MARRIAGE OF WHITE
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No. 85-122 I N THE SUPREME COURT O F THE STATE O F MONTANA 1.985 I N RE THE PARRIAGE O F SUSAN ANN WHITE, P e t i t i o n e r and R e s p o n d e n t , and WILBURN FRANKLIN WHITE, R e s p o n d e n t and A p p e l l a n t . APPEAL FROM: D i s t r i c t C o u r t of t h e N i n e t e e n t h J u d i c i a l D i s t r i c t , I n and f o r t h e C o u n t y of L i n c o l n , T h e H o n o r a b l e R o b e r t H o l t e r , Judge p r e s i d i n g . COUNSEL O F RECORD: For Appellant: S c o t t B. Spencer, L i b b y , M o n t a n a F o r Respondent: K e l l e r & G e r m a n ; A n n C. G e r m a n , L i b b y , Montana - - S u b m i t t e d on b r i e f s : A u g . Decided: Clerk 29, 1985 October 31, 1985 Mr. Justice John C. Court. Wilburn Sheehy delivered the Opinion of the Frankl-in White appeals from the property division entered by the District Court of the Nineteenth Sud-icialDistrict, Lincoln County. We affirm. There are two issues on appeal. First, did the trial court err in dividing the marital property? Second, should Susan have been charged with a share of the attorney's fee incurred in defending Wilburn against charges that he sexually abused the foster child living in their home? Susan and Wilburn White were married on November 3, 1973. Throughout the marriage, Susan worked as a teacher and Wilburn worked sporadically as a carpenter and millwright. In February 1984, Wilburn was charged with sexually molesting their foster child. The charges were filed after Susan reported the suspected abuse to the Lincoln County Welfare department. Wilburn was found not guilty after a jury trial. However, in the course of his defense, Wilburn claimed he incurred an attorney's fee of $10,000. Susan petitioned for dissolution in February 1984. In February 1985, the District Court entered the judgment of dissolution and property division. The court found that at the time of the marriage, Susan owned a home and Wilburn owned two parcels of real estate. After the marriage, Susan and Wilburn sold the home and one parcel of real estate. They applied the equity from both sales to building a new home on the remaining parcel of land. The trial court found all the efforts of both parties were directed toward building their new home, and that their contributions varied but were nearly equal. In dividing the property, the District Court allowed each party to retain the personal property each owned prior to the marriage. home to be The District Court ordered the family sold, and divided the marital estate equally between the parties. Wilburn contends that he came into the marriage with more assets and thus he should be awarded more than half the marital estate. Specifically, he contends the District Court undervalued $41,000 the by land and improvements Wilburn owned prior to the marriage on which the parties built their home. The District Court found that Wilburn had a total investment of $12,000 in the land and equity of approximately $5,000. The District Court found Wilburn had made various improvements on the land, many of which had to be redone. There were also various building materials on the land which the parties used in constructing their home. It is well established that the District Court has wide discretion in equitably dividing property and its judgment will not be altered discretion is shown. on appeal unless a clear abuse of Krum v. Krum (1980), 188 Mont. 498, 614 P.2d 525; Kruse v. Kruse !1978), 179 Mont. 79, 586 P.2d 294; Eschenberg v. Eschenberg (1976), 171 Mont. 247, 557 P.2d 1014; Cook v. Cook (1972), 159 Mont. 98, 495 P.2d 591. The test for reviewing the District Court's discretion is: Did the District Court, in the exercise of its discretion act arbitrarily without employment of conscientious judgment, or did it exceed circumstances? the bounds of reason in view of all the Krum, 188 Mont. at 503, 614 P.2d at 527. Fredericksen v. Fredericksen (1980), 185 Mont. 548, 605 P.2d 1135; Aanenson v. Aanenson (1979), 183 Mont. 229, 598 P.2d 1120; In re Marriage of Berthiaume (1977), 173 Mont. 421, 567 P.2d 1388. In this case, the District Court equitably divided the property in accordance with S 40-4-202, MCA. states ". . the misconduct, shall, court, . . . without That section regard to marital eauitably apportion between the parties the property and assets belonging to either or both, however and whenever acquired and whether the title thereto is in the name of the husband or wife or both. " Section 40-4-202, MCA. This Court has recognized that when property acquired by one party prior to marriage is subject to division in a dissolution proceeding, the District Court must consider the origin of the property. 396, 608 P.2d 97. Herron v. Herron (1980), 186 Mont. But the property marriage is still subject to division. Keepers acquired prior to In re the Marriage of (1984), 691 P.2d 810, 41 St.Rep. 2163. Equitable apportionment does not require the parties be returned to their premarital status. Id. In this case, the District Court equitably divided the marital property and based its decision on detailed findings of fact, which must be sustained unless clearly erroneous. Rule 52(a), M.R.Civ.P. We find the District Court did not abuse its discretion. The second issue on appeal is whether Susan should have been charged with a share of the attorney's fee incurred by Wilburn in defending himself against charges that he molested his foster daughter. The District Court found that only Wilburn contracted with the attorney and the attorney's fee was his sole responsibility. On appeal, Wilburn argues he incurred the attorney's fee as a result of Susan's action in reporting the suspected child abuse. Wilburn contends the attorney's fee was a debt incurred during the marriage for which Susan should be liable. He argues the attorney's fee is a "necessary" within the meaning of S 40-2-106, MCA, which states: Neither husband nor wife, as such, is answerable for the acts of the other or liable for the debts contracted by the other; provided, however, that the expenses for necessaries of the family and of the education of the children are chargeable upon the property of both husband. and wife, or either of them, and in relation thereto they may be sued iointly or separately. Black's Law Dictionary defines necessaries as, " [tlhings indispensable, or things sustenance of human life.'' 4th ed. 1968). proper and useful, for the Black's Law Dictionary 1183. (Rev. The concept includes food, drink, clothing, and a suitable place to live. Edqerton v. Edgerton (1892), 12 Mont. 122, 29 P. 966; Sumner v. Mohn (1920), 47 ~ a l .App. 142, 390 P. 368. defend himself Attorney's fees incurred by one spouse to against child abuse charges necessaries within the meaning of S 40-2-106, MCA. are not We find appellant's argument that he incurred the fees due to his wife's actions in reporting the suspected abuse unavailing. The judgment of the District Court is affirmed. We Concur: No. 85-122 IN THE SUPREME COURT OF THE STATE OF MONTANA 1985 IN RE THE MARRIAGE OF WILBURN FRANKLIN WHITE, Respondent and Appellant, NOV P- 1985 and &Lee W. Adm CLERK OF SUPREME C8UR7: STATE OF MONTANA SUSAN ANN WHITE, Petitioner and Respondent. APPEAL FROM: District Court of the Nineteenth Judicial District, In and for the County of Lincoln, The Honorable Robert Holter, Judge presiding. Decided: October 31. 1985 Filed: / - ..*..%"P. C A P fi7/ 57,' 2 J u s t i c e J o h n Conway dissenting i n part. Mr. After w i t h d r a w my further Harrison consideration signature concurring in this in part cause, I and hereby from t h e m a j o r i t y o p i n i o n and s u b m i t t h e following: I c o n c u r i n t h e r e s u l t , b u t d i s s e n t on t h e second i s s u e of not allowing t h e sharing of attorney's fees i n appellant's defense of criminal charges. I recognize t h a t t h e s t a t u t e d o e s n o t p r o v i d e f o r s u c h f e e s , b u t i n my w i l d e s t i m a g i n a t i o n I cannot think of a legislator ever situation a s presented i n t h i s case. considering a fact A p p e l l a n t was c h a r g e d and t r i e d b y a j u r y a n d a c q u i t t e d of a m o s t g r i e v o u s o f f e n s e . H i s whole r e p u t a t i o n and h i s f u t u r e was on t h e l i n e a n d t o n o t a l l o w a t t o r n e y ' s f e e s h e r e i s , i n my o p i n i o n , a d e n i a l o f fairness.
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