No. 12719 

IN THE 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 : 

For Appellant : 

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 2 4 1975 

Filed : 

SF 8 4 1975 
Mr. 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 final judgment of divorce 

granted the parties in the district court, County of Park, on 

November 27, 1973. 

The parties were married December 3, 1949. The wife was 

a teacher and continued to teach for approximately three years 

until 1953, then was out of the profession until 1958. During 

this time two children were born, a son, age 17 years at the 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 mill and at the time of the divorce, on a seven day work 

week, earning $1,000 per month based on an hourly rate. During 

the marriage the husband worked at odd jobs in addition to his 

regular employment and both parties contributed their wages to 

the joint assets under the principal control of the wife. 

In 1965 the parties acquired The Sleeping Giant Motel 

in Livingston, Montana. The purchase price was $30,000 and the 

balance due at the 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 its earnings, the wife estimated the motel's value at $30,000- 

$35,000. The husband estimated the value of the motel at $75,000. 

However, testimony indicates the motel was listed for sale at 

$100,000. The parties formerly owned a home in Livingston, 

Montana, which had been sold. At the time of the divorce, there 

was $6,235.36 owed to the parties from the buyers. 

The wife had invested $10,000 in her name only in a business known as Chico Hot Springs and had apprcximately $1,900 in 

a savings account. She testified these monies were part of a 
settlement from the accident which resulted in the death of 

their daughter. 

The wife contends she was physically unable to teach 

after 1965 because of injuries and childbearing disabilities, 

although she has operated the motel from the time it was purchased. 

The wife testified that three years before the divorce 

the husband stopped contributing his checks to the joint accounts 

of the parties. However, testimony reveals that about this time 

she broke off the marriage relationship and took up residence 

alone in a new mobile home she purchased with joint funds, the 

value of which was never revealed and the title was placed in 

her name. She also purchased a car with joint funds and placed 

title in her name. The make and model of the car was not revealed in the proceedings. The husband owns a 1966 Ford pickup. 

Testimony also indicates this period of time before the divorce 

could have been closer to two years than three. During this 

period of time until the hearing on the divorce, she supported 

herself and son from joint funds and motel earnings. 

The testimony is at best confused concerning the parties' 

savings accounts and checking accounts which were joint accounts. 

Account #I2604 with the Ehpire Federal Saving and Loan Association, 

in the name of Jeanette R. & Roman Fautsch, as trustees for 

Stanley 2. Fautsch, their son, was closed on June 30, 1972. The 

balance at that 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 at Empire Federal Savings and Loan 

Association, which was in joint tenancy between the parties. 
At the 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 is the account she is referring to is not made plain from 

the evidence presented. The husband also claims there is a loan 

of $4,000 by the wife to a relative from a joint account in a 

Spokane savings account, in the wife's name. 

Testimony also reveals the gross earnings from the motel 

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 to the mother with $150 per month child 

support until majority. The wife was awarded the motel subject 

to its indebtedness. The court ordered the husband to provide 

hospital and medical care for the child and wife. The husband 

was awarded the balance due on the house contract in the amount 

of $6,235.56 and the court also provided that if the wife ever 

desired to sell the motel the proceeds in excess of $50,000 

would be divided equally between the parties. 

There is no question the husband did not contribute an 

equal share or more to the joint assets accumulated during a 

marriage in excess of 20 years. The court found neither party 

to be at fault in awarding the decree of divorce. There is no 

credible evidence to justify an unequal distribution of the 

assets of the marriage. Only the wife and husband testified 

before the court. She claims to have been injured bearing his 

children and in the 1965 accident and this seems to be a basis 

for preference. Yet, no independent evidence of her condition 

was produced nor could counsel enlighten this Court in oral 

argument. Funds are claimed by the wife as a result of the 1965 

accident but no substantial or clear evidence was offered to 

support this assertion. There seems to have 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 is vague 

and confusing as well as in conflict. This Court will not disturb 

findings of the district court where 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 determination must be made of how much 

money was awarded to the parties for the death of their daughter 

caused by the 1965 automobile accident; how much 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. 

Expert medical testimony should be presented to the court 

demonstrating the exact nature of the wife's medical problem, and 

the extent of disability caused by these medical 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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Chief Justice 

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