                                         No.       95-003
               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                               1995


IN RE THE MARRIAGE OF:
DEANNA K. SCOTT
               Petitioner         and Respondent,
         and
GEORGE M. SCOTT,
               Respondent         and Appellant.




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:

                       Wayne Jennings,          Bozeman,     Montana

               For   Respondent:

                       Richard      Larson,     Helena,     Montana



                                               Submitted     on Briefs:   April     6,    1995
                                                               Decided:    August        24,   1995
Filed:
Justice           James     C. Nelson                delivered              the        Opinion              of        the    Court.

           Respondent/Appellant,                           George           M. Scott                 (George),               appeals            from
a     judgment           entered            by       the      Eighteenth                      Judicial                 District            court,
Gallatin           County,         dissolving                his      marriage                     with         his      wife          Deanna       K.

Scott           (Deanna)        and distributing                      the         marital                estate.             We remand.
                                                               ISSUES

           George        raises        the        following                issues             on appeal:

           1.     Did the District                     Court   err in finding                                    that   Deanna            made a
greater           contribution     in                acquiring    the marital                                   assets?

      2. Did the District       Court err   in                                                 requiring  George                          to pay
Deanna for lost   rental   income that could                                                  have been realized                           during
their  period  of separation?
       3. Did             the     District             Court        err in allowing    Deanna to recover
post-separation                  payments             while        not allowing   George to do the same?

           4.      Did the District                        Court  err  in using    different                                            property
values           between  its findings                       of fact  and its   conclusions                                            of law?

      5.          Did the District    Court err in                                      awarding  the family     home to
Deanna,           rather  than ordering    its sale                                     in an escalating     market?

        6.        Did the District                     Court err                  in     excluding                    Deanna's           royalty
receipts           from the marital                    estate?

       7. Did the                District             Court        err       in        its        distribution                    of    George's
pension   benefits?

           We have         reviewed           the      record            and have                  considered               the        arguments

and the           authorities               cited.           We conclude                      that         substantial                  evidence

supports           the     District              Court's           findings                  of     fact         and conclusions                    of

law       with      respect           to     issues           1,      3,      5,        and         6,      and         accordingly,                we

decline           to     address            these          further.                    Issues              2,     4,        and        7 require

further           consideration,                  however.

      I.     Did the District      Court err  in                                                   requiring              George           to pay
Deanna for lost     rental    income that could                                                   have been             realized            during
their    period  of separation?
                                                                       2
          II.      Did the District                               Court  err in using    different                                      property
values          between  its findings                              of fact  and its   conclusions                                      of law?

      III.               Did   the    District                         Court          err          in        its         distribution                  of
George's               pension    benefits?

                                                                   BACKGROUND

          George                  and      Deanna          were        married             in      Miles            City,        Montana,              in
1972.           On August                 23,      1991,        Deanna petitioned                          the      District            Court     for

the     Eighteenth                      Judicial          District,               Gallatin              County,             to dissolve           her

marriage               with         George.              Following            a bench             trial,            the     District            Court

filed          its          findings             of      fact      and conclusions                         of      law      on October            22,

1993.           After             hearing          arguments            on the           parties'               motions          to amend the
findings               of        fact     and conclusions                    of     law,         the       District            Court      entered

its      judgment                  dissolving               the       marriage             and distributing                           George      and

Deanna's               property.

          George                  worked           primarily            in         construction,                      but       occasionally
during           the         winter          months             he worked            as a mechanic.                            Deanna         helped

form          Frontier                  Scientific               Company           which          was           bought         out      by      Video

Lottery              Consultants.                        Deanna        receives              royalties                from        the     sale         of
games          engineered                  by Frontier                Scientific.

           The major                    assets        acquired          during           the      marriage                included           a house

in Bozeman,                      a lot      in the         Hyalite           Heights             subdivision                 in Bozeman,               an

airplane,                   various              cars,          including            a 1986                Honda,           rifles,           tools,

George's                pension,                 and      miscellaneous                    items            of       personal            property

belonging                   to     both         Deanna          and George.                     The District                   Court         awarded

Deanna          the         house          in Bozeman,              one half             of the            proceeds            from      the     sale

of      the      lot         the        couple         had owned             in    the      Hyalite                Heights          subdivision

in      Bozeman,                  miscellaneous                   personal            property,                    and      three        lump      sum

                                                                              3
payments            for      her        interest             in        George's            pension.                 Additionally,                      the
District            Court          required           George              to pay $5,582                      to Deanna             to equalize

her     cost       of maintaining                     the      marital             property,                 $11,830         to Deanna                 for

lost       rental           income           from        the           house        in     Bozeman,                 and     approximately

$4,500         to          the         Internal             Revenue                Service.                   George              appeals              the
District            Court's             judgment            entered              October             26,      1994,        dissolving                  the

marriage            and distributing                         the         marital           estate.

                                                                  DISCUSSION

       Did the District      Court                                 err in requiring                           George        to pay               Deanna
for lost    rental    income that                                  could have been                          realized          during              their
period    of separation?

           George          claims          that       there            was insufficient                           evidence            to      support

the     District            Court's            award         of $11,830                  lost        rental             income         to Deanna.

           We review               a district                court's             division               of     marital            property                to

determine             if         the      district                court's            findings                of     fact          are         clearly

erroneous.                  In     re      Marriage               of      Zander           (1993),            262 Mont.                 215,       221,

864 P.2d           1225,           1229.          The findings                   of fact             must         form     "a recordation

of     the     essential                  and        determining                   facts             upon         which         the         District

Court        rested          its        conclusions                 of     law      and without                    which         the        District

Court's            judgment             would         lack         support."                    In     re     Marriage                of      Schultz

(1979),         183 Mont.                20,      24,       597 P.2d               1174,         1177         (quoting            Marriage                of

Barron         (1978),             177 Mont.             161,            164,       580 P.Zd                936,        938).

           Thus,           when        substantial                 credible               evidence                supports              the       trial

court's         findings                and judgment,                     this      Court            will         not     alter            the    trial

court's         decision                unless          there          has been             an abuse               of     discretion.                     In

re Marriage                of      Maedje          (1994),             263 Mont.                262,         265-66,         868 P.Zd               580,
583      (citing            In re Marriage                    of       Scoffield                (1993),            258 Mont.                337,        852

                                                                            4
P.2d       664).                       Substantial                 evidence                is      "evidence                that             a reasonable
mind       might            accept                 as adequate                   to    support              a conclusion;                      it        consists
of     more          than              a mere         scintilla                  of    evidence               but     may be somewhat                               less

than       a preponderance."                                      In re Marriage                       of     Davies         (1994),                266 Mont.

466,       472,              880          P.2d            1368,           1372         (quoting                Barrett             v.         Asarco                Inc.

(1990),              245 Mont.                     196,         ZOO, 799 P.2d                      1078,         1080).

           George                  claims                that          the        District              Court          based             its          award            of

$11,830              for          lost          rental           income           on a mere scintilla                          of        evidence.                     We

agree       that            the          District                Court           lacked          a sufficient                evidentiary                        basis

to     support                   its      conclusion                    to       award         Deanna          $11,830             in        such         rent.

           The record                         is     not         clear           on the           issue         of     rent.                 In     fact,            the
District                   Court              had        very           little             evidence              on        which             to       base           its

conclusion.                             The        transcript                  contained               evidence             that             both         parties

owned       the            house,               and that                there          were       periods             when neither                        of        them

lived           in         it.                Deanna             paid            the     bills              pertaining                  to        the       house.

George          had two nephews                                 that         lived       in      the        house      at    some point                     during

George          and Deanna's                             period          of       separation.                   The nephews                       paid         $200 a

month       for            rent           for       at     least          part         of the          time         that     they             lived            in    the

house.                 During                   Deanna's                 direct               examination,                  she              answered                the

following                  questions                     regarding                rent:
           Q. Are                      you familiar                          what       property                rents          for             in        the
           Bozeman                     area?

           A.          It's              very        high.

           Q. Have you rented                                      property                yourself             in    the      last               couple
           years?

           A.          Yes.
           Q. Can you tell us what you believe                                                               the house would have
           rented for, had it been put on the                                                               market  for renting?

                                                                                       5
             A.           I think             it      could            easily              have               rented          for           $650              a month.

This         was the                 only       discussion                       relating                 to     the         value            of             the        house           as

a rental.

             Other             than         the      above,                the     record                is     devoid             of essential                               facts.

It      is        unclear                when          both            George                 and         Deanna              lived                in          the            house.

While         it          appears             that         George's                 nephews                   also          lived            in         the         house          for

at     least              part         of     the         period             of      George                   and Deanna's                        separation,                           we

cannot             tell          for        what       part            of that            period.                     Moreover,                    we cannot                     tell
if      George                 charged             his           nephews             rent                for      the          full               time              that         they

lived             in      the        house           or        for         just          part            of     that          time.                 Deanna                    stated

that         the          nephews             paid         $200 a month                         for           rent,          but       she did                      not         state
if       they                 paid          $200           'a        piece               or         $200              for           the            two              of          them.

Notwithstanding                             that          the         nephews             may            have paid                  rent,               it         is     unclear

whether                 the          District                  Court             factored                 the         nephews'                     rent                 into       its

decision.
             Since              both          parties                 owned          the            house,             and          there                were             periods

when neither                         occupied                  it,         both      had the                   option           to          rent              it.             To the

extent                 that       one         party             precluded                     the         other             from            renting                     it,      that

party             may be               liable             to         the     other              party            for         one            half              of        the      lost

rental                 income.                  Yet        the         District                     Court             did       not               state                 the      time

period             that           the         house            should             have          been           rented,                nor          whether                     George

precluded                     Deanna            from           renting             the          house.

             While              the      District                    Court         may have                    had the              discretion                           to     award

the          $11,830                   lost           rental                 income                 to         Deanna,                 it           did                 not      have

sufficient                      evidence              in         the        record             on which                 to base                   its         decision                  in

that         regard.                   Moreover,                     there          is        an insufficient                                record                     for     us to

                                                                                          6
determine             how the            District              Court            made its                     decision.                   We remand                  to
the     District            Court         for       reconsideration                               of        its         award      of      lost         rental
income        to Deanna.                  In this             regard,               the         District                 Court          shall          receive

further         evidence             and shall                 then        enter                appropriate                     findings               of    fact
and conclusions                    of      law        supporting                     its         decision                 to     either           award             or

not     award         such        rent.

                                                                           II

      Did the District                           Court err in using different                                                     property              values
between   its findings                          of fact  and its  conclusions                                                   of law?

          George            claims             that           the      District                        Court             assigned               different
values        to      the     tools,            household                  items,                 construction                     equipment,                  and

various         cars,         including               the       1986 Honda,                           in its            findings           of      fact        and

conclusions             of        law,         so that          the        values                 assigned                in      the      conclusions

of      law     exceeded                 the      values              assigned                        in      the         findings                of        fact.

George        further             claims         that          the     discrepancy                           arose             when the           District

Court         adopted            Deanna's              conclusions                         of         law         wholesale,                except             for

attorney           fees.          Because             we remand                 to the                District                 Court       for         further

proceedings                 under         Issue         I.,         we also                 direct                 the        District            Court             to

correct         the     discrepancy                    in property                         values            between              its      findings                 of

fact      and its            conclusions                 of         law.

                                                                       III.

       Did the District                               Court          err            in      its            distribution                   of       George's
pension   benefits?

          George            and          Deanna             stipulated                          that              the         present             value             of

George's           operating               engineer's                 pension                   benefits                 is     $14,365.                George

stated         that         he      is     not         eligible                 to          receive                 the         pension            benefits

until         after         his         65th        birthday.                        In         its         conclusions                   of      law,         the


                                                                                7
District               Court          included                   George's              pension                benefits                in         the       marital

estate           and         awarded             Deanna                $6,113            of         the       pension                benefits.                        The
District              Court          further               ordered             George          to pay Deanna                         in         three         annual

installments                       with          ten             percent                interest                 per        year,                    the         first
installment                   to     be paid                one year              after             entry         of       decree.

           George            contends                that         the        District               Court        improperly                      ordered              him

to      pay       Deanna              a        lump             sum     of      his        pension                benefits                      rather             than

allowing              him to assign                        a portion              of his             pension             benefits                    to Deanna.

We have                held           that            in         determining                   if         a      lump           sum             award            of         a
retirement                   pension                 is          appropriate,                       the         district                   court              should

consider               the     burden            it         would         place          on the             paying          spouse                   in    view          of

child           support,              spousal                   support,           and other                    property                   distribution.

Glasser           v.        Glasser             (1983),               206 Mont.                77,        85,      669 P.2d                     685,        689;         In

re Marriage                   of      Keedy            (1991),               249 Mont.               47,         52,       813 P.2d                    442,        445.

In      Keedv,               we      concluded                    that          requiring                   an      immediate                         payout             of

pension           benefits                placed                an unreasonable                      burden            on the              paying             spouse

in      light          of     his         financial                   standing.                Keedv,             813 P.2d                      at     445.

           1n the             instant            case,             there         is      no indication                      that                the       District

Court           considered                     the         burden              placed           on         George               in         light            of        his

financial                   standing.                      In     fact,          the          record             fails           to         show           how        the

District               Court          made its                   determination                       to       award         Deanna                   a lump           sum

payment           of        her portion                    of George's                  pension               benefits.                    Therefore,                    we

remand           to     the         District                Court         for         reconsideration                           of        its         award        of         a

of      a portion                   of         George's                pension             benefits                 to      Deanna.                        In      this

regard,           the District                        Court           shall       enter             appropriate                  findings                   of fact

and conclusions                           of     law            supporting               its        decision               to        either                award         or

                                                                                   8
not award a lump sum form of payment                   to Deanna.
       Remanded for     further     proceedings        consistent       with   this     opinion.
       Pursuant    to Section       I,    Paragraph     3 cc),    Montana Supreme Court
1988 Internal      Operating      Rules,    this   decision         shall    not be cited          as
precedent   and shall     be published        by its     filing      as a public        document
with   the Clerk    of this       Court    and by a report          of its     result     to the
West Publishing       Company.
