No. 12719 

### INTHE SUPREME COURT 

### OF THE STATE OF MONTANA 1974

JEANETTE R. FAUTSCH,Plaintiff and Respondent,


### -vs

# - ROMAN A. FAUTSCH, Defendant and Appellant.
Appeal from: District Court of the Sixth Judicial District, Honorable Jack D. Shanstrom, Judge presiding. Counsel of Record: ForAppellant: Richard J. Conklin argued, White Sulphur Springs,

Montana For Respondent: Huppert and Swindlehurst, Livingston, Montana Joseph T. Swindlehurst argued, Livingston, Montana

Submitted: September 19, 1974 Decided: 

## JAN

## 24

## 1975 Filed

### : 

## SF 84 

## 1975Mr. Justice Gene B. Daly delivered the Opinion of the Court.
This is an appeal by the husband from the property settlement and division portion of a finaljudgment of divorce granted the parties inthe districtcourt, County of Park, on November 27, 1973. The parties were married December 3, 1949. The wife 

### was
a teacher and continued toteach for approximately three years until 1953, then was out of the profession until 1958. During thistimetwo children were born, a son, age 17 years atthe time of the divorce, and a daughter who 

### was killed in a family automobile accident in 1965. The wife has not taught school since the daughter 

### was killed in 1965. The husband is a sawyer for a lumber milland atthe time of the divorce, on a seven day work week, earning $1,000 per month based on an hourly rate. During themarriage the husband worked atodd jobs inaddition tohis regular employment and both parties contributed their wages to the joint assetsunder the principal control of the wife. In 1965 the parties acquired The Sleeping Giant Motel inLivingston, Montana. The purchase price was $30,000 and the balance due atthe time of the divorce 

### was $7,348.55. This purchase 

### was made with joint earnings and a loan of $3,000 from the wife's mother. In 1972, the motel grossed $10,056. Based
on itsearnings, the wife estimated the motel's value at $30,000- $35,000. The husband estimated the value of themotel at$75,000. However, testimony indicates the motel was listed for sale at $100,000. The parties formerly owned a home inLivingston, Montana, which had been sold. Atthe timeof the divorce, there
was $6,235.36 owed tothe parties from the buyers. The wife had invested $10,000 inher name only ina business known as Chico Hot Springs and had apprcximately $1,900 in
a savings account. She testified these monies were part of asettlement from the accident which resulted inthe death of their daughter. The wife contends she was physically unable to teach after 1965because of injuries and childbearing disabilities, although she has operated themotel from the timeit 

### was purchased. The wife testified that three years before the divorce the husband stopped contributing his checks tothe joint accounts of the parties. However, testimony reveals that about this

### time she broke off the marriage relationship and took up residence alone ina new mobile home shepurchased with joint funds, the value of which was never revealed and the titlewas placed in her name. She alsopurchased 

### a car with joint funds and placed titleinher name. The make and model of the car was not revealed intheproceedings. The husband owns a 1966 Ford pickup. Testimony also indicates thisperiod of time before the divorce could have been closer totwo years than three. During this period of time until the hearing on thedivorce, she supported herself and son from joint funds and motel earnings. The testimony is atbest confused concerning the parties' savings accounts and checking accounts which were joint accounts. Account #I2604with the Ehpire Federal Saving and Loan Association, inthe name of Jeanette R. & Roman Fautsch, as trustees for Stanley 2. Fautsch, their son, was closed on June 30, 1972. The balance atthat time was $3,715.51. The wife claims the account
was closed, but immediately reopened, thereby eliminating the husband's name from the account. There was, however, no evidence presented to the court verifying the reopening, only a letter from the bank showing that it had been closed. Another savings account, #7136, 

### was closed atEmpire Federal Savings and Loan Association, which was injoint tenancy between the parties.Atthe time it was closed the balance was $634.84. There was testimony from the wife that there was $1,900 in savings at Empire Federal Savings and Loan Association. Whether account #7136 

### isthe account she isreferring toisnot made plain from the evidence presented. The husband alsoclaims there is a loan of $4,000 by the wife toa relative from a joint account ina Spokane savings account, inthe wife's name. Testimony alsoreveals the gross earnings from themotel in 1972 may not be correct, and there is some confusion concerning the original purchase price. The court awarded both parties a divorce; custody of the minor child was awarded tothemother with $150 per month child support until majority. The wife was awarded themotel subject toits indebtedness. The court ordered the husband toprovide hospital and medical care for the child and wife. The husband
was awarded the balance due on the house contract inthe amount of $6,235.56 and the court alsoprovided that if the wife ever desired to sellthe motel theproceeds inexcess of $50,000 would be divided equally between the parties. There 

### isno question the husband did not contribute an equal shareormore tothe joint assets accumulated during a marriage inexcess of 20 years. The court found neither party tobe atfault inawarding the decree of divorce. There isno credible evidence tojustify an unequal distributionof the assets of the marriage. Only the wife and husband testified before the court. She claims tohave been injured bearing his children and inthe 1965 accident and this seems tobe a basis forpreference. Yet, no independent evidence of her condition
was produced nor could counsel enlighten this Court inoral argument. Funds areclaimed by the wife asa result of the 1965 accident but no substantial or clear evidence was offered to support thisassertion. There 

### seems tohave been an award for

### the wrongful death of the daughter, damages to the son and wife but no evidence of the amounts involved or the husband's interest in these awards. The testimony is clear that the wife handled the business accounts and assets for the family and she has not met her burden in accounting for them. The evidence in these areas isvague and confusing as well as in conflict. This Court will not disturb findings of the district courtwhere supported and justified by substantial evidence. Judson,Administrator v. Anderson, 118 Mont. 106, 117, 165 P.2d 198. However, this Court cannot affirm
a judgment where there is insufficient credible evidence to support it. We therefore affirm that portion of the judgment awarding the parties a divorce and the wife custody of the minor child, but remand for further hearing the property settlement portion of the judgment. Specifically, a determinationmust be made of howmuch money was awarded to the parties for the death of their daughter caused by the 1965 automobile accident; howmuch of that amount
was awarded the parties for a wrongful death action; and how much was awarded to members of the family individually for injuries suffered from the accident, and the husband's share of the wife's award. Expertmedical testimony should be presented to the court demonstrating the exact nature of the wife'smedical problem, and the extent of disability caused by thesemedical problems. There should be expert testimony as to the present value of The Sleeping Giant Motel, the trailer house, and automobile purchased by the wife from joint funds. There should also be some type of record offered to provide an accounting of the motel's income for the past three years. Finally,there must be a complete disclosure by both

### parties of the money each of them have in savings accounts, checking accounts, safety deposit boxes or whatever. All joint assets accumulated during the marriage and their disposition should be revealed to the court. The judgment of the district court granting the divorce and custody of the minor child is affirmed. The distribution of the property award by the court is reversed and remanded for further hearing not

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