No. 14532 

### INTHE 

### SUPHEME COURT OF

### THE STATE OF MXTANA 1979



### INRE THE MARRIAGE OF 

### IRENE LA. GREEN, Petitionerand Respondent,

Respondent andAppellant.

Appeal fm: DistrictCourt of theFourthJudicialDistrict, Homrable 

### Edward Dussault, Judge presiding. Counsel of Record: For Appellant: Balyeat 

### and Kamwrer, Missoula, Pbntana John Balyeat argued, Missoula, Pbntana For Respondent: Tipp, 

### Haven and Skjelset, Missoula, Pbntana Thamas Frizzell argued, Missoula, Mxkana

Sutnnitted: March 15, 1979

n- %, A =ided: 

## ;".F ': 1 3.7

-% . ..- Filed: - 

### -.

. - 

### ;?:$Mr. 

### Justice John Conway Harrison delivered the Opinion of the Court.

Dr. 

### Norman Green appeals from the findings of factand conclusions of law entered by the District Court of the Fourth Judicial District, Missoula County, the Honorable Edward T. 

### Dussault presiding, relating to the division of the parties' assets inconjunction with their dissolution of marriage. The court, sittingwithout a jury, heard the matter on two nonsuccessive days. On the first, February 7, 1978, a decree of dissolution 

### was entered pursuant to stipulation of the parties; theApril 11, 

### 1978, hearing was 

### confined toquestions of theproperty settlement. The court's findings and conclusions 

### were filed June 23, 1978. Appellant presents twelve issues for review, many of which are 

### repetitive. Distilled to their essence, they center on the following: 1. 

### Did the DistrictCourt equitably apportion the 

### assets of theparties asrequired by section 48-321, R.C.M. 

### 1947, now section 40-4-202 MCA, 

### of Montana's Uniform Mar

### riage and Divorce Act? 2. 

### Were 

### the findings and conclusions properly made and based on substantial credible evidence? 3. 

### Did the court err inawarding Irene Green maintenance and attorney fees? 4. 

### Did the District

### Court 

### err inadmitting respondent's Exhibit No. 4, 

### substantiallyprejudicing appellant thereby? The parties were married December 5, 

### 1969, atwhich time

### respondent Irene Green was a 

### cook at

### a truck stop and appellant

### was, as now, a physician. Both had been married previously, and each had minor children. Each, too, had

### assets: respondent had the 

### seller's interestina contract for deed on real estatenear Lolo, Montana; appellanthad $5000 ina Keough retirement plan, owned an airplane, and owned a building used asa medical clinic inShaunavon, Saskatchewan, Canada, the substantial loans forwhich 

### were paid off during themarriage. At

### the time

### of their separation, the District 

### Court found that the parties owned the following: the 

### seller's interestinthe contract on the Lolo property, the airplane, the clinic, a house on ten 

### acres on Miller

### Creek inMissoula, and an interest inthe Riverside Bar 

### inHamilton. In addition, Dr. 

### Green had $17,500 inthe Keough retirement plan. The parties alsohad various personal property, which appellant acknowledges was divided evenly. In addition, the parties had debts and liabilities totaling some $127,000. The District Court divided the property as 

### follows: to Mrs. 

### Green, the seller's interest inthe contract for deed

on the Lolo property and the half interest inthe Hamilton bar, where she works; to Dr. 

### Green, everything else. It 

### appears that each received property best suited to that individual. Mrs. 

### Green makes her living from the bar--it makes

sense that she receive the parties' interestin that property. She had acquired the Lolo property contract for deed from her former husband inlieu of monthly support payments for her two children by thatprior marriage--it makes sense that she receive that, also. Dr. 

### Green is 

### the only one of the pair who has a pilot's license; hence, thathe should get the plane is

### reasonable. He 

### is 

### a physician, who came into themarriage with an interest inthemedical clinic; it 

### is 

### reasonable that he keep

### thatproperty and the attendant share of the income from it. 

### ~ikewise, it 

### iseconomically sensible that he keep his Keough retirement plan. Mrs. 

### Green moved out of the Miller

### Creek house atthe time

### of separation. Dr. 

### Green continued to live inthe home after the separation. It 

### appears reasonable that Dr. 

### Green should be awarded allof the proceeds from the sale of the home. At

### the 

### timeof the separation, the home was worth at least 

### $82,000. Appellant had toprovide $43,000 toretire the debt owing on the half interest inthe Riverside Bar, the $4000 for eightmonths of maintenance and, perhaps, as

### willbe discussed later, $1500 forcosts and attorney fees. That he assume certain of the debts does not appear inequitable. For example, a sizeable loan had been taken out inMrs. 

### Green's

name topay Dr. 

### Green's arrearages in support owed his wife and offspring from a prior marriage; that he should assume responsibility for thatdoes not appear inequitable and unreasonable. Unclear from the record is 

### the why and the wherefore of some of the loans. We 

### cannot speculate about them, but absent compelling explanations to the contrary, it 

### does not appear inequitable that Dr. 

### Green, the party earning approximately $6000 per month, asopposed toMrs. 

### Green, who earns well

### under $1000 per month, is 

### todischarge the obligations. The situation is

### not, asappellant suggests, one of leaving him "with some furniture and an old car," while the wife is 

### "sitting on the side laughing." Given the nature of the property tobe distributed and with due consideration of the 

### itemselaborated insection 48-321, R.C.M. 

### 1947, now section 40-4-202 MCA, 

### it 

### appears that the distributionmadeby the 

### ~istrict Court indeed was equitable. It 

### is well settled that 

### "[t] he apportionment made by the 

### District Court 

### willnot be disturbed on review unless there has been 

### a clear abuse of discretion asmanifested by a substantially inequitable division of the marital 

### assets resulting in substantial injustice." In

### re Marriage of Brown (1978), Mont. 587 P.2d 361, 364, 35 St.Rep. 1733, citing inter 

### alia, In

### re Marriage of Blair (1978), Mont. 

## , 583 P.2d 403, 405, 35 St.Rep. 1256, and Eschenburg v. Eschenburg (1976), 171Mont. 247, 557 P.2d 1014, 1016, 33 St.Rep. 1198.In the instant 

### case, no clear abuse of discretion 

### is manifest; there has been no substantially inequitable division of the marital 

### assets resulting in substantial injustice to either party. The District Court 

### is affirmed 

### as to the division of the parties' property. Considering the second issue, after reviewing the transcript of proceedings, 

### we find that the findings and conclusions 

### are based on substantial credible evidence. It 

### is true that some of the findings of fact 

### are more properly conclusions of 

### lawand vice versa, but a mislabeling such as has occurred here 

### willnot form the basis for repudiating the determinations of the 

### District Court. Appellant has suffered no substantial injustice as a result

### of the

### mislabeling. Such error 

### isharmless and may not be used to defeat the judgment. The DistrictCourt 

### willnot be reversed for harmless error, e.g., Halko v. Anderson (1939), 108Mont. 588, 593, 93 P.2d 956, 959, and the cause

### willnot be remanded in those cases wherein the eventual resultmust be the same. Green v. Green (1978), 

## -Mont. 

## - , 579 P.2d 1235, 1237, 35 St-Rep. 800.The third issue concerns the award of maintenance and attorney fees toMrs. Green. A court may grantmaintenance for either spouse only if 

### it finds that the spouse seeking maintenance meets two conditions: (1)he or she lacks sufficient property toprovide forhis orher reasonable needs; and, (2) 

### isunable to support himself orherself through appropriate employment 

### - or 

### is the custodian of a childwhose condition or circumstances make 

### it appropriate that the custodial parent not be required to seek employment outside the home. Section 48-322 (1) (a)

## , (b)

## , R.C.M. 1947,

now section 40-4-203 

### (1) (a)

## , (b) MCA. Furthermore, inmaking the award, the court 

### isprohibited from considering any 

### marital misconduct of the parties, but must consider the following: "the financial resources of the party seeking maintenance, includingmarital property apportioned to him, and his ability tomeet his needs independently, including the extent towhich a provision for support of a child livingwith the party includes a 

### sum for thatparty as custodian; "the time necessary toacquire sufficient education or training toenable theparty seeking maintenance to find appropriate employment; "the standard of living established during the

### marriage; "theduration of the marriage; "the age, and the physical and emotional condition of the spouse seeking maintenance; and "the abilityof the spouse from whom maintenance 

### is sought to

### meethis needs while meeting those of the spouse seekingmaintenance.

## " Section 48-322 

### (2)(a) 

## - (f)

## , R.C.M. 1947, now section 40-4-203 (2)

### (a) 

## -(f)MCA. In this case, the DistrictCourt 

### twice refers to the maintenance award: "18. The Respondent should pay and the Petitioner 

### is awarded the sum of $500.00 per month for the care and support of Petitioner beginning June 

### 1, 1977, and through the month of January 1978 for 

### a total 

### sum of $4,000.00.""3. That Petitioner with no formal education past high school, having no work experience during the marriage of note, suffering from a progressive disabling disease of ulcerative colitus as diagnosed by Respondent, and unable tohold gainful employment greater than several shiftsper week as a bartender and shall experience a low and reducing rate of personal income hereafter." Based on the 

### latter, a finding mislabeled 

### a conclusion, the District Court had ample foundation formaking the short 

### termmaintenance award and did so in sufficient compliance with statutorymandate. Section 48-327, R.C.M. 1947, now section 40-4-110 MCA, 

### states: "The court from 

### time to

### time after considering the financial resources of both parties may order a party topay 

### a reasonable amount for the cost to the other party of maintaining or defending any proceeding under this act and for attorney's fees including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment. The courtmay order that the amount be paid directly tothe attorney, who may enforce the order inhis name." As to the award of attorney's fees, the District Court found: "19. That Respondent should pay toward the Petitioner's attorney fees and the Petitioner 

### is hereby awarded the sum of $1,500.00 as for and towards the Petitioner's attorney fees and costs in this matter." "11. The Respondent should be ordered and 

### is hereby required topay the sum of $1,500.00 towards the Petitioner's attorney fees and costs of suitincurred." The District Court determined that appellant 

### is "a trained, licensed and practicing medical doctor, age 53, without any claimed physical ormental impairment, with earnings of approximately $6,000.00 per month" who "shall continue tohave a high 

### rate of personal income." The record supports these determinations. In contrast, the wife, who had no formal education beyond high school and no significant employment experience during the parties'marriage, suffers from ulcerative colitis and 

### isunable to hold gainful employment other than working several shifts 

### as

a bartender. Her income nowhere approaches that of appellant and, as the District Court found, 

### it

### willgradually diminish as she ages and the disease progresses. Clearly the court considered the financial resources of both parties. Under these circumstances, an award of $1500 toward payment of her attorney fees and costs does not appear so inequitable

as tomandate reversal. Wehave held, however, that evidence must be introduced to support an award of attorney fees. As stated inState Highway Comm'n v. Marsh (1978), -Mont. 

### - 

## , 575 P.2d 38, 43, 35 St.Rep. 105, 110, 

# ".

. . An award of attorney fees must be based on a hearing allowing for oral testimony, the introduction of exhibits, and an opportunity tocrossexamine inwhich the reasonableness of the attorney fees claimed 

### is demonstrated. 

# . ."As inMarriage of Barron (1978) Mont. 

## , 580 P.2d 936, 938, 35 St.Rep. 891, 8 9 4 : "We find a lack of evidence thatwould satisfy the requirements of Crncevich v. Georgetown Rec. Corp. (1975), 168Mont. 113, 541 P.2d 56, and FirstSecurity Bank of Bozeman v. Tholkes (1976), 169Mont. 422, 547 P.2d 1328, to support the award of attorney fees inthe judgment." As inBarron and Hollinger v. McMichael (1978), Mont.



## , 580 P.2d 927, 35, St.Rep. 856, the cause must be remanded tothe District Court for an evidentiary hearing on the question of attorney fees. Finally, appellant complains of error in the admission of respondent's Exhibit No. 4, used to show the income of the Riverside Bar where respondent 

### was working. Appellant objected to

### its admission on the grounds 

### (1)thatMrs. Green

### could testify tothematters contained therein; (2) that he had no opportunity toexamine the bookkeeper who prepared it; (3) 

### that it 

### had no relation tothe case; and (4) 

### that it



### was verymisleading. The District

### Court specifically stated that the exhibit

was being admitted only for the purpose of showing the wife's net income. Immediately prior to its 

### introduction, Irene Green testified twice, without

### any objection, as to the income she received from the bar during an eight-month period in 1977. Thus, the information was before the court for its 

### consideration even before the introduction of the exhibit. We need not decide whether therewas error inthe admission of this exhibit, for even were there error, it 

### was not prejudicial toappellant, affectinghis substantial rights so as tobemade the basis for reversal. Rule 61, 

### M.R.Civ.P. Harmless error 

### willnot be made the basis for reversal, e.g., Halko v. Anderson, 108Mont. at593, 93 

### P.2d at959. For the District

### Court tobe reversed for improperly admitting evidence, substantialprejudice to the complaining partymust be shown. Rule 103, Mont.R.Evid., states that "

### [elrrormay not be predicated upon a ruling which admits orexcludes evidence unless a substantial right of the party is 

### affected. 

# .." Appellant has made no showing that a 

### substantialright has been affected to his detriment so as 

### towarrant reversal. The judgment is 

### affirmed, except as noted above regarding remand tothe District

### Court for an evidentiary hearing

on the question of attorney fees and costs.

### We concur: 

# ~~!bqq Chief Justice

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