                               NO. 84-106

                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1984




IN FXE THE MARRIAGE OF
LOTTIE ANN BLADES,
                 Petitioner and Appellant,
         and
JOSEPH A. BLADES,
                 Respondent and Cross-Appellant,




APPEAL FROM:     District Court of the Thirteenth Judicial District,
                 In and for the County of Yellowstone,
                 The Honorable William J. Speare, Judge presiding.


COUNSEL OF RECORD:


         For Appellant :
                 Keefer, Roybal, Hanson, Stacey     &   Jarussi, Billings,
                 Montana


         For Respondent :
                 James D. Walen; Felt   &   Martin, Billings, Montana




                               Submitted on Briefs:        May 24, 1984

                                               Decided: Septexber 25, 1984


Filed:   sf-? . 1984
            2




                               Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
     The District Court of Yellowstone County entered an
order equally dividing between Lottie Ann Blades (Lottie) and
Joseph A. Blades (Joseph) the equity in their residence.       No
credit was given Lottie for house payments made by her.        She
appeals from that determination.      Joseph appeals from the
determination that reasonable sale costs be deducted from the
net equity in the house if Lottie exercises her option to
purchase.    We affirm the District Court.
     The following issues are presented on appeal:
     1.     In dividing the equity in the family home, should
Lottie receive credit for one-half of the house mortgage
payments that she made on behalf of Joseph?
     2.     If Lottie exercises her option to purchase Joseph's
one-half interest in the house, should projected sale costs
be considered in determining the net equity in the house?
     Lottie and Joseph were married on June 21, 1969.           In
1973, they purchased     a home on which     the monthly     house
payments were $261.    Two sons were born of the marriage.    The
older son suffers from Down's Syndrome, is severely retarded,
and has various physical and mental problems.     The District
Court found that Brett Blades requires more care than the
average child and is likely to have more health problems in
the future.    The younger son has no special needs.
     The parties separated in February, 1978.    For the first
two or three months after separation, Joseph pa-id $250 per
month to Lottie.      After that, he paid $300 per month with
exceptions not significant to this appeal.
     The final divorce decree was entered in December, 1978.
The decree dissolved the marriage and awarded custody of the
two children to Lottie, with reasonable visitation rights to
Joseph.     The decree did not specify any amount for child
support and did not dispose of the parties' property or
indebtedness.      Those matters were left for agreement between
the parties.       No written agreement was ever executed.          In
July, 1983 Lottie petitioned the District Court to set the
monthly    child   support, to    require   payment   of     insurance
premiums and to make an equitable division of the parties'
property and indebtedness.       The issues on appeal relate only
to the division of property.


        In dividing the equity in the family home, should Lottie
receive credit for one-half       of the house mortgage payments
that she made on behalf of Joseph?
       The testimony of both Lottie and Joseph establishes that
no     agreement was   reached   between    them,   either   oral   or
written, with regard to the purpose for the $300 per month
paid by Joseph to Lottie.         In substance, Lottie testified
that she viewed the payments as support for the children and
did not view them as both support and monthly house payments
of $261.      While that was her view, she testified that no
agreement to that effect was reached between Joseph and her.
In contrast, Joseph testified that when he made the payments
of $300, his understanding was that the money was going to
assist in the support of the children and in the payment on
the house.     However, he also testified that no agreement to
this effect was reached between Lottie and him.
       In finding of fact 5, the District Court pointed out
that from April, 1978 to May, 1983, Joseph made payments of
$300 per month which he claimed were for child support and
mortgage payments.     The District Court ultimately viewed the
conflicting evidence more favorably for Joseph and did not
grant any offset to Lottie for the mortgage payments made by
her.    The uncontradicted evidence showed that Lottie had paid
57 monthly payments of $261 each from the date of separation
through September 1983, totalling $14,877.                 She contended
that    one-half    of    that   or   $7,438, plus   one-half of       any
additional payments made by her, should be granted as an
offset against Joseph's one-half interest in the property.
       In making this argument, Lottie relies on the case of
Lawrence v. Harvey (1980), 186 Mont. 314, 607 P.2d 551.                 In
that case, this Court concluded that where the wife had made
all of the monthly mortgage payments and the husband had made
none, no equity          should arise so far as the husband was
concerned in the absence of a specific provision in the
dissolution decree.
       The facts distinguish          Lawrence from the present case.
In Lawrence, the court order provided that the payments were
to be made for the support of the minor children.             We stated:
       ". . .  The payments which appellant was ordered to
       make for the 'support' of his minor children were
       intended to provide for the common necessities of
       life.    If the District Court had intended that a
       part of the support payment was returnable to the
       father in the form of an equity in the house after
       the children were emancipated, it should have been
       clearly spelled out in the divorce judgment.     It
       was not.    . . .The District Court properly denied
       appellant credit for any increase in equity in the
       house on account of the child support payments he
       made after the decree of divorce."    Lawrence, 186
       Mont. a.t 323, 607 P.2d at 556-57.
The court decree here failed to make any requirement for
payment on the part of Joseph to Lottie and, in particular,
did not describe payments to be made as support for the minor
children.     Lawrence does not control.
       The   record   contains conflicting       evidence    as to     the
parties'     understanding       of   Joseph's   monthly    payments   to
Lottie.      Such conflict is to be resolved by the trial court.
In order to prevail at the appellate level, Lottie must show
an abuse of discretion by the District Court, demonstrate by
a clear preponderance of the evidence that the findings are
incorrect, and overcome the presumption that the judgment of
the trial court is correct.           Bier v. Sherrard (Mont. 1981),
623 P.2d      550, 551, 38 St.Rep.        158, 159.        This Lottie has
failed to do.
     We affirm the District Court on this issue.


        If Lottie exercises her option to purchase Joseph's
one-half interest in the house, should projected sale costs
be considered in determining the net equity in the house?
     Joseph argues that, in the event Lottie exercises the
option to purchase given to her under the order, she is
authorized to purchase Joseph's            interest in the house at
$13,940.        That   figure   was   calculated      by    deducting   the
parties' remaining indebtedness and $4,024 in expected sale
costs from the net equity in the home.
     Joseph argues that because there would be no sale costs
upon Lottie's exercise of her option to purchase, the $4,024
in costs should not be deducted if the wife exercises the
option.       Lottie argues that Joseph is willing to take less
money for his one-half interest in the house from a stranger
than he is willing to take from his former wife and the
mother of his children.         She suggests that this indicates his
attitude toward. her and the children.
     The record contains substantial evidence to support the
District Court's conclusion that Joseph's interest in the
home is equal in amount to that which it would bring upon the
open market.      That amount includes consideration of projected
sale costs.       Joseph has failed to show that there was an
abuse    of    discretion,   to   prove    that   a   preponderance     of
evidence exists against the finding by the court, and to
overcome the presumption that the judgment of the District
Court is correct.
     We affirm the judgment of the District Court.

                                                     /

We concur:
