In Re the Marriage of McGill

609 P.2d 278, 187 Mont. 187
CourtMontana Supreme Court
DecidedMarch 26, 1980
Docket14896
StatusPublished
Cited by5 cases

This text of 609 P.2d 278 (In Re the Marriage of McGill) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re the Marriage of McGill, 609 P.2d 278, 187 Mont. 187 (Mo. 1980).

Opinion

MR. JUSTICE SHEA

delivered the opinion of the Court.

The wife appeals from a property distribution decree of the Ravalli County District Court. Although she raises issues in relation to maintenance and an award of attorney fees, the primary issue is whether the trial court erred in dividing the parties’ property before determining the net worth of the marital assets.

The wife commenced this action on June 30, 1978, by filing a petition for dissolution. On December 22, 1978, the court dissolved the parties’ marriage, and reserved the petitioner’s request for an equitable property division for a later date. After conducting a hearing on this issue, the court filed an order dated April 11, 1979, which divided the marital assets, made no provision for maintenance, and awarded the wife $500 for attorney fees. The wife filed a motion for a new trial, or amendment of the court’s judgment. On *189 May 23, 1979, the court filed an order which denied the motion for a new trial and amended its judgment. The wife appeals from the amended judgment.

The parties were married in 1948, and had four children of the marriage, all of whom are now emancipated. At the .time of the court’s judgment the wife was 53 years of age and the husband was 56. During the last ten years, the parties have been separated, the husband maintains a separate residence in Seattle, Washington, while the wife resides in Stevensville, Montana.

The husband served more than 20 years in the United States Navy before retiring in November 1978. He now receives a military pension of $642.44 per month. Prior to his military service, the husband was an automobile salesman in Hamilton, Montana. In the past few years, he has experienced several physical problems, and intends to obtain a college education rather than return to selling.

The wife has been employed as a secretary for the Stevensville School District for over ten years and receives net pay of $368 per month during the ten month school calendar. In the summer months, the wife has performed part-time work. During the parties’ ten year separation, she has lived in the family home at Stevensville where she raised the parties’ four children. The husband voluntarily contributed child support until the fall of 1977.

The court’s findings of fact made in connection with its property division did not place an overall value on the marital assets. The court estimated the value of the parties’ house to be $60,000 to $75,000, but it did not place a lump sum value on the husband’s military pension or value the parties’ personal property.

The court’s judgment provided that the family home should be sold with the net proceeds to be equally divided between the parties. It further provided that the wife “. . . should be awarded the following items of marital property subject to the payments by her of the security and indebtedness therein:

“a) The household furnishings in said home;
*190 “b) All other items located in the family home, except those items of a personal nature belonging to the Respondent;
“c) The 1976 Toyota;
“d) New York Life account in the amount of $ 1500, of which she is the owner; and
“e) The proceeds from the promissory note given to her by her sister, and all her checking and savings accounts.”

The husband was awarded the following property:

“a) The retirement pension;
“b) 1968 Chevrolet and 1959 Volkswagen;
“c) The $5000 New York Life policy and the $ 10,000 New York Life policy;
“d) All his checking and savings accounts;
“e) All his interest in the Knoxville, Tennessee property for which he holds the warranty deed.”

The court made no provision for the maintenance of either party, and awarded the wife $500 for attorney fees.

The wife filed a motion for a new trial or amendment of judgment, and a brief in which she sought a share of the husband’s military pension, maintenance and a larger award for attorney fees. She asked the court to set a value on the husband’s pension and the family home, and to state which items of personal property the husband could recover from the family home. In connection with her request for maintenance, the wife stated that there was no evidence to support the court’s findings that she could reasonably be expected to earn $450-500 per month.

The court order of May 23, 1979, denied the motion for a new trial, but amended its judgment to award the wife $ 100 per month from the husband’s pension. The court order affirmed the prior judgment in all other respects. The wife appeals this order.

The wife argues that the court could not make an equitable property division without first determining the parties’ net worth. See, In re Marriage of Metcalf (1979), 179 Mont. 417, 598 P.2d 1140; Grenfell v. Grenfell (1979), 182 Mont. 229, 596 P.2d 205; In re *191 Marriage of Brown (1978), 179 Mont. 417, 587 P.2d 361; Vivian v. Vivian (1978), 178 Mont. 341, 583 P.2d 1072. In particular, she contends the court should have placed a value on the family home, and the husband’s military pension.

We find no error concerning the disposition of. the family home. The court roughly estimated the family home’s worth at $60,000 to $75,000. This estimate was supported by evidence produced at trial. A precise estimate of the home’s value was not needed here, where the court ordered the net proceeds from the sale to be equally divided between the parties.

On the other hand, the court did not evenly divide the husband’s military retirement pay. At the time of the court’s decree, the husband was receiving net retirement pay of $642 per month. The size of the pension increases automatically as the cost of living rises. The court concluded that the pension which terminates upon the husband’s death did not have a precise lump sum value, but that the sum of $ 100 per month from the pension, coupled with the previous award to the wife, represented the wife’s equitable share in the marital estate.

We find that the trial court’s findings of fact do not adequately support its award of only 15% of the husband’s pension to the wife. Since the court was unable to determine the total value of husband’s pension, it apparently attempted to equalize the incomes of parties by awarding the wife with $100 per month from the pension. The court found that the wife could reasonably be expected to earn $450 to $500 per month, while the husband intended to rely solely on the military pension for his support.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In Re the Marriage of Dirnberger
773 P.2d 330 (Montana Supreme Court, 1989)
In Re the Marriage of McGill
637 P.2d 1182 (Montana Supreme Court, 1981)
In re the Marriage of Sell
630 P.2d 222 (Montana Supreme Court, 1981)
Marriage of Sell
Montana Supreme Court, 1981
Marriage of Karr v. Karr
628 P.2d 267 (Montana Supreme Court, 1981)

Cite This Page — Counsel Stack

Bluebook (online)
609 P.2d 278, 187 Mont. 187, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-mcgill-mont-1980.