Aksamit v. Aksamit , 162 Mont. 266 ( 1973 )

No. 12342
I N THE SUPREME COURT OF THE STATE OF M N A A
OTN
1973
JO ANNE AKSAMIT,
P l a i n t i f f and Respondent,
ALLEN V. AKSAMIT,
Defendant and A p p e l l a n t .
Appeal from: D i s t r i c t Court o f t h e E i g h t e e n t h J u d i c i a l D i s t r i c t ,
Honorable Ronald D . M c P h i l l i p s , Judge p r e s i d i n g .
Counsel o f Record:
For Appellant :
H a r r i s , J a c k s o n and U t i c k , Helena, Montana.
Laverne H a r r i s and Andrew U t i c k a r g u e d , Helena,
Montana.
F o r Respondent :
Lyman H. B e n n e t t , Jr. and Lyman H. B e n n e t t , 1 1 a r g u e d ,
1
Bozeman, Montana.
Submitted: A p r i l 27, 1973
Decided : JM
U ' 8 19?3
: JUN - 8 1973
Honorable Robert Boyd, D i s t r i c t Judge, s i t t i n g in place of Mr. J u s t i c e
Gene B. Daly, delivered t h e Opinion of the Court.
This i s an appeal from a decree of the d i s t r i c t court of the
eighteenth judicial d i s t r i c t , county of G a l l a t i n , s i t t i n g without a jury,
granting a decree of divorce, determining custody of a minor c h i l d and
dividing j o i n t l y held property between the p a r t i e s . Thereafter t h e defen-
dant f i l e d his motion f o r new t r i a l i n accordance w i t h Rule 59, M.R.Civ.P.,
a f t e r service of notice of entry o f judgment. This motion was denied by
f a i l u r e of the t r i a l court t o r u l e upon i t w i t h i n the time specified i n
Rule 59(d), M . R . C i v . P .
P l a i n t i f f , Jo Anne Aksamit, and defendant, Allen V . Aksamit, Were
married a t Helena, Montana,on September 23, 1960, i t being the second
marriage f o r both. For convenience sake t h e p a r t i e s will be hereafter r e -
ferred t o a s "Jo Anne" and "Allen".
A t t h e time of the marriage Jo Anne and Allen were both residing
in Helena where Allen operated a welding shop. A t t h a t time Jo Anne was
supporting her two minor daughters by a previous marriage. Thereafter i n
1962 A len and Jo Anne moved t o Bozeman, Montana, where they purchased a
1
t r a i l e r court f o r the s m of $10,000,
u A t the time of t h e purchase the
t r a i l e r court consisted o f approximately two and a ha1 f acres and seven
t r a i l e r spaces and was subsequently expanded t o f i v e acres and t h i r t y - f o u r
t r a i l e r spaces capable of earning a monthly income of $1,200. The t r a i l e r
court and the additions thereto were acquired by cash contributions of both
p a r t i e s , i t appearing t h a t Jo Anne had contributed approximately $36,000
in the t r a i l e r court from moneys coming t o her a s a r e s u l t of her f i r s t
husband5 death and t h a t she subsequently contributed some $13,000 coming
from the s a l e of her home i n Helena, Montana, and t h a t she d i d likewise con-
t r i b u t e another $5,500 from the s a l e of other a s s e t s coming t o her by reason
of her f i r s t husband's death, making a t o t a l of cash contributions of
approximately $54,500.
Defendant contributed approximately $5,000 from the s a l e of his
welding shop i n Helena and another $3,800 from the s a l e of c e r t a i n t o o l s .
During the course of the marriage 30 Anne and Allen j o i n t l y worked
and developed the t r a i l e r park. 30 Anne's children by her prior marriage
had Social Security income and the money received went f o r family 1iving
expenses. The t r i a l court found t h a t a t t h e time of t h e divorce t h e t r a i l e r
court had a market value of $90,000 to $100,000.
In addition t h e p a r t i e s acquired j o i n t l y the following described
personal property: (1) 20' X 52' double-wide mobile home, (2) 8 ' X 35'
Safeway mobile home, (3) a 1965 Oldsmobile, (4) a 1966 Ford Bronco, ( 5 ) three
Honda motorcycles, (6) a 1965 GMC half-ton pickup w i t h camper, (7) a cabin
c r u i s e r , (8) a Trail Breaker motorcycle.
All of these items were paid f o r with the exception of the t r a i l e r
court which had an outstanding balance due on i t s mortgage of $14,110.42.
One c h i l d , a son, Lonnie Aksamit, was born a s issue of t h i s marriage
on November 12, 1963, and he continues t o reside w i t h Jo Anne. In i t s decree
t h e court awarded the following property t o Jo Anne: (1) Aljo T r a i l e r Park,
( 2 ) 1965 Oldsmobi l e , (3) 1966 Ford Bronco, (4) 20' X 52' double-wide mobile
home, ( 5 ) 8 ' X 35' Safeway mobile home, plus any and a1 1 other personal
property not s p e c i f i c a l l y mentioned.
Allen received t h e following property: ( 1 ) Cabin c r u i s e r , (2) one
Honda, (3) one Trail Breaker, ( 4 ) 1965 GMC pickup and camper, (5) Artic Cats,
and a l l tools and personal property located a t t h e Aljo T r a i l e r Court.
In addition Jo Anne was made responsible f o r a l l indebtedness of
the p a r t i e s incurred on or before April 30, 1971, including the balance of
t h e mortgage on the A j o T r a i l e r Court.
1 The court f u r t h e r decreed t h a t A len,
1
by quitclaiming his i n t e r e s t i n the A j o T r a i l e r Court was t o be re1 ieved of
1
any and a11 obligations f o r care, maintenance and support of Lonnie Aksamit,
t h e minor c h i l d , which support was deemed t o require the s m of $12,000.
u
Two questions a r e presented upon appeal. The f i r s t issue present-
ed is whether or not t h e motion on behalf of Allen for the appointment of
an appraiser should have been granted;and secondly, whether t h e t r i a l court
abused i t s discretion i n dividing the p a r t i e s jointly-held property.
From the t r a n s c r i p t i t i s apparent t h a t a l l of the testimony con-
cerning values was given d i r e c t l y by both Allen and Jo Anne. This r e l a t e d
d i r e c t l y t o the cash contributions of each of the p a r t i e s t o the marriage
and p a r t i c u l a r l y the testimony of Allen w i t h respect t o the value of the
t r a i l e r s and of the t r a i l e r court. In this respect i t was established
t h a t Allen had, as an owner, knowledge more than t h a t possessed generally
by individuals of the value of t r a i l e r s and t r a i l e r c o u r t s , Allen t e s t i -
f i e d t h a t i n his opinion the t r a i l e r court had a value of $100,000 and t h a t
he had received a bona f i d e o f f e r through a r e a l t o r f o r the purchase of the
property some two o r three years prior t o the time of the divorce of $87,000,
The d i s t r i c t court i n i t s findings placed the value of the t r a i l e r court a t
between $90,000 and $100,000, a value r e l a t e d d i r e c t l y t o the testimony of
Allen. I t therefore does not appear to this Court t h a t the d i s t r i c t court
erred i n accepting the testimony of A len with reference t o t h e value of the
1
t r a i l e r court and t h a t Allen was not prejudiced by t h e refusal of t h e dis-
t r i c t court t o appoint an appraiser.
The defendant concedes t h a t in a divorce action the d i s t r i c t court
has equitable powers t o a d j u s t property i n t e r e s t of the p a r t i e s . Libra v .
Libra, 157 Mont. 252, 484 P.2d 748 (1971 ) . The defendant 1i kewise recognizes
t h a t i n adjusting property i n t e r e s t s , the court will consider the contri bu-
t i o n s made by the p a r t i e s i n acquiring the property i n question. Finlayson
v . Finlayson, -Mont. , 500 P.2d 225, 29 S t .Rep. 649 (1972). Defendant
contends t h a t the d i s t r i c t court f a i l e d t o follow these guide l i n e s i n
arriving a t a division of the property owned by the p a r t i e s a t t h e time of the
trial. With this contention we do not agree. A reading of t h e t r a n s c r i p t
and the findings of f a c t and conclusions of law adopted by the d i s t r i c t court
indicate t h a t the presiding judge therein took i n t o consideration each of
the a s s e t s claimed by the p a r t i e s t o the marriage,as well as the individual
contribution of each of the p a r t i e s thereto. I t i s apparent t h a t the d i s -
t r i c t court took i n t o consideration not only the j o i n t e f f o r t s of the p a r t i e s
i n enhancing, enlarging and maintaining the t r a i l e r court properties b u t the
financial contribution of the p a r t i e s as well. A s t a t e d in Cook v . Cook,
s
159 Mont. 98, 495 P . 2d 591 , 29 S t . Rep. 226 (1 972), " *** Each case must
be looked a t by the t r i a l court individually with an eye t o i t s unique
circumstances. * * *" W find t h a t i n t h i s case the d i s t r i c t court has
e
followed t h a t mandate and t h e judgment
i n place o f Mr. J u s t i c e Gene B. Daly.
/ '/chief Justice
i
. t '-,
J u s t i c e John C . Harrison.