No. 12871 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1975 

BERTIE TURVILLE, 

Plaintiff and Respondent, 

-vs - 

DAVID TURVILLE, 

Defendant and Appellant. 

Appeal from: District Court of the Ninth Judicial District, 

Honorable R. D. McPhillips, Judge presiding. 

Counsel of Record: 

For Appellant: 

Dzivi, Conklin, Johnson and Nybo, Great Falls, 

Montana 

L. D. Nybo argued, Great Falls, Montana 

For Respondent: 

Charles M. Joslyn argued, Choteau, Montana 

Submitted: March 3, 1975 

Decided : -hPf? - 1. '! 9-?s 

r- \ r ) , c.: Filed: .. ; .3575 
Mr.. Justice John Conway Harrison delivered the Opinion of the 

Court . 

This is an appeal from a divorce action initiated in 

the district court, Teton County. The sole issue on appeal is 

whether the district court abused its discretion in ordering 

the sale of a farm jointly owned by the parties in order to 

compensate the wife for her interest in the property. 

The parties to this action, David Turville and Bertie 

Turville were married on August 20, 1956. Four children were 

born of this marriage. Their ages at the time the complaint 

was filed were: Daniel, age 17; Walter, age 16; Laura, age 15; 

and Earla, age 13. 

The farm in question consists of 320 acres and is located 

near Fairfield, Montana. It was originally purchased by David 

and his brother in 1954 for $37,000. However, subsequent to the 

marriage the brother's interest was purchased by the parties. 

In 1972, the entire farm was refinanced and placed jointly in 

the names of the parties, pursuant to the terms of the financing 

agreement. 

The record discloses that during the years 1957 through 

1971, a period of 15 years, the farm produced a total net income 

of only $19,171.18. In 1972, the farm sustained a net loss of 

$8,349.09. To support a growing family during these lean years, 

the wife, Bertie, was compelled to seek outside employment in 

addition to assisting David in the operation of the farm. All 

of Eertiets off-farm income was contributed to a joint checking 

account which helped defray the family's living expenses. The 

record discloses Bertie contributed the sum of $42,402.35 during 

the years of 1957-1972. During those same years, David's main 

occupation was the operation of the farm. His efforts to secure 

outside employment were largely futile because of a hearing deficiency of at least 50%. 

In January 1973, Bertie filed for a divorce and petitioned 
the court for custody of the children; $50 per month as child 

support for each child in addition to future medical and dental 

expenses of each child; and, attorney fees. She also petitioned 

to have a settlement of her rights in the farm. David's answer 

alleged, inter alia, that it would be inequitable to order a 

physical division of the farm or to direct that it be sold because he was unable to pursue any other occupation except farming. 

On May 11, 1973, this action was tried and-on September 

12, 1973, the district court entered a decree which dissolved 

the marriage; granted custody of the children to Bertie, and, 

ordered David to pay $50 per month per child as child support, 

in addition to the future medical and dental expenses of the 

children. The district court also ordered the farm to be equally 

divided between the parties. 

On October 19, 1973, David filed a motion for a new 

trial, or in the alternative, to amend the findings and conclusions of the court. On January 11, 1973, the district court 

granted a new trial upon the issue of the respective property 

rights only. After additional testimony was heard, the court 

entered an order mandating that the farm and the personal property used in connection with the farming operation be placed upon the market and sold. The proceeds from the sale were to be 

equally divided between the parties after payment of the expenses 

of sale, encumbrances against the property and the debts of the 

marriage existing as of the date of the divorce. David's child 

support obligation was reduced from $50 to $40 per month for 

each child. 

It is from this order directing the farm to be sold that 

David appeals. 

In Cook v. Cook, 159 Mont. 98, 104, 495 P.2d 591, Montana 

has recognized the principle that in equitably dividing the property 
of the parties to a divorce action: 

"Each case must be looked at by the trial court 

individually with an eye to its unique circumstances. " 

Consequently, the district court is clothed with discretion 

in settling the respective property rights of the parties. 

In Porter v. Porter, 155 Mont. 451, 457, 473 P.2d 538, this Court 

recognized this discretion and stated: 

"This Court is well aware of its role when asked 

to look into matters of abuse of discretion of 

the trial court and we have noted the number of 

cases and other citations given us by the parties. 

We feel an approved composite position simply 

stated would be: a reviewing court is never 

justified in substituting its discretion for that 

of the trial court. In determining whether the 

trial court abused its discretion, the question 

is not whether the reviewing court agrees with the 

trial court, but rather, did the trial court in 

the exercise of its discretion act arbitrarily 

without the employment of conscientious judgment 

or exceed the bounds of reason, in view of all 

the circumstances, ignoring recosnized principles 

resulting in substantial injustice." 

We decline to substitute our discretion for that of the 

district caurt. Considering the factual situation in the instant 

case, the action of the district court was reasonable and realistic, especially when these additional facts are shown: 

1. The real property taxes on the farm were delinquent 

for the second half of 1972 and for the entire year of 1973. 

2. The annual payment on the mortgage for the year 1974 

was unpaid and was approximately 3 months delinquent as of the 

date of the second trial. 

3. The parties' current debts were quite substantial in 

view of the earning capacity of the farm. 

4. Bertie's testimony indicated that David tended to 

procrastinate in signing up for government programs which would 

benefit the farm and that he was incapable of maintaining the farm 

by himself. 

When the district court was confronted with the preceding 
facts, it found that the entire investment of the parties was 

in serious jeopardy and there was a distinct possibility that 

both parties could lose everything, if positive action was not 

taken. Certainly, the court's action cannot be labeled as 

"Arbitrary" or "exceeding the bounds of reason" as contemplated 

by Porter. 

In Latus v. Latus, 163 Mont. 315, 517 P.2d 356, 30 St. 

Rep. 1121, a divorce action, the district court ordered the husband to either sell the parties' jointly owned house and give 

the wife one-half of the proceeds or to pay the wife $10,000 

as her interest in the house. This Court affirmed this exercise 

of discretion. 

In essence, the same situation exists in the instant 

case. David has been ordered to sell the farm. However, the 

district court, in its conclusion of law IV provided him with this 

option : 

"Should either of the parties choose to purchase the property, either party shall have the 

option to meet any and all bids and terms of the 

sale, but the party must exceed either of the 

other party's bid * * *." 

Finding no abuse of discretion, the judgment of the district court is affirmed. 

Justice 

We concur: 

'I 

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