No. 83-544 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

IN RE THE )mRRIAGE OF 

DANFORD 0. VERT, 

Petitioner and Respondent, 

PHYLLIS L. VERT, 

Respondent and Appellant. 

APPEAL FROM: The District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable H. William Coder, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Robert M. Kampfer, Great Falls, Montana 

For Respondent : 

John F. Iwen, Great Falls, Montana 

Submitted on Briefs: February 24, 1984 

Decided: M~Y 15, 1984 

Filed: MAY L 3 1984 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Phyllis Vert appeals from the division of the marital 

estate contained in the decree by the District Court, Eighth 

Judicial District, Cascade County, ordering dissolution of 

her marriage to Danford Vert. Danford Vert cross-appeals 

from the District Court's award of attorney fees and costs to 

Phyllis Vert. 

Phyllis and Danford Vert were married on November 15, 

1980, and separated six months later. During the course of 

their marriage, the parties decided to consolidate the two 

existing mortgages on the residence owned by Phyllis Vert 

prior to the marriage and both parties' outstanding bills. 

This was accomplished by refinancing the residence owned by 

Phyllis Vert. After their separation, the parties orally 

agreed that Danford Vert would pay Phyllis Vert for his debts 

that were included in the refinancing and assume some of the 

debts incurred during the marriage. 

A petition for dissolution of the parties' marriage was 

filed on August 21, 1981. The trial court conducted a 

hearing on the petition and issued findings of fact, 

conclusions of law, and a final decree. The court found that 

Danford Vert had satisfied his obligations to Phyllis Vert 

save for $20.99. Accordingly, the court ordered Danford Vert 

to pay Phyllis Vert the balance due her under their oral 

agreement and further ordered him to pay Phyllis Vert her 

court costs and attorney fees. 

Phyllis Vert raises the following issue on appeal: 

Whether the District Court abused its discretion in its 

division of the marital estate. 
Danford Vert cross-'appeals and raises a second issue: 

Whether the award of court costs and attorney fees to 

Phyllis Vert is supported by substantial evidence. 

Phyllis Vert contends that the District Court abused its 

discretion in not finding Danford Vert liable for part of the 

interest incurred through the refinancing. 

The standard employed by this Court in reviewing a 

District Court's distribution of a marital estate is 

well-settled. The District Court has far-reaching discretion 

in divid-ing the marital estate and its judgment will not be 

altered unless a clear abuse of that discretion is shown. 

Such an abuse would occur where the trial court acted 

arbitrarily without employment of conscientious judgment or 

exceeded the bounds of reason resulting in substantial 

injustice. Popp v. Popp (Mont. 1983), 671 P.2d 24, 26, 40 

St.Rep. 1747, 1748-49, citing Parenteau v. Parenteau (Mont. 

1983), 664 P.2d 900, 904, 40 St-Rep. 815, 821. 

It can not he said that the District Court abused its 

discretion in this case. Prior to the parties' separation, 

the parties agreed upon an amount which would be accepted as 

Danford Vert's share of the debts under the refinancing 

agreement. This amount was satisfied, less $20.99. Danford 

Vert is not liable for more. The bulk of the refinancing 

went to the mortgages on Phyllis Vert's residence. 

Next, we address Danford Vert's contention that the 

award of court costs and attorney fees to Phyllis Vert is not 

supported by substantial evidence. 

In Bailey v. Bailey (1979), 184 Mont. 418, 42.1-22, 603 

P.2d 259, 261, this Court set forth as follows the standard 

of review where attorney fees have been awarded under section 

40-4-110, MCA: 
"Traditionally, a showing of necessity has been a 

condition precedent to the exercise of the court's 

discretion to award attorney fees. Whitman v. 

Whitman (1974), 164 Mont. 1.24, 519 P.2d 966. But 

the lower court's discretion in the matter will not 

be disturbed if substantial evidence is found in 

the record to support the award." Kaasa v. Kaasa 

(1979), 181 Mont. 18, 25, 591 P.2d 1110, 1114. 

The record is lacking in this case. The trial court 

found that Danford Vert's monthly expenses were approximately 

equal to his monthly income. However, the trial court found 

that Phyllis Vert "is taking home at least two hundred fifty 

dollars ($250.00) more per month than she is spending." From 

this, and the other findings of the District Court, we can 

not conclude that substantial evidence supports the award of 

attorney fees and costs to Phyllis Vert. 

Based upon the foregoing, we affirm the iudgment of the 

District Court as to the division of the marital estate and 

we reverse the award of court costs and attorney fees to 

Phyllis Vert. Costs of appeal are further awarded to Danford 

Vert. 

We Concur: 

a-JL d! qd Chief Justice 

l~&% 

Justice