NO. 88-500

IN THE SUPREME COURT OF THE STATE OF MONTANA
1989

IN RE THEMARRIAGE OF CONNIEA. DIRNBERGER, petitioner and Respondent, and

JEROMEA. DIRNBERGER, Respondentand Appellant.

APPEAL FROM: District Court of the Fourth ~udicial ~istrict, Inand for the County of

### is sou la, TheHonorable DouglasG. 

### arki in, Judgepresiding.

COUNSEL OF RECORD:

ForAppellant: Paul Neal Cooley; Skelton & Cooley, Missoula, Montana

For Respondent:
PauletteC. Ferguson, Missoula,Montana

Submitted on Briefs: March 31, 1989 

# '7 Decided: May 18,1389
C-) Filed: 2 

### - '> \-4 ',%I ,-1 r-: yc, 

### - L "Clerk

### Mr. JusticeFred J. 

### Weber delivered the Opinion of the Court.

This is an appeal from a dissolution proceeding in the Fourth Judicial District Court, Missoula County. Husband appeals. We affirm i.npart, reverse in part and remand for furt.herproceedings consistentwith this opinion. The issues are: 1. 

### Did the District Court err in failing to make adequate findings of fact before dividing themarital propertv? 2. 

### Did the District Court err by not awarding specific visitation rights to husband? 3. 

### Did the DistrictCourt err in awarding attorney fees towife? 4. Did the District Court err in certain rulings? The parties were married January 24, 1982. Dissolution proceedings were initiated on December 12, 1986. 

### Husband has two minor children from a prior marriage. Wife has a

### minor daughter whomhusband adopted. Jerome Dirnberger (husband)has a bachelor's degree in theology and has done graduate studies in anthropology. Connie Dirnberger (wife) has a high school diploma. Husband's work experience includes bank teller, bank officer, and bank manager. He has also owned and managed several businesses, including Schrader Stoves, Montana Glass, Inc., United Building Services, and Business Advisory Services. Wife has worked as a telephone operator, interior designer, and as alcohol counselor for the Confederated Salish and Kootenai Tribes. Wife isan enrolled member of these Tribes. When the partiesweremarried wife owned a home in East Missoula, Montana. Husband had just closed the Schrader Stoves business. Soon after marriage the parties sold the East Missoula home and moved to Denver,Colorado. The parties received approximately $2,300 

### in equity from theMissoula home. During themarriage,husband received approximately $62,000by bequest fromhis father. When theparties moved to Denver they purchased a home using proceeds from the home sold in Missoula, combined with money from husband's inheritance. The parties later sold the home in Colorado and moved back to Missoula, reinvesting the proceeds from the Denver home into a home in Missoula. At dissolution the equity in the Missoula family home was valued at $13,000. The court ordered that the family home be sold and the proceeds divided equally. The parties owned two businesses at the time ofdissolution: Montana Glass, Inc., and West Pine Partnership which

owns rentalproperties. Montana Glass, Inc. was purchased by the parties 

### in 1985 for $404,000. The purchase price of Montana Glass, Inc. actually comprised the purchase of stock, inventory, and the West Pine Partnership. Husband contributed $40,000 to the purchase price from funds obtained by bequest fromhis father,and assumed a contract in the amount of 9;347,000. Husband's brother contributed 515,000 to the business and husband's two chiIdren each contributed 51,500. Husband and wife owned 70%ofthis business. Montana Glass, Inc.was found

### by the court to have a net market value of $100,000. Because the parties owned 70% of the business, their interest was valued at $70,000, From this value the court deducted $44,000 which was attributaSle to husban6's inheritance, leaving a value of $26,000 attrihutable to the marital estate. The court determined the net value of the West Pine Properties to be $2645. Thus the combined net value of the two businesses was $28,645. The court awarded !X35,000 of this interest to wife, ordering husband topay this at the rate of $500per month untilpaid.Wife was to transfer her interest in these businesses to husband. L Did the District Court err in failing to make adequate findingsof factbefore dividing themaritalproperty? "A District Court has far-reaching discretion in dividing themaritalproperty. Our standard of review is that the DistrictCourt's judgment,when based upon substantialcredible evidence, will not be altered unless a clear abuse of discretion is shown." In re Marriage of Stewart (1988)

## , 45 St.Rep. 850, 852, 757 P.2d 765, 767; InreMarriage ofWatson

(198?),44Mont. 1167, 1170, 739 P.2d 951, 954. Tn a marital. dissolution the guidelines for property division are enumerated in 

### 5 40-4-202, MCA. This statute lists many factors to consider in this apportionment,specificallyproviding that the court shall consider the estate and liabilities of theparties. The basic goal is that.the court must "finally equitably apportion between the parties the property and assets 

# .

# .." In construing this statute, this Court has consistently held that this apportionment must be predicated upon a finding of the net worth of the marital estate. Only after a finding of net worth can the trial court make an equitable apportionment. The District Court must make complete findings of fact, including assets and liabilities,fromwhich canbe established a networth of the parties. Schultzv. Schultz (1980),188Mont. 363, 613P.2d 1022,and cases cited therein;Cook v. Cook (1980), 188Mont. 472, 614 P.2d 511. Additionally, "[ilf the District Court's findings and conclusionsdo not reflect the net worth of the parties' marital assets at the time of their divorce, this Court on appeal cannot determine if the property was equitably divided." Robertson v. Robertson (1979),180Mont. 226, 331, 590 P.?d 113, 116.The District Court found the marital estate of the parties included the family home, Montana Glass, Inc., and the West Pine Partnership. However, the court made no specific finding as to marital debt, or as to the value of the parties' personal property. The court simply allocated the unpaid debt to husband. Husband produced evidence at trial demonstrating debts exceeding $55,000, which have been incurred by both husband and wife. The amounts and sourcesof these debts are uncontroverted. Husband argues that if this debt is subtracted from his share of the marital estate, he is left with a negative net value of over $35,000. In the

case of In re Marriage of Metcalf, 183 Mont. 266, 598 P.2d 1140, the trial court failed to consider $12,000 worth of unsecured debt before distributing the marital property, resulting in a net deficit to one party. This Court stated, "This factor,if considered by the court, should have alerted it that the property distributionwas inequitable." Metcalf, 598 P.2d at 1143. Similarly, in the present case, there is

no basis for determining whether the apportionmentof assets is equitable without a finding on the parties' liabilities. We conclude that the District Court's failure to make a specific finding as to liabilities, thereby precluding a determination of net worth, was an abuse of discretion. Additionally, we note that the court's decree should include

a finding regarding the parties' personal property in this
case,as husband alleges that thisvalue is substantial. "If contested evidence i.spresented regarding the existence of a marital asset and no findings are made regarding that asset or no explanation provided as to why the District Court did not include or explain the exclusion of such property, the District Court has abused its discretion." Hamrneren v. Hammeren (1982),201 Mont. 443, 447, 663 P.2d 1152, 1154. We vacate the property division in this case and remand For a

### redetermination of the property division,using all.relevant factors including the considerationofnet worth and personal property in amanner consistentwith this opinion. Husband also contendsthat the courterred in not taking his inheritance into consideration in dividing the proceeds from the family home. While the court subtracted the husband's inheritance from the parties' equity in the business, it did not subtract any amount from the equity in the family home which might be attributable to inheritance. The court is required to take an inheritance into consideration in dividing the assets. However, this Court has previously stated that "nodefinite rule could be established as to how the trial courtwas to consider this asset. Each case has to be decided on its own facts." Metcalf, 598 P.2d. 

### at 1143, quoting Vivian v. Vivian (1978), 178 Mont. 341, 583 P.2d 1072. In the present case the court took husband's inheri-- tance into consideration in the property division. We conclude that the District Court did not err in its determination that the equity in the family home should 

### be divided equally.

Did the District Court err in not awarding specific visitation tohusband? The dissolution decree awarded custody of the minor child to wife and gave husband "reasonablerights ofvisitation." The court alsodecreed that "Husband may petition the Court for a specific visitation schedulewith theminor child if the granting of 'reasonable visitation' becomes unworkable." The child involved in this custody issue is wife's daughter, Sari, whom husband adopted. Sari is now 16 

### years old. Husband contends that it was error for 

### the court not to establish a 

### specifj-cvisitation schedule because there isrecognized animosity between him and his wife, and because wife has previously discouraged visitation of Sari. 

### We find

no abuse ofdiscretion in this case. Considering Sari's age, the granting of a lenient standard of "reasonablevisitation" may be appropriate. The court specifically allowed husband to petition for a specific visitation schedule should the parties' visitation arrangement turn out to be unworkable. This Courthas previously approved the granting of reasonable visitation, rather than a specific schedule in certain cases. See Meyer v. Meyer (1983),204Mont. 177, 182, 663 P.3d 338, 331; Sanderson v. Sanderson (Mont. 198!), 623 P.2d 1388, 1389, 3R Pt.Rep. l7?, 178. We hol-dthat the District Court. did not abuse its discretion 

### in not establishing a specific visitation schedule. IIT Did the District Court err in awardin9 wife attorney fees? Husband contends that the court abused its discretion in ordering him to pay $3,000 ofwife's attorney feesand costs. He urges that the court's failure to consider the parties' liabilities indicates that it failed to consider the financialresourcesof theparties' before awarding attorney fees. 

### In a dissolution proceeding, attorney Fees are awarded pursuant to $ 40-4-110,MCA,which provides that "[tlhe court from time to time, after considering the financial resources ofboth parties, may order aparty topay a reasonableamount for the cost to the other party 

# .

# .."

In view of the court's failure to make findings on the parties' 1iabilit.ies

## , it could not have properly considered the financial resources of both parties. As in In re Marriage of PcGjll (1380), 187 Mont. 187, 193, 609 P.2d 278, 279, rev'd on other grounds, 196 Mont. 40, 637 P.2d 1182 (1981-),we believe it is best t.o vacate the attorney Feeaward and leave thistothe discretion of the trialcourt on remand. We therefore vacate the award of attorney fees and remand for furtherconsideration. IV Di-d the District Court errinall.owing certain evidence attrial? Husband contends thatthe courterred allowingwife's late filing of proposed findings of fact and conclusions of law. Wife didnot fileproposed findingsof factand conclusions of law until the dav before trial. On the day of trial, husband requested sanctions for late filingpursuant to Rule 8, Uniform District Court Rules. The court first imposed a sanction prohibiting wife from presenting any evidence at t.ria1. However, the court withdrew that order when wife reminded thecourt that ithad previously agreed to allow her an extension of time to fileher proposals. We note that the language of Rule 8 allows the court discretion in awarding sanctions. In the absence of any showing by the record that the District Court committed an abuse of discretion, we willnot overturn the decision of the lower court. Husband also alleges that the court erred when it retracted its order excluding wife

### 's expert from testifying. On the first day of trial, January 22, the court excluded wife's expert, Tracy Rlakeslee, a CPA who was totestify to thevalue of Montana Glass, Inc. This exclusionwas based on the fact thatwife had not supplemented interrogatories ina timely fashiontonotifyhusband of thisexpert. Relying on this order, husband declined the court's offer of a continuance and electedtotrythe case thatday. However, at the close of the first day of trial, husband requested a continuance in order to brief a certain issue. The court granted thiscontinuance, and because of scheduling problems, the trial was not resumed until March 16, nearlytwo months later. When trial resumed on March 16, both husband's expert and wife's expertwere allowed to testify as to the value of the business. Husband claims surprise, and also that the retraction of the order negated his trial tactics, in that he assumed only his expertwould testify as to the value of the business. It is not clear from the record at which point or for what reason the court retracted its order. In view of the fact that the trial was continued for nearly 2 months, we conclude no abuse of discretion has been shown on the part of the trial judge in allowing wife's expert to testify. In the event husband contends he should be allowed to submit additional evidence because of the Blakeslee testimony he may present that request to the trial court for consideration on remand. We affirm in part, reverse in part and remand for further proceedinqs consistentwith this o~inion.

We Concur: