No. 13516 IN THE SUPREME COURT OF THE STATE OF MONTANA 1978

BEVERLY KING DAHL, Plaintiffand Appellant,

-vsROGER A. DAHL, Defendantand Respondent.

Appeal from: District Court of the Eighth Judicial District, Honorable R. D. McPhillips, Judgepresiding. Counsel of Record: ForAppellant: Dola N. Wilson, Jr. argued, Great Falls,Montana For Respondent: JohnM. 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 adjudicatingproperty rights, child custody and support, and attorney fees following a divorce in the District Court, Cascade County. Beverly King Dahl (wife) and RogerA. Dahl (husband)were married on September 16, 1956 in Great Falls,Montana. Five childrenwere 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 divorcewas granted on November 8, 1974. The divorce decree containedno 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 principalmarital property of the partieswas a business known as Dahl'sWrecker 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 substantiallyencumbered. Following the divorce decree,pretrial discovery was instituted,numerous hearingswere held, and various proceedings transpiredwith 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 $100per 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 1974Cadillac free and clear of liens and encumbrances. Shewas awarded the residence and required to pay the monthly mortgage payments and taxes subject to two conditions: (1)that her father (towhom 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, itwould 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 connectionwith Dahl's Wrecker Service and a half interest in the garage building and was required to assume all indebtedness against it. The decreeprovided that the husband receive a one-half interest in the residence which he was required to deed back to the wife when her fatherdeeded to him the half interest in the DahlWrecker Service garage,which her father had acquired during the pendency of the action. Each party was granted the right tomake payments due on real estate received by the other to prevent foreclosure and was to receive credit thereon. Thewife has appealed from this decree. The issues for review in this appeal canbe stated in terms ofwhether theDistrict Court erred in the following respects: (1) In cancellingpast unpaid child supportpayments. (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. OnApril 25, 1974,the District Court ozdered the husband to pay $500per 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 factVII: "Priorto the September, 1975hearing 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 howmuch 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 supportpayments." This finding is error. A divorcedecree cannotbe modified to cancelpast due and unpaid child support. Section 48- 330(1), R.C.M. 1947; Porter

### v. Porter, (1970), 155Mont. 451, 473 P.2d 538; Kelly v. Kelly, (1945), 117Mont. 239, 157 P.2d 780. TheApril 25, 1974 order awarded both $500per 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 supportpayments. 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 thetrial 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 notproduce the records at that time on advice of counsel,no further action to compel their productionwas taken by counsel for thewife. Under such circumstances, the alleged error iswaived. 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 feeswere not awarded. We remand for a finding in this regard. We find no error in the DistrictCourt'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 wasmade or not. The basic difficulty is simply that there isno 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 DistrictCourt in its findingsrejected 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 appraisalwhich it found "notnecessarily correct as of the date hereof" in regard to personal property used in the business. Although the stipulationof 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 courtwho was required to preparecertified financial statements,thiswas never done. The accounts

were not audited and only assets and liabilities submitted to him were covered by the report. The financial statementwas not certified. Valuations contained thereinwere prepared on the basis of the parties' 1973 Federal income tax returns and from information supplied forpurchases and sales of assets in the eight months ending August 31, 1974. The accountant's statement

was dated October 31, 1974while the DistrictCourt's findings, conclusions and decree were entered July 1, 1976. The whole documentwas prepared for the husband on the basis of information furnishedby him. Under such circumstanceswe 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 consistentwith this opinion.

Chief Justice We concur:

Justices 

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