                                                    No.    82-56

                        I N THE SUPREXE COURT O F THE STATE OP MONTANA

                                                           1982




I N RE THE MARRIAGE OE'

ROY M.      CRANMON,

                        P e t i t i o n e r add A p p e l l a n t ,

             -vs-

ALVINA CRANMOHE,

                        R e s p o n d e n t and R e s p o n d e n t .




A p p e a l from:       D i s t r i c t C o u r t of t h e F i f k 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 B e a v e r h e a d , T h e H o n o r -
                        a b l e F r a n k E . B l a i r , Judge p r e s i d i n g .


C o u n s e l of R e c o r d :

           For A p p e l l a n t :

                        Schulz, D a v i s       &    Warren, D i i l o n , M o n t a n a


           For Respondent:

                       M i c h a e l J. M c K e o n , A n a c o n d a ,     Montana


                                                    -
                                                    S u b m i t t e d on B r i e f s :   May 6 ,   1982

                                                                         Decided:        July 28, 1982




Filed:    JL)L li? 8 1982
Mr. Justice Fred J. Weber delivered the Opinion of the
Court.

        Husband Roy Cranmore appeals from the property settlement
provisions in the findings of fact, conclusions of law and
judgment in this marriage dissolution action arising in the
Fifth Judicial District Court, Beaverhead County.     We affirm
the District Court.
        The Husband states a number of "issues," but his sole
challenge in fact is to the District Court's exercise of
discretion in its apportionment of marital assets.     The Wife
seeks attorney's fees on appeal, claiming that the appeal is
frivolous.
        In April of 1981, after nearly 12 years of marriage,
Husband Roy Cranmore filed a petition for dissolution with
the District Court.    There were no children of the marriage.
Husband was 53 and his Wife was 60 at the time of the dissolu-
tion.    The case was tried on November 10, 1981.   On December
30, 1981, the court entered findings, conclusions and judgment,

dissolving the marriage and distributing the marital assets.
The findings are extensive, and include a detailed list of
assets and liabilities, as well as the determination of a
net worth of $23,773.03.    Husband concedes that "[tlhere is
no dispute as to the assets and liabilities and net worth of
the parties which were established by petitioner's Exhibit 1
without objection, and set forth in the Court's Finding No.
XIV.    . .I'



        The District Court distributed to the Wife the following
assets and liabilities, with the values agreed upon by both
parties:
                              ASSETS
          Home and rental property        $25,000.00
          1978 Toyota                       1,000.00
          Miscellaneous personal property
            as described                    1,870.00
                        Total assets:                   $27,870.00
                           LIABILITIES
          Balance owing on house          $ 3,416.61
          1980 and 1981 taxes on home         514.48
                   Total Liabilities:                   $ 3,931.09

          Net Value of Assets Distributed to Wife

     The District Court distributed to the Husband the
following, again with values agreed upon by both parties:

                            ASSETS
          Trailer House                  $ 1,000.00
          1979 Pacer                         500.00
          1969 Jeep                          300.00
          1962 Apache Camper                 150.00
          Miscellaneous Personal Property    400.00
                           Total assets:               $ 2,350.00

                          LIABILITIES
         State Bank & Trust - Balance on
           Toyota                       $
         State Bank & Trust Co. -
           Balance on trailer house
         Butte Radiology
         St. James Hospital
         Credit Bureau - Wife's St. James
           Bill
         Montgomery Ward
         Sears
         VISA
         Dr. Osterholtz
         Schulz; Davis & Warren
         Miscellaneous                        117.00
                    Total Liabilities:                 ($4,465.88)

         Net Excess of Liabilities Over Assets

    The Wife receives $184.00 per month supplemental income
from Social Security Insurance disability benefits.    In

addition, she receives rental of $100.00 per month from the
small house and trailer space next to the house which was

distributed to her.   The Wife did not receive maintenance.

    The District Court found that the Husband is 53 years

of age, employed as a maintenance man by the State of Montana,
receiving gross earnings for each two weeks of $537.68, with

take-home pay of $359.95.
     Husband argues that it was inequitable for the District

Court to divide the assets in such a way that he, who entered
the marriage with $6,000 in assets, and during the marriage
accumulated a net worth in excess of $23,000, leaves the
marriage "with less than nothing, thereby qualifying him to
appeal as a pauper in the same court."    He refers to a
recent case in which failure of the District Court to indicate
the reasons for its property apportionment resulted in
reversal.    See In re Marriage of Peterson (1981),        Mont.
    , 636 P.2d 821, 38 St.Rep. 1723. He also argues that
the findings upon which the distribution is based are unsupported

by the evidence.    He points out that finding IX, which says
"Respondent [Wife] suffers from a deteriorating heart condition

which requires about $20.00 medication per month," is
unsupported by the record--it is the Husband, whose chronic
heart condition costs him $40.00 for medication per month.
Husband also argues that finding XIII, which says that he
has "substantial accrued retirement benefits," and income
with which to "purchase suitable housing," is unsupported by

the record, particularly in light of the court's granting of
his subsequent request that he be allowed to appeal - forma
                                                    in
pauperis.
     We are not persuaded by Husband's arguments.

            "The scope of this Court's review when consid-
            ering the findings and conclusions of a trial
            court sitting without a jury is clear and well
            settled in Montana. A brief consideration of
            those rules is appropriate at this point.
            "'This Court's function in reviewing findings
            of fact in a civil action tried by the district
            court without a jury is not to substitute its
            judgment in place of the trier of facts but
            rather it is "confined to determining whether
            there is substantial credible evidence to sup-
            port" the findings of fact and conclusions of
            law.' [Cases omitted. I
          "~lthough conflicts may exist in the evidence
          presented, it is the duty of the trial judge
          to resolve such conflicts. Mis findings will
          not be disturbed on appeal where they are bas-
          ed on substantial though conflicting evidence,
          unless there is a clear preponderance of evi-
          dence against such findings. [Cites omitted.]"
          Cameron v. Cameron (1978), 179 Mont. 219, 227,
          587 P.2d 939, 944.
In light of this standard, let us consider the points the
Husband raises.
     The Wife's Illness.    The District Court found as follows:
          "That the Respondent Wife is presently total-
          ly and permanently disabled. She has a small
          source of income, $184.00 a month, and no
          skills which will render her employable or able
          to support herself. She must be awarded the
          sole right, title and interest of the family
          residence and trailer space located on the lot.
          If she loses the family residence, she will
          have no place to live and no financial resources
          to purchase another residence or rent suitable
          residence."
The Husband testified with regard to the Wife's disability
as follows:
         "Q. Mr. Cranmore, you understand that your
         wife Alvina is disabled, is that correct? A.
         Yes.

          "Q.    Do you know when her disability began?
         A.     Oh, I am going to say '78.
          "Q. She has been unable to work since that
          time, is that correct? A. Yes."
With regard to her disability, the Wife testified as follows:

         "Q. What is the nature of your disability?
         A. The doctor told me that I won't be able
         to work anymore."
It is true that the District Court incorrectly found the
Wife's illness to be deteriorating heart condition, which
is not substantiated by the record.   That fact is not significant.

There is substantial credible evidence in the record to
support the court's findings of total disability on the
part of the Wife, and the court's consideration of that
disability in its apportionment of assets.
     The retirement benefits were accumulated by Husband and
were neither sought by nor apportioned to the Wife.     Husband
had held the same job with the State for seven years; retire-
ment was deducted from his wages.     The District Court's
finding that he had "substantial accrued retirement benefits"
is adequately supported by the record.
     Husband's testimony shows that after December, 1980, he
lived in Bannack where he works, in a residence for which
the State may subtract $35 per month from his paycheck.
Husband is earning steady wages, and has been awarded a
housetrailer out of the marital assets.     We do not believe
that, because at the moment he is unable to pay his costs of
appeal, he is necessarily unable to provide himself with
adequate housing in the future.    Clearly he is in a better
position to do so than his disabled Wife, who, without the
family home and its included rental property, would be
forced to rely solely upon her $184.00 per month disability
benefits from the government.
     Finally, we consider the equitability of the apportionment
of assets.   As above described, the Wife was awarded the
bulk of the assets, and the ~usbandwas awarded the bulk of
the liabilities.   However, we note that the assets awarded
to the Husband included numerous items of personal property
which he had requested, and included the trailer house which
produces $150.00 per month.     The Wife did not receive either
a cash settlement or a maintenance award.    The real dissatisfaction

of the Husband appears to be with the failure of the ~istrict
Court to order the sale of the house and the division of the

sale price equally between the Wife and e us band.
     The often-stated rule in reviewing property distributions
in dissolution proceedings is that the District Court is

afforded broad discretion.    Abuse of discretion is the
touchstone in determining whether a particular distribution
is inequitable.   For an abuse of discretion to be found
appellant must show that the District Court acted arbitrarily
without employment of conscientious judgment, or exceeded
the bounds of reason in view of all the circumstances.
LeProwse v. LeProwse (1982),        Mon t   .   -1     -P. 2d
    ,   39 St.Rep. 1053.   Accord: Creon v. Creon (1981),
Mont.       , 635 P.2d 1308, 38 St-Rep. 1828; Zell v. Zell
(19771, 174 Mont. 216, 570 P.2d 30.    The record here demonstrates
that the District Court carefully considered those factors
set forth at section 40-4-202, MCA, which are to be used in
making an equitable property distribution.           Among those
factors are the age, health, and future employability of the
parties, as well as whether the apportionment is in lieu of
maintenance.   The District Court judge considered the greater
age and total disability of the Wife, as well as her past
monetary and nonmonetary contributions to the purchase and
maintenance of the property, and noted that the Wife requested
ownership of the family residence in lieu of maintenance.
The Husband is employed; the Wife has been unemployable
since 1978 because of illness and very limited job skills.
The Husband has a retirement fund; the Wife will have her
small disability income and the rental income from the

trailer space and small residence on the home lot.          Without
the rental income and her own use of the family home, she
would undoubtedly be entitled to maintenance from the Husband.
The Wife did not seek maintenance, and the Husband expressed
his inability to pay it anyway, due to the various debts he

owed.   With the transfer of full ownership of the house to
the Wife went the responsibility of paying for taxes, insurance,
repairs, and the $3,416.61 balance owing from the purchase

of the home.
     We find no abuse of discretion in the apportionment of

marital property.    The distribution was obviously carefully

considered in light of attendant circumstances and the
provisions of section 40-4-202, MCA; the trial court is not
required to divide assets equally.   Lupo v. Lupo (1982),
     Mont.   -I     - P. 2d      , 39 St.Rep. 565, 566.
     The Husband notes that the District Court failed to

distribute a 1973 Ford pickup valued at $1,000.00 which is
titled in the Husband's name, and a 1970 Plymouth valued at
$350.00 titled in the name of the Wife.   We hold that each
may retain the vehicle so titled in his or her name.
    We affirm the judgment of the District Court.    We do
not find the appeal was lacking in merit so as to justify an

attorney's fee award to the Wife.




We Concur:



Chief Justice
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