No. 95-003 INTHESUPREMECOURTOFTHESTATEOFMONTANA 1995

INRETHEMARRIAGEOF: DEANNAK. SCOTT

Petitioner andRespondent, and GEORGEM. SCOTT,

Respondent andAppellant.

APPEAL FROM: District Court of the Eighteenth Judicial District,

In andfor the County of Gallatin, TheHonorable Larry W.Moran, Judge presiding.

COUNSELOFRECORD:

For Appellant: WayneJennings, Bozeman, Montana For Respondent: Richard Larson, Helena, Montana

Filed: Submitted onBriefs: April 6, 1995 Decided: August 24, 1995Justice James C.Nelson delivered the Opinion of the Court.

Respondent/Appellant, George M.Scott (George), appeals from

a judgment entered by the Eighteenth Judicial District court, Gallatin County, dissolving his marriage with his wife Deanna K. Scott (Deanna) anddistributing the marital estate. Weremand. ISSUES George raises the following issues onappeal: 1. Did the District Court err in finding that Deanna made a greater contribution in acquiring the marital assets? 2. Did the District Court err in requiring George to pay Deanna for lost rental income that could have been realized during their period of separation? 3. Did the District Court err in allowing Deanna to recover post-separation payments while not allowing George to dothe same? 4. Did the District Court err in using different property values between its findings of fact and its conclusions of law? 5. Did the District Court err in awarding the family hometo Deanna, rather than ordering its sale in anescalating market? 6. Did the District Court err in excluding Deanna's royalty receipts from the marital estate? 7. Did the District Court err in its distribution of George's pension benefits? Wehave reviewed the record andhave considered the arguments andthe authorities cited. Weconclude that substantial evidence supports the District Court's findings of fact and conclusions of law with respect to issues 1, 3, 5, and 6, and accordingly, we decline to address these further. Issues 2, 4, and 7 require further consideration, however. I. Did the District Court err in requiring George to pay Deanna for lost rental income that could have been realized during their period of separation? 2II. Did the District Court err in using different property

values between its findings of fact and its conclusions of law? III. Did the District Court err in its distribution of George's pension benefits? BACKGROUND George and Deanna were married in Miles City, Montana, in 1972. OnAugust 23, 1991, Deanna petitioned the District Court for the Eighteenth Judicial District, Gallatin County, to dissolve her marriage with George. Following abench trial, the District Court filed its findings of fact andconclusions of law onOctober 22, 1993. After hearing arguments onthe parties' motions to amendthe findings of fact andconclusions of law, the District Court entered its judgment dissolving the marriage and distributing George and Deanna's property. George worked primarily in construction, but occasionally during the winter months heworked as amechanic. Deanna helped form Frontier Scientific Company which was bought out by Video Lottery Consultants. Deanna receives royalties from the sale of games engineered by Frontier Scientific. Themajor assets acquired during the marriage included ahouse inBozeman, alot inthe Hyalite Heights subdivision in Bozeman, an airplane, various cars, including a 1986 Honda, rifles, tools, George's pension, and miscellaneous items of personal property belonging to both Deanna and George. The District Court awarded Deanna the house in Bozeman, onehalf ofthe proceeds from the sale of the lot the couple hadowned in the Hyalite Heights subdivision in Bozeman, miscellaneous personal property, and three lump sum

3payments for her interest in George's pension. Additionally, the

District Court required George to pay $5,582 to Deanna to equalize her cost ofmaintaining the marital property, $11,830 to Deanna for lost rental income from the house in Bozeman, and approximately $4,500 to the Internal Revenue Service. George appeals the District Court's judgment entered October 26, 1994, dissolving the marriage anddistributing the marital estate. DISCUSSION

Did the District Court err in requiring George to pay Deanna for lost rental income that could have been realized during their period of separation? George claims that there wasinsufficient evidence to support the District Court's award of $11,830 lost rental income toDeanna. Wereview adistrict court's division of marital property to determine if the district court's findings of fact are clearly

erroneous. In re Marriage of Zander (1993), 262Mont. 215, 221, 864P.2d 1225, 1229. Thefindings offact must form "arecordation of the essential and determining facts upon which the District Court rested its conclusions of law andwithout which the District Court's judgment would lack support." In re Marriage of Schultz (1979), 183Mont. 20, 24, 597P.2d 1174, 1177 (quoting Marriage of Barron (1978), 177Mont. 161, 164, 580P.Zd 936, 938). Thus, when substantial credible evidence supports the trial court's findings andjudgment, this Court will not alter the trial court's decision unless there hasbeen anabuse of discretion. In

reMarriage of Maedje (1994), 263Mont. 262, 265-66, 868P.Zd 580, 583 (citing In re Marriage of Scoffield (1993), 258Mont. 337, 852 4P.2d 664). Substantial evidence is "evidence that areasonable

mind might accept asadequate to support aconclusion; it consists of more than amere scintilla of evidence but maybesomewhat less than apreponderance." In reMarriage of Davies (1994), 266Mont. 466, 472, 880 P.2d 1368, 1372 (quoting Barrett v. Asarco Inc. (1990), 245Mont. 196, ZOO,799P.2d 1078, 1080). George claims that the District Court based its award of $11,830 for lost rental income onamere scintilla of evidence. We agree that the District Court lacked asufficient evidentiary basis to support its conclusion to award Deanna $11,830 in such rent. The record is not clear onthe issue of rent. In fact, the District Court had very little evidence on which to base its conclusion. The transcript contained evidence that both parties owned the house, andthat there were periods when neither of them lived in it. Deanna paid the bills pertaining to the house. George hadtwonephews that lived in the house at somepoint during George andDeanna's period of separation. Thenephews paid $200a month for rent for at least part ofthe time that they lived in the house. During Deanna's direct examination, she answered the following questions regarding rent: Q. Are you familiar what property rents for in the Bozeman area? A. It's very high. Q. Haveyou rented property yourself in the last couple years? A. Yes. Q. Canyoutell uswhat youbelieve the house would have rented for, had it been put onthe market for renting? 5A. Ithink it could easily have rented for $650 amonth.

This wasthe only discussion relating to the value of the house as

arental. Other than the above, the record is devoid of essential facts. It is unclear when both George and Deanna lived in the house. While it appears that George's nephews also lived in the house for at least part of the period of George andDeanna's separation, we cannot tell for what part ofthat period. Moreover, wecannot tell if George charged his nephews rent for the full time that they lived in the house or for just part of that time. Deanna stated that the nephews paid $200 amonth for rent, but shedid not state if they paid $200 'a piece or $200 for the two of them. Notwithstanding that the nephews may have paid rent, it is unclear whether the District Court factored the nephews' rent into its decision. Since both parties owned the house, and there were periods when neither occupied it, both hadthe option to rent it. Tothe extent that one party precluded the other from renting it, that party maybe liable to the other party for one half of the lost rental income. Yet the District Court did not state the time period that the house should have been rented, nor whether George precluded Deanna from renting the house. While the District Court mayhave hadthe discretion to award the $11,830 lost rental income to Deanna, it did not have sufficient evidence in the record onwhich to base its decision in that regard. Moreover, there is aninsufficient record for usto 6determine howthe District Court madeits decision. Weremand to

the District Court for reconsideration of its award of lost rental income to Deanna. Inthis regard, the District Court shall receive further evidence andshall then enter appropriate findings of fact and conclusions of law supporting its decision to either award or not award such rent. II Did the District Court err in using different property values between its findings of fact andits conclusions of law? George claims that the District Court assigned different values to the tools, household items, construction equipment, and various cars, including the 1986Honda, in its findings of fact and conclusions of law, sothat the values assigned in the conclusions of law exceeded the values assigned in the findings of fact. George further claims that the discrepancy arose whenthe District Court adopted Deanna's conclusions of law wholesale, except for attorney fees. Because weremand tothe District Court for further proceedings under Issue I., wealso direct the District Court to correct the discrepancy in property values between its findings of fact and its conclusions of law. III. Did the District Court err in its distribution of George's pension benefits? George and Deanna stipulated that the present value of George's operating engineer's pension benefits is $14,365. George stated that he is not eligible to receive the pension benefits until after his 65th birthday. In its conclusions of law, the

7District Court included George's pension benefits in the marital

estate and awarded Deanna $6,113 of the pension benefits. The District Court further ordered George topayDeanna in three annual installments with ten percent interest per year, the first installment to bepaid oneyear after entry of decree. George contends that the District Court improperly ordered him to pay Deanna a lump sum of his pension benefits rather than allowing himto assign aportion of his pension benefits toDeanna. We have held that in determining if a lump sum award of a retirement pension is appropriate, the district court should consider the burden it would place onthe paying spouse in view of child support, spousal support, and other property distribution. Glasser v. Glasser (1983), 206Mont. 77, 85, 669P.2d 685, 689; In

reMarriage of Keedy (1991), 249Mont. 47, 52, 813P.2d 442, 445. In Keedv, we concluded that requiring an immediate payout of pension benefits placed anunreasonable burden onthe paying spouse in light of his financial standing. Keedv, 813 P.2d at 445. 1nthe instant case, there is noindication that the District Court considered the burden placed on George in light of his financial standing. In fact, the record fails to show how the District Court made its determination to award Deanna alump sum payment of her portion of George's pension benefits. Therefore, we remand to the District Court for reconsideration of its award of a of aportion of George's pension benefits to Deanna. In this regard, the District Court shall enter appropriate findings offact andconclusions of law supporting its decision to either award or

8

### not awardalumpsumform ofpayment to Deanna.

Remandedfor further proceedings consistent with this opinion. Pursuant to Section I, Paragraph 3cc), Montana SupremeCourt 1988Internal Operating Rules, this decision shall notbecited as precedent andshall bepublished byits filing asapublic document with the Clerk ofthis Court andbyareport of its result tothe WestPublishing Company.