No. 84-300 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

IN RE THE MARRIAGE OF 

SYBILLA V. KEEPERS, 

Petitioner and Respondent, 

and 

DALE KEEPERS, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Diane G. Barz, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Moses Law Firm; Bruce E. Becker, Billings, Montana 

For Respondent : 

James J. Sinclair, Billings, llontana 

Submitted on Briefs: September 27, 1984 

Decided: November 16, 1984 

~iled: AOV 1 6 1984 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Dale E. Keepers appeals from the April 17, 1984 judgment 

of the Yel-lowstone County District Court dissolving his 

marriage to Sybilla V. Keepers and dividing their property. 

We affirm. 

Sybilla and Dale were married on August 23, 1980, in 

Billings, Montana. There is no issue from this union 

although Sybilla had two children from a previous marriage 

who resided with the couple. After three years of marriage, 

the parties separated and soon sought to dissolve their 

marriage. Cn April 12, 1984, the District Court entered 

Findings of Fact and Conclusions of Law. On April 17, 1984, 

iudgment was entered. thereon. 

Dale was employed during the marriage and currently 

earns net income of $1,175.00 per month. Sybilla was 

employed during the marriage and earns $805.41 per month. In 

addition, she receives $450.00 per month for the support of 

her two minor children from a previous marriage. 

The personal property belonging to the parties has been 

divided and is not at issue on appeal. No maintenance was 

awarded. 

At the time of the marriage Dale owned real estate 

located at 2028 George Street in Bill-ings, worth 

approximately $65,000.00, that was subject to a S24,366.00 

purchase money mortgage at the time of the hearing. The 

property was later encumbered by an additional $13,518.00 

debt which was incurred by the parties during marriage. 

Part of the $13,518.00 loan was used for a downpayment 

on the purchase of the Larimer home in which the parties 
resided during marriage. The District Court ordered that 

this home be sol-dl the mortgage retired a.nd the proceeds 

divided equally between the parties. An additional $1,500.00 

of the $13,518.00 which was secured by the George Street home 

was used to pay delinquent payments on Sybjlla's Willona 

Drive home before that home was sold. 

Sybilla entered the marriage to Dale with some equity in 

a home on Willona Drive which she derived from a previous 

divorce settlement. After the mortgage arrearage was paid 

the home was sold and Sybilla netted $9,000.00. Sybilla 

secured a judgment from her former husband for delinquent 

child support. She received a cash payment of $4,167.13 and 

then received 17 monthly payments of $653.88 during her 

marriage to Dale, a total of $15,283.09. 

Sybilla had a $3,592.56 unsatisfied judgment against her 

that was entered before marriage and paid during the 

marriage. 

The money received by Sybilla along with the wages of 

both parties were commingled and spent for family purposes 

during the course of the marriage. Dale rented his separate 

property on George Street and used the proceeds to make 

payments on the mortgages. 

The District Court ordered the George Street property 

sold, the mortgages paid off, an6 the remaining proceeds 

divided between the parties. Dale is to receive $3,592.56 

more than Sybilla from the sale to compensate for Sybilla's 

premarital debt. Dale appeals from the property division. 

Dale raises five points of error but they can all be 

reduced to one issue. 

Did the District Court err in applying section 40-2-202, 

MCA, when dividing the marital estate between the parties? 
Dale objects to the judgment of the District Court tha.t. 

awards Sybilla one-half of the equity in his property 

acquired prior to marriage minus $3,592.56. The division of 

property in a marital dissolution case is governed by section 

40-4-202, MCA. 

"Section 40-4-202. Division of property. 

(1) In a proceeding for dissolution of a marriage, 

legal separation, or division of property following 

a decree of dissolution of marriage or legal 

separation by a court which lacked personal 

jurisdiction over the absent spouse or lacked 

jurisdiction to divide the property, the court, 

without regard to marital. misconduct, shall., and in 

a proceeding for legal separation may, final ly 

equitably apportion between - the parties - the 

roperty - and assets belonging to either -- or both, 

Rowever - and whenever acquired anrwhether - the title 

thereto ------ is in the name of the husband. --- or wife or 

both. In making apportionment, the court shall 

consider the duration of the marriage and prior 

marriage of either party; antenuptial agreement of 

the parties; the age, health, station, occupation, 

amount and sources of income, vocational skills, 

employability, estate, liabilities, and needs of 

each of the parties; custodial- provisions; whether 

the apportionment is in lieu of or in addition to 

maintenance; and the opportunity of each for future 

acquisition of capital assets and income. The 

court shall also consider the contribution or 

dissipation of value of the respective estates and 

the contribution of a spouse as a homemaker or to 

the family unit. In dividing property acquired 

prior to the marriage; property acquired by gift, 

bequest, devise, or descent; property acquired in 

exchange for property acquired before the marriage 

or in exchange for property acquired by gift, 

bequest, devise, or descent; the increased value of 

property acquired prior to marriage; and property 

acquired by a spouse after a decree of legal 

separation, the court shall consider those 

contributions of the other spouse to the marriage, 

including: 

"(a) the nonmonetary contribution of a homemaker; 

" (b) the extent t-o which such contributions have 

facilitated the maintenance of this property; and 

" Ic) whether or not the property division serves 

as an alternative to maintenance arrangements." 

All property, however and whenever acquired by the 

parties, becomes part of the ma.rita1 estate and is subject to 
apportionment by the court under section 40-4-202. The 

latter part of this section speaks specifically to property 

acquired prior to marriage, property acquired by gift, 

bequest, devise, etc. 

This Court has recognjzed that when inherited property 

or property acquired by one party prior to marriage is 

subject to division in a dissolution proceeding, the lower 

court must consider the origin of the property. Herron v. 

Herron (1980), 186 Mont. 397, 608 P.2d 97; Metcalf v. Metcalf 

(1979), 183 Mont. 256, 598 P.2d 1140; Vivian v. Vivian 

(1978), 178 Mont. 341, 533 P.2d 1074. The property acquired 

before marriage is still a marital asset subject to division. 

There is no definite rule as to how the trial court is to 

consider the asset. Each case has to be decided on its own 

facts. Vivian, supra. 

It is well settled in Montana that the District Court 

has far-reaching discretion in resolving property divisions 

and its judgment will not be altered unless a clear abuse of 

discretion is shown. Kruse v. Kruse (1978), 179 Mont. 79, 

84, 586 P.2d 294, 297; Cook v. Cook (1972), 159 Font. 98, 495 

P.2d 591. Findings of fact will not be set aside on appeal 

unless clearly erroneous. F.ule 52 (a) , M.R.Civ.P. It is 

against this backdrop of established law in Montana that we 

view Dale's appeal. 

Dale argues that the child support judgment and current 

child support payments received by the wife should qo to the 

benefit of the children. At any rate they were put into the 

marital pot and spent like the parties' wages were spent. 

Dale contributed to the marital pot. He contributed 

$64,688.06 in wages as opposed to $33,305.20 in wages 

contributed by Sybilla to the marital pot over the course of 
the marriage. The support of SybillaEs children came from 

the marital pot. Dale did not adopt these children. The 

money Sybilla received from her ex-husband for back child 

support was commingled with funds earned by both parties 

during the marriage. Dale argues the child support payments 

should not be considered as prior acquired property. Whether 

these payments are technically considered prior acquired 

property is not the point. These payments are not property 

hefore the court to be divided but are evidence of 

contributions of the other spouse, Sybilla. The evidence 

shows at least some of these funds were spent by Dale. We 

conclude the District Court did not err in considering these 

payments when dividing Dale's prior acquired property 

pursuant to section 40-2-202, MCA. 

Dale also argues that the District Court erred in 

finding that both parties brought the same net equities into 

the marriage. The District Court expressly found that the 

$13,518.00 encumbrance on appellant's real estate was 

incurred by the parties during the marriage. Nonetheless, 

the court deducted $13,518.00 from the equity appellant 

brought into the marriage. Even counting the back child 

support as pre-marital equity, Dale clearly brought more 

property to the marriage than Sybilla. 

The importance of this finding is relevant but not 

determinative. Dale argues that in a marriage of short 

duration the parties should be pl-aced in the position they 

would have been in as if no marriage had occurred. See Tn 

the Matter of Marriage of Card (1982), 60 0re.App. 1.17, 652 

P.2d 866. Duration of marriage is a factor to be considered 

in section 40-4-202(l), MCA. There is no set rule that 

parties to a brief merriage be restored to premarital status. 
Property need not be divided equally only equitably in 

accordance with the factors set forth in section 40-2-202, 

With respect to property acquired before marriage, 

section 40-2-202(1) states the court shall consider those 

contributions -- of the other spouse -- to the marriage including: 

" (a) the nonmonetary contribution of a homemaker; 

" (b) the extent to which such contributions have 

facilitated the maintenance of this property; and. 

" (c) whether or not the property division serves 

as an alternative to maintenance." 

The wording of the statute does not make the three 

factors listed above exclusive. The word "including" 

"a.1~0," or "in addition to." The statute must be construed 

to mean that the court shall also consider other relevant 

contributions of the spouse in making an apportionment. 

The District Court also took into consideration the 

monetary contributions of each of the parties, the extent to 

which the contributions have facilitated the maintenance of 

the property and the acquisition of other property acquired 

as a result of a sale or exchange of premarital property, 

together with the abilities of each of the parties to acquire 

future assets or income from employment. The property 

divided serves as an alternative to maintenance. 

Reasonable minds could differ on what would be the most 

equitable distribution of the partiesf property. That the 

case may be decided differently is not the inquiry on appeal, 

the question is whether the fact determination of the court 

below is clearly erroneous. Rule 52 (a) , M.R.Civ.P. 

Even with the erroneous finding of fact pointed out by 

appella.nt, we do not find that the District Court clearly 

abused its discretion. 
Affirmed. 

We. Concur: 

Justices