No. 87-94
IN THE SUPREME COURT OF THE STATEOF MONTANA 1987

INRE THEMARRIAGE OF WERNER W. BULTMAN, Petitionerand Respondent, and TERESAV. BULTMAN, Respondent andAppellant.

APPEAL FROM: District Court of the Second Judicial District, In and for the County of Silver Bow, The HonorableMark Sullivan, Judgepresiding. COUNSELOF RECORD: ForAppellant:
James J. Masar, Deer Lodge,Montana For Respondent: Deirdre Caughlan, Butte, Montana

Submitted onBriefs: June 18, 1987 Decided: August 18, 1987 Filed: 

## ~~~181987Mr. Justice L. C. Gulbrandson delivered the Opinion of the Court.

The wife appeals a property distribution order of the Silver Bow County DistrictCourt. The issues on appeal are: (1) whether the District Court erred in dividing the wife's stock inheritance equally between the parties; and (2) whether the District Court improperly referred to marital misconduct in its findings. We affirm. Theparties married in 1948and a decreeofdissolution ofmarriagewas entered in 1986. Thehusbandwas a carpenter and the wife taught school. Both parties are now retired. During the marriage, the husband inherited realproperty from his family on which the family home and a shop was constructed, and the wife inherited stock from her family. The parties separated at the time the husband was placed in the Galen State Hospital. The husband was not allowed to return to the family home and he is currently residing in Butte, Montana. The wife remained in the family home and controlled the parties' assets until the property division hearing. Thehusband lived onhis social security disability payments while he was away from home. We note that the husband's monthly incomewas $166 shortofhis expenses. The court decided that the parties' realproperty should be sold and the proceeds divided equally with the provision that until the family home was sold, the wife could continue 

### to occupy the home. The court further decided that theparties' liquid assets, including the stock, should likewise be divided equally. The first issue iswhether the DistrictCourt erred in dividing the wife's stock inheritance equally between the parties. A district court has far-reaching discretion in resolving property divisions and its judgment will not bealtered unless a clear abuse of discretion is shown. In Re Marriage of Kaasa (1979), 181 Mont. 28, 22, 591 P.2d 1110, 1113. Findingsof fact shallnot be set asideunless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of thewitnesses. In Re Marriage of Obergfell (Mont. 1985), 708 P.2d 561, 563, 42 St.Rep. 1414, 1417-1418. Section 40-4-202,MCA, states inpart: [tlhe court

# . . .may

# . . . equitably apportion between the parties the property and assets belonging to either or both, however andwhenever acquired and whether the title thereto is in the name of the husband or wife or both.

(Emphasisadded.) The statute also states that in the apportionment process the court shall consider the sources of income. Section 40-4-202,MCA, is of necessity a flexible statutewhich vests a good deal of discretion in the district court. Given the infinite varieties of factual situations presented by parties to dissolution proceedings, trial judges must enjoy the latitude to address each case individuallywith an eye to its unique circumstances. In Re Marriage of Hundtoft (Mont. 1987), 732P.2d 401, 402, 44 St.Rep. 204, 205. The wife argues that the stock gifted to her by her family during the marriage should not be equally divided between the parties since the husband did not add to its value during the marriage. We again emphasize that S 40-4-202, MCA, authorizes the trial court dividing the marital estate to consider the sources of income and all property and assets, however and whenever acquired. The facts here reveal that the assets were commingled and held jointly and that all property, including the stock, was acquired during the marriage. Following the statute, thecourt noted that the stock (worth $34,400), was inherited from the wife's family and the real property (worth $92,570)
was inherited from the husband's family. We believe the court considered each party's contribution to the marital estate and correctly exercised its discretion under 

### 5 40-4-202, MCA. We see no reason to disturb the ruling on this issue. The second issue is whether the District Court improperly referred to marital misconduct in its findings. Section 40-4-202, MCA, prevents a court from considering marital misconduct in property division proceedings. The wife cites as evidence the court's reference to thehusband's placement inGalen Hospitalby the wife and the fact that the husband was not permitted to return to the family home, nor was he entitled. access to the parties' liquid assets until the property division hearing. We do not believe this is improper comment on marital misconduct. To the contrary, these findingshelp to explain the court's decision to order the sale of the family home and divide the proceeds equally in the interests ofboth parties. A' Affirmed.



# &pa&+ Justices