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                                                               No. 97-729




                          IN THE SUPREME COURT OF THE STATE OF MONTANA




                                                            1998 MT 171N




                                                  IN RE THE MARRIAGE OF

                                                   MARCUS A. CARPENTER,

                                                         Petitioner/Appellant,




                                                                      v.

                                                      JOANN CARPENTER,




                                                      Respondent/Respondent.




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                                                             APPEAL FROM: District Court of the Eleventh Judicial
                                                                                District,

                                               In and for the County of Flathead,

                                  The Honorable Katherine R. Curtis, Judge presiding.




                                                     COUNSEL OF RECORD:




                                                             For Appellant:




                               Randall A. Snyder, Snyder Law Office, Bigfork, Montana




                                                            For Respondent:




                           P. J. Sorenson, Kaufman, Vidal & Hileman, Kalispell, Montana




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                                              Submitted on Briefs: March 26, 1998




                                                        Decided: July 28, 1998

                                                                    Filed:




                                    __________________________________________

                                                                    Clerk




                     Justice William E. Hunt, Sr. delivered the Opinion of the Court.




¶ Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Operating
Rules, the following decision shall not be cited as precedent but shall be filed as a
public document with the Clerk of the Supreme Court and shall be reported by case
title, Supreme Court cause number, and result to the State Reporter Publishing
Company and to West Group in the quarterly table of noncitable cases by this Court.

¶ The marriage of Joann Carpenter (Joann) and Marcus A. Carpenter (Art) was
dissolved pursuant to the Findings of Fact, Conclusions of Law, and Decree of
Dissolution entered on October 7, 1997, by the Eleventh Judicial District Court,
Flathead County. Art appeals the court’s decision regarding valuation and
distribution of the marital estate. We remand for further proceedings.

¶ The sole issue on appeal is whether the court erred in distributing an equalizing
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sum of $30,000 to Joann. In matters relating to distribution of marital property, we
review a district court’s findings of fact to determine whether the findings are clearly
erroneous. Rule 52(a), M.R.Civ.P.; In re Marriage of Pfeifer (1997), 282 Mont. 461,
467, 473, 938 P.2d 684, 688, 692. A finding is clearly erroneous only if it is not
supported by substantial evidence, the trial court misapprehended the effect of the
evidence, or our review of the record convinces us that a mistake has been
committed. In re Marriage of Stufft (1996), 276 Mont. 454, 459, 916 P.2d 767, 770.
We have defined substantial evidence as "evidence that a reasonable mind might
accept as adequate to support a conclusion; it consists of more than a mere scintilla
of evidence but may be somewhat less than a preponderance." Barrett v. Asarco Inc.
(1990), 245 Mont. 196, 200, 799 P.2d 1078, 1080. In determining whether a finding of
fact is clearly erroneous, "due regard shall be given to the opportunity of the trial
court to judge of the credibility of the witnesses." Rule 52(a), M.R.Civ.P.

¶ If the findings underlying a district court’s division of property are not clearly
erroneous, then the court’s distribution is discretionary and is reviewed for an abuse
of discretion. Stufft, 916 P.2d at 770. In evaluating abuse of discretion, we look to
whether "the trial court acted arbitrarily without employment of conscientious
judgment or exceeded the bounds of reason resulting in substantial injustice." In re
Marriage of Wessel (1986), 220 Mont. 326, 333, 715 P.2d 45, 50 (citations omitted).

¶ In distributing the parties’ assets, the court made the following findings: (1) the
only items of property remaining in dispute at the time of trial were a home in
Lakeside, Montana, valued at $129,000; a home in Fallon, Nevada, valued at
$100,000; a 1992 Lincoln Towncar valued at $11,637; a 1994 Chevrolet pickup
valued at $18,075; and two investment accounts totaling $154,674; (2) the investment
accounts are Art’s premarital assets and are awarded to him solely; (3) a fair and
equitable division of the remaining balance of the marital estate consists of 55% to
Joann and 45% to Art; (4) Art is awarded the house in Lakeside and the Chevrolet
pickup for a total value of $147,075, and Joann is awarded the house in Nevada and
the Lincoln Towncar for a total of $111,637; (5) Joann is awarded an equalizing sum
of $30,000; and (6) Art is responsible for the parties’ debts.

¶ Art reads the above findings to mean that once the court awarded him the two
investment accounts, the accounts were removed from the marital estate. Art argues
that requiring him to pay $30,000 of his investment accounts to Joann is inconsistent
with the court’s determination that the accounts were his premarital assets and

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should be awarded solely to him. Thus, Art argues, the court erred in awarding
Joann $30,000 in excess of the marital estate. See In re Marriage of Peterson (1989),
238 Mont. 470, 476, 778 P.2d 402, 405.

¶ Section 40-4-202(1), MCA, provides in relevant part:

                  Division of property. (1) In a proceeding for dissolution of a marriage . . . the
                  court, without regard to marital misconduct, shall . . . finally equitably
                  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. In making apportionment, the court shall
                  consider . . . the contribution or dissipation of value of the respective estates
                  and the contribution of a spouse as a homemaker or to the family unit. In
                  dividing property acquired prior to the marriage; property acquired by gift,
                  bequest, devise, or descent; property acquired in exchange for property
                  acquired before the marriage or in exchange for property acquired by gift,
                  bequest, devise, or descent; the increased value of property acquired prior to
                  marriage; and property acquired by a spouse after a decree of legal
                  separation, the court shall consider those contributions of the other spouse to
                  the marriage, including:

                  (a) the nonmonetary contribution of a homemaker;

                                      (b) the extent to which such contributions have facilitated the
                                      maintenance of this property; and

                                      (c) whether or not the property division serves as an alternative to
                                      maintenance arrangements. (Emphasis added.)



We have interpreted the above provision to mean that assets belonging to a spouse prior to
a marriage or acquired by gift during the marriage are not part of the marital estate unless
the other spouse made contributions to the maintenance or preservation of the property. In
re Marriage of Nordberg (1994), 265 Mont. 352, 361, 877 P.2d 987, 992. If the
nonacquiring spouse has in some way contributed to the maintenance or preservation of
the other spouse’s preacquired or gifted property, the nonacquiring spouse is entitled to an


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equitable share of such property which is attributable to his or her efforts. See In re
Marriage of Smith (1995), 270 Mont. 263, 270, 891 P.2d 522, 525; Bradshaw v. Bradshaw
(1995), 270 Mont. 222, 229-30, 891 P.2d 506, 511.

¶ The court’s Findings of Fact, Conclusions of Law, and Decree of Dissolution is void
of any findings concerning either: (1) whether Joann contributed to the maintenance
and preservation of Art’s investment accounts, and if so, (2) what proportion of the
investment accounts is attributable to Joann’s efforts. Although the court was not
required to make itemized findings for every factor listed in § 40-4-202, MCA, In Re
Marriage of Mouat (1987), 228 Mont. 430, 433, 743 P.2d 602, 604, it was required to
at least make findings "sufficiently comprehensive and pertinent to the issues to
provide a basis for decision." In Re Marriage of Gerhart (1990), 245 Mont. 279, 282,
800 P.2d 698, 700-01 (citation omitted).

¶ We conclude that the District Court abused its discretion in distributing the
marital property without making specific findings concerning whether Joann
contributed to the maintenance and preservation of Art’s investment accounts, and if
so, what share of the accounts can be attributed to her efforts. Accordingly, the
judgment is vacated and this case is remanded to the District Court for further
proceedings consistent with this opinion.

¶ Remanded for further proceedings.



/S/ WILLIAM E. HUNT, SR.




We Concur:



/S/ J. A. TURNAGE
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/S/ JAMES C. NELSON

/S/ KARLA M. GRAY

/S/ TERRY N. TRIEWEILER




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