N0. 85-28
IN THE SUPREME COURT OF THE STATE OF MONTANA

1986

IN RE THE MARRIAGE OF
FRANCIS W. WENGELER,

Petiti0ner and Appellant,
and
ELAINE WENGELER,

Resp0ndent and ReSp0ndent.

APPEAL FROM: District C0urt of the Seventh Judicial District,
In and for the C0unty of Richland,
The H0n0rable Russell McDon0uqh, Judge presiding.

COUNSEL OF RECORD:

F0r Appellant:

K0ch, Carter & Anciaux; Phillip N. Carter, Sidney,

M0ntana

F0r ReSp0ndent:

Peter O. Maltese, Sidney, M0ntana

Submitted on Briefs: Aug. 15, 1985

Decided: January 2l,

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Mr. Justice Fred J. Weber delivered the Opinion of the Court.

Francis W. Wengeler (husband) appeals from the judgment
of the Seventh Judicial District Court for Richland County
which awarded attorney fees to Elaine M. Wengeler (wife) and
included a mobile home in the marital estate. We affirm the
District Court.

The issues are:

l. Did the District Court err in including the mobile
home in the marital estate?

2. Did the District Court improperly award attorney
fees to the wife?

Husband and wife were married in l962. Two daughters
were born to the marriage, both of whom are now adults. In
l973, husband and wife purchased 21 Bonevilla mobile home,
which they originally parked in Nashua, Montana. In l975,
the mobile home was moved to Reynolds, North Dakota, where it
was parked on real property owned by the husband's father.
At that time the wheels and axles were removed from the
mobile home and it was placed on a concrete foundati0n.
Husband argues that the placing of the mobile home on such a
foundation constituted a transfer of the mobile home so that
it no longer could be classed as a part of the marital
estate. In his verified petition for dissolution, husband
stated that the mobile home had been acquired by husband and
wife and that it should be sold and the equity should be
divided equally. By her answer, the wife admitted that the
mobile home had been acquired by the husband and wife during
their marriage. She suggested a different disposition than
that asked by the husband. On August 4, l982, the district
judge signed the decree of dissolution, but reserved the

determination of all other matters.

Both the husband and wife testified, without
contradiction, to the following facts regarding the mobile
home: the mobile home was purchased by the husband and wife;
it was placed upon lots in North Dakota owned by husband's
father; neither husband nor wife intended to transfer the
mobile home to the husband's father by such placement; the
father intended to transfer the lots to husband and wife upon
payment of a small sum of money; husband's father transferred
the lots on which the mobile home was situated to minor
children of husband and wife; neither husband nor wife
intended to transfer their interest in the mobile home to
their children; husband continued to pay the taxes on the
mobile home through l982; the parties continued to pay the
lending institution on the obligation incurred at the time of
the purchase of the mobile home; and the home has been used
by husband or wife, and was not occupied at the time of the
divorce proceedings by the children who owned the lots.

I

Did the District Court err in including the mobile home
in the marital estate?

In finding of fact VIII, the District Court found that
the mobile home was 21 part of the marital property. The
husband attacks that finding and the conclusion based upon
the finding.

Husband contends that under the law of the state of
North Dakota, real property includes that which is affixed to
the land. A thing is affixed to the land when it is
permanently attached by nails, bolts or screws. In addition,
he argues that under North Dakota law when a person affixes
his property to the land of another without any agreement
permitting removal, the thing affixed belongs to the owner of

the land. He therefore argues that the mobile home became

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the property of his father, and now is the property of the
children.

In finding of fact X, the District Court stated:

The Court finds that Lots l3, l4, l5, and l6 of

Block 22 of Reynolds City Second Addition in

Reynolds, North Dakota upon which such mobile home

is situated is owned by the two daughters of the

parties hereto and that the parties have listed all

of the marital property and the said lots for the

price of Thirty-One Thousand Dollars ($3l,000.00),

which was their appraised value. That upon the

sale of said lots, the daughters were to receive a

portion of the proceeds in payment of such lots and

the Court finds such portion of the proceeds was to

be Three Thousand Dollars ($3,000.00) for each

daughter. The Court finds that the total value of

such marital assets is in the sum of Twenty-Five

Thousand Dollars ($25,000.00).
we have reviewed the transcripts which contain substantial
evidence to support the finding that there was an agreement
under which the two daughters were to receive $3,000.00 each.
Because of the presence of that agreement, there is no reason
to be concerned with the technical question of the ownership
of the lots as distinguished from the ownership of the mobile
home itself. There is substantial evidence in the record to
support the finding' by the court that the lots plus the
mobile home had a value of $3l,O00.00, and that $6,000.00 was
to be allocated to the daughters, leaving $25,000.00 as the
value of that portion of the marital estate.

we hold that the District Court was correct. when it
included the mobile home as a part of the marital estate.

ll

Did the District Court improperly award attorney fees to
the wife?

The husband argues that the District Court improperly
ordered the husband to pay the wife's attorney fees. He
bases this argument on cross-examination in which the wife

testified that her present husband would be willing to help

her pay attorney fees. She also testified that she felt it

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was her obligation to pay them, and she would pay them
without her present husband's help. In itself, that
testimony is not determinative of the issue.

In finding of fact XVI, the District Court concluded
that the wife did not have the means to pay attorney fees at
the time of the inception of the divorce action and that she
still does not have the means to pay such attorney fees. The
record contains substantial evidence to support that finding.

We affirm the award of attorney fees by the District

Court.

Justic

We concurs

 
   

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