No. 80-39 INTHE SUPREME COURT OF THE STATE OF MONTANA 1980

JAMES EBERT, Petitioner and Respondent,-vsETHEL EBERT, Respondent and Appellant.



### .1from: District Court of the Eighth Judicial District, In and for the County of Cascade, The Honorable H. William Coder, Judge presiding.
Counsel of Record: For Appellant: Marra, Wenz, Iwen~Johnson & Hopkins, GreatFalls, Montana For Respondent: David V. Gliko, Great Falls, Montana

Submitted on Briefs: July 7, 1980 Decided: 

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Filed: 

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### Mr. JusticeDaniel J. 

### Shea delivered the Opinion of the Court. Ethel Ebert appeals from that portion of a marriage dissolution decree entered in Cascade County DistrictCourt, affecting the property distribution, child support, and denying her request formoving expenses and attorney fees. Her primary contention with relation to property distribution is that the trial court erroneously ruled that a military pension is not marital property. After the entry of the trial court order,we held in In Re Marriage of Miller (1980), 

### -Mont. 

## , 609 P.2d 1185, 37 

### St.Rep. 556, - 

### that a military pension ismarital property to be considered
aspart of the marital estate. This decision was rendered before the parties filed their briefs on appeal. Unfortunately, they did not recognize thatMiller must, of necessity, require a remand so that the issue of themilitary pension
can be determined again. Theparties should have petitioned this Court to dismiss the appealwithout prejudice so that the issue could again be redeterminedby the trial court. What the trial courtmay determine in relation to the military pension will undoubtedly have an effect on the remaining issues. The wife contends that the trial court erred in allowing child support in the amount of $100per month for each child and in not requiring the husband to pay themedical expenses of the children which exceed the coverage of his military medical insurance. How the trial court treats the military pension may 

### affect the child support issue. Without question, the amount of child supportwhich the husband can pay will depend on how the trial court treats the military pension. While the issue of medical coveragemay not depend on the handling of themilitary pension,we will not tie the trial court's hands where the property division must be redone. -2-The same is true of the wife's claim that she should have been granted maintenance in the amount of $150per month for two years to enable her to receive training as a licensed practical nurse. Whether she is entitled to maintenancemay depend, at least in part, upon how the trial court treats the military pension. The wife also requested that the trial court compel the husband to pay her $1,200 for moving expenses so that she
canmove back to Missouri. Again, whether she should receive this payment may well depend on how the trial court treats the military pension. We will not purport to fashion a formula for consideration and disposing of the military pension as a marital asset where the trial court has not done so. The situation here is undoubtedly complicated, in that the husband has not yet retired (atleast as far as we know), although he is eligible
now to do so. If he chooses not to retire presently, he obviously will not be getting any pension benefits. This problem has arisen in other states, and has been handled in the context of varying fact situations. See, for example, Shill v. Shill (1979), 100 Idaho 433, 599 P.2d 1004; In Re Marriage of Jacobs (1978),20 Wash.App. 272, 579 P.2d 1023; In Re Marriage of Brown (1976),126 Cal.Rptr. 633, 544 P.2d 561; Cearley v. Cearley (Tex. 1976), 544 S.W.2d 661. These
casesmay be helpful in reaching an equitable solution in this
case.We note that the trial court failed to rule on the wife's request that she be given $1,200 formoving expenses. It is, of course,possible that in light of a new property division, the wife will not make this request. But if she does, the trial court is directed to rule on her request. A failure to rule on it only makes needless work for us because -3-wewould be compelled toremand again for a determination. We alsonote, however, that the wife did not again ask the court toruleon her request after it had failed todo so. She should have done this. See Rule 52, M.R.Civ.P. The final issueraised by thewife isher claim that the trial court should have ordered the husband topay her attorney fees. Although the trialcourt determined that the wife had sufficient assets topay them herself, these findings
werenot based on the actual financial condition of the wife. Wewillnot reach the attorney fee issuehere in light of our decision that theproperty must be redistributed to reflect the militarypension as an asset, but the trial court is instructed that if the issue arises again, it must set forth therequired findings and conclusions as towhy they were orwerenot awarded. Kronovich v. Kronovich (19781, -Mont. 

### , 588 P.2d 510, 514, 35 St.Rep. 1946, 1952.The judgment isvacated with exception tothe decree granting dissolution, and thiscase is remanded tothe trial

- WeConcur:

Justices