                             NO.    92-435

           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1993



IN RE THE MARRIAGE OF
MARTIN PAUL GRIFFIN,
           Petitioner and Respondent,
     and
NANCY LIEN GRIFFIN,
           Respondent and Appellant.



APPEAL FROM:    District Court of the Fifth Judicial District,
                In and for the County of Beaverhead,
                The Honorable Frank M. Davis, Judge presiding.


COUNSEL OF RECORD:
           For Appellant:
                Edmund P. Sedivy, Jr.; Morrow, Sedivy      &
                Bennett, Bozeman, Montana
           For Respondent:
                John S. Warren; Schulz, Davis    &   Warren,
                Dillon, Montana


                               Submitted on Briefs:     March 11, 1993
                                             Decided: August 1 8 , 1 9 9 3
Filed:



                                   Clerk
Justice Terry N. Trieweiler delivered the opinion of the Court.
     A dissolution decree was entered by the ~istrictCourt for the
Fifth Judicial District, Beaverhead County, on November 25, 1991,
in which the court divided the parties1 marital estate, determined
custody, child support, and maintenance obligations, and awarded
appellant, Nancy Griffin, an option to purchase the family business
within 180 days.   Nancy moved the District Court on four separate
occasions to allow her to exercise this option, but these motions
were denied.   Respondent Martin Griffin moved the court to reduce
his property settlement obligation and this motion was also denied.
From the original decree and judgment, and the subsequent orders
denying their motions, the parties appeal.
     We reverse and remand to the District Court.
     The following issues are before this Court:
     1.   Is this appeal limited to a review of the District
Court's May 12, 1992, order?
     2.   Did the District Court abuse its discretion when it
refused to either allow Nancy to exercise her option to purchase
the family business or to adjust the property distribution based on
a market valuation of the business?
     3.   Did the District Court abuse its discretion when it
determined Martin's child support obligation without considering
the factors specified in S 40-4-204, MCA?
     4.   Did the District Court err when it refused to reduce
Martin's property settlement obligation by the amounts Nancy
withdrew from the parties1 business account?
                          FACTUAL SUMMARY
     Nancy Lien Griffin and Martin Paul      riffi in were married on
February 4, 1978. At the time of dissolution, the parties had four
children whose ages were 12, 10, 8, and 7.    The parties stipulated
to joint custody of the children.     Nancy was to be the primary
residential custodian.    The remaining issues of child support,
maintenance, and division of the marital assets were to be
determined by the trial court following a hearing conducted on
October 25, 1991.
     The parties1 primary asset, the value of which forms a basis
of this appeal, is the family-owned Madison Lumber Company, located
in Ennis, Montana.   It is undisputed that the parties started this
retail lumber and building supply business in 1979, and contributed
equally to its successful development.   Martinis role was that of
manager, and Nancy acted as chief financial officer.      Because it
was evident during the dissolution proceedings that both parties
desired the lumber company to the exclusion of the other, the
primary issues f o r the court to determine were the value of the
business and a method of equitably apportioningthis marital asset.
      Prior to the trial, the parties jointly hired an appraiser,
John Wicks, who utilized cost and income methods of valuation and
concluded that the parties' equity in the business was $340,000.
Believing that the Wicks appraisal considerably undervalued the
business, Nancy hired James Simons, a certified public accountant,
who evaluated the company's earnings and concluded that the
parties' equity was worth $862,274.

                                 3
     During the hearing, the court also considered conflicting
testimony regarding the value of the parties          home.   Wicks
appraised the family home at $222,000 but Nancy testified that no
offers had been received on t h e house when it was listed at
$230,000 so she believed the value to be $190,000.     Finally, the
court heard testimony on the issues of maintenance and support,
which   included the submission of a child support guideline
worksheet by Nancy,
     After considering the evidence, the court adopted Wicks '
appraisal of both the home and lumber company after it found Wicksi
valuation of the business "more credible and believable.Iq      The
court divided the marital estate as follows:
     To Nancy:        The family home
                         subject to its mortgage
                      Contents of home
                      Dean Witter account
                      Profit sharing plan
                      1990 Subaru
                      Settlement from husband
                          TOTAL :

     To Martin:       Madison Lumber Co. (total         $330,000
                         equity reduced by value of
                         Subaru awarded to Nancy)
                         subject to shareholders
                         advance                         (16,494)
                      Profit sharing plan                  9,848
                      Settlement paid to wife            (54,000)
                           TOTAL:                       $269,354

     In its findings of fact and conclusions of law issued on
November 14, 1991, the court stated that "despite the alarming
discrepancy in the expertsv appraisals (of the business), the court
finds that Nancy in equity should have an opportunity to put her
private appraisal to the fair market value test."     Therefore, it
awarded her an assignable option to purchase the lumber company
which was structured as follows:
     NANCY LIEN GRIFFIN is hereby granted a 180 day exclusive
     assignable option to purchase the assets of the Madison
     Lumber Company. The purchase price as equitably adjusted
     by the court from the conflicting appraisals, and other
     distributed property, shall be the sum of $540,000. The
     option if exercised shall be for cash or in the
     alternative, a secured installment sale, $180,000 down
     and the balance in 20 annual, equal, amortized
     installment payments at eight and one-half percent (8
     1/2%) interest.    In the alternative the parties may
     implement any other agreed to purchase plan.
The court further stated that it reserved the right "to amend its
decision as to maintenance, child support, and any other matters
which in equity should be adjusted in the light of such a sale."
     Finally, the court concluded that Nancy was entitled to a
temporary maintenance award, and that Martin should pay Nancy $1200
per month for child support.      The court also found that neither
party was entitled to an award of attorney fees.
     A dissolution decree and judgment, which conformed to the
court's   findings    and   conclusions   of   law,   was   entered   on
November 25, 1991. Neither party raised objections to the court's
purchase option plan, nor filed notices of appeal.
     During the time period between the court's issuance of the
findings and conclusions, and the subsequent entry of judgment,
Nancy sought to exercise her option under the installment terms of
the court's plan and moved the court to amend its division of the
marital estate.      Nancy claimed that the court-ordered purchase
price of $540,000, as compared to the $330,000 figure used in the
property division, created an additional marital value of $210,000
which should be split between the parties.    She stated that, in
order to obtain a loan for the sale, she needed to know if the
court was going to deduct h e r s h a r e of t h e additional value
($105,000) from the purchase price.
     The actual purchase plan that Nancy proposed was structured as
follows: Nancy would be purchasing the unencumbered assets of the
lumber company for $540,000.     The $180,000 down payment would
consist of crediting Martin with the $25,000 which he owed to Nancy
as the first installment of the property settlement and releasing
him of his obligation to repay the $16,494 shareholder's advance;
Nancy would transfer her Dean Witter stock to Martin, valued at
$42,271; and, finally, a payment of $96,235 in cash would be made
to Martin.   The remaining $360,000 of the contract price would be
decreased by $105,000 (her share of the increased net valuation of
the business).   The balance would be paid with a cash installment
payment of $29,OOO, and a secured contract for $226,000, payable in
20 annual installments at an interest rate of 8.5 percent.
     Nancy also moved the court to order that any installment sale
contract entered into between the parties include a non-competition
clause in order to afford Nancy a "reasonable opportunity to earn
the monies to pay the balance of the installment sale ~ontract.'~
     After a hearing, the court denied Nancy's motion on the basis
that it was premature because it was filed before a formal
execution of a written contract and the tendering of the $180,000
down payment.    The court denied the motion on November 25, 1991,
stating that "the option to purchase has not been properly
exercised   ...   [and] the proposed purchase plan fails to meet the
fair market value test as contemplated within the spirit and intent
of the Court's findings.Ig

     In a subsequent motion, Nancy requested access to the
company's records and permission to do an on-site inspection with
potential investors for the stated purpose of ''processing loan
applications.     In an order issued on January 7, 1992, Nancy's
motion for personal access to the property and records was denied,
but Martin was ordered to cooperate fully with bank representatives
to assemble any data necessary for a loan or sale.     Furthermore,
Martin was enjoined from conducting the business in a manner which
would impair the assets or value of the company during the 180 day
option period. The court added the following comment at the end of
the order:
        The purpose of the assisnable option was to put to the
     fair market value test the appraisal of the expert
     Simon[s].  The efforts to date have not been within the
     spirit and intent of that purpose.
     On February 24, 1992, Nancy again attempted to exercise her
option and moved the court to approve a contract for deed which
conformed to the terms prescribed by the court and was structured
in essentially the same manner as the plan she had proposed in
November 1991. The down payment would consist of releasing Martin
of his obligations to pay the shareholders advance and the initial
property settlement payment, assigning the balance of the Dean
Witter account at the date of closing, and the remainder payable in
cash. The balance of the purchase price would be in the form of a
promissory note, llsubjectto the equitable determination of the
District Court   . . . as set forth in the Decree and Judgment," and
the annual payments would be offset by the annual payments Martin
owed Nancy pursuant to the court's property settlement order. The
proposal included a noncompetition clause which would prohibit
Martin from owning, operating, or being employed by a similar
business in Madison County as long as the Madison Lumber Company
was in existence, and the contract granted Martin a "first right of
refusal" should Nancy elect to sell the assets of Madison Lumber
during the term of the contract.
      The court denied Nancy's motion on March 9, 1992, on the
grounds that the proposed contract did not provide adequate
security for Martin.    It concluded that the fair market value of
the proposed security, which was to be the lumber company itself,
was less than the unpaid balance due him under the contract, and
therefore, there was insufficient unencumbered equity to provide a
margin of security for Martin.     Also, Martin's interest would be
subordinated to three existing deeds of trust on the property.
      The court then clarified that the "spirit and intentM of the
option plan, which it concluded Nancy had thus far failed to meet,
was   to test the     "astonishing differencet1 in   appraisals by
subjecting the property to the open market:
      [Tlhe value of the equity of the Madison Lumber Company
      has not been subjected to the test of the market, for no
      third party has agreed to either purchase, lend, or
      invest in the Madison Lumber Company at the value of
      Respondent's assignable option.
     During that same month, Nancy received an offer from a third
party, Carl Collins, to purchase the lumber company for                 $900,000,

less existing debts, mortgages, and accounts payable.                   Nancy had
listed the business at a selling price of               $939,000,       but after
adjustments, the Collins offer represented a net sales price of
approximately         $600,000.   After further reducing it by the real
estate commission fee, the offer was about           $20,000   over the court's
option price.         Nancy moved the court to approve the Collins offer
and, if the sale was not approved, to accept her prior offer to
purchase the Madison Lumber Company.
     In an order issued on April          3,   1992,   the court found that
Nancy's listing agreement constituted an assignment of her option
and that "if in fact a cash sale for            $900,000       can be finalized
between [Carl Collins] as purchaser and Martin Griffin as seller
under the terms set forth in the offer, then the fair market value
test has been met within the spirit and intent of the option." The
court also noted that Collins included a covenant not to compete in
Madison County and it found that provision to be reasonable,
stating "[tlhat condition should not deter the sale.l1 Martin was
then ordered to negotiate the sale with Collins.
     Martin      immediately      contacted    the     realtor     to    commence
negotiations.           However, in a return filed with the court on
April   20,   1992,    Martin informed the court that the realtor notified
him on April 6 that Nancy had withdrawn her listing agreement and
had not accepted the Collins offer.            Martin attached a copy of a
letter written by Nancy to the realtor, dated April 9, 1992, which
stated:
          The proposed purchase of Madison Lumber Company by
     Carl Collins of Center Lumber Co. is hereby vacated. It
     is my desire to release the sale listing for the
     lumberyard. I do not believe it is in the long term
     interests of my family to sell the yard to a third party.
     In an affidavit submitted to the court on ~ p r i l 28, 1992,
Collins stated that he had to withdraw his offer because it was
contingent upon the sale of his business in California, and he
would not be able to close within the option period.   However, he
                          I
also stated that tlalthough desire to purchase the business, it is
my understanding that Nancy Lien Griffin does not believe it is in
the best interest of her family to execute a sale to a third
party.
     Nancy then moved the court on April 29, 1992, to allow her to
exercise the option under the terms and conditions contained in her
February offer. Nancy stated that, through the Collins offer, she
had established a market value of the business that was slightly
higher than the option price of $540,000.   Although her previous
offer had been rejected on the basis that securing the sale with
the business itself did not provide sufficient security for Martin,
Nancy claimed that now, since the market price of the business was
higher than the court's valuation, there would be an adequate
margin of security for Martin.
     Nancy also moved the court to adjust the property distribution
by equitably apportioning the difference between the $540,000
option price and the $330,000 judicially established market value.
She again requested that she share equally in this increased
valuation by having her share subtracted from the balance she would
owe to Martin upon exercising her option to purchase.
     In an affidavit submitted with the motion, Nancy argued that
it did not make sense to sell a profitable business to a third
party when it could be used to benefit her family.         Martin,
likewise, opposed selling the lumber company to either Nancy or a
third party because he felt the proposals were inequitable and he
needed to retain the business in order to provide adequate support
for his family.
     On May 12, 1992, the court denied Nancy's motions.        In a
comment to the order, the court stated that the option "has expired
by Nancy's own actsu and the reasons for denying Nancy's fourth
attempt to exercise the option "are obvious from the record.    Any
further comment would be repetitive."
     In this same order, the court denied pending motions by Martin
in which he requested a total credit of $13,876.94 against his
property settlement obligation to Nancy. The motions, accompanied
by evidence submitted to the court, alleged that Nancy had
improperly appropriated money from Martin's assets when she did the
following:   On three separate occasions, after entry of the
dissolution decree, Nancy took cash advances of $1500 against
Martin's Mastercard account.     Furthermore, Nancy removed five
checks from the company checkbook, without Martin's knowledge, and
wrote a series of checks to her attorney, her appraiser, and
American Express, in an amount totalling $12,376.94. Martin claimed
that this was contrary to the court's decision that each party bear
his or her costs and attorney fees, and that Nancy had unilaterally
increased her share of the estate which resulted in a disparity of
property division contrary to the District Court's order.
     On May 18, 1992, Nancy f i l e d a n o t i c e of appeal from the
court's original decree and subsequent orders due to the court's
rejection of her efforts to purchase the lumber company and its
refusal to adjust the property distribution based on the market
valuation of the business. She also appeals from the courtqschild
support determination set forth in the November 25, 1991, order.
Martin appeals from the court's denial of his motion for a credit
against his property settlement obligation.
                              DISCUSSION


     Is this appeal limited to a review of the District Court's

May 12, 1992, order?
     Nancy's notice of appeal, filed on May 18, 1992, states that
her appeal is from the District Court Is November 25, 1991, judgment
and decree, and all subsequent orders.        Martin contends that
Nancy's appeal is barred due to her failure to appeal within the
time specified by      Law.    Specifically, he    points   out that
Rule 5 (a)(1), M.R.App. P. , requires that the notice of appeal shall
be filed "within 30 days from the date of the entry of the judgment
or order appealed from.       Because Nancy's notice of appeal was
filed more than 170 days after the November 25, 1991, decree was
entered,   art in claims that this Court does not have jurisdiction
to decide Nancy's appeal from the decree and judgment. Therefore,
he argues that her appeal must be dismissed with respect to the
issues of child support and distribution of the marital estate.
Additionally, because all of the subsequent orders, except the
May 12, 1992, order, preceded Nancy's notice of appeal by more than
30 days, he contends this Court has jurisdiction only to review the

courtls final order of May 12, 1992.
     Nancy contends, however, that the November 25, 1991, decree
was not a final judgment from which appeal could be taken until the
180-day   option period   expired.     She notes   that   the   court
specifically stated that it:
     [Rjeserves jurisdiction to alter, modify, or amend the
     provisions of this Decree and Judgment with respect to
     its provisions for maintenance, child support, and any
     other matter which in equity should be adjusted in the
     event respondent exercises her option to purchase.
It is Nancy's contention that this decree, on its face, was not
final until the   expiration of the option period, and it was not
until May 12, 1992, that the parties' rights and obligations were
determined and were no longer subject to revision.   By filing her
appeal on May 18, 1992, she asserts she was within the 30-day
requirement and   this    Court, therefore, has    jurisdiction to
determine all of the issues raised in her appeal.
     Martin correctly points out that pursuant to 5 40-4-108, MCA,
a decree of dissolution is "final when entered, subject to the
right of appeal,'* and that under the Rules of Appellate Procedure,
an appeal from a final judgment must be filed within 30 days of the
entry of judgment.   Furthermore, we note that it is well settled
law   in   Montana    that   an   untimely      notice     of   appeal     is   a
jurisdictional defect which renders this Court powerless to hear
the appeal. ZnreMam'ageofZell (1977), 172 Mont. 496, 565 P.2d 311.

However, in this instance, because of the conditional language
included in the November 25, 1991, decree, we conclude that it was
not a final decree for purposes of commencing the time within which
an appeal must be taken.
      In Heater v Boston & Montana Coporation
                .                               ( 1929),   84 Mont   .   500, 277

P. 11, we discussed the difference between a final judgment, from

which appeal can be taken, and a judgment which is interlocutory in
nature.    In that case, we held that a judgment ordering a mortgage
foreclosure was in the nature of a conditional, interlocutory
determination because it stated that it was subject to specific
terms and conditions stipulated by the parties. Because the rights
of the parties were left in the "realm of uncertainty and
speculation" until the stipulations were carried out, we concluded
that an appeal was premature because no           finaL judgment had been
entered. Heater, 277 P. at 13.

      I n Heater, we recognized that    [n]o hard-and-fast definition of

a final judgment can be given, since the finality of a judgment
depends to a great extent upon its apparent purpose, and whether it
contains provision for subsequent modification."                However, this
Court did make clear that a decree which leaves matters yet
undetermined is necessarily interlocutory, and for a decree to be
final it must reserve "no further questions or directions for
further determination.I1 Heater, 277 P. at 13.

     After considering the circumstances present in this case, we
conclude that our reasoning in Heater applies equally to this

situation. The original decree, on its face, was made conditional
on whether Nancy exercised her purchase option. Thus, as entered,
the judgment contained provisions for subsequent modification, and
left the rights and obligations of the parties uncertain. Because
the court specifically stated that matters such as child support
and maintenance were subject to revision, appealing these issues
prior to the expiration of the option period would have been
premature.
     In response to Martin's argument that Nancy failed to file
timely appeals from the courtlslater orders, we would simply note
that this contention overlooks the interdependent nature of the
original decree and the subsequent orders. As noted above, because
of the conditional language included in the original decree, the
parties' rights were not finally determined until the option period
expired in May 1992.   Applying our reasoning in Heater, the orders

issued prior to the May 12, 1992, order were also interlocutory in
effect because there had been no final determination of the
parties1 rights.   Neither the decree, nor the subsequent orders,
barred Nancy from attempting to exercise the option at a later time
during the option period.
      We conclude that, under the circumstances present in this
case, we are not limited to reviewing only the May 12, 1992, order
and that Nancy's appeal from the original decree and subsequent
orders was notuntimely. Therefore, this Court can properly review
all of t h e issues raised in Nancy's appeal.


      Did the District Court abuse its discretion when it refused to
either allow Nancy to exercise her option to purchase the family
business or to adjust the property distribution based on a market
valuation of the business?
      Section 40-4-202, MCA, vests the district court with broad
discretion to equitably apportion the marital estate.           I re Mam'age
                                                                 n
o Collett ((1981), 190 Mont. 500, 621 P.2d 1 0 9 3 .
 f                                                       The standard of

review employed by this Court in marital property division cases is
well settled.   This Court will reverse a district court only upon
a showing that the court committed a clear abuse of discretion or
has   acted   arbitrarily,   resulting    in   either    instance      in   a
substantial injustice to one of the parties.           In re Mam'age of Miller
(1989), 238 Mont. 197, 203, 777 P.2d 319, 3 2 3 .

      Although Nancy raises numerous objections to the valuation
methods used by Wicks and the court's adoption of his conclusions,
she concedes, and we agree, that the court was operating within its
broad discretion when it valued the business at $330,000 and
awarded it to Martin, but then gave Nancy the option to purchase it
for the sum of $540,000 and retained jurisdiction to make equitable
adjustments in the event of a sale.     However, on appeal, Nancy
contends that the court abused its discretion when it arbitrarily
denied her motions and refused to allow her to exercise her option.
She also maintains that it was an abuse of discretion when the
court refused to equitably adjust its division of the marital
property after she established the market value of the business
through the Collins offer. She argues that a substantial injustice
resulted because the value of the marital estate was not then
equitably apportioned.
     We note first, that in each of the court's orders denying
Nancy's attempts to purchase the lumber company, the court placed
great emphasis on its assessment that the "spirit and intent" of
the option, which was to test the market value of the lumber
company through a third-party assignment of the option, had not
been satisfied.     However, after reviewing the court's original
decree, we note that nowhere on the face of that order does it
require Nancy to assign the option to a third party.   Although the
court's underlying intent may have differed, it granted Nancy an
exclusive, assignable option which she could either choose to
exercise herself or assign to a third party.    Therefore, Nancy's
proposals are entitled to be evaluated as objectively as a third
party offer.
     Although Nancy focuses much of her argument on the claim that
she established a higher market value of the business through the
Collins offer, the resolution of this appeal does not depend on
that claim.    The dispositive question this Court must consider is

                                 17
whether the purchase offers made by Nancy satisfied the terms of
the purchase option as decreed by the court, or if her proposals
substantially varied those terms.   If her offers did satisfy the
courtrs terms, Nancy should have been allowed to exercise her
option as proposed.
     We will first consider some of the general reasons for the
court's rejection of Nancy's proposals.   The record demonstrates
that the court criticized her proposals to liquidate her assets in
order to acquire the down payment, concluded that Martin's interest
would be subordinated or would not be adequately secured (although
the purchase price was $210,000 more than the courtrsvaluation),
rejected the notion of a noncompetition clause, and as we have
already noted, inappropriately rejected her proposals because they
were not from third parties.
     The record shows, however, that the court considered a
noncompetition clause in the third-party offer from Collins and
found that to be reasonable.    Additionally, there was testimony
from persons experienced in the business who stated that a
noncompetition clause in a contract for the sale of a business such
as this is "standard and cust~rnary.~Therefore, in light of the
court's approval of an identical provision in the Collins offer,
Nancy's proposals should not have been rejected on this basis.
Also, in regard to the question of adequate security, we would note
that Nancy was proposing to purchase the business at a price which
was $220,000 over the court's valuation. Thus, it appears that the
market value of the company's assets are sufficient to secure the
balance of the purchase price, and the court should not have
rejected the offer on this basis.            ina ally, although it may have
concerned the court, it was not within the court's authority to
approve or disapprove of how Nancy, or any third party, acquired
the necessary cash for a down payment.           In essence, the court was
placing conditions on the purchase option which were not in the
original decree. Therefore, to the extent that the court rejected
Nancy's proposals on these grounds, we conclude that it was an
abuse of discretion to reject Nancy's proposals f o r these reasons.
      Turning to the question of whether the specifics of Nancy's
purchase offers satisfied the terms spelled out in the original
decree, we note that Nancy's proposals to purchase the lumber
company were each essentially the same.              She would acquire the
$180,000 down payment by crediting Martin with certain debts he
owed to Nancy, transferring her Dean Witter stock at its current
cash value, and tendering the remainder in cash.              Because Nancy's
proposals    consisted     of   tendering    $180,000 of       cash   or   cash
equivalents, we concXude t h a t t h e s e p r o v i s i o n s satisfied the down
payment portion of the installment sale option provided for in the
decree.
      Next, Nancy proposed to pay the balance of the purchase price
by means of a secured installment plan, at the interest rate
specified by the court.         However, Nancy consistently argued that
the contract price should be decreased by $105,000, which would
represent her one-half share of the increased net valuation of the
business.    She bases this contention on the fact that, early in the

                                       19
alter the purchase terms set forth in the decree.      If that is the
case, Nancy's proposal complied with the terms of the option and it
was an abuse of discretion, resulting in a substantial injustice to
Nancy, for the court to deny her motions to exercise her option.
Therefore, she should now be allowed to purchase the lumber company
on these same terms and conditions.
     Nancy requests that, as an alternative to exercising her
purchase option, the court should equitably adjust the division of
the marital property based on the fact that she established the
market value of the company through the Collins offer.       Although
the court may have abused its discretion in refusing to allow her
to exercise her option, w e do not agree with the contention that
the court should amend the property division in the absence of an
actual sale of the business.      It is clear from the decree that the
court intended to equitably adjust the property division    i a sale
                                                             f
was completed, but not otherwise. Also, the court clearly stated,
with regard to the Collins offer, that Nancy would have established
the fair market value   if a   sale had been finalized between Collins
and Martin Griffin. Therefore, while we hold that Nancy should be
allowed to exercise her option under the terms proposed if it would
have been a reasonable adjustment of the marital property to award
each party half of the increased value of the business after the
sale, we do not conclude that the court abused its discretion by
refusing to adjust the property distribution in the absence of such
a sale.
     Did the District Court abuse its discretion when it determined
Martin's child support obligation without considering the factors
specified in 5 40-4-204, MCA?
     This    Court employs   an abuse of   discretion standard when
reviewing awards of child support.    In re Marriage of Nash   (1992), 254

Mont. 231, 836 P.2d 598.      Section 40-4-204, MCA, sets forth the
factors a court must consider in setting support orders, and the
guidelines      must use for determining support obligations. This
section states in pertinent part:
     (3) (a) Whenever a court issues or modifies an order
     concerning child support, the court shall determine the
     child support obligation by applying the standards in
     this section and the uniform child support guidelines
     adopted by the department of social and rehabilitation
     services pursuant to 40-5-209, unless the court finds by
     clear and convincing evidence that the application of the
     standards and guidelines is unjust to the child o r to any
     of the parties or is inappropriate in that particular
     case.
        (b) If the court does not apply these standards and
     guidelines to determine child support, it shall state its
     reasons for finding that the application of such
     standards and guidelines is unjust to the child or a
     party or is inappropriate in that particular case.
     In this case, Nancy contends that the court made absolutely no
findings concerning the subject of child support, and failed to
consider the relevant factors set forth in the guidelines or in the
statute. she points out that she offered a child support guideline
worksheet establishing that she was entitled to $2730.66 per month,
and that, although Martin failed to offer a worksheet for the
courttsconsideration, he testified that $2500 per month was what
he believed was necessary for the support of the children.
However, without making any findings, the court, in its conclusions
of law, ordered Martin to pay child support in the amount of $1200
per month, stating that this decision was based on "the applicable
criteria for allocation of child supportM and the partiest 1990 tax
returns.
     Our review of the record confirms that the court made no
findings regarding child support other than its statement that the
"applicable criteria" were considered. We made clear in In re Mam'age

ofKukes (Mont. 1993), 852 P.2d 655, 657, 50 St. Rep. 553, 554, that

there must be an evidentiary basis upon which a child support
determination is based.       In that case, we reversed the court's
modification of child support because it "clearly erred in failing
to make findings of fact that support its modification of child
support.It
     In this instance, there are no findings which establish that
the court properly considered the uniform guidelines and factors
listed in 5 40-4-204, MCA, nor that it had an evidentiary basis for
its decision.     We have previously held that the statute clearly
requires a court to consider the statutory criteria when making its
award.     InreMam'ageofGrenfeII (1979), 182 Mont. 229, 596 P.2d 205.

Furthermore, this Court has affirmed child support awards when
those criteria are properly considered.              See In re Marriage of Sacry

(1992), 253 Mont. 378, 833 P.2d 1035; Nash, 836 P.2d at 598. Here,

however, we hold       that   the   court   abused     its discretion by
establishing its award without setting forth an evidentiary basis
which demonstrated that the statutory criteria were properly
considered.   Therefore, this matter is remanded to the District
Court with instructions that the court consider the guidelines and
factors listed in 5 40-4-204, MCA, and enter findings of fact which
support its child support award.
                                 IV.

     Did the District Court err when it refused to reduce Martin's
property settlement obligation by the amounts Nancy withdrew from
the parties' business account?
     Martin contends that the court abused its discretion when it
did not credit his property settlement obligation with the amounts
of money Nancy took from Martin's share of the assets.   He claims
that Nancy unilaterally increased her share of the estate by
$13,876.94, and that the court should have required her to adhere

to the division of the estate as ordered.
     The evidence submitted by Martin established that Nancy took
three cash advances against his Mastercard account in the amount of
$1500, after the court's judgment dividing the marital assets was

entered. She also wrote five checks on the business account, in an
amount totalling $12,376.94, to her attorney, her appraiser, and to
American Express.   However, contrary to Martin's assertion that
these checks were written after entry of judgment, the record shows
that checks totalling $6100 were written before the trial on
October 18, 1991, and checks totalling $6276.94 were written on
November 1, 1991, which was after the trial but before the courtqs
findings were issued.
     In the May 12, 1992, order, the court denied Martin's motion,
and in an attached comment to the order explained that Martin
"knew, or should have known, that Nancy had the company checkbookIt
and that he knew of Wancy's propensity in the use of the checkbook
for matters unrelated to the bu~iness.~' Thus, in essence, the
court was implying that Martin was at fault and decided that this
condoned any alleged wrongdoing on Nancy's part.                     The court
concluded    that     the   business   ended   up     paying   the    personal
obligations of both parties, contrary to its decision, and denied
Martin's    motion.         No   comment was   made     in   regard    to   the
post-judgment cash advance that Nancy took on Martinis Mastercard
account.
     Apportionment of a marital estate is based on equitable
principles and whether parties are at "faultInshould not affect the
court Is division of assets.         Section 40-4-202, MCA, makes clear
that a court is not to consider any marital misconduct in its
disposition of the marital assets.             Coktt,   621 P.2d      at 1095.

Therefore, we remand this matter to the District Court to
determine, without considering fault by either party, whether the
amounts of money withdrawn by Nancy, at the times indicated, were
intended to be distributed to Martin, and if Nancy's appropriation
of these funds resulted in a disparity in the court's division of
the estate. If the court finds that Martin was deprived of assets
which should have been apportioned to him, then his property
settlement obligation should be credited with that amount.
     The judgment of the District Court is vacated and this case is
remanded to the District Court for further proceedings consistent
with this opinion.




We concur:




     Chief Justice
                                    August 18, 1993

                            CERTIFICATE OF SERVICE

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


Edmund P. Sedivy, Jr.
Morrow, Sedivy & Bennett
P.O. Box 1168
Bozeman, MT 59771-1168

John S. Warren
Schulz, Davis & Warren
P.O. Box 28
Dillon, MT 59725


                                                ED SMITH
                                                CLERK OF THE SUPREME COURT
