No. 83-544 IN THE SUPREME COURT OF THE STATE OF MONTANA 1984

IN RE THE )mRRIAGE OF DANFORD 0.VERT, Petitionerand Respondent,

PHYLLISL. VERT, Respondent and Appellant.

APPEAL FROM: The District Court of the Eighth Judicial District, In and for the County of Cascade, TheHonorableH. William Coder, Judge presiding.

COUNSELOF RECORD: ForAppellant: 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: 

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ClerkMr. 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 theDistrictCourt's award of attorney feesand costs to PhyllisVert. 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 thatDanfordVert would pay PhyllisVert forhis debts that were included in the refinancing and assume some of the debts incurred during the marriage. A petition for dissolution of theparties' 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 finaldecree. The court found that Danford Vert had satisfied his obligations to Phyllis Vert save for $20.99. Accordingly, the court ordered DanfordVert to pay Phyllis Vert the balance due her under their oral agreement and further ordered him to pay Phyllis Vert her court costsand attorney fees. PhyllisVert raises the following issue on appeal: Whether the District Court abused its discretion in its division of themarital estate.Danford Vert cross-'appeals and raises a second issue: Whether the award of court costs and attorney fees to PhyllisVert is supported by substantial evidence. Phyllis Vert contends that the DistrictCourt abused its discretion in not findingDanford Vert liable forpart 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 DistrictCourthas far-reaching discretion in divid-ingthe marital estate and its judgmentwill 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 PhyllisVert's residence. Next, we address Danford Vert's contention that the award of court costs and attorney fees to Phyllis Vert is not supportedby substantialevidence. 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 reviewwhere attorney feeshave 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 thatDanfordVert's monthly expenseswere 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 PhyllisVert. 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 PhyllisVert. Costs of appeal are furtherawarded to Danford Vert.

We Concur: 

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# d!qd Chief Justice 

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