No. 13516 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1978 

BEVERLY KING DAHL, 

Plaintiff and Appellant, 

-vsROGER A. DAHL, 

Defendant and Respondent. 

Appeal from: District Court of the Eighth Judicial District, 

Honorable R. D. McPhillips, Judge presiding. 

Counsel of Record: 

For Appellant: 

Dola N. Wilson, Jr. argued, Great Falls, Montana 

For Respondent: 

John M. McCarvel argued, Great Falls, Montana 

Submitted: January 27,1978 

Submitted: L,! , 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

This is an appeal by plaintiff Beverly King Dahl from 

a decree adjudicating property rights, child custody and support, 

and attorney fees following a divorce in the District Court, 

Cascade County. 

Beverly King Dahl (wife) and Roger A. Dahl (husband) were 

married on September 16, 1956 in Great Falls, Montana. Five 

children were born as issue of the marriage whose ages at the 

time of the decree herein appealed were: Lita, aye 18 and 

emancipated; Ronald, age 16; Denise, age 14; Michelle, age 12; 

and Jason, age 6. 

The wife filed a divorce complaint on March 13, 1974. A 

decree of divorce was granted on November 8, 1974. The divorce 

decree contained no provisions for child custody, support, adjudication of property rights, or attorney fees. This decree of 

divorce is not contested in this appeal. 

At the time of the divorce, the principal marital property 

of the parties was a business known as Dahl's Wrecker Service 

(land, buildings, vehicles, equipment and miscellaneous personal 

property) and a residence (land, building, furnishings, household 

appliances and miscellaneous personal property). During the 

course of proceedings two Cadillac automobiles became involved. 

The assets of the business, the residence, and the Cadillacs 

were substantially encumbered. 

Following the divorce decree, pretrial discovery was instituted, numerous hearings were held, and various proceedings 

transpired with reference to child custody, support, property 

rights and attorney fees, some of which occurred in the conciliation court and some in the District Court. These proceedings 

culminated in the entry in District Court of findings of fact, 

conclusions of law and a decree dated July 1, 1976. 
this decree the wife was awarded custody of the four 

minor children subject to specified custody and visitation rights 

of the husband. The wife was awarded $100 per month per child, 

plus medical expenses as child support. Each party was ordered 

to pay his or her own attorney fees. 

The wife was awarded a 1974 Cadillac free and clear of 

liens and encumbrances. She was awarded the residence and required to pay the monthly mortgage payments and taxes subject to 

two conditions: (1) that her father (to whom she had deeded her 

half interest in the Dahl Wrecker Service garage during the pendency of proceedings) deed to her husband this half interest, 

(2) that she and the children live in the residence. The decree 

provided that in the event she and the children failed to reside 

in the residence, it would be sold and the net proceeds divided 

equally between husband and wife. She was also awarded the household furniture, furnishings, utensils and appliances. 

The husband was awarded a 1975 Cadillac and required to 

assume the indebtedness against it. He was also awarded all the 

personal property (trucks, tools, etc.) used in connection with 

Dahl's Wrecker Service and a half interest in the garage building 

and was required to assume all indebtedness against it. The 

decree provided that the husband receive a one-half interest in 

the residence which he was required to deed back to the wife 

when her father deeded to him the half interest in the Dahl Wrecker 

Service garage, which her father had acquired during the pendency 

of the action. 

Each party was granted the right to make payments due on 

real estate received by the other to prevent foreclosure and was 

to receive credit thereon. 

The wife has appealed from this decree. The issues for 

review in this appeal can be stated in terms of whether the 
District Court erred in the following respects: 

(1) In cancelling past unpaid child support payments. 

(2) In failing to compel discovery. 

(3) In refusing to award the wife reasonable attorney 

fees. 

(4) In failing to find the husband in contempt of court. 

(5) In its property division. 

On April 25, 1974, the District Court ozdered the husband 

to pay $500 per month child support commencing on that date. 

Although the testimony and evidence discloses a dispute concerning the amount of the delinquency, there is little question that 

some amount is due, owing and unpaid. The District Court recognized this in its finding of fact VII: 

"Prior to the September, 1975 hearing defendant 

had been paying child support and there is a 

dispute just how much he may be delinquent. 

Plaintiff failed to prove by a preponderance of 

the evidence how much might be delinquent. Since 

the divorce plaintiff has had the sole and exclusive use of the house jointly owned by the 

parties and the sole use thereof offsets any 

delinquent child support payments." 

This finding is error. A divorce decree cannot be modified to cancel past due and unpaid child support. Section 48- 

330(1), R.C.M. 1947; Porter v. Porter, (1970), 155 Mont. 451, 473 

P.2d 538; Kelly v. Kelly, (1945), 117 Mont. 239, 157 P.2d 780. 

The April 25, 1974 order awarded both $500 per month child support 

- and exclusive use of the residence to the wife and children. Thus 

there is no basis for offsetting the use of the residence against 

delinquent support payments. Since the payment records of the 

clerk of court and attorney's checks clearly labelled as child 

support are set out as appendices to the briefs, it should not 

be difficult to determine the amount of the delinquency after 

their introduction in evidence and proper hearing. We set aside 

finding of fact VII and remand for a new trial on this issue. 

Next, the wife argues that error was committed by the 
trial court in refusing to compel discovery. Although it is 

somewhat difficult to follow the wife's argument here, apparently 

it is based on the husband's failure to produce certain records 

in response to a subpoena duces tecum at a hearing on January 

15, 1975. Although the husband did not produce the records at 

that time on advice of counsel, no further action to compel their 

production was taken by counsel for the wife. Under such circumstances, the alleged error is waived. 

The next issue for review is the refusal of the District 

Court to award the wife a reasonable attorney's fee for the services 

of her attorney. There is no indication in the findings, conclusions or decree why attorney fees were not awarded. We remand 

for a finding in this regard. 

We find no error in the District Court's refusal to hold 

the husband in contempt of court. We simply find no basis in the 

record for holding him in contempt. 

The final issue for review is the principal battleground 

in this appeal. It is impossible to determine from the record 

before us whether a just and equitable division of the marital 

property was made or not. The basic difficulty is simply that 

there is no competent evidence of value of one of the principal 

items of marital property, i.e., Dahlvs Wrecking Service and 

property used in connection therewith. 

The District Court in its findings rejected the appraisal 

of the business by the wife's appraiser as beyond the area of his 

expertise. The District Court relied instead on an accountant's 

appraisal which it found "not necessarily correct as of the date 

hereof" in regard to personal property used in the business. Although the stipulation of counsel for both parties and the ~istrict 

Court's order of September 26, 1974 required that specified 

financial records of the parties be turned over to a certified 

accountant approved by the court who was required to prepare 
certified financial statements, this was never done. The accounts 

were not audited and only assets and liabilities submitted to 

him were covered by the report. The financial statement was not 

certified. Valuations contained therein were prepared on the 

basis of the parties' 1973 Federal income tax returns and from 

information supplied for purchases and sales of assets in the 

eight months ending August 31, 1974. The accountant's statement 

was dated October 31, 1974 while the District Court's findings, 

conclusions and decree were entered July 1, 1976. The whole 

document was prepared for the husband on the basis of information 

furnished by him. 

Under such circumstances we vacate the District Court's 

property division and remand for a new trial for lack of competent 

evidence supporting the same. 

This cause is remanded to the District Court for further 

proceedings consistent with this opinion. 

Chief Justice 

We concur: 

Justices fl 

Mr. Justice John C. Sheehy did not participate in this case.