In Re the Marriage of Schultz v. Schultz

No. 82-403
IN THE SUPREIulE COURT OF TBE STATE OF MONTANA
1983
N RE THE MARRIAGE OF
EADIE W. SCWULTZ,
P e t i t i o n e r and Respondnet,
-vs-
IjILBERT E . SCIIULTZ ,
Respondent and A p p e l l a n t .
Appeal from: D i s t r i c t Court of t h e Tenth J u d i c i a l D i s t r i c t ,
I n a n d F o r t h e County o f F e r g u s , The H o n o r a b l e
LeRoy McKinnon, J u d g e p r e s i d i n g .
C o u n s e l o f Record:
For Appellant:
William E. B e r g e r , Lewistown, Montana
For Respondent :
Leonard B. McKinney, Lewistown, Montana
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S u b m i t t e d on B r i e f s : February 1 0 , 1983
Decided: A p r i l 21, 1983
Filed: WPR 2 1 1983
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
This is the second appeal brought by the husband from a
decree of dissolution by the Fergus County District Court.
We remanded the case the first time because the trial court
failed to make a finding of the net worth of the parties
before dividing the marital estate, and because the trial
court had divided the property without considering the
husband's contribution and inheritance. Schultz v. Schultz
(1980), - Mont . -, 613 P.2d 1022, 37 St.Rep. 1042.
On remand the trial court held a second hearing and
entered new findings and conclusions and a new order. The
court made a specific finding of the parties net worth, and
set out reasons for the property distribution. The net
marital estate was valued at $103,948.50, and the trial court
awarded the wife property valued at $62,517 and the husband
property valued at $41,431.50.
In this second appeal, the husband claims that the trial
court's findings are not supported by substantial credible
evidence, that the trial court again failed to consider all
of the husband's contributions to the accumulation of the
marital assets, and that the trial court has exceeded the
bounds of good conscience. We affirm.
The parties were married 24 years and had two children
who are now adults. Both the husband and wife had been
employed throughout most of the marriage. Both are currently
employed and self-supporting.
On remand, the court corrected its earlier error by
making findings of fact which included a detailed inventory
and valuation of the marital assets and liabilities. The
principal asset was a Capp home which they bought in 1975 and
had installed as a shell on a ten and one-half acre tract.
The family worked on finishing the house over the next three
years. The trial court found that the husband acted as an
overseer and did some of the work, but that the bulk of the
work was done by the wife and two sons.
The second error upon which we reversed involved the
trial court's failure to take into account the husband's
contribution and inheritance in dividing the marital estate.
This time the trial court made detailed findings of the
relative contributions of both parties. We summarize those
findings in the following paragraphs.
During the last three years of the marriage, the husband
drank to excess and was generally antagonistic and somewhat
destructive. He would sit in the house and drink beer and
flip the empties against the wall, making dents; he broke a
glass sliding door in anger; he broke the outside light
bulbs, a.llegedly because "they never turn them off;" and he
drove through the closed gate and tore out fence on the side
of the yard.
During the separation, the husband lived on the property
for a time, but let the property fall into a state of
disrepair. The trial court viewed the premises after he had
lived there and found that the house had been left without
heat, some of the flooring had been damaged, the septic
system was not working, and the yard was littered with junk
and horse manure. Later, however, the wife lived on the
property and repaired and maintained it.
After the parties were separated, the youngest son lived
with his mother from January 1979 until he reached his
majority in September 1979. The husband did not contribute
to the son's support, although he was able to.
Over the years the wife did all of the household work.
She raised a garden and poultry for the family use.
During the marriage, the husband inherited approximately
$6,600 from his father and borrowed another $5,000 from his
mother. The wife borrowed $10,000 from her parents. The
parties each have a retirement fund and agree that it remain
the separate property of each.
During at least the last three years of the marriage,
the husband has spent a good part of his income on alcoholic
beverages. Throughout the marriage, the wife's income has
gone to the family benefit.
Based on those findings, the trial court concluded that
age, health, station, occupation, skills and employability
are not of significance in this property division, and that
both parties appear to have equal opportunity for future
earnings. The trial court also concluded that the wife
tended to be a stabilizing factor in the marriage, that the
family home has more than just a commercial value to her, and
that during the later years of the marriage the husband
tended to dissipate the property.
Based on this background, the trial court awarded
property valued at $62,517 to the wife, and awarded property
valued at $41,431.50 to the husband.
The husband first contends that the trial court's
findings are not supported by substantial credible evidence.
For example, the husband has challenged the trial court's
finding that the bulk of the work on the Capp home was done
by the wife and sons with the husband acting as overseer.
The husband does not deny that the wife and sons worked on
the house. Rather, he has urged the court to find that an
overseer is more important to a construction project than
laborers and that his wife and children did not have the
technical skills to finish the house without his supervision.
The husband has not shown a clear preponderance of evidence
against the finding, he merely argues that the trial court
should have seen it in a different light. The finding is
supported by the evidence.
The husband also claims a failure of substantial
credible evidence to support the trial court's finding that
he drank excessively. He contends that the trial court
ignored evidence he presented to show that he has held a
steady job with progressions in grade and that he has no
record of alcohol-related arrests. He points out that his
checkbook record indicates that he spent only $804 on alcohol
during the year prior to the separation, an amount he argues
is not excessive. He argues that the trial court ignored his
witnesses and favored his wife's witnesses. We have said
before that when the trial court decides to accept the
testimony of one party over the other, that determination
will stand unless it is clearly erroneous. Creon v. Creon
,
(1981) - Mont. - 635 P.2d 1308, 38 St.Rep. 1828. The
trial court's findings are supported by substantial credible
evidence and we will not disturb them.
The husband next contends that the trial court, in
making the property distribution, failed to take into
consideration the husband's contributions and inheritance.
He claims that the trial court overlooked the fact that he
received an inheritance of $6,600 from his father, that he
had an interest in a service station before the marria.ge,
that he has worked steadily throughout the marriage, and that
he supervised the construction of the family home. He
contends on the other hand that the wife had no inheritance,
has a better and more sta-blejob, has no needs different from
his, and that she made no extraordinary contribution to the
marriage.
The trial court clearly took the husband's contributions
into account in the property distribution. Other factors
which a trial court must take into account in dividing
marital property are set out in section 40-4-202, MCA. The
trial court considered all of these factors and incorporated
them into the findings and conclusions. The reasons for
making the unequal property distribution were clearly set
forth.
The judgment of the District Court is affirmed.
We Concur:
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Chief Justice