No. 88-320 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

IN RE THE MARRIAGE OF: 

JOHN RANDOLPH EKLTJND , 

Petitioner and Respondent, 

and 

JANET DENISE EKLUND, 

Respondent and Appellant 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone 

The Honorable Robert W. Holmstrom, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Janet Denise Eklund, Pro Se, Billings, Montana 

For Respondent: 

J. Andrew Patten; Patt.en Law Firm, Billings, Montana 

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led :, 

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Submitted on Briefs: Jan. 5, 1989 

Decided: February 3, 1989 

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Mr. Chief Justice J. A. Turnage delivered the Opinion of the 

Court. 

Janet Eklund (wife) appears pro se appealing the dissolution decree entered by the Thirteenth Judicial District, 

Yellowstone County, apportioning the marital estate. 

Wife raises three issues on appeal: 

Did the District Court err by: 

(1) denying wife's motion to remove the judge for 

cause; 

(2) setting over $60,000 of the marital estate to 

husband as a traceable gift from his parents; 

(3) failing to compensate her for her contribution to 

the family home. 

We affirm. 

Janet and John Randolf Eklund (husband) lived together 

for three years before marrying in the spring of 1982. They 

were married for four years when husband filed for dissolution in July 1986. One child was born as issue of this 

union. The parties reached a satisfactory custody and support agreement adopted by the District Court which met all 

code provisions and child support guidelines. The equities 

of that agreement were not disputed at trial and are not at. 

issue on appeal. 

On the January 4, 1988, opening day of trial, wife's 

attorney verbally moved for the district judge to remove 

himself for cause based on an off-the-record comment by the 

judge some three weeks earlier that the judge was acquainted 

with husband's parents some thirteen vears earlier. Wife ' s 

motion was denied. We agree. 

To remove a judge for cause, counsel must follow the 

procedure outlined in § 3-1-805, MCA, which provides generally that an affidavit alleging facts showing the judge's 

personal hias or prejudice must he filed thirty days in 
advance of trial. Once this affidavit and its accompanyinq 

certificate of good faith made by the counsel of record are 

filed, the judge shall have no more power to preside over the 

case, and the matter is referred to this Court. llpon that 

referral, the Chief Justice assigns another district iudge to 

hear the disqualification proceeding. 

None of that occurred in this case. Arguahly, wife's 

counsel never could have made the thirty-day deadline in this 

case since the alleged comment evidencing personal bias only 

came out three weeks prior to the scheduled hearing date. 

However, counsel's failure to act immediately upon that and 

failure to file the counsel's certificate of good faith is 

conspicuous. It appears that counsel was either trying to 

stall for time or to make an end run around the outlined 

statutory procedure--neither of which is acceptable. This 

motion was properly denied. 

Wife next contends that it was error to set aside 

$60,000 of the marital estate to husband. The $60,000 was 

equity in the family home. We disagree. 

The home was purchased by husband with funds borrowed 

from his parents, William and Doris Eklund, and evidenced bv 

a promissory note. The note named only the husband as obligor and named both parents as payees. Each year for three 

years the parents gave husband $20,000 in gift money as 

evidenced by forgiveness of debt. Each year, parents wrote 

husband a letter noting that $20,000 of his debt had been 

relieved. The promissory note and letters were received in 

evidence at the dissolution hearing. 

Parents testified at trial that although some of these 

letters were addressed to both husband and wife, their donative intent was only to make a gift to husband. Each parent 

testified that they wanted to make a separate $10,000 gift to 

their son each year as the maximum gift thev could give 
without incurring tax liability, pursuant to the estate 

planning advice they had received. Each parent testified 

making similar gifts to their other children, also pursuant 

to their estate planning. 

The District Court set aside $60,000 of the marital 

estate evidenced by equity in the family home to husband and 

made a finding that it was a traceable gift from his parents. 

The finding is not clearly erroneous. Based on this evidence, we find no abuse of discretion by the trial court. 

Wife next contends that the Court did not adequatelv 

consider her contribution to the family home and compensate 

her for the same. We disagree, although at first blush the 

distribution of the marital estate appears unbalanced. 

Wife received $5,948 of the marital assets and a cash 

award of $6,000, payable in thirty days. Husband received an 

award from the marital estate of $70,335 less the $6,000 cash 

payment to wife. The following calculations were considered 

by the District Court: 

Husband: Wife: 

70,335 net marital estate 5,948 net marital estate 

-60,000 gift from parents +6,000 -- cash award 

10,335 

- 6,000 cash payment to wife 

$4,335 total $11,948 total 

It is well established that divisions of the marital 

estate need only be equitable under the circumstances of each 

case and need not be exactly equal. In re the Marriage of 

Jacobson (1973), 183 Mont. 517, 600 P.2d 1183. 

The District Court took extensive testimony regarding 

the occupation of husband, of wife and of the condition of 

the familv home, which they were jointly improving. Wife 

estimated the value of their home improvements at $10,000 and 
testified that the supplies used in the improvements were 

purchased with joint funds. 

However, on cross-examination, wife admitted that this 

estimate was speculation because she did not purchase any of 

the materials, was not aware of their price, and had no 

background in real estate or appraisals. Husband testified 

that wife did one-third of the actual labor and estimated the 

value of their labor at far less than the wife. 

We do not find this distribution to be inequitable in 

this case, when any alternative award for contribution to the 

home would be purely speculative. It is evident from the 

court's findings of fact that the trial judge considered the 

wife's labors in the home improvement when he distributed 

assets of $5,948 to her and a cash award of $6,000. The 

court made specific findings as to wife's contribution in 

Finding VII where the court noted the improvements to the 

home and made a finding that wife's contribution to the 

project was twenty hours of labor. This contribution has 

been compensated. Wife fails to convince us that it was 

error by the trial court not to award her $10,000 for her 

contribution to the home improvements. 

Wife had a heavy burden on this appeal. She needed to 

show that the findings of the judge were clearly erroneous as 

to each issued raised, and thus an abuse of the judge's 

discretion based on the evidence of this case. In re the 

Marriage of Stewart (Mont. 1988), 757 P.2d 765, 45 St.Rep. 

850. Wife did not carry that burden, demonstrated by the 

foregoing evidence. 

Judgment affirmed. A/ 
We concur: