### No. 

### 13200 IN

### THE SUPREME COUKT 

### OF THE STATE OF MONTANA 

### 1976



### LINDA J. 

### LaPTANT, Plaintiff 

### and Respondent,

-VS

# - DOLVALI) 

### L

# .LaPLANT, Defendant and Appellant.

Appeal from: 

### District Court of the Eighteenth Judicial District, Honorable

### W. W. Lessley, Judge presiding. Counsel of Record

### : For Appellant

### : McKinley Anderson argued, Bozeman, Montana For ~espondent: Hartelius and Lewin, Great Falls, Montana Alan Jay Lerner argued, Great Falls, Montana

Submitted: April 19, 1976 Decided

### :-

## <SUN2 Filed:

## -Jt! 2Honorable Arnold Olsen, District Judge, sitting in place of Mr. Chief Justice James T. Harrison, delivered the Opinion of the Court. Plaintiff Linda J. LaPlant filed an action for divorce against defendant Donald L. LaPlant. The district court dissolved the bonds of matrimony between the parties. The district court also decreed plaintiff had made monetary and other contributions to the marriage and helped toacquire the real and personal propertyowned by the parties. The district court decreed toplaintiff some personal property, including the mobile home of the parties and ten acres of real property upon which the mobile home was situated. From the decree, defendant Donald L. LaPlant appeals only as to that portion of the decree awarding plaintiff the real property. Defendant alleges the court abused 

### its discretion in awarding one fourthof defendant's real property acquired by him before themarriage toplaintiff. Further, he challenges that the decree does not provide a sufficient description of the property required tobe conveyed by plaintiff todefendant and does not provide as tohow the parties shallpro rate the payments of indebtedness against the real property, and the decree is therefore so indefinite astobe void. We look to the findings of fact and conclusions of 

### law of the district court. It is clear the court did find that "while living with the plaintiff, but prior totheirmarriage the husband purchased inhis own name certain real property consisting of forty acres, more or less, located in Gallatin County, Montana.

### " Further the court found plaintiff and defendant were living together ashusband and wife during the years of 1970 and 1971 inAlaska. That immediately following their marriage in 1971, plaintiff and defendant setup a joint account out of which allhousehold billswere paid, and duringthe years 1972, 1973, and 1974, plaintiff earned a total of $6,513 which was deposited into the parties' joint account and used for the payment of various household bills. Further, the court found plaintiff had an income before their marriage and while living together inAlaska, her income was used for the payment of the domestic bills accrued by the parties there. The parties made joint tax returns and received tax refunds jointly.The findings of fact and conclusions of law of the district court areupheld by a reading of the transcript. In Libra v. Libra, 157 Mont. 252, 258, 484 P.2d 748, this Court held: 

### " 

## * * * a districtcourt in a divorce action has equitable powers to adjust property interests of the parties, and in so doing 

### we affirm Johnson and overrule Emery on this point. 

## * * *" Since Libra, this Court has repeatedly confirmed the power of the district court indealing with adjustment of propertyrights between the parties in a divorce action. In Cook v. Cook, 159 Mont. 98, 102, 495 P.2d 591, this Court stated: "Libra and Hodsson should have laid to rest the

d ---- - - - - husband's argument on appeal here. It has already been atleast 

### twicedecided inthis State that the trialcourtmay make an equitable division of the litigants' property ina divorce actionregardless of the stateof 

### title to that property and regardless of actual financial contribution." Emphasis added.) Counsel for defendant seems tocontend there 

### is some requirement that the property of the divorced parties must have been acquired jointly, failing that, the court has no jurisdiction or 

### ispowerless to divide the property between the litigants. The rule is best stated in Hunnewell v. Hunnewell, 160 Mont. 125, 129, 500 P.2d 1198: "It

### is a well established principle of 

### lawin this statethat indetermining 

### a property 

### settlement pursuant tothe granting of a divorce, thecourt 

### willconsider the contributions made by the parties inacquiring the property in question." From the record, it would appear plaintiff and defendant sustained a common law marriage atthe time defendant first incurred the obligation for the land atissue here. Indeed, the district court found that plaintiff and defendant lived together during the years 1970 and 1971as husband and wife inAlaska. The property involved was acquired during themarriage. Plaintiff contributed to the acquisition of the land by wages deposited in the joint account and inher efforts in taking care of the real estatewhen defendant was inAlaska to earn the money which was used topay for the land. Clearly, the district court did not abuse 

### its discretion inawarding only one fourth of the real estateand 

### a small portion of the personal property toplaintiff. This award was not out of proportion toher contribution inmoney and labor to the property acquired by the efforts of the marriage. In Johnson v. Johnson, 137 Mont. 11, 17, 349 P.2d 310, this Court stated: 

### " 

## * * * (t)hebetter reasoned cases support the view stated in 27B C.J.S., Divorce, section 294(3), page 280, as follows: "'In some jurisdictions the court granting divorce may divide or adjust rights inproperty accumulated by the joint efforts of the spouses. Property acquired jointly during themarriage may be divided whether the titlethereto 

### is ineither or both of the parties.' "And, equal division under normal conditions of property accumulated through joint efforts 

### isnot regarded as unreasonable. 27B C.J.S., Divorce, section 295(5),page 304, et seq." (Emphasis added.) The findings of fact and judgment do not describe the real property by metes and bounds. However, the ten acres granted plaintiff by the court are those ten acres upon which

### the Nashua mobile home is 

### located. There is 

### nothing inthe law that requires a metes and bounds description of land in the decree. Certainly no other ten acres would fitthe description. In Kottas v. Kottas, 164 Mont. 30, 32, 518 P.2d 1404, this Court held thedistrictcourt had jurisdiction toclarify the decree of divorce and tomake it 

### read what the court intended judgment tobe: "We base our holding on the distinction between actualmodification of a judgment and clarification or interpretation of a judgment. This Court inState ex rel. Kruletz v. District 

### Court, 110Mont. 36, 41, 

### 98 P.2d 883, 885, said: "'The 

### test is

### whether on the one hand the change 

### willmake therecord speak the truth as towhat was actuallydetermined or done or intended to be determined or done by 

### the court, or whether on the other hand, it 

### willalter such action or intended action.' 

# "h%& instantcasedoes not present such a clear cut case of scrivner's error, or inadvertent ommission; nevertheless, we think the problem is

### of such a nature that the court rendering the decree should take jurisdiction toresolve the issue. Such a resolution

### willnot change the rights of the parties as 

### set forth inthe original decree, rather it 

### willbe a further declaration and amplification of what 

### was originally held. "In 27B 

### C.J.S., Divorce, § 

### 300(4a), it is 

### said: "'The interpretation or clarification of an ambiguous judgment does not involve amendment thereof, so that even though power tomodify is 

### lacking, a court may 

### construe and clarify a decree disposing 

### of property, or enforce it.' 

### "That application is 

### exactlywhat is

### called for in the instant case." (Emphasis added.) In the instant case the districtcourt obviously, from the findingsof fact and conclusions of law, 

### knew the ten acres 

### granted plaintiff was that ten acres upon which themobile home is

### located. In this instance, theparties should request the district court to supervise the direction tothe parties toobtain a 

### metes

### and bounds description by survey of the property conveyed. The judgment of the district court refused toburden plaintiff with 

### a portion of the debt against the land. Consequently, the entireremaining debt remains with the defendant who received seventy-five percent of the real estate. Again, it 

### isobvious the districtcourt did not abuse its discretion, such an adjustment isnot unreasonable. The judgment and decree of the districtcourt is affirmed, with directions to specifically require a mete.s and bounds description ina deed conveying the real property herein from defendant toplaintiff. 

# /

Hon. Arnold Olsen, District

### Judge, sitting inplace of Mr. 

### Chief Justice James T. 

### Harrison. We

### concur:

Justices