No. 89-103

IN THE SUPREME COURTOF THE STATE OFMONTANA
1989

INRE THEMARRIAGEOF LINDA WINSTON McFARLAND, PetitionerandAppellant, and
WILLIS LEE McFARLAND, Respondentand Respondent.

APPEAL FROM: ~istrict Court of the ~inth ~udicial ~istrict, Inand for the Countyof Pondera, TheHonorableR. D. ~c~hillips, Judgepresiding.

COUNSEL OF RECORD:
ForAppellant: Ralph T. Randono,GreatFalls,Montana

For Respondent: Richard L. Beatty; Anderson,Beatty & Buyske, Shelby, Montana

submitted on ~riefs:Oct. 13, 1989 Decided: December 8, 1989 Filed:~ustice William E. Hunt, Sr., delivered the Opinion of the Court.

~inda McFarland,petitioner and appellant,appeals from the property division and award of child support mandated in the judgment entered by the District Court of the Ninth Judicial District, Pondera County. We affirm in part and

reverse and remand in part for a modification of child support and equitable division of stock consistentwith this Opinion. The issues raised on appeal are: 1. Whether the ~istrict Court properly excluded husband's share of McFarland and Sons stock as a marital asset.2. Whether the District Court properly divided West Star stock between theparties. 3. Whether the District Court properly ruled that husband had complied with the full disclosure of his financial situation. 

### 4. Whether the District Court properly assessed child supportamounts in accordance with the uniform ~istrict Court Guidelines on Child Support. Linda and Willis McFarland were married on April 21, 1979. Two childrenwere born of the marriage, ages six and eight. Willis adopted Linda's daughter from 

### a former mar-- riage,age seventeen. Prior to themarriage,Lindawas working as a registered nurse. Also prior to the marriage, Williswas gifted 121percent of stock on his parents' family farm. The farmwas incorporated under the name ofMcFarland and Sons with the parents retaining 51 percent of the stock ancl gifting 124 percent to each of four sons. Until 1986 when the corporation was restructured, McFarland and Sonsprovided Willis with a furnished ho.use, food, utilities, vehicles, gasoline, insurance, and paid him a salary of $700 per month. Linda also worked for McFarland and Sons and was paid accordingly. The parties separated in March of 1986. At about the

same time, McFarland and Sons restructured the corporation. As a consequence of the restructuring, willis formed a corporation under the name of West Star Farm, Incorporated. Willis owned 100percent of the stock ofWest Star and he and his accountant comprised the board of directors. West Star borrowed in excess of $115,000to finance thenewly organized corporation. with the loan, West Star purchased machinery,

summer fallow,the farm home that he and Linda lived in, and approximately twenty acres of land from McFarland and Sons. Also, West Star rented a portion of land from McFarland and Sons under a cash payment which, at the time of the hearing,

was in excess of $54,000 per year to be negotiated yearly. Since West Star's incorporation,willis isno longer an employee of McFarland and Sons. West Star now provides willis housing, groceries, utilities, vehicles, gasoline, insurance, various other living expenses, and pays him a salary of $400 per month. The net effect ofwillis's salary and benefits is approximately $17,280per year. Linda is working as a surgicalnurse with an income of $21,000 to $22,000 per year. She resides, with the three children,in a rentedhome. A dissolution hearing was held on July 5, 1988. The District Court entered its findings of fact and conclusions of law on September 2, 1988, and its j-udgmenton September 14, 1988. During the hearing, Willis submitted the balance sheets of McFarland and Sons which reflected his financial situation with the corporation. Linda objected to thebalance sheets as insufficient and argued a lack of full disclosure because financial statements were not produced. The ~istrict Court ordered that Willis pay child support in the amount of $400 per month total for the three childrenand that Lindawas entitled to claim the childrenas tax deductions. It also found that the McFarland and Sons stockvrould not be included in the marital estate since Linda did not contribute to the facilitation ormaintenance of the stock during the marriage. The court ordered that Linda receive $2,500 as her share of stockholder equity in West Star and thatwillis retain theWest Star stock. Stockholder equity in West Star was valued at $31,600, subject to yearly fluctuations. The first issue raised on appeal is whether the 

### w istrict Court properly excluded husband's share of PYIcFarlanii and Sons stock from themarital estate. In the mid-701s,Willis acquired 12i percent stock in McFarland and Sons,as did his three brothers,

### by virtue of a gift from his parents. while Willis's parents gifted each

son 12i percent stock, only two sons, including Willis, worked the farm and were compensated for their services. willis's parents retained controlling stock in the corporation. During the parties' marriage, Linda worked for McFarland and Sons and was duly compensated. Linda brought no assets into the marriage. She argues that willis's interest in McFarland and Sons should have been included in the marital estate and that the ~istrict Court erred in not including it. We disagree. Under 5 40-4-202(1)(b)

### , MCA, the District Court shall consider the contributions of the non-acquiring spouse and the extent that the contributions facilitated themaintenance 

### of the property. Under In re the ~arriage of Herron (1980)

### ,186 Mont. 396, 404, 608 P.2d 97, 101, we stated that the District Court must consider all property, including that received by gift,but that: If none of the value of the property is a product of contribution from the marital effort, the ~istrictCourt can justifiably find that the non-acquiring spouse has no interest in the property.

Here, the District Court specifically found that the value of the stock decreased during the last fewyears of the marriage and that ~inda did nothing to contribute to the facilitationormaintenance of the stock during themarriage. In fact, ~indawas monetarily compensated for any work performed for McFarland and Sons. Where a spouse does not contribute,the ~istrict Courtmay exclude the asset from the marital estate. See In re the Marriage of ~uisi(~ont. 1988), 756 P.2d 456, 458, 45 St.Rep. 1023, 1025. The District Court exercised proper discretion in excluding the stock from themarital estate. The second issue raised on appeal is whether the District Court properly dividedWest Star stock between Linda and FJillis. Here, the District Court awarded ~inda $2,500 as her share of stockholder equity in West Star and ordered that Willis retain the stock. Stockholder equity was valued at approximately $31,600, subject toyearly fluctuations. Linda argues that thedivision is inequitable. We agree. The standard of review to be applied in a distribution case is that where the District Courtbased its distribution of marital assets on substantial credible evidence, it will not be overturned absent a clear abuse of discretion. In re the Marriage of Johns (Mont. 1989), 776 P.2d 839, 840, 46 St.Rep. 1249, 1251. See also In re the ~arriage of Stewart (Mont. 1988), 757 P.2d 765, 767, 

### 45 St.Rep. 850, 852; In rethe ~arriageof Watson (Mont. 1987), 739 P.2d 951, 954, 44 St.Rep. 1167, 1170. We will reverse the District Co.urtupon
a showing of abuse of discretion. Johns, 776 P.2d at 840. In this case, willis incorporated West Star Farm at approximately the same time theparties separated. West Star accumulated approximately $31,600 in equity. The court in its findings stated that Linda did contribute to West Star and that her nonmonetary contributions as a homemaker did facilitate the maintenance and operation of the corporation. Th-us, Linda was entitled under 

### 5 40-4-202(1)(b),MCA, to a share of the corporate equity. In light of the above facts, the DistrictCourtdid abuse itsdiscretion in awarding Linda

a mere $2,500. We reverse on this issue and remand to the District Court for an equitable distribution of the stock as valued at the time of the ~istrictCourt's decree to be consistent with thisOpinion. The third issue raised on appeal is whether the District Court properly ruled that Willis had complied with the full disclosureofhis financial situation. In Fautsch v. Fautsch (1975), 166 Mont. 98, 102-103, 530 P.2d 1172, 1175, we stated that the parties must completely disclose money and assets accumulated during the marriage. In the present case, ~inda claims that willis failed to disclose financial information regarding McFarland and Sons stock beca.usehe did not provide her with the books of the corporation. The record, however, indicates that willis did provide her with the balance sheets of the corporation. The District Court relied on the balance sheets to determine McFarland and Sons stock value. We hold that the balance sheets provided sufficient financial information regardingMcFarland and Sons stock.The last issueraised on appeal iswhether theDistrict Courtproperly based child supportamounts in accordancewith theUniform DistrictCourtGuidelinesonChild Support. The court ordered thatWillis pay Linda $400 per month child support for their three minor children. Linda argues that the court abused its discretion in setting the amount because the guideline amount she offered established that an amount of $263 a month per child or a total of $789 amonth. Willis did not submit a guideline form. An award of child support is governed by S 40-4-204, MCA, which presently provides in pertinent part and applies to this modification as:

(b) 

## the financial resources of the custodial 

### - - parent; (3)(a) Whenever a court issues or modifies an order concerning child support, the court shall determine the child support obligationby applyin the standards

### -- in this sectionand the uniform chilz 

## -- support quidelines adopted by the department of social and rehabilitation services ~ursuantto

A. 40-5-209, unless the court finds by clear and convincing evidence that the application of the standards and guidelines is unjust to the child or to any of the parties or is inappropriate in that particular case.

(b) If the court does not apply these standards 

# -- .- and 

### guidelines to determine chlld support, it shall state its reasons for finding that the application of such standards and guidelines is unjust to the child or a party or is inappropriate in that particular case. (Emphasisadded.)

The ~istrictCourt will be reversed on appeal only where there has been 

### a "clear abuse of discretion resulting in substantial injustice." In re the Marriage of Hoffmaster (Mont. 1989), 780 P.2d 177, 46 St.Rep. 1531. See also In rethe Marriage of Alt (1985),218Mont. 327, 333, 708 P.2d 258, 261. As the court stated in its findings,

### w ill is's living arrangement gave him a monthly imputed income 

### of $1,040plus

amonthly salary of $400 for a total yearly annualized income of $17,280. In the court's conclusions of law it notes, 

### his amount [$400] is reasonableas determined according to the Supreme Court child Support ~uidelines." The amount of child support awarded,when takingWillis's annualized income into consideration, results in substantialinjustice. ~ffirmedin part and reversed and remanded for a modification of child supportand equitable division of stock consistent with thisOpinion.

We Concur: 

### A