No. 14532 

IN THE SUPHEME COURT OF THE STATE OF MXTANA 

1979 

IN RE THE MARRIAGE OF 

IRENE LA. GREEN, 

Petitioner and Respondent, 

Respondent and Appellant. 

Appeal fm: District Court of the Fourth Judicial District, 

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 fact and 

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 in conjunction with their dissolution of 

marriage. The court, sitting without 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; the April 11, 1978, hearing was 

confined to questions of the property 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 District Court equitably apportion the 

assets of the parties as required by section 48-321, R.C.M. 

1947, now section 40-4-202 MCA, of Montana's Uniform Marriage and Divorce Act? 

2. Were the findings and conclusions properly made and 

based on substantial credible evidence? 

3. Did the court err in awarding Irene Green maintenance and attorney fees? 

4. Did the District Court err in admitting respondent's Exhibit No. 4, substantially prejudicing appellant 

thereby? 

The parties were married December 5, 1969, at which 

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 interest in a contract 

for deed on real estate near Lolo, Montana; appellant had 

$5000 in a Keough retirement plan, owned an airplane, and 

owned a building used as a medical clinic in Shaunavon, 

Saskatchewan, Canada, the substantial loans for which were 

paid off during the marriage. 

At the time of their separation, the District Court 

found that the parties owned the following: the seller's 

interest in the contract on the Lolo property, the airplane, 

the clinic, a house on ten acres on Miller Creek in Missoula, 

and an interest in the Riverside Bar in Hamilton. In addition, Dr. Green had $17,500 in the Keough retirement plan. 

The parties also had 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 in the contract for deed 

on the Lolo property and the half interest in the 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' interest in that property. She had acquired the Lolo property contract for deed 

from her former husband in lieu of monthly support payments 

for her two children by that prior 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, that he should get the plane is reasonable. 

He is a physician, who came into the marriage with an interest in the medical clinic; it is reasonable that he keep 
that property and the attendant share of the income from it. 

~ikewise, it is economically sensible that he keep his 

Keough retirement plan. 

Mrs. Green moved out of the Miller Creek house at the 

time of separation. Dr. Green continued to live in the home 

after the separation. It appears reasonable that Dr. Green 

should be awarded all of the proceeds from the sale of the 

home. At the time of the separation, the home was worth at 

least $82,000. 

Appellant had to provide $43,000 to retire the debt 

owing on the half interest in the Riverside Bar, the $4000 for 

eight months of maintenance and, perhaps, as will be discussed 

later, $1500 for costs and attorney fees. That he assume 

certain of the debts does not appear inequitable. For 

example, a sizeable loan had been taken out in Mrs. Green's 

name to pay Dr. Green's arrearages in support owed his wife 

and offspring from a prior marriage; that he should assume 

responsibility for that does 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, as opposed to Mrs. Green, 

who earns well under $1000 per month, is to discharge the 

obligations. 

The situation is not, as appellant 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 to be distributed and with due consideration of 

the items elaborated in section 48-321, R.C.M. 1947, now 

section 40-4-202 MCA, it appears that the distribution made 
by the ~istrict Court indeed was equitable. It is well 

settled that " [t] he apportionment made by the District Court 

will not be disturbed on review unless there has been a 

clear abuse of discretion as manifested 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), 171 Mont. 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 law and vice versa, but a mislabeling such as 

has occurred here will not 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 is harmless and may not be used to 

defeat the judgment. The District Court will not be reversed for harmless error, e.g., Halko v. Anderson (1939), 

108 Mont. 588, 593, 93 P.2d 956, 959, and the cause will not 

be remanded in those cases wherein the eventual result must 

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 to Mrs. Green. A court may grant maintenance 

for either spouse only if it finds that the spouse seeking 

maintenance meets two conditions: (1) he or she lacks 

sufficient property to provide for his or her reasonable 

needs; and, (2) is unable to support himself or herself 

through appropriate employment - or is the custodian of a 

child whose 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, in making 

the award, the court is prohibited from considering any 

marital misconduct of the parties, but must consider the 

following: 

"the financial resources of the party seeking maintenance, including marital property apportioned to 

him, and his ability to meet his needs independently, 

including the extent to which a provision for support 

of a child living with the party includes a sum 

for that party as custodian; 

"the time necessary to acquire sufficient education 

or training to enable the party seeking maintenance 

to find appropriate employment; 

"the standard of living established during the marriage; 

"the duration of the marriage; 

"the age, and the physical and emotional condition 

of the spouse seeking maintenance; and 

"the ability of the spouse from whom maintenance is 

sought to meet his needs while meeting those of the 

spouse seeking maintenance. " Section 48-322 (2) (a) - 

(f) , R.C.M. 1947, now section 40-4-203 (2) (a) - (f) MCA. 

In this case, the District Court 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 to hold gainful employment 

greater than several shifts per 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 for making the short 

term maintenance award and did so in sufficient compliance 

with statutory mandate. 

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 

to pay 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 court may order that the amount be 

paid directly to the attorney, who may enforce the 

order in his 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 to pay the sum of $1,500.00 towards the 

Petitioner's attorney fees and costs of suit incurred." 

The District Court determined that appellant is "a 

trained, licensed and practicing medical doctor, age 53, 

without any claimed physical or mental impairment, with 

earnings of approximately $6,000.00 per month" who "shall 

continue to have 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 is unable 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 will gradually 

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 to mandate reversal. 

We have held, however, that evidence must be introduced 

to support an award of attorney fees. As stated in State 

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 to crossexamine in which the reasonableness of the attorney fees 

claimed is demonstrated. . ." As in Marriage of Barron 

(1978) Mont. , 580 P.2d 936, 938, 35 St.Rep. 891, 

8 9 4 : 

"We find a lack of evidence that would satisfy 

the requirements of Crncevich v. Georgetown Rec. 

Corp. (1975), 168 Mont. 113, 541 P.2d 56, and 

First Security Bank of Bozeman v. Tholkes (1976), 

169 Mont. 422, 547 P.2d 1328, to support the 

award of attorney fees in the judgment." 

As in Barron and Hollinger v. McMichael (1978), Mont. 

, 580 P.2d 927, 35, St.Rep. 856, the cause must be 

remanded to the 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) that Mrs. Green 
could testify to the matters contained therein; (2) that he 

had no opportunity to examine the bookkeeper who prepared 

it; (3) that it had no relation to the case; and (4) that it 

was very misleading. 

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 there was error in the 

admission of this exhibit, for even were there error, it was 

not prejudicial to appellant, affecting his substantial 

rights so as to be made the basis for reversal. Rule 61, 

M.R.Civ.P. Harmless error will not be made the basis for 

reversal, e.g., Halko v. Anderson, 108 Mont. at 593, 93 P.2d 

at 959. For the District Court to be reversed for improperly admitting evidence, substantial prejudice to the complaining party must be shown. Rule 103, Mont.R.Evid., 

states that " [elrror may not be predicated upon a ruling 

which admits or excludes evidence unless a substantial right 

of the party is affected. . ." Appellant has made no showing that a substantial right has been affected to his detriment so as to warrant reversal. 

The judgment is affirmed, except as noted above regarding remand to the District Court for an evidentiary hearing 

on the question of attorney fees and costs. 
We concur: 

~~!bqq Chief Justice 

w 

-' . \ 

\ \-.. &$ my& , --- 

,' Justices - i:' I