district court was 

not compelled to order 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 the judgment. 
We Concur: 

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