NO. 88-118 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

IN RE THE MARRIAGE OF 

ROBERT J. TURBES, 

Petitioner and Respondent, 

and 

EDITH YVONNE TURBES, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Sixteenth Judicial District, 

In and for the County of Custer, 

The Honorable A.B. Martin, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Larry D. Herman, Laurel, Montana 

For Respondent: 

George W. Huss; Brown & Huss, Miles City, Montana 

Submitted on Briefs: Aug. 11, 1988 

Decided: September 27, 1988 

Filed: SEP 2 7 t988l 

-#'* .- 

Clerk 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

Edith Turbes appeals from the February 3, 1988 judgment 

of the Custer County District Court dissolving her marriage 

to Robert Turbes and dividing their property. We affirm the 

judgment of the District Court but remand the case for 

payment of the temporary maintenance as previously ordered by 

the District Court. 

Robert J. Turbes and Edith Yvonne Turbes were married 

on May 12, 1984. Their marriage lasted 34 months to the date 

of separation and three and one-half years to the date of 

trial. There were no children born of the marriage, though 

Robert's two children of a previous marriage lived with the 

parties in Cody, Wyoming, during the first year of the 

marriage. Both parties had been married previously. 

Five years prior to their marriage, Robert Turbes was 

injured in an industrial accident, for which he received a 

net settlement of approximately $110,000. Mr. Turbes used 

portions of this settlement to construct a house which he 

owned free and clear at the time of the marriage ($58,000) ; 

to secure a loan to start a True Value lumber business 

(Turbes Lumber) ($40,000) ; and to purchase a Ford Bronco. 

Respondent held these assets, his personal belongings, and 

approximately $14,000 in cash at the time of the marriage. 

Testimony of the husband placed his net worth at 

approximately $250,000 at the time the parties married. The 

wife's testimony established a net worth of approximately 

$4,000 at the time of the marriage. This consisted of a 1979 

Fiat automobile, a savings account containing approximately 

$2,500 and her personal belongings. Evidence conflicted. on 

the amount owing on these assets. 
Approximately one year after the parties married, they 

sold the home Robert had built prior to marriage and 

proceeded to use the proceeds to construct a new home. 

Conflicting evidence was introduced as to the cost of 

materials and services which went into the house. At trial 

Robert produced a record showing the cost was approximately 

$95,000, while Edith testified she believed the cost was 

closer to $75,000 to $80,000. The parties obtained an 

$80,000 mortgage on the property placing the money obtained 

from the mortgage back into their account in anticipation of 

expanding Turbes Lumber. Both Robert and Edith contributed 

substantial amounts of their time to finishing the house, 

though Edith admitted Robert put in more time. 

During the first two years of their marriage, Edith 

worked for Turbes Lumber. For her time, she was paid between 

$900 and $1,000 per month. She produced evidence at the 

hearing that she used a portion of her income to pay off the 

debts she brought to the marriage and some of their living 

expenses. Edith acknowledged that Robert contributed from 

his earnings at Turbes Lumber toward their living expenses. 

In approximately June of 1986, the lumber company began 

experiencing financial problems and Edith went to work for 

Marathon Oil in Cody, Wyoming. Edith quit working for 

Marathon Oil in early August, 1986, and returned to Turbes 

Lumber where she worked without pay until Turbes Lumber was 

liquidated on August 16, 1986. 

After liquidation of Turbes Lumber, approximately 

$20,000 remained owing on the loan Robert had taken out to 

finance the business. To secure payment of this obligation 

the parties executed a second mortgage on the marital home. 

Prior to this time the parties had transferred their 

bank account of approximately $110,000 to Minnesota and 

placed it in Robert's brother's name. This was done in 
anticipation of pending legal problems involving Turbes 

Lumber. The couple then moved to Minnesota, and borrowed 

$35,000 to start a business from a trust created by Edith's 

parents. This business opportunity fell through, and they 

returned the money borrowed from the trust. They moved to 

Portland, Oregon and then back to Cody, Wyoming. In January 

of 1987, the parties reached an accord and satisfaction where 

they deeded their house in Cody to the bank in lieu of 

foreclosure of the mortgages on the property. Robert then 

obtained work in Miles City, Montana, where the parties were 

living at the time of their separation on March 15, 1987. 

Prior to the separation, Robert transferred 

approximately $104,000 from the joint bank account to a 

separate account in his name. When the parties separated, 

Edith removed most of their personal property and took both 

her Fiat automobile and the Ford 1,TD purchased during their 

marriage. Robert subsequently filed for dissolution of the 

marriage. Edith later received a check for stock which 

Robert had earned through Turbes Lumber's membership in True 

Value. She cashed the check in the amount of $1,389.77, but 

did not spend the money. 

Pursuant to the District Court's temporary order of May 

27, 1987, Robert was given possession of the Ford LTD with 

its accompanying debt, and Edith was given possession of the 

Ford Bronco. Edith was also ordered to return those personal 

property items of Robert's which she had taken. 

The court heard the parties' dissolution action on 

December 18, 1987, and issued its decree of dissolution on 

February 3, 1988. The court awarded to Robert the following: 

the remaining monies in his bank account (approximately 

$98,000); the Ford LTD (along with its accompanying debt); 

the Ford Bronco; insurance proceeds from claims upon the 

vehicles; and that personal property which he brought to the 
marriage. Edith received the proceeds from the sale of her 

Fiat and her personal possessions, but she was directed to 

return the proceeds of the check issued from True Value to 

Robert. 

The following issues are presented for our 

consideration: 

1. Did the District Court abuse its discretion in 

adopting the husband's proposed findings of fact and 

conclusions of law? 

2. Did the District Court abuse its discretion in not 

considering the nonmonetary contributions of the appellant to 

the marriage and to the preservation of the marital assets? 

3. Did the District Court abuse its discretion in not 

adjusting the property rights reasonably and equitably? 

4. Did the District Court abuse its discretion by not 

considering the income tax consequences attendant to the 

accord and satisfaction of the mortgages? 

In reviewing the issues presented on appeal of a 

property distribution, this Court's function is "extremely 

limited. " In re Marriage of Hundtoft (Mont. 1987) , 732 P.2d 

401, 402, 44 St.Rep. 204, 205. "[Tlhis Court will reverse a 

district court only upon a showing that the district court 

has acted arbitrarily or has committed a clear abuse of 

discretion, resulting in either instance in substantial 

injustice." In re Marriage of Hall (Mont. 1987), 740 P.2d 

684, 686, 44 St.Rep. 1321, 1323. If the District Court's 

findings of fact and conclusions of law properly address the 

considerations in § 40-4-202, MCA, this Court will not 

reverse the determination made by the District Court. 

Issue #l. 

Did the District Court abuse its discretion in adopting 

the husband's proposed findings of fact and conclusions of 

law? 
This Court will uphold the district court if its 

decision is supported by the law and the evidence. In re 

Marriage of Sessions (Mont. 1988), 753 P.2d 1306, 1307, 45 

St.Rep. 744, 746. In the case at hand, the District Court 

prefaced its adoption of the husband's findings by stating: 

It is not the usual practice of this 

court to adopt the proposed findings of 

fact or conclusions of law of counsel, 

but after hearing testimony, examining 

exhibits, and considering briefs of 

counsel, the Court adopts petitioner's 

proposed findings of fact and conclusions 

of law as follows: 

This statement by the District Court shows the District 

Court did not adopt the petitioner's proposed findings 

haphazardly. The question for this Court is whether the 

adopted findings are supported by the law and the evidence. 

Section 40-4-202, MCA, is the controlling statute for 

division of property in a dissolution action. This statute 

directs the court to divide the property equitably between 

the parties without regard to marital misconduct. The court 

must consider all assets owned jointly or individually, 

however or whenever acquired, regardless of the manner in 

which title is held. The court shall then consider the 

duration of the marriage, previous marriages, the earning 

potential of each party, their liabilities and their 

opportunities for future acquisition of capital assets and 

income. The court shall consider contributions to and 

dissipation of the parties' individual estates. When a court 

considers property acquired prior to marriage, as in this 

case, the court shall consider contributions of the other 

spouse to the marriage, including: 

(a) the nonmonetary contribution of a 

homemaker; 
(b) the extent to which such 

contributions have facilitated the 

maintenance of this property; and 

(c) whether or not the property division 

serves as an alternative to maintenance 

arrangements. 

Section 40-4-202 (I), MCA. 

The following findings by the District Court illustrate 

due consideration of S 40-4-202(1), MCA: The court found 

that the marriage was of a short duration (34 months), that 

no children resulted from their union, both parties had 

marketable job skills, that neither had health problems 

affecting their employability, and that no antenuptial 

agreement existed. Further the court found that a bank 

account containing approximately $98,000 was the major 

existing asset at the time of dissolution. Substantial 

credible evidence was presented at trial which supports these 

findings and we hold that the District Court did not err in 

adopting these findings. 

Appellant contends the District Court erred in awarding 

all the monies in the existing bank account to the husband 

and less than $2,000, representing temporary maintenance to 

the wife. Appellant first contends that the respondent did 

not bring cash into the marriage in the amount of $14,000. 

However, our review of the evidence and transcript shows the 

respondent did not spend the entire amount of his settlement. 

$40,000 was set aside to cover operating expenses of their 

business, however this money was not entirely spent. This is 

further evidenced by the fact that after sale of the 

premarital home one year into the marriage (netting $97,000) 

the parties' bank account showed a balance in excess of 

$115,000. Respondent testified this amount represented 
proceeds from his personal injury settlement. Appellant's 

evidence does not disprove this claim. 

Appellant next claims that she should have received 

$2,000 under the court's order for temporary maintenance, 

but actually only received $1,000. Appellant is correct 

in her claim and respondent admits Edith only received 

$1,000. However, this Court finds the error is correctable 

and does not arise to the level of reversible error. 

The third error claimed by the appellant is that the 

bank account did not represent respondent's premarital 

personal injury settlement, but rather proceeds from the home 

the parties built. Here the court was presented with 

conflicting evidence on the cost of building the marital 

home, but both parties acknowledge that all the financing for 

the construction came from the proceeds of the husband's 

personal injury settlement and the proceeds of the sale of 

the premarital home. Both parties contributed their labor to 

the building of the home and the appellant admitted the 

husband spent more time in its construction. After examining 

the conflicting evidence on the cost of the marital home, the 

court adopted the husband's figures which approximated the 

amount of the loans on the home at the time it was deeded 

back to the bank in satisfaction of the mortgages. It is 

granted that $20,000 of this amount secured debts of the 

business after liquidation. Appellant has acknowledged, 

however, that the business provided her with a job, and that 

the parties used profits from the business, both before and 

after its liquidation, to live on. It is not unreasonable 

for the court to find she received a benefit from the 

business justifying her obligation. As the asset did not 

generate income or property for the parties, the court did 

not abuse its discretion in finding the appellant failed to 

generate a claim aqainst the husband's premarital assets. 
The final error claimed in the proposed findings is 

that the appellant had an irrevocable interest in a trust 

fund which provided her with the opportunity to generate 

future capital assets and income. While direct reference is 

not made to the existence of appellant's interest in the 

trust, evidence was introduced of its existence, the fact she 

could borrow against the trust and that the trust had been 

created by appellant's parents. Therefore, we do not find 

reversible error. 

Having examined the record and the court's findings we 

do not find that the District Court abused its discretion. 

Issue #2. 

Did the District Court abuse its discretion in not 

considering the nonmonetary contributions of the appellant to 

the marriage and to the preservation of the marital assets? 

Appellant maintains the court should consider the 

nonmonetary contributions of a spouse when dividing the 

marital assets. This assertion is correct. See 

S 40-4-202 (I), MCA; and Eschenberg v. Eschenberg (1976), 171 

Mont. 247, 251, 557 P.2d 1014, 1016; In re Marriage of Dow 

(Mont. 1988), 750 P.2d 1064, 45 St.Rep. 317. In this case 

however, the court did consider the contribution of the 

appellant toward maintaining the marital assets. 

Unfortunately the court determined her contribution toward 

the marital assets were lost when the parties deeded back the 

marital hone to the bank in satisfaction of the mortgages on 

the property. The husband's contribution of his time and 

effort was also lost at that time. Further, while the 

parties experienced a reduction in their net worth over the 

length of the marriage, the court appears to have attempted 

to return appellant to her maximum net worth at the time of 

the marriage. In light of the short duration of the marriage 
and the reduction of the husband's premarital net worth this 

does not appear to be an inequitable division. 

Issue #3. 

Did the District Court abuse its discretion in not 

adjusting the property rights reasonably and equitably? 

In her third issue, appellant maintains the court's 

division of the marital property is unfair in light of her 

contributions toward the marital assets. In essence this 

issue is a rehashing of the first two issues. In the case of 

In re Marriage of Keepers (Mont. 1984), 691 P.2d 810, 41 

St.Rep. 2163, this Court stated: 

Reasonable minds could differ on what 

would be the most equitable distribution 

of the parties' property. That the case 

may be decided differently is not the 

inquiry on appeal, the question is 

whether the fact determination of the 

court below is clearly erroneous. Rule 

52(a), M.R.Civ.P. 

- Keepers, 691 P.2d at 813, 41 St.Rep. at 2167. 

In Keepers, as in this case, review of the record 

showed the District Court's findings contained an error. 

There this Court found the error did not result in a finding 

that the District Court clearly abused its discretion. The 

error we find in this case, the fact that Edith only received 

$1,000 of temporary maintenance, is correctable and does not 

constitute an abuse of discretion by the District Court. 

Issue #4. 

As its final issue, appellant raises the question of 

whether or not the District Court abused its discretion by 

failing to consider the tax consequences of the marital 

property distribution. The findings of fact and conclusions 

of law adopted by the lower court do not address the issue 

directly. 
Appellant contends the lower court's distribution of 

the marital assets constitutes a "triggering" event, making 

her liable for state and federal income taxes on the accord 

and satisfaction of the marital home. This contention is 

without merit. The triggering event in this instance was the 

accord and satisfaction itself, which created any resulting 

tax liability at that time. "[Wlhere a property distribution 

ordered by a court includes a taxable event precipitating a 

concrete and immediate tax liability, such tax liability 

should be considered by the court before entering its final 

judgment." In re Marriage of Beck (Mont. 1981), 631 P.2d 

282, 285, 38 St.Rep. 1054. But, "a District Court does not 

abuse its discretion by refusing to consider theoretical tax 

consequences when the court-ordered property distribution 

does not contemplate any taxable event which triggers present 

tax liability." Beck, 631 P.2d at 285, 38 St.Rep. at 1058. 

See In re Marriage of Gilbert (Mont. 1981), 628 P.2d 1088, 38 

Finally, appellant failed to produce adequate evidence 

at the hearing upon which the court could make a 

determination of the existence of the tax consequences. The 

only evidence was testimony by the appellant that she would 

experience a taxable gain on the accord and satisfaction for 

the marital home. Appellant relied on her unsubstantiated 

belief on the cost of building the house, which conflicts 

with evidence presented by the husband. Because of the 

theoretical nature of the contention, we hold the court did 

not abuse its discretion by refusing to consider the tax 

consequences. 

In light of our determination that the District Court 

was in error in finding appellant had received the $2,000 

which had been ordered, but only received $1,000, we remand 

to the District Court to compel payment of the sum of $1,000 
by respondent husband to the wife as previously ordered. 

Judgment affirmed, subject to the above procedu 

fPL f 

We concur: 1-9-