No. 82-56 

IN THE SUPREXE COURT OF THE STATE OP MONTANA 

1982 

IN RE THE MARRIAGE OE' 

ROY M. CRANMON, 

Petitioner add Appellant, 

-vsALVINA CRANMOHE, 

Respondent and Respondent. 

Appeal from: District Court of the Fifkh Judicial District, 

In and for the County of Beaverhead, The Honorable Frank E. Blair, Judge presiding. 

Counsel of Record: 

For Appellant: 

Schulz, Davis & Warren, Diilon, Montana 

For Respondent : 

Michael J. McKeon, Anaconda, Montana 

- 

Submitted on Briefs: May 6, 1982 

Decided: July 28, 1982 

Filed: JL)L li? 8 1982 
Mr. Justice Fred J. Weber delivered the Opinion of the 

Court. 

Husband Roy Cranmore appeals from the property settlement 

provisions in the findings of fact, conclusions of law and 

judgment in this marriage dissolution action arising in the 

Fifth Judicial District Court, Beaverhead County. We affirm 

the District Court. 

The Husband states a number of "issues," but his sole 

challenge in fact is to the District Court's exercise of 

discretion in its apportionment of marital assets. The Wife 

seeks attorney's fees on appeal, claiming that the appeal is 

frivolous. 

In April of 1981, after nearly 12 years of marriage, 

Husband Roy Cranmore filed a petition for dissolution with 

the District Court. There were no children of the marriage. 

Husband was 53 and his Wife was 60 at the time of the dissolution. The case was tried on November 10, 1981. On December 

30, 1981, the court entered findings, conclusions and judgment, 

dissolving the marriage and distributing the marital assets. 

The findings are extensive, and include a detailed list of 

assets and liabilities, as well as the determination of a 

net worth of $23,773.03. Husband concedes that "[tlhere is 

no dispute as to the assets and liabilities and net worth of 

the parties which were established by petitioner's Exhibit 1 

without objection, and set forth in the Court's Finding No. 

XIV. . . I' 

The District Court distributed to the Wife the following 

assets and liabilities, with the values agreed upon by both 

parties: 
ASSETS 

Home and rental property $25,000.00 

1978 Toyota 1,000.00 

Miscellaneous personal property 

as described 1,870.00 

Total assets: $27,870.00 

LIABILITIES 

Balance owing on house $ 3,416.61 

1980 and 1981 taxes on home 514.48 

Total Liabilities: $ 3,931.09 

Net Value of Assets Distributed to Wife 

The District Court distributed to the Husband the 

following, again with values agreed upon by both parties: 

ASSETS 

Trailer House $ 1,000.00 

1979 Pacer 500.00 

1969 Jeep 300.00 

1962 Apache Camper 150.00 

Miscellaneous Personal Property 400.00 

Total assets: $ 2,350.00 

LIABILITIES 

State Bank & Trust - Balance on 

Toyota $ 

State Bank & Trust Co. - 

Balance on trailer house 

Butte Radiology 

St. James Hospital 

Credit Bureau - Wife's St. James 

Bill 

Montgomery Ward 

Sears 

VISA 

Dr. Osterholtz 

Schulz; Davis & Warren 

Miscellaneous 117.00 

Total Liabilities: ($4,465.88) 

Net Excess of Liabilities Over Assets 

The Wife receives $184.00 per month supplemental income 

from Social Security Insurance disability benefits. In 

addition, she receives rental of $100.00 per month from the 

small house and trailer space next to the house which was 

distributed to her. The Wife did not receive maintenance. 

The District Court found that the Husband is 53 years 

of age, employed as a maintenance man by the State of Montana, 
receiving gross earnings for each two weeks of $537.68, with 

take-home pay of $359.95. 

Husband argues that it was inequitable for the District 

Court to divide the assets in such a way that he, who entered 

the marriage with $6,000 in assets, and during the marriage 

accumulated a net worth in excess of $23,000, leaves the 

marriage "with less than nothing, thereby qualifying him to 

appeal as a pauper in the same court." He refers to a 

recent case in which failure of the District Court to indicate 

the reasons for its property apportionment resulted in 

reversal. See In re Marriage of Peterson (1981), Mont. 

, 636 P.2d 821, 38 St.Rep. 1723. He also argues that 

the findings upon which the distribution is based are unsupported 

by the evidence. He points out that finding IX, which says 

"Respondent [Wife] suffers from a deteriorating heart condition 

which requires about $20.00 medication per month," is 

unsupported by the record--it is the Husband, whose chronic 

heart condition costs him $40.00 for medication per month. 

Husband also argues that finding XIII, which says that he 

has "substantial accrued retirement benefits," and income 

with which to "purchase suitable housing," is unsupported by 

the record, particularly in light of the court's granting of 

his subsequent request that he be allowed to appeal - in forma 

pauperis. 

We are not persuaded by Husband's arguments. 

"The scope of this Court's review when considering the findings and conclusions of a trial 

court sitting without a jury is clear and well 

settled in Montana. A brief consideration of 

those rules is appropriate at this point. 

"'This Court's function in reviewing findings 

of fact in a civil action tried by the district 

court without a jury is not to substitute its 

judgment in place of the trier of facts but 

rather it is "confined to determining whether 

there is substantial credible evidence to support" the findings of fact and conclusions of 

law.' [Cases omitted. I 
"~lthough conflicts may exist in the evidence 

presented, it is the duty of the trial judge 

to resolve such conflicts. Mis findings will 

not be disturbed on appeal where they are based on substantial though conflicting evidence, 

unless there is a clear preponderance of evidence against such findings. [Cites omitted.]" 

Cameron v. Cameron (1978), 179 Mont. 219, 227, 

587 P.2d 939, 944. 

In light of this standard, let us consider the points the 

Husband raises. 

The Wife's Illness. The District Court found as follows: 

"That the Respondent Wife is presently totally and permanently disabled. She has a small 

source of income, $184.00 a month, and no 

skills which will render her employable or able 

to support herself. She must be awarded the 

sole right, title and interest of the family 

residence and trailer space located on the lot. 

If she loses the family residence, she will 

have no place to live and no financial resources 

to purchase another residence or rent suitable 

residence." 

The Husband testified with regard to the Wife's disability 

as follows: 

"Q. Mr. Cranmore, you understand that your 

wife Alvina is disabled, is that correct? A. 

Yes. 

"Q. Do you know when her disability began? 

A. Oh, I am going to say '78. 

"Q. She has been unable to work since that 

time, is that correct? A. Yes." 

With regard to her disability, the Wife testified as follows: 

"Q. What is the nature of your disability? 

A. The doctor told me that I won't be able 

to work anymore." 

It is true that the District Court incorrectly found the 

Wife's illness to be deteriorating heart condition, which 

is not substantiated by the record. That fact is not significant. 

There is substantial credible evidence in the record to 

support the court's findings of total disability on the 

part of the Wife, and the court's consideration of that 

disability in its apportionment of assets. 
The retirement benefits were accumulated by Husband and 

were neither sought by nor apportioned to the Wife. Husband 

had held the same job with the State for seven years; retirement was deducted from his wages. The District Court's 

finding that he had "substantial accrued retirement benefits" 

is adequately supported by the record. 

Husband's testimony shows that after December, 1980, he 

lived in Bannack where he works, in a residence for which 

the State may subtract $35 per month from his paycheck. 

Husband is earning steady wages, and has been awarded a 

housetrailer out of the marital assets. We do not believe 

that, because at the moment he is unable to pay his costs of 

appeal, he is necessarily unable to provide himself with 

adequate housing in the future. Clearly he is in a better 

position to do so than his disabled Wife, who, without the 

family home and its included rental property, would be 

forced to rely solely upon her $184.00 per month disability 

benefits from the government. 

Finally, we consider the equitability of the apportionment 

of assets. As above described, the Wife was awarded the 

bulk of the assets, and the ~usband was awarded the bulk of 

the liabilities. However, we note that the assets awarded 

to the Husband included numerous items of personal property 

which he had requested, and included the trailer house which 

produces $150.00 per month. The Wife did not receive either 

a cash settlement or a maintenance award. The real dissatisfaction 

of the Husband appears to be with the failure of the ~istrict 

Court to order the sale of the house and the division of the 

sale price equally between the Wife and e us band. 

The often-stated rule in reviewing property distributions 

in dissolution proceedings is that the District Court is 

afforded broad discretion. Abuse of discretion is the 
touchstone in determining whether a particular distribution 

is inequitable. For an abuse of discretion to be found 

appellant must show that the District Court acted arbitrarily 

without employment of conscientious judgment, or exceeded 

the bounds of reason in view of all the circumstances. 

LeProwse v. LeProwse (1982), Mon t . -1 - P. 2d 

, 39 St.Rep. 1053. Accord: Creon v. Creon (1981), 

Mont. , 635 P.2d 1308, 38 St-Rep. 1828; Zell v. Zell 

(19771, 174 Mont. 216, 570 P.2d 30. The record here demonstrates 

that the District Court carefully considered those factors 

set forth at section 40-4-202, MCA, which are to be used in 

making an equitable property distribution. Among those 

factors are the age, health, and future employability of the 

parties, as well as whether the apportionment is in lieu of 

maintenance. The District Court judge considered the greater 

age and total disability of the Wife, as well as her past 

monetary and nonmonetary contributions to the purchase and 

maintenance of the property, and noted that the Wife requested 

ownership of the family residence in lieu of maintenance. 

The Husband is employed; the Wife has been unemployable 

since 1978 because of illness and very limited job skills. 

The Husband has a retirement fund; the Wife will have her 

small disability income and the rental income from the 

trailer space and small residence on the home lot. Without 

the rental income and her own use of the family home, she 

would undoubtedly be entitled to maintenance from the Husband. 

The Wife did not seek maintenance, and the Husband expressed 

his inability to pay it anyway, due to the various debts he 

owed. With the transfer of full ownership of the house to 

the Wife went the responsibility of paying for taxes, insurance, 

repairs, and the $3,416.61 balance owing from the purchase 

of the home. 
We find no abuse of discretion in the apportionment of 

marital property. The distribution was obviously carefully 

considered in light of attendant circumstances and the 

provisions of section 40-4-202, MCA; the trial court is not 

required to divide assets equally. Lupo v. Lupo (1982), 

Mont. -I - P. 2d , 39 St.Rep. 565, 566. 

The Husband notes that the District Court failed to 

distribute a 1973 Ford pickup valued at $1,000.00 which is 

titled in the Husband's name, and a 1970 Plymouth valued at 

$350.00 titled in the name of the Wife. We hold that each 

may retain the vehicle so titled in his or her name. 

We affirm the judgment of the District Court. We do 

not find the appeal was lacking in merit so as to justify an 

attorney's fee award to the Wife. 

We Concur: 

Chief Justice /