                              NO.    92-608
             IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1993



IN RE THE MARRIAGE OF
ROBERT A HULLENS,
        .
             Petitioner and Appellant,
     and
GRETCHEN J   . ,M??LLENS,


APPEAL FROM:      District Court of the Eighth Judicial District,
                  In and for the County of Cascade,
                  The Honorable Thomas M McKittrick, Judge presiding.
                                        .


COUNSEL OF RECORD:
           For Appellant:
                 Joan E. Cook, Miller      &   Cook, Great Falls, Montana
           For Respondent:
                 Leo Graybill, Jr., Graybill, Ostrem       &   Crotty,
                 Great Falls, Montana


                                    Submitted on Briefs:       July 1, 1993
                                                   Decided: July 28, 1993
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
     Robert   A.   Mullens   appeals    from   an   amended   decree    of
dissolution of the District Court fnrthe Eighth Judicial District,
Cascade County, which granted Gretchen J. Hullens money in lieu of
her share of the marital estate.       We affirm.
     There are three issues on appeal:
     1.   Was the monetary award that the District Court granted to
Gretchen a property settlement or maintenance?
     2.   Was there substantial credible evidence to support the
District Court"    division of the marital estate?
     3.   Did the District Court erroneously consider Robert's
misconduct when it divided the parties' marital estate?
     On September 25, 1985, Robert and Gretchen Mullens were
married in Great Falls, Montana.       The couple lived in a house in
Great Falls that Robert had purchased in 1982.         Robert filed for
dissolution on August 18, 1989. A trial was begun on September 12,
1991, and was resumed on February 18, 1992.         On the afternoon of
September 12, 1991, Robert was deposed.        His deposition was filed
with the court on April 15, 1992. On August 14, 1992, the District
Court entered its findings of fact, conclusions of law, and order
in the dissolution action.
     In its findings, the court found that the family house in
Great Falls belonged to Robert and was not marital property.           The
court determined that at the time of the parties' separation, the
marital estate was worth $14,670.30, plus the parties1 cars and
other personal property.      The court found the parties had divided
the personal property prior to the dissolution decree and that
Gretchen had received a majority of the furnishings and household
goods.
     In its findings, the District Court also noted that Robert
admitted in his deposition that he failed to pay taxes on earned
income for years; that he          knowingly    filed    false   financial
statements in the past; and that he was a self-admitted liar. The
court found that Robert was evasive about what property he owned
and the values of such property. The court determined that it was
necessary    "to    protect   [Gretchen]     from   [Robert's]   on-going
fraudulent activities and deceptive trickery."
     The court ordered an equitable distribution of the remaining
marital estate.      The court awarded Robert his personal tools, all
three of     the parties' bank     accounts, all        of   the parties'
automobiles except one, and a silver dipper. Gretchen was awarded
a Dodge Omni, a camper, the microwave oven and stand, and a
monetary award in lieu of her share of the marital estate.            The
court ordered Robert to pay Gretchen   $3000    within two months of the
decree and   $500   a month for two years.
     On August 17, 1992, Gretchen filed a motion to amend the
August 14, 1992, judgment and requested the court to grant her a
lien on the house in Great Falls to secure Robert's payment of the
monetary award.       On September 29, 1992, the court issued its
amended order and granted Gretchen's request.
                                 I
     Was the monetary award that the District Court granted to
Gretchen a property settlement or maintenance?
     On appeal, Robert contends that the District Court's order was
unclear whether the monetary award to Gretchen was a property
settlement or an award of maintenance.
     Based on our review of the record, we conclude that the
monetary award to Gretchen was a property settlement and not a
maintenance award.   The District Court made several references to
a property division throughout the amended decree and no reference
to maintenance.   Moreover, the court's findings reflect that the
court considered the statutory criteria set forth in 5 40-4-202,
MCA, the statute pertaining to the division of property: and that
the court did not consider the factors required by 5 40-4-203, MCA,
the statute pertaining to maintenance.
                                II
     Was there substantial credible evidence to support the
District Court's division of the marital estate?
     On appeal, Robert contends that the District Court's property
division was not supported by substantial credible evidence.    He
asserts that when the District Court divided the marital estate it
did not properly consider the statutory criteria set forth in
5 40-4-202(1), MCA. Robert claims that the final property division
was inequitable and that it should be reversed.
     The distribution of the marital         estate is governed by
5 40-4-202, MCA.   The statute vests the district court with broad
discretion to equitably apportion the marital estate. In reh4am'age

ofCollett (1981), 190 Mont. 500, 621 P.2d 1093.

     The standard of review employed by this Court in marital
property division cases is whether the district court's findings of
fact are clearly erroneous.     In re Mam'age o McLean and Fleury (Mont.
                                              f

1993), 849 P.2d 1012, 50 St. Rep. 35.      When there is substantial
credible evidence to support the court ' s findings and judgment,
this Court will not alter the lower court's decision unless there
is an abuse of discretion.    I re Mam'age of ScofJield (Mont. 1993), 852
                               n
P.2d 664, 50 St. Rep. 560.
     Before dividing the marital estate, the District Court heard
the parties' testimony and properly considered the statutory
criteria found in 5 40-4-202(1), MCA.     The court made appropriate
findings concerning the parties* earning capacities, the amount and
sources of Robert's and Gretchen's incomes, the vocational skills
of the parties, and the opportunity of each party to acquire assets
and income in the future.     The court determined that Robert was
evasive about what property he owned, the values of such property,
and his ability to earn future income.        Accordingly, the court
granted Robert all of the bank accounts, which were worth
$14,670.30, and the five vehicles.     The court awarded Gretchen a
monetary award instead of her share of the marital estate.
     We conclude that the District Court did not abuse its
discretion when it equitably apportioned the parties' property in
this case.    The court considered the statutory criteria governing
a marital property division, made appropriate findings, and based
its property division on substantial credible evidence in the
record.
                                  111

     Did     the   District   Court   erroneously   consider   Robert's
misconduct when it divided the partiest marital estate?
     Robert asserts that the District Court erroneously based the
property division on evidence of his "marital misconduct.''      Robert
first contends that the court should not have considered evidence
of his misconduct because such evidence was based on his deposition
which was not admitted into evidence.      Robert then relies on Collett

to support his contention that property is to be apportioned
without regard to marital misconduct.
     Contrary to Robert's first contention, his deposition was
filed on April 15, 1992, and therefore, the District Court was free
to consider the admissions contained in it.         Regarding Robert's
second assertion, he is correct that property is to be divided
without regard to marital misconduct.       Section 40-4-202(1), MCA.
However, there is no indication that in this case the court's
decision was based on Robert's conduct.
     The record reveals that the District Court relied on findings
of Robert's involvement in fraudulent activities, not to punish
Robert and to deny him an equitable share of the marital estate,
but   rather to protect      Gretchen's   interest    in the property
settlement. To insure Robert's compliance with the court decree,
the court ordered Robert to make payments to Gretchen through the
clerk of court. Furthermore, the court granted Gretchen a judgment
lien on Robert's life estate interest in the Great Falls house to
insure that Robert would complete all payments.
      Unlike the court in C d e l t , the District Court in this case did

not impose a penalty or take property away from Robert because of
his conduct.    Unlike the lower court in Collett, which reduced the

husband's share of the marital estate because of his prior
misconduct, the District Court in this case granted Robert an
equitable share of the marital estate and only considered Robert's
misconduct when considering what measures were necessary to assure
that Gretchen would receive the share awarded to her.        We find no
abuse of discretion.
      The judgment of the District Court is affirmed.
      Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as

precedent and shall be published by its filing as a public document
with the Clerk of the Supreme Court and by a report of its result
to Montana Law Week, State Reporter and West Publishing Company.
We concur:
                                          July 28, 1993

                                  CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:


Jom E. Cook
MILLER & COOK
600 Central Plaza, Suite 300
Great Falls, MT 59401

Leo Graybill, Jr.
GRAYBILL, OSTREM & CROTTY
#18 6th St. N. Suite 200
Great Falls, MT 59401


                                                     ED SMITH
                                                     CLERK OF THE SUPREME COURT
                                                     STATE OF MONTANA
