### No. 12106 

### INTHE SUPREME COURT OF THE STATE OF MONTANA 1972

GAYANN COOK, Plaintiff and Respondent,

-VS

# - THOMAS NORRIS COOK, Defendant andAppellant.

Appeal from: District Court of the Thirteenth Judicial District, Honorable Robert H. Wilson, Judge presiding. Counsel of Record: ForAppellant: 

### Moulton, Bellingham, Longo and Mather, Billings,

Montana. Ward Swanser argued, Billings,Montana. For Respondent: 

### Kurth, Jones, Davidson,Calton and 

### Bradley,

Billings,Montana. John

### R. Da~idson~argued, Billings,Montana.

Submitted: February 16, 1972 Decided:

# MAR28 

## 1972 Filed:

# MAR28

## 1972

M* ClerkThe Honorable Jack D. Shanstrom, District Judge, sittinginplace of Mr. JusticeWesley Castles, delivered the Opinion of the Court.

This is an appeal from a decree of divorce and property settlement granted in favor of the plaintiff wife against the defendant husband. From the property settlement provisions of the decree, thehusband appeals. No issue is taken tothe granting of the divorce. The material facts are not in serious dispute. The parties 

### were married forten years prior totheir separation in January, 1971. Atthat time, they 

### were 31 and 36 years old respectively. No children were born of the marriage. Both parties were steadily employed throughout most of the marriage. Atthe timeof the divorce the husband was earning approximately $15,000 per year as an automotive painter. The wife lastearned $450 per month as a secretary until she resigned from gainful employment about one year before the divorce. At the timeof the trialboth parties were mentally and physically capable of providing for their own support. The wife's education consisted of high school plus one year of college. The husband's

was limited tohigh school only. Over the years, the wife contributed from $80 

### to $160 per month from her earnings toward the food and housing needs of the parties. The husband generally paid the remaining living expenses not covered by thewife's contributions and saved the rest of his income. On the date of the trial, the parties individually or jointly owned the assets hereinafter listed, allof which 

### were

### acquired during the marriage. The husband correctly argues that approximately 69% of these assets were accumulated through his and not his wife's finances. The properties in dispute on this appeal are as follows: JOINT PROPERTY Investor's Diversified Certificate Equity in Family Home HUSBAND'S INDIVIDUAL PROPERTY Checking account (maintained jointly with his aunt) 1966 automobile 1968 automobile WIFE 'S 

### INDIVIDUAL PROPERTY None

TOTAL The judgment of the trial courtmade no provision for continuing alimony in favor of the wife,but itdid in lieu thereof establish a form of property settlement on the following terms. It set aside the 1968 automobile to the wife and ordered the husband to pay her the additional cash sum of $13,317.37. All remaining property was decreed to the husband. The wife's cash settlement figurewas arrived at by deducting the value of her automobile from the total assets acquired during the marriage and dividing the remainder by 

### two. In effect, the wife was given the cash value of one-half of the assets acquired during the marriage, including those owned individuallyby the husband aswell as by the parties jointly. The husband was awarded the rest of the property inkind. The only issue argued on appeal is whether the district court had the authority toaward the wife a cash sum equal to one-half of the property owned individually by the husband. We affirm the judgment of the trial court. In doing so, and contrary tothe husband's contention, we do not impose a community property standard inMontana. The authority of the trial court todeal inmatters of property settlement (as distinguished from alimony and child support) indivorce actions was most recently affirmed inLibra v. Libra, 157Mont. 252, 484 P.2d 748, 28 St. Rep. 460 (1971). In exercising its authority, 

### we there said of the trial court: "(a)divorce court is a court of equity and once equity takes jurisdiction, itwillgrant complete relief; also, that property acquired jointly during the marriage may be divided by the court whether the title thereto is in either or both of the parties. 

## * * * " 

## * * * In these later cases the Court approved the allocation of the properties between the parties on an equitable basis according totheir contribution even though this required that titlebe divested from one and transferred tothe other.

### " Libra followed close on the heels of Hodgson v. Hodgson, 156 Mont. 469, 482 P.2d 140, 28 St. Rep. 195.(1971)wherein the wife was awarded by way of property settlement 71%of the marital assets, although her financial contributions through inheritance

were only 59%. We affirmed under the circumstances of that case that the district court did not abuse its discretion, even thoughits order ineffect transferred title torealproperty from the husband tothe wife. Libra and Hodgson should have laid torest the husband's argument on appeal here. Ithas alreadybeen atleast 

### twice decided inthis State that the trialcourtmay make an equitable division of the litigants' property in a divorce action regardless of the state of title tothat property and regardless of actual financial contribution. We are asked by the husband, however, to

### retreat from these cases for the stated reason that there 

### is no statutory authority for the property division powers therein granted the trial court. Appellant cites the various provisions contained inTitle 36, R.C.M. 1947, setting forth the correlative financialrights and obligations of husband and wife during their marriage. The statutes relied upon compose what is commonly called theMarried Women's Act. The application of these statutes tomarried couples is undeniable, but there 

### is no intimation that they are atallcontrolling upon dissolution of the marriage by divorce. In the latterevent, the trial court becomes charged with the duty of granting "complete relief", including property division, according tothe equities of each individual case. Johnson v. Johnson, 137 Mont. 11, 349 P.2d 310. The districtjudge's broad powers inthis regard are expressed insection 21-139, R.C.M. 1947, whereinhe is empowered tomake "suitable allowance 

### to the wife for her support during her life, orfor a shorterperiod, asthe courtmay deem just, having regard tothe circumstances of the parties respectively

## * * *." (Emphasis added.)Appellant alsorefers us to four Montana decisions (allpredating Johnson, Hodgson and Libra) forearly authority that the district court ina divorce action does not have the discretion tomake property division of marital assets in lieu of orinaddition toalimony. He cites: Rufenach v. Rufenach, 120 Mont. 351, 185 P.2d 293; Lewis v. Lewis, 109 Mont. 42, 94 P.2d 211; Emery v. Emery, 122Mont. 201, 200 P.2d 251; and, Lewis v. Bowman 

### et al., 113Mont. 68, 121P.2d 162. We do not necessarily agree that the cases last cited stand for the restrictive guidelines on the power of the district court asserted by appellant, but toerase alldoubt, we hereby expressly overrule these cases insofar as they are inconsistent herewith. The trialjudge's resolution of property division is fettered only by the range of reason and hisjudgment willnot be disturbed inthe absence of an abuse of discretion. Bickford

v. Bickford, 117Mont. 372, 158 P.2d 796. No such abuse of discretion is shown under the facts presented here. Allproperty considered for division by the trial judge was accumulated during themarriage. True, the husband had scrupulously kept title to this property primarily inhis own name. He generally managed the business affairs of the couple, and he found it simple to manipulate title tohisbenefit. This does not prevent the court from dealing the wife her fair share. Here the court chose to transfer alltitle tothe husband, both individual and joint, requiring a cash settlement equal toone-half its value to the wife. There is authority inMontana forproperty division in

### those proportions. In Johnsonwe stated: "And,equal division under normal conditions of property accumulated through joint efforts is not regarded as unreasonable." The district court apparently considered more in this case than mere financial contributions. The law has never confined "joint efforts" to such a narrow meaning. The marital partnership is more than a business relation. The pecuniary and proprietary fruits of the marriage are frequently acquired by joint effort, even though actual financial outlay may be more the contribution of one spouse than the other. This holding does not make Montana a community property state. There is no required percentage of allocation to be applied in all cases. Each case must be looked at by the trial court individually with an eye to its unique circumstances. Under the circumstances here,we are not compelled to state that equal division of the property is an inequitable result. The judgment is affirmed.

Jack Shanstrom, district udge, sitting in place of Mr. Justice Wesley Castles.



# 9 ,Asociate Justices -