                                 No. 88-496
                 IN THE SUPREME COURT OF THE STATE OF MONTANA
                                        1989


IN RE THE MARRIAGE OF CINDY GRECIAN                                                        .*
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STEWART F. GRECIAN                                                                               .-   -          i
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APPEAL FROM:      District Court of the Sixteenth ~udicial~ i s t ~ c t
                  In and for the County of Rosebud
                  The Honorable Alfred B. Coate, Judge presiding.

COUNSEL OF RECORD:
         For Appellant:
                  Gary A. Ryder, Forsyth; Montana
         For Respondent :
                  Garry P. Bunke; Forsyth, Montana


                                        Submitted on Briefs:   April 13, 1989
                                          Decided:   July 7 , 1989
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Filed:


                  -                 Y
                                   " Clerk
Mr. Justice John C.   Sheehy delivered the opinion of the
Court.


     This is an appeal by Stewart Grecian from a division of
marital property and a determination of child support in a
judgment and decree issued against him by the District Court
of the Sixteenth Judicial District, Rosebud County.        We
affirm.
     The parties, Cindy and Stewart Grecian were married
February 14, 1981 in Forsyth, Montana. One child, Amber, was
born of the marriage on August 24, 1982.       Cindy filed a
petition for dissolution of the marriage January 20, 1988. A
hearing on motion for temporary child support and maintenance
was held February 8, 1988.      The parties entered into a
stipulation at the the urging of the District Court which was
adopted by the District Court on March 11, 1988. The parties
agreed that Stewart would pay $600.00 per month child support
and $300.00 per month maintenance during the pending
dissolution proceeding. A bench trial was held May 23, 1988.
On June 8, 1988 the District Court made its findings of fact
and conclusions of law. The judgment and decree were entered
on July 7, 1908. Joint custody was ordered with the child
residing with Cindy during the school year. Based upon the
earlier stipulation, Stewart was ordered to pay $600.00 per
month child support reviewable in two years by request of
either party.    Stewart will not be required to pay child
support during summer visitation. Stewart was also ordered
to pay $150.00 per month for maintenance for 24 months while
Cindy is enrolled in a re-education program.
     Property awarded to ~ i n d yincludes:
     Household goods            8,000
     Mobile home                8,000
     And one-half of the net   proceeds of a settlement of
     a lawsuit in favor of      the parties prior to the
     divorce.
     Property awarded to Stewart includes:
     Olds                     $2,500
     GMC 4x4                     300
     Chev. Coupe                   0
     Tools                    25,212
     Plus the other half of the proceeds of the lawsuit.
     The complaint by Stewart about the property distribution
is confined to the proceeds of the lawsuit settlement in
favor of Stewart and Cindy.
                             I.
     Did the District Court err in its award of one-half of
the anticipated proceeds from the settlement of the lawsuit
resolved prior to the divorce?
     According to testimony presented at trial by Cindy,
Stewart's father (Richard) had a power of attorney from
Stewart.   Richard deeded property in California to Stewart
and was conducting real estate transactions with Stewart's
power of attorney without Stewart's knowledge.    Cindy and
Stewart began to receive bills and tax notices associated
with the property.   Cindy and Stewart hired an attorney to
revoke the power of attorney but still ended up having to pay
taxes on part of the property and Richard refused to
reimburse Cindy and Stewart. Richard sued Cindy and Stewart
to get the property back and Cindy and Stewart countersued.
The matter was settled for $50,000.00 plus 26% net equity
value of the real estate involved.   As of the date of the
hearing, the settlement proceeds had not been paid, although
Cindy stated she expected the amount to be approximately
$250,000.00 before attorney fees are deducted.       Stewart
claims the property Richard deeded to him and eventually sued
him for were gifted to him, and should not have been
considered by the court as part of the marital estate.
     The   District  Court,   in   its   findings of        fact,
characterizes the right to receive the proceeds of the
settlement as a chose in action which is personal property
that can be divided by the District Court. Stewart argues
that the District Court erred by finding that Cindy
automatically obtained an interest in the land (prior to its
transformation to personal property) because California is a
community property state.    Stewart cites Hughes v. Hughes
(1978), 91 N.M. 339, 573 P.2d 1194 for the proposition that
the domicile of the parties is what determines whether
property acquired during the marriage is subject to community
property law or, as in Montana, equitable distribution law.
This is a misstatement of that case.    In Huqhes, the court
stated the general rule as:
     ...   funds or property, brought         in from a
     non-community property state where the funds or
     property were there considered to be the separate
     property of an individual, will retain the same
     character when traceable into New ~ e x i c oproperty.
Hughes, 573 P.2d at 1198; citing ~oprianv. Mennecke (1949),
53 N.M. 176, 204 P.2d 400.
     The facts involved in Hughes distinguish it from the
present case. In Hughes, the husband had separate property
in Iowa, reduced the property to monetary form, moved to New
Mexico (a community property state) where he invested the
money in another piece of real property.      Upon divorce,
husband contended community property law did not extend to
the New Mexico property because it could be traced to his
separate property in Iowa and the New Mexico court agreed.
The New Mexico Court applied Iowa law which is essentially
equitable distribution and arrived at the same result. The
present case involves property located in California and the
domicile of the parties has always been Montana.   The Montana
courts do not have jurisdiction over real property located
outside its jurisdiction, nor would Montana law apply.     In
the final analysis, it does not really matter because the
character of the property was transformed from real property
outside the state of Montana, which the Montana court would
have no power over, to personal property found in the state
of Montana, over which the Montana court does have
jurisdiction to equitably distribute under 5 40-4-202, MCA.
     Judgment by the District Court will not be altered in a
dissolution proceeding unless a clear abuse of discretion is
shown.                                       .
         ~arriageof Dalley (1988), - Mont - 756 P.2d
                                                   ,
1131, 1133. We hold that the ~istrictCourt did not abuse
its discretion by awarding Cindy one-half of the settlement
in the case in which she was a named defendant. There is
substantial evidence in the record to indicate something more
was going on than a gift to Stewart from his father.       It
appears that Richard was attempting to make transfers of
property without incurring tax liability which cannot be
categorized as a gift.    If analyzed under either community
property law or equitable distribution law, the same result
is reached. Maintenance of this asset involved being a party
to the lawsuit initiated by Richard and he named both Stewart
and Cindy as defendants and both participated in the defense
which resulted in the settlement at issue. There is no set
formula as to how assets of this type are to be distributed,
and each case is decided on its own merits.      ~arriage of
Herron (1980), 186 Mont. 396, 404, 608 P.2d 97, 101. We,
therefore, affirm the division        this marital property.
                             11.
     Did the District Court err in its determination of child
support?
     Stewart, the appellant, sets out the issue as to whether
the District Court erred in its determination of child
support by failing to apply the Child Support Guidelines
adopted by this Court.      We stress that our order dated
January 13, 1987 adopting the Child Support Guidelines
specifically provide that the Guidelines are not binding upon
judges and further:
     We so order to prevent appeals based upon claimed
     failure to observe or follow these guidelines.
     The court, in setting the amount of child support,
looked to the stipulation of the father that he would pay
$600 per month in temporary child support. The evidence is
not clear as to the actual income of the father because of
his extra-employment activities, but his earnings average
over $35,000 per year.   The wife had no employment at the
time of the decree, except for part-time cleaning work. The
decision of the court to continue for two years the monthly
amount stipulated for during the pendency of the lawsuit
seems reasonable, especially since no support is due during
the two months the child will be with the father. Because of
the temporary nature of the amount of child support, and the
amount stipulated, we find no abuse of discretion at this
point relating to child support. Thus, the court considered
the relevant factors. ~arriageof ~ i n g(1985), 216 Mont. 92,

    ~f firmed.



We Concur:
         ,
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     Chief J u s t i c e
