No. 14936 IN THE SUPREME COURT OF THE STATE OF MONTANA 1980

IN RE THE MARRIAGE OF KENNETH E. BOSACKER, Petitioner and Respondent,

VS

# . ROSEMARY A. BOSACKER, Respondent and Appellant.

Appeal from: District Court of the Thirteenth Judicial District, Honorable C. B. Sande, Judgepresiding. Counsel of Record: ForAppellant: Moses, Tolliver and Wright, Billings,Montana For Respondent: Richter and Lerner,Billings,Montana

Submitted on briefs: January 24, 1980 Decided:

## I'M'?

## 17

## 1989 Filed:

## MAR

## 17I-$&Mr. Chief Justice Frank I. Haswelldelivered the Opinion of the Court. Rosemary A. Bosacker appeals from an order of the District Court of Yellowstone County wherein the Court decreed maintenance and a division of themarital property. The parties to this action were married on October 15, 1955, in Great Falls,Montana. The marriage was dissolved by the District Court on September 26, 1977. One child of the marriage was then of legal age,and the custody of the other child was awarded to the wife with support to be paid by the husband. The issues of maintenance and division of marital property were reserved until trial. By the time of trial, the other child had reachedmajority. Prior to the trial the parties had divided and distributed

some of themarital property. Each party had received $6,647 from the sale of the family home. Also, each party had received $13,626 out of the proceeds from the sale of other real property. The wife received about $2,000 from a bank account,a 1973 Pontiac worth $2,400,and approximately $11,000worth of other personal property. The District Court found that the wife had received $35,700 and the husband had received $33,824 in assets from the marriage. The husband was left the responsibilityof paying for $37,571 worth of joint liabilitiesof themarriage. At the time of trial the District Court held $18,500 of marital assetswhich had not been divided. Thewife was awarded $4,500 of this and the husband was awarded the remainder plus interest accrued. One of the daughters of the marriage received approximately $45,753 as a gift from the parties prior to the dissolution of marriage. At the trial she testified that she intended to use much of thismoney to provide a down payment for a house inwhich she and her mother could live.' The husband had worked for Greyhound Corporation fourteen and one-half years prior to the marriage and fifteen and onehalf years during themarriage. At the time of trial he was receiving $389 per month from a retirement fund. At the time of trial the wife was employed by the State Liquor Store and grossed $693.33 per month. She was also awarded $100per month to be paid by the husband out of his retirementmoney. The District Court found that with the above income and the wife's skills

as a bookkeeper, furniture finisher and store clerk that she could support herself in the community. The District Court also concluded that the property divisionwould give over 50% of the assets minus the liabilities to the wife. The wife presents two issues on appeal:

(1) Did the District Court err in determining the net worth of the parties? (2) Were the findings of factmade by the District Court supported by the evidence? The husband presents the following issue:

(1) Did the District Court err in granting maintenance to the wife? The division of marital property pursuant to a dissolution ofmarriage is controlled by section 40-4-202,MCA. This Court has said on numerous occasions that the District Court is required to determine the net worth of the parties at the time of the divorce before dividing the property. Herring v. Herring (1979), I Mont

# . , 602 P.2d 1006, 36 St.Rep. 2052, 2053; Grenfell v. Grenfell (1979), Mont

# . , 596 P.2d 205, 207, 36 St.Rep. 1100, 1103; Brown v. Brown (1978), Mont. 

## , 587 P.2d 361, 365, 35 St.Rep. 1733, 1738; Vivian v. Vivian (1978), Mont

# . I 583 P.2d 1072, 1074, 35 St.Rep. 1359, 1361;Martinez v. Martinez (19781, Mont. 

## , 573 P.2d 667, 35 St.Rep. 61. InMartinez we said:"Beforedividing themarital property between a contesting husband and wife in a dissolution of marriage action,based on the above considerations, however, section 48-321 requires the trial judge to consider the 

### ' 

# .. . estate, [and] liabilities 

# . .. of each of the parties

# .. .I II Mont. at 

### , 573 P.2d at 669, 35 St.Rep. at 63-64. In the instant case the District Court did notmake a specific finding of fact as to the net worth of the marital property. Itmust be noted,however, that there were findings

as to the value of assets which had been divided prior to trial, the value of the assets divided by the District Court following the trial and the joint liabilities of themarriage. The cumulative effect of these findings is equivalent to a finding of the networth of theparties at the time of the divorce. The wife next contends that there are five findings of the District Court which are not supported by the evidence. In considering the sufficiency of the evidence to support a District Court's findingswe are guided by the following language: "Wewill not substituteour judgment for that of the trier of fact,but rather will only consider whether substantial credible evidence supports the findings and conclusions. Those findings will not be overturned by this Court unless there is a clear preponderance of evidence against them. We will view the evidence in a light most favorable to theprevailing party, recognizing that substantial evidencemay be weak or conflictingwith other evidence,yet still support the findings." Cameron v. Cameron (1978), Mont. 

### , 587 P.2d 939, 945, 35 St.Rep. 1723, 1729. The wife contends that the finding of fact concerning the value of the marital estate is not supported by the evidence. In particular shedisputes the value of $11,000which pertains to certain items of personal property of the marriage which the wife received. The husband testified that he arrived at the $11,000 figureby adding together theprices paid for the items and deducting an amount for depreciation. Thewife testified that she had several of the items appraised and that their value was "a little over $3,000.00." The husband's testimony constitutessufficient evidence to support the District Court's finding that these assets are worth $11,000. As a consequence, there

was no abuse of discretion. Thewife next contends that there was not sufficient evidence to support the finding that the daughter,Kaye Bosacker, intended to use the $45,753 gift to provide her mother with a place to live. During the trial,Kaye Bosacker testified as follows:"Q. What doyou intend to dowith this $45,753.00, Kaye? A. Iwould like to use it as a down payment on a home, because my mother and I are now living in a duplex,and Iwant a home badly, and itwould make us a nice down payment.

"Q. And would you let your mother live in your house with you? A. Yes, the housewould be in my name, and then after shedied then the house would still remainmine." Given this testimony, therewas no abuse of discretion in making the above finding. Thewife next contends that there is insufficient evidence to support the finding concerning the total joint liabilities to be paid by the husband. Inparticular the wife objects to the inclusion of $10,000worth of lumber used in building a house as

a liability. The husband presented a list of liabilities to the District Courtwhich detailed the debts of the parties. This list of liabilities totals $37,541.74. This is the amount found by the District Court to be the total liabilitiesof theparties. The only item on this listwhich refers to lumber is a debt of $773.16. There is nomention of a $10,000 liability for lumber. The $773.16 figure is supported by a check which the husband had written to a lumber company. Under such circumstances, there is substantial evidence to support the finding. Thewife next contends that the District Court erred in finding that theproperty division resulted in her receiving "over fifty percent (50%)of the assets minus the liabilities." TheDistrict Court found that the wife received approximately $35,700 prior to the trial and the husband received approximately $33,824. In addition,there was $18,500 to be divided by the Court of which the wife received $4,500. Therewere liabilitiesof $37,571 resulting in a net estate of $50,453. Of this the wife received approximately $40,200. The District Court was justified in finding that thewife received over 50% of the net assets. The wife next contends that the District Court erred in finding that the wife shall have "sufficient income

# . . . to supportherself." We agree with the District Court. The wife is working and bringing home a salary. She is to receive $100per month from the husband. She has nominor children to support and apparently her housing needs will be supplied by her daughter. Given these facts it was not an abuse of discretion for the District Court to find that the wife will be able to supportherself. The wife next contends that the District Court abused its discretion in awarding her only $4,500 out of the $18,500 cash

on hand. Given the manner in which the other property was divided and the fact that the husband must pay the liabilities, the District Court did not abuse itsdiscretion in sodividing thismoney. Finally,the husband contends that the District Court erred in awarding thewife $100maintenance per month. Pursuant to section 40-4-203,MCA, such an award iswell within the District Court's discretion. We find no error in the award of maintenance to the wife. Affirmed

# . Chief Justice



# w--gL-% ices 

## -------