No. 82-56 INTHE SUPREXE COURT OF THE STATE OP MONTANA 1982

INRE THE MARRIAGE OE' ROY M. CRANMON, Petitioner add Appellant,

-vsALVINA CRANMOHE, Respondent and Respondent.

Appeal from: DistrictCourtof the FifkhJudicial District, In and for the County of Beaverhead, TheHonorable Frank E. Blair, Judge presiding.

Counsel of Record: For Appellant: Schulz, Davis & Warren, Diilon, Montana

For Respondent: Michael J. McKeon, Anaconda, Montana

- Submittedon Briefs: May 6, 1982 Decided: July 28, 1982

Filed:

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## 81982Mr. 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 DistrictCourt. 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 ofmarital assets. The Wife seeks attorney's fees on appeal, claiming that the appeal is frivolous. In April of 1981,after nearly 12years of marriage, Husband Roy Cranmore filed a petition for dissolutionwith the DistrictCourt. There were no children of themarriage. Husband was 53 and his Wife was 60 at the time of the dissolution. The case was tried onNovember 10, 1981. On December 30, 1981, the court entered findings,conclusions and judgment, dissolving themarriage and distributing themarital assets. The findings are extensive, and include a detailed list of assets and liabilities, aswell as the determination of a networth of $23,773.03. Husband concedes that "[tlhere is

no dispute as to the assets and liabilities and networth 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 rentalproperty $25,000.00 1978Toyota 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 1962Apache 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 Insurancedisability 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 receivemaintenance. The District Court found that the Husband is 53 years of age, employed as a maintenanceman 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 itwas 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 networth 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 reMarriage 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 "substantialaccrued retirement benefits," and income with which to "purchase suitablehousing," is unsupported by the record,particularly in light of the court's granting of his subsequent request thathe be allowed to appeal - in forma pauperis. We are notpersuaded by Husband's arguments. "The scope of this Court's reviewwhen considering the findings and conclusions of a trial court sitting without a jury is clear and well settled inMontana. A brief consideration of those rules is appropriate at this point. "'ThisCourt'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.' [Casesomitted.

### I"~lthough conflictsmay exist in the evidence presented, it is the duty of the trial judge to resolve such conflicts. Mis findingswill not be disturbed on appealwhere they are based on substantial though conflicting evidence, unless there is a clear preponderance of evidence against such findings. [Citesomitted.]" Cameronv. Cameron (1978), 179 Mont. 219, 227, 587 P.2d 939, 944. In light of this standard, let us consider the points the Husband raises. TheWife's Illness. The District Court found as follows: "Thatthe RespondentWife ispresently totally and permanently disabled. She has a small sourceof income, $184.00 amonth, and no skills which will render her employable or able to supportherself. She must be awarded the sole right, title and interestof the family residence and trailer space located on the lot. If she loses the family residence, shewill have no place to live and no financial resources to purchase another residenceor rent suitable residence." The Husband testified with regard to theWife's disability

as follows: "Q. Mr. Cranmore,you understand that your wife Alvina is disabled, is that correct? A. Yes. "Q. Do you knowwhen 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 DistrictCourt incorrectly found the Wife's illness to be deteriorating heart condition,which is not substantiatedby 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 theWife, and the court's consideration of that disability in its apportionment of assets.The retirementbenefits were accumulatedby Husband and

were neither soughtby nor apportioned to theWife. Husband had held the same jobwith the State for seven years; retirementwas deducted from his wages. The District Court's finding thathe had "substantial accrued retirementbenefits" is adequately supportedby the record. Husband's testimony shows that after December, 1980,he lived in Bannack where he works, in a residence for which the Statemay subtract $35per month fromhis paycheck. Husband is earning steadywages, 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 disabledWife,who,without the familyhome 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 amaintenance award. The real dissatisfaction of the Husband appears to be with the failureof the ~istrict Court to order the sale of the house and the division of the saleprice equally between the Wife and 

### e us band. The often-stated rule in reviewing property distributions in dissolutionproceedings is that the District Court is afforded broad discretion. Abuse of discretion is thetouchstone in determining whether a particular distribution is inequitable. For an abuse of discretion to be found appellantmust show that the DistrictCourt acted arbitrarily without employment of conscientious judgment,or exceeded the bounds of reason in view of all the circumstances. LeProwse v. LeProwse (1982), Mont

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## , 39 St.Rep. 1053. Accord: Creon 

### v. Creon (1981), Mont. 

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

### v. Zell

(19771,174Mont. 216, 570 P.2d 30. The record here demonstrates that the DistrictCourt carefullyconsidered those factors set forth at section 40-4-202,MCA, which are to be used in making an equitableproperty 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 1978because of illness and very limited job skills. The Husband has a retirement fund; theWife will have her smalldisability 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 undoubtedlybe entitled to maintenance from the Husband. TheWife did not seekmaintenance,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 theWife 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 appealwas lacking in merit so as to justify an attorney's fee award to theWife.

We Concur:

Chief Justice 

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