No. 80-39 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

JAMES EBERT, 

Petitioner and Respondent, 

-vsETHEL EBERT, 

Respondent and Appellant. 

.1 from: 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, Great Falls, 

Montana 

For Respondent : 

David V. Gliko, Great Falls, Montana 

Submitted on Briefs: July 7, 1980 

Decided : 8FP :17 ~180 

Filed: SE , i !~J[I 
Mr. Justice Daniel J. Shea delivered the Opinion of the Court. 

Ethel Ebert appeals from that portion of a marriage 

dissolution decree entered in Cascade County District Court, 

affecting the property distribution, child support, and 

denying her request for moving 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 is marital property to be considered 

as part of the marital estate. This decision was rendered 

before the parties filed their briefs on appeal. Unfortunately, 

they did not recognize that Miller must, of necessity, 

require a remand so that the issue of the military pension 

can be determined again. The parties should have petitioned 

this Court to dismiss the appeal without prejudice so that 

the issue could again be redetermined by the trial court. 

What the trial court may 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 $100 per 

month for each child and in not requiring the husband to pay 

the medical 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 support which 

the husband can pay will depend on how the trial court 

treats the military pension. While the issue of medical 

coverage may not depend on the handling of the military 

pension, we will not tie the trial court's hands where the 

property division must be redone. 

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The same is true of the wife's claim that she should 

have been granted maintenance in the amount of $150 per 

month for two years to enable her to receive training as a 

licensed practical nurse. Whether she is entitled to maintenance may 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 

can move 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 (at least 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 

cases may 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 for moving 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 

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we would be compelled to remand again for a determination. 

We also note, however, that the wife did not again ask the 

court to rule on her request after it had failed to do so. 

She should have done this. See Rule 52, M.R.Civ.P. 

The final issue raised by the wife is her claim that 

the trial court should have ordered the husband to pay her 

attorney fees. Although the trial court determined that the 

wife had sufficient assets to pay them herself, these findings 

were not based on the actual financial condition of the 

wife. We will not reach the attorney fee issue here in light 

of our decision that the property must be redistributed to 

reflect the military pension as an asset, but the trial 

court is instructed that if the issue arises again, it must 

set forth the required findings and conclusions as to why 

they were or were not awarded. Kronovich v. Kronovich 

(19781, - Mont. , 588 P.2d 510, 514, 35 St.Rep. 1946, 

1952. 

The judgment is vacated with exception to the decree 

granting dissolution, and this case is remanded to the trial 

- We Concur: 

Justices