AKSAMIT v AKSAMIT

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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: Decided : : JUN - 8 1973 A p r i l 27, 1973 JM U ' 8 19?3 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 u t r a i l e r court f o r the s m of $10,000, 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 cont 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. t h e court awarded the following property t o Jo Anne: In i t s decree (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 1 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, 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, u t h e minor c h i l d , which support was deemed t o require the s m of $12,000. 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 concerning 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 1 erred i n accepting the testimony of A len with reference t o t h e value of the 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 dist 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, 157 Mont. 252, 484 P.2d 748 (1971 ) . Libra v . 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 but i o n s made by the p a r t i e s i n acquiring the property i n question. v . Finlayson, Mont. Finlayson , 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.

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