NO. 88-500 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

IN RE THE MARRIAGE OF 

CONNIE A. DIRNBERGER, 

petitioner and Respondent, 

and 

JEROME A. DIRNBERGER, 

Respondent and Appellant. 

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

In and for the County of is sou la, 

The Honorable Douglas G. arki in, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Paul Neal Cooley; Skelton & Cooley, Missoula, Montana 

For Respondent: 

Paulette C. Ferguson, Missoula, Montana 

Submitted on Briefs: March 31, 1989 

' 7 Decided: May 18, 1389 

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Filed: 2 - '> 

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L "Clerk 
Mr. Justice Fred 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.n part, reverse in part and remand for 

furt.her proceedings consistent with this opinion. 

The issues are: 

1. Did the District Court err in failing to make adequate findings of fact before dividing the marital propertv? 

2. Did the District Court err by not awarding specific 

visitation rights to husband? 

3. Did the District Court err in awarding attorney fees 

to wife? 

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 whom husband 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 is an enrolled member of these Tribes. 

When the parties were married 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 the 
Missoula home. During the marriage, husband received approximately $62,000 by bequest from his father. When the parties 

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 of dissolution: Montana Glass, Inc., and West Pine Partnership which 

owns rental properties. 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 from his 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% of this 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 to pay this at the rate of $500 per month until paid. 
Wife was to transfer her interest in these businesses to 

husband. 

L 

Did the District Court err in failing to make adequate 

findings of fact before dividing the marital property? 

"A District Court has far-reaching discretion in dividing the marital property. Our standard of review is that the 

District Court's judgment, when based upon substantial credible 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; In re Marriage of Watson 

(198?), 44 Mont. 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, specifically providing that the court shall consider the estate and 

liabilities of the parties. 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, from which can be established a net worth of the 

parties. Schultz v. Schultz (1980), 188 Mont. 363, 613 P.2d 

1022, and cases cited therein; Cook v. Cook (1980), 188 Mont. 

472, 614 P.2d 511. Additionally, "[ilf the District Court's 

findings and conclusions do 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), 180 Mont. 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 sources of 

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 distribution was inequitable." Metcalf, 

598 P.2d at 1143. Similarly, in the present case, there is 

no basis for determining whether the apportionment of 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 this value is substantial. "If 

contested evidence i.s presented 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 consideration of net worth and personal 

property in a manner consistent with this opinion. 

Husband also contends that the court erred 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 "no definite rule could be established as to how 

the trial court was 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 to husband? 

The dissolution decree awarded custody of the minor 

child to wife and gave husband "reasonable rights of visitation." The court also decreed that "Husband may petition the 

Court for a specific visitation schedule with the minor 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-c visitation schedule because there is 
recognized animosity between him and his wife, and because 

wife has previously discouraged visitation of Sari. We find 

no abuse of discretion in this case. Considering Sari's age, 

the granting of a lenient standard of "reasonable visitation" 

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 Court has previously approved the granting of reasonable 

visitation, rather than a specific schedule in certain cases. 

See Meyer v. Meyer (1983), 204 Mont. 177, 182, 663 P.3d 338, 

331; Sanderson v. Sanderson (Mont. 198!), 623 P.2d 1388, 

1389, 3R Pt.Rep. l7?, 178. We hol-d that 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 of wife's attorney fees and costs. 

He urges that the court's failure to consider the parties' 

liabilities indicates that it failed to consider the financial resources of the parties' 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 

of both parties, may order a party to pay a reasonable amount 

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 Fee 
award and leave this to the discretion of the trial court on 

remand. We therefore vacate the award of attorney fees and 

remand for further consideration. 

IV 

Di-d the District Court err in all.owing certain evidence 

at trial? 

Husband contends that the court erred allowing wife's 

late filing of proposed findings of fact and conclusions of 

law. Wife did not file proposed findings of fact and conclusions of law until the dav before trial. On the day of 

trial, husband requested sanctions for late filing pursuant 

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 the court that it had previously agreed to 

allow her an extension of time to file her 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 will not 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 to testify to 

the value of Montana Glass, Inc. This exclusion was based on 

the fact that wife had not supplemented interrogatories in a 

timely fashion to notify husband of this expert. 

Relying on this order, husband declined the court's 

offer of a continuance and elected to try the case that day. 

However, at the close of the first day of trial, husband 

requested a continuance in order to brief a certain issue. 

The court granted this continuance, and because of scheduling 

problems, the trial was not resumed until March 16, nearly 
two months later. When trial resumed on March 16, both 

husband's expert and wife's expert were 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 expert would 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 consistent with this o~inion. 

We Concur: