No. 12871 

### INTHE SUPREME COURT OF THE STATE OF MONTANA 1975

BERTIE TURVILLE, Plaintiff and Respondent,


### -vs

# - DAVID TURVILLE, Defendant and Appellant.
Appeal from: District Court of theNinth 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:

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## .3575 Filed:

..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 inordering the sale of a farm jointly owned by the parties in order to compensate the wife for her interest inthe property. The parties tothis action, David Turville and Bertie Turville were married on August 20, 1956. Four children were born of thismarriage. Their ages atthe 

### time the complaint
was filed were: Daniel, age 17; Walter, age 16; Laura, age 15; and Earla, age 13. The farm inquestion 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 tothe 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 termsof the financing agreement. The record discloses that during the years 1957 through 1971, a period of 15years, 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 inthe operation of the farm. All of Eertietsoff-farm income was contributed toa joint checking account which helped defray the family's living expenses. The record discloses Bertiecontributed 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 futilebecause of a hearing deficiency of atleast 50%. In January 1973, Bertie filed for a divorce and petitionedthe court for custody of the children; $50 per month aschild support for each child inaddition tofuturemedical and dental expenses of each child; and, attorney fees. She alsopetitioned tohave a settlement of her rights inthe farm. David's answer alleged, inter alia, that it would be inequitable toorder a physical division of the farm or todirect that it be sold because he was unable topursue any other occupation except farming. On May 11, 1973, this action was tried and-onSeptember 12, 1973, the districtcourt entered a decree which dissolved themarriage; granted custody of the children toBertie, and, ordered David topay $50 per month per child as child support, inaddition tothe futuremedical and dental expenses of the children. The district court alsoordered the farm tobe 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 districtcourt granted a new trialupon 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 propertyused inconnection with the farming operation be placed upon the market and sold. The proceeds from the 

### sale were tobe equally divided between the parties after payment of the expenses of sale, encumbrances against the property and the debts of the marriage existing asof the dateof the divorce. David's child support obligation was reduced from $50 to $40 per month for each child. It is from thisorder directing the farm tobe sold that David appeals. In Cook v. Cook, 159Mont. 98, 104, 495 P.2d 591, Montana has recognized the principle that inequitably dividing the propertyof the parties toa divorce action: "Each case must be looked atby the trialcourt individually with an eye to itsunique circumstances.

### " Consequently, the district court is clothed with discretion in settlingthe respective property rights of the parties. In Porter v. Porter, 155Mont. 451, 457, 473 P.2d 538, thisCourt recognized this discretion and stated: "This Court is 

### well aware of its role when asked tolook intomatters 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 statedwould be: a reviewing court is never justified in substituting 

### itsdiscretion for that of the trialcourt. In determining whether the trialcourt abused itsdiscretion, the question 

### is not whether the reviewing court agrees with the trialcourt, but rather, did the trialcourt in the exercise of itsdiscretion act arbitrarily without the employment of conscientiousjudgment or exceed the bounds of reason, inview 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, especiallywhen 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 3months delinquent asof 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 courtwas confronted with the precedingfacts, it found that the entire investment of the parties was in serious jeopardy and there was a distinctpossibility 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" ascontemplated by Porter. InLatus v. Latus, 163Mont. 315, 517 P.2d 356, 30 St. Rep. 1121, 

### a divorce action, the district court ordered the husband toeither sell the parties' jointly owned house and give the wife one-half of the proceeds or topay the wife $10,000
asher 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 sellthe farm. However, the district court, in its conclusion of law IVprovided him with this option: "Should either of the parties choose topurchase the property, either party shallhave the option tomeet any and allbids and terms of the sale, but the party must exceed either of the other party's bid 

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## *." Finding no abuse of discretion, thejudgment of the districtcourt 

### isaffirmed.

Justice We concur:

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