No. 12162 IN

### THE SUPREME COURT OF 

### THE STATE OF MONTANA 1972

EVA MAE FINLAYSON, - -----
Plaintiff and Appellant,


### -vs

# - DUNCAN FINLAYSON, Defendant and Respondent.
Appeal from: District Court of the SixteenthJudicialDistrict, Honorable A. B. Martin, Judge presiding. Counsel of Record: For Appellant: Goldman, McChesney and Datsopoulos, Missoula, Montana. 

### H. L. McChesney argued, Missoula, Montana. For Respondents: Kenneth R. Wilson argued, Miles City, Montana.

submitted: June 12, 1972 Decided:

### AUG

### 11

## 1972Mr. Justice Gene B. Daly delivered the Opinion of the Court.
This appeal 

### is from a finaljudgment entered on June 30, 1971, ina divorce action tried to the court without a jury in the districtcourt of the sixteenthjudicial district, county of Custer. In the district court, both parties were granted a divorce with real and personal property divided equally. Neither party has appealed the granting of the divorce, however, Eva Mae Finlayson, plaintiff, appeals from that portion of thejudgment which divided the property equally. She contends that certain specified property, including the family residence, certificates of deposit, and a 1968 Pontiac automobile, areher sole and separateproperty. Eva and Duncan Finlaysonwere married on October 26, 1956. Duncan initiallycontributed approximately $5,693.84 to the marriage; Eva contributed a residence located inMiles City, Montana, obtained from a prior marriage and valued atapproximately $15,000 to $18,000 with an unpaid mortgage of $5,289.05. During the marriage Eva worked regularly as a waitress and Duncan worked regularly as a janitor. Both parties contributed their earnings toa joint checking account. In 1959, the home inMiles Citywas placed injoint tenancy by Eva to avoid probate and although she recorded the instrument, Duncan was not aware of thejoint tenancy until 1969. During the course of the marriage Eva regularly purchased certificates of deposit with tips she received as a waitress. She also invested approximately $1,000 she received from her mother's estate incertificates of deposit. Both Eva and Duncan were shown
asjoint owners of the certificates of deposit untilMay 1970, the time of the filing of this action, when Eva consolidated the certificates into one certificateinher name and her sister's name, Leta L. Vick.The 1968 Pontiac automobile was obtained by Eva inher
name by using an automobile also inher name as a down payment. The payments on the Pontiac and the trade-in automobile were made from the joint checking account with the finalpayment of $1,300 on the Pontiac being made from thejoint savings account. Since Duncan did not drive and had never owned an automobile, he consented that the automobile be inWagsseparatename and did not consider the automobile as one-half hisuntil cornrnencement of the divorce action. Although other property was listed inthe trialcourt's findings which divided the property, Eva has not questioned that division. There are two divergent philosophies of ownership urged by the parties. Appellant, Eva, who was given considerable latitude by Duncan indirecting marital financial matters, asserts that her ownership 

### isbased on the specific contributions which she made to the acquisition of the individual classes of property. Respondent, Duncan, argues that the property acquired during the marriage, although held invarious states of ownership by the parties, was the result of the totalcontribution of both parties. Recent decisions of this Court support the basic proposition that the district court may allocateproperty acquired during a and marriage on an equitablebasis according tocontributions,/unless
a review of allthe evidence on appeal reveals that there has been
an inequitable distributionto a substantial degree, the decision of the district court

### willnot be disturbed. Bloom v. Bloom, 150 Mont. 511, 515, 437 P.2d 1;Hodgson v. Hodgson, 156 Mont. 469, 482 P.2d 140; Libra v. Libra, 157Mont. 252, 484 P.2d 748. InBloom the Court said: "'Therefore, the court did not err ingranting the divorce and dividing and adjusting the litigants' rights inproperty accumulated by the joint efforts of the parties. The propkrtyacquiredjointly during the marriage may be dividedregardless of whether the titlethereto isin either orboth of the parties. 

### 27B C.J.S. Divorce, 

### 1 295(5), p. 

### 3049 et.seq.

## "' (Emphasis added). When viewing the entirerecord of contributions to this marriage by both parties, we find the properties were paid for or acquired out of jointly accumulated funds and represent a comrningling of joint resources. Other than the earnings of the parties and the rents from the upstairs apartment in the house inMiles City, the only financial contribution tothe marriage came from
an inheritance in the approximate sum of $4,000 from Eva's mother. Some of the inheritancewas used by Eva during the course of probate of her mother's estate to purchase from her two sisters their interest inthe deceased mother's home inBillings. Duncan makes
no claim against thishome which, by an undisclosed arrangement, isheld inthe name of Eva's friend, L. G. Pence. Apart from the foregoing, joint funds were used topay off the mortgage on the house inMiles City and to add improvements, including the addition of a garage inthe fallof 1957 ata cost of $2,595.78. It appears that Eva and Duncan paid their living and miscellaneous expenses from their salaries and Eva purchased the certificates of deposit from tips. The certificateswere held inthejoint names of Eva and Duncan until she transferred them into
a consolidated certificate of deposit inthe joint names of Eva and her sister, prior to filing for divorce. In examining thejoint income tax returns of the parties for the years 1959 to 1969, it appears that Duncan contributed approximately $1,000 per year more salary to the joint effort than did Eva. Over the period of years involved, thiswould equal the amount from tips that Eva placed incertificates of deposit which totaled $12,088.68.

### I4hen \ireconsider this marriage of fifteen years duration, che economic gains demonstrated are the result of as equal a contributionby the parties as could be achieved in 

### any marriage. Bound 

### by the rule above recited, this Court finds no evidence of 

### inequity in the distribution, much less to 

### a substantial tegree.Judgment of 

### the trial court 

### is affirmed.

Associate Justice



### / /chief Justice


# ("J--zd&+&&-&- ----- Associate Judices