                             No.    91-276
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1991



IN RE THE MARRIAGE OF
JOHN J. DRISCOLL, 111,
               Joint Petitioner, Respondent
                    and Cross-Appellant,
     and
CHRISTINA M. POWELL-DRISCOLL,
               Joint Petitioner, Appellant
                    and Cross-Respondent.



APPEAL FROM:   District Court of the Eighteenth Judicial District,
               In and for the County of Gallatin,
               The Honorable Larry W. Moran, Judge presiding.


COUNSEL OF RECORD:
           For Appellant:
                Peter S. Lineberger; Lineberger         &   Walsh, P.C.,
                Bozeman, Montana
           For Respondent:
                Brenda Riley Cole and Bonnie Swandal; Swandal          &
                Douglass Law Firm, Livingston, Montana



                              Submitted on Briefs:      August 29, 1991
                                             Decided:   September 2 4 , 1391
Filed:
Justice John Conway Harrison delivered the Opinion of the Court


     John J. Driscoll, I11 and Christina M. Powell-Driscoll, as
joint petitioners, commenced dissolution of their marriage in the
Eighteenth Judicial District, Gallatin County, Montana.        The
District Court entered its decree on November 26, 1990 and both
parties appeal.   We affirm in part and modify in part.
     The parties present a number of arguments to support their
theories and positions.    We address only the most significant
issue:
     Did the District Court err by decreeing that the sum of
$22,500, plus interest, awarded to the husband and to be paid by

the wife was not dischargeable in bankruptcy?
      John and Christina were married in Coeur d' Alene, Idaho on
February 28, 1976.   Two children were born to the parties during
their fourteen-year marriage.        Throughout the course of the
marriage, the parties acquired various residential and business
properties.    The most significant assets include a day care
business, a retail camera shop and the family residence.       The
properties were financed by gifts, loans, fire insurance proceeds,
advancements on life insurance, cash from stock liquidation, wages,
and rental property proceeds.   Throughout the marriage the parties
jointly contributed time and effort to the maintenance of the
properties and businesses.      They cooperated in operating the
businesses and often worked together in the ventures in various
capacities.   After nearly fourteen years of marriage, the couple

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began to experience marital difficulties and in 1989, the wife
filed a motion requesting exclusive control of the camera business.
The husband agreed to stop working at the camera business in 1989,
and the dissolution proceeding took place on July 23, 1990.
     The District Court entered the decree on November 26, 1990
which addressed child custody, visitation, child support, medical
coverage for the children, property valuation and distribution
issues.   Both parties appeal on various issues.
     On appeal, we will not overturn the district court's judgment
distributing marital property unless the court has abused its
discretion. Marriage of Dzivi (Mont. 1991), 805 P.2d 567, 568, 48
St.Rep. 140.   We find that the District Court based its decision
on substantial credible evidence.    Except for the bankruptcy issue
addressed later in this opinion, the District Court's holdings on
all other matters including payment of equity, and visitation
revisions will remain undisturbed.


Prohibition of Discharcre of Indebtedness in Bankruptcv:
     The District Court stated in findings of fact #14 A) that:
     The amount due husband shall      be dischargeable in
     bankruptcy, and shall be considered as personal
     obligation of wife regardless of the future financial
     condition of The Camera Shop. [Emphasis in original.]
     Such a statement, while meant to prevent the wife from
obtaining an equitable division of the assets and then essentially
retaining the entire marital estate via a bankruptcy proceeding,
is nevertheless improper in the District Court's findings and
decree.   Here, the District Court awarded the wife sole ownership
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of the couple's day care business and retail camera shop according
to her wishes.    The court awarded the husband the family home on
which he assumed all debt.
     The record indicates continued reluctance on the part of the
wife to compensate the husband for his interest in the camera shop.
Further, there is evidence to show that the wife has threatened
bankruptcy to discharge the payment obligation to the husband.
She alone has the opportunity to sell or operate the businesses as
she sees fit, but in obtaining the businesses, she must pay the
husband for his interest.
     One of the marital assets addressed by the court was the
camera shop which it distributed to the wife with a net fair value
of $45,000.    The court decreed that the husband was to receive
$22,500 from the wife as his share of the camera shop, with
interest of 10% per annum until paid.    The court further decreed
that this amount due the husband shall not be dischargeable in
bankruptcy, and shall be a personal obligation of the wife.
     The United States Bankruptcy Code, 11 U.S.C.      Section 523
(a)( 5 ) , provides that:
     A discharge under section 727, 1141, 1228(a), 1228(b) or
     1328(b) of this title does not discharge an individual
     debtor Prom any debt    . . .  (5) to a spouse, former
     spouse, or child of the debtor, for alimony to,
     maintenance for, or support of such spouse or child, in
     connection with a separation agreement, divorce decree
     or other order of a court of record, determination made
     in accordance with State or territorial law by a
     governmental unit, or property settlement agreement, but
     not to the extent that   . ..  (B) such debt includes a
     liability designated as alimony, maintenance, or support,
     unless such liability is actually in the nature of
     alimony, maintenance, or support;  ....
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The District Court's decree prohibiting discharge of indebtedness
in bankruptcy denying the wife's rights under the Bankruptcy Code
is error.    The District Court did not find and decree that the
$22,500   awarded to the husband was for alimony, maintenance or
support for the wife or the minor children.
     Accordingly, the final decree is reversed with regard to the
inclusion of the statement prohibiting a discharge of indebtedness
in a bankruptcy proceeding.
     The judgment, decree, findings of fact and conclusions of law
of the District Court are modified by striking therefrom the
provision that the $22,500 awarded to the husband and to be paid
by the wife is not dischargeable in bankruptcy.     The judgment,
decree, findings of fact and conclusions of law are otherwise
affinned.




We concur:          /




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                                            September 24, 1991

                            CERTIFICATE OF SERVICE

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


Peter S. Lineberger
LINEBERGER & WALSH, P.C.
P.O. Box 6400
Bozeman, MT 59715-6400

Brenda Riley Cole and Bonnie Swandal
SWANDAL & DOUGLASS
206 East Callender
Livingston, MT 59047

                                               ED SMITH
                                                                               COURT
