No. 13849 IN THE SUPREMECOURT OF THE STATE OF MONTANA 1978

IN RE THEMARRIAGE OF ROLLAND C. HEBEL, Petitionerand Appellant,

-vsMARGARET C. HEBEL, Respondent and Respondent.

Appeal from: District Court of the Fifth Judicial District, Honorable Frank E. Blair, Judge presiding. Counsel of Record: For Appellant: A. Michael Salvagniarqued, Bozeman,Montana For Respondent: Berg, Angel, Andriolo and Ilorgan, Bozeman, Montana Ben E. Berg argued, Bozeman,Montana

Submitted: January 31, 1978 DecidedTI 

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## -1 $78Mr. ~ustice Daniel J. Shea delivered the Opinion of the Court. Rolland C. Hebel appeals from an order of the District Court,Madison County, awarding his formerwife $20,000 as the disposition of marital property in a dissolution of marriage action. Rolland and Margaret Hebel weremarried in 1975. The marriage lasted approximately 18months. Therewas a wide disparity in assets between the parties prior to theirmarriage. The husband's assets then included 97 acres of land in Madison County worth between $125,000 and $150,000, 160 head of cattle, 4 draft horses, 2 vehicles and various pieces of farm machinery. The husband was employed at a talc mine in Cameron,Montana, taking home approximately $750per month. Before themarriage the wife's assets included a trailer house being purchased inmonthly installments, one vehicle, a onethird interest in a lot in Pony,Montana, worth approximately $300, three lots inNew Mexico worth $3,000, a one-third interest in a nonproducing mining claim, and approximately $2,300 in a savings account. Thewife managed the Norris Bar in Norris, Montana, for which she received between $400 and $700 per month inwages plus a "working interest" in the bar amounting to approximately $4,000 per year.The husband sold all the cattle, one horse, and 20 acres of land during the marriage. The wife sold her house trailer, spent $1,900 of her savings and gave up her job at the Norris Bar, forfeitingher working interest therein, while shewas married. At the time of the property disposition hearing, the husband had assets of between $100,000 and $125,000 and liabilities of approximately $15,000. He was taking home $750per month in wages and reportedmonthly expenses of $640. Thewife's assets amounted to approximately $4,000 and she was taking home monthly wages of approximately $340. She reported expenses averaging $385 per month.The husband is in good health. Thewife suffers from

a heart conditionwhich interfereswith her ability to work and will ultimately require surgery. Prior to the marriage the wife had group health insurance coverage and during themarriage she was covered under her husband's plan. She is currently unable to procure health insurance and has medical expenses averaging $50 per month. The wife's heart condition existed and was knownby the husband prior to the marriage. Following the hearing the District Court entered findings of fact, conclusions of law, and a decree awarding the wife a lump

sum settlement of $20,000,payable within five years of entry of the decree with annual interest of 6percent payable in semi-annual installments. To secure the wife's settlement award the District Court imposed a lien in her name upon the husband's realproperty. In an opinion accompanying its decree, the District Court allocated specific portions of the $20,000 award: (1) $1,900 for the wife's investment of that amount of her savings in themarriage; (2) $12,000 for the wife's working interest in the Norris Bar which she forfeited during themarriage; (3) $4,500 for the wife's contribution as a spouse and a homemaker;and (4) $1,600 for the disparity in age, health, strength and earning capacity. The issue on appeal iswhether the District Court abused its discretion in awarding the $20,000 lump sum settlementpayable within five years at 6percent annual interest. The husband first contends the settlement award is, in effect, a taking of property he acquired prior to themarriage and argues the ~istrict Court failed to follow guidelines for the disposition of such property set forth in section 48-321,R.C.M. 1947. The District Court did not award any realproperty to the wife and specifically rejected ordering the sale of any suchproperty in satisfaction of the settlement. In any event, section 43-321,R.C.M. 1947,provides that a DistrictCourtmay equitably divide property "howeverand whenever acquired",and therefore the question of title is not controlling. Morse v. Morse, (1977), Mont

# . , 571 P.2d 1147, 34 St.Rep. 1334, 1337. As to the apportionment of property "belonging to either

or both", section 48-321provides the District Court shall consider: 

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## * the duration of themarriage, and prior marriage of either party 

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## * * the age,health, station, occupation,amount and sources of income,vocational skills, employability, estate, liabilities, and needs of each of the parties 

## * * * whether the apportionment is in lieu of or in addition tomaintenance, and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution or dissipation of value of the respective estates, and the contribution of a spouse as a homemaker or to the family unit. 

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## * *I1 As to the disposition of property acquired by one spouse prior to themarriage, section 48-321provides the court shall consider: 

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## * * * those contributionsofthe other spouse to the marriage, including the nonmonetary contribution of a homemaker; the extent to which such contributions have facilitated themaintenance of thisproperty and whether or not the property disposition serves as an alternative tomaintenance arrangements." The husband has not shown that the District Court ignored the above guidelines in awarding the $20,000 lump sum settlement. Although themarriage was not long-lived, the wife did suffer a depletion of resources in spending most of her savings and giving up her working interest in theNorris Bar during the course of the marriage. While shewas not a full-timehomemaker, the wife did abandon full-time employment in an effort to save the marriage. Other undisputed testimony established that the wife's physical condition precludes strenuous activity, limiting her employability and earning capacity. As this Court has often stated, a District Court has farreaching discretion in resolving property divisions and its judg-ment will not be altered unless a clear abuse of that discretion is shown. Cromwell v. Cromwell, (1977), Mont

# . , 570 P.2d 1129, 34 St.Rep. 1193, 1194; Zell

### v. Zell, (1977), Mont

# . I 570 P.2d 33, 34 St.Rep. 1070, 1074. Since the District Court did not arbitrarily dispose of themarital property under the circumstances of the present case, its dispositionwas not an abuse of discretion. The husband next contends the interest provision of the settlement award is in effect amaintenance award,and argues the District Court did not followguidelines set forth in section 48-322, R.C.M. 1947, in determining that the wife was entitled to such maintenance. The wife requested maintenance. The decree,however, does not grant it. The decree does give the husband the option of paying the settlementupon entry of the decree or at any time up to five years thereafter. The interest provision is brought intoplay only in the event the husband chooses to defer payment and only so long

as such payment is deferred. While the District Court determined the wife had met the threshold requirements for an award of maintenance found in section 48-322,R.C.M. 1947, in finding she "lacks sufficient property to provide for her reasonable needs and she is unable to support herself by appropriate employment",the interest provision here cannotbe properly characterized asmaintenance. There is, therefore, no basis for the husband's claim that the District Court abused its discretion in granting the wife interest on any deferred payment of the lump sum settlement. The factorssupporting the settlement award also support the provisional interest award. The judgment of the District Court is affirmed.

---\We Concur:

- 1 Chief Justice

Justice John C. Sheehy did not participate in this case.