No. 23-122
I N THE SUPREME COURT O F TIiE STATE O MONTATJA
F
1983
I N RE THE YiRRIAGE OF
CARLMA J . GLASSER,
P e t i t i o n e r and Xespondent,
-vs-
WILLIAM B . SLASSER,
R e s p o n d e n t and A p p e l l a n t .
APPEAL FROM: D i s t r i c t Court of t h e F o u r t e e n t h J u d i c i a l D i s t r i c t ,
I n a n d f o r t h e County o f F e a g h e r ,
The H o n o r a b l e N a t A l l e n , J u d g e p r e s i d i n g .
COUiqSEL O RECORD.
F
For Appellant:
J o h n V. P o t t e r , J r . , White S u l p h u r S p r i n g s ,
Montana
For Respondent:
G a l t & Swanberg: R o b e r t F. Swanberg, H e l e n a ,
Plontana
-- ----- . ..
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S u b m i t t e d on B r i e f s : J u n e 30, 1983
Decided: S e p t e m b e r 2 9 , 1983
Filed:
--
Clerk
Mr. Justice John Conway Harrison delivered the Opinion of
the Court.
This is an appeal by William B. Glasser on the amended
findings of fact and conclusions of law from the judgment in
a dissolution proceeding. His wife, respondent, Carma Jean
Glasser, brought an action for dissolution and division of
the couple's property in the District Court of the
Fourteenth Judicial District In an For the County of
Meagher .
The procedural facts in this case, are that the case
was heard July 6, 1982, by the District Court sitting
without a jury. On September 16, 1982, the court filed
findings of fact and conclusions of law and on October 6,
1982, entered a decree of dissolution and property division.
The Wife filed a motion to amend the findings of fact and
conclusions of law. The Husband filed a notion to correct a
clerical mistake in the findings, in the alternative to
amend findings, and to amend the judgment. Both Husband and
Wife agree that the court was in error in stating the value
of some of the property. After delays by the court, hearing
was held November 16 on the above motions. On November 18,
the court granted the Wife's motions to amend the findings
and denied the Husband's motions. On November 20, the Wife
filed a motion to appeal in order to preserve the right of
appeal. The court thereafter entered an amended decree of
dissolution and property settlement on November 26. Husband
appealed from that decree, from the amended findings of fact
and conclusions, and from the amended decree. BY
stipulation, the parties agreed to name the Husband as the
appellant and the Wife as the respondent.
The parties were married in Butte, Montana, on
September 8, 1955. During the years of the marriage, the
Husband worked at various jobs and employment such as
plumbing assistant, sawmill work, butcher, carpentery work
and for a period of time was a partner in a building
contractor business. At the time of this action the Husband
worked for a school system performing maintenance work. The
Wife, during the early years of the marriage, primarily
reared their children and occasionally held part-time or
temporary employment. In 1973 the wife secured full-time
employment at the First National Bank at White Sulphur
Springs. She remains employed there at the time of this
action with an annual salary of $11,000 per year, plus
fringe benefits that include a retirement employer
profit-sharing plan.
During the course of the marriage, the Wife's father,
Alfred M. Edward, provided financial assistance to the
Glassers. He permitted them to live at his residence for
about a year, rent free. In 1970, he deeded a cinderblock
house to Wife. The Glassers lived there until 1978; since
that time they used the house for rental purposes. In 1974,
Edwards established a ten-year reversionary trust, naming
the Wife as beneficiary to the income from the trust. This
trust income increased from a yearly amount of approximately
$4,000 in 1974, to over $6,000 at the time of this action.
The Wife used this money for vacations, investments, and as
a primary source for paying expenses on a house the Glassers
began building in 1978.
There are three children of this marriage, all of whom
have reached the age of majority prior to the date of
commencement of this action.
In 1958 the Husband purchased a small trailer home.
In 1960, he traded it for a larger mobile home that cost
$7,200 on an installment contract. In 1962, they purchased
a lot located in White Sulphur Springs for $800 and
maintained the mobile home on that lot. In 1970-1978, as
mentioned, they moved into the cinderblock house that was
given to the Wife by Edwards. During this period, Husband
made repairs and improvements on the house. In 1978, they
built a new principal family house on the lot that was
purchased in 1962. At the time of the construction of that
house, Husband was a partner in a constuction firm. The
firm built the house. Husband donated his time towards the
construction and was able to purchase housing materials
through the firm at a discount. Husband, in 1979, purchased
a house in the "Skunk Hollow Addition," [the title
description lists this property in the Higgins Addition], in
White Sulphur Springs, with an alleged partner, Lawrence
Johnson. However, the deed reflects that Husband owns the
property fee simple.
This appeal arises over a dispute over the findings
and conclusions on the following property:
1. The cinderblock house located in White Sulphur
Springs;
2. The recently constructed principal family house
located in White Sulphur Springs;
3. The "Mulski" house, located in Skunk Hollow
Addition;
4. A coin collection valued at approximately $2,300.
5. Wife's interest in a profit sharing plan that was
60 percent vested at the date of this action with a value of
$10,470 if entirely vested.
The appellant raised two issues before this Court:
1. Can the court, by motion to amend, make a
wholesale adoption of findings of fact and conclusions of
law submitted by respondent's counsel.
2. Are the findings of fact and conclusions of law
sufficiently supported by the evidence and thereby support
the property division reached by the court.
Husband first objects, that his motion for clerical
corrections or amended findings and conclusions must be
granted, because of the blatant errors in the original
findings and conclusions. The court, in adopting Wif e' s
amended findings and conclusions, made the necessary
clerical corrections set forth to Husband. The court was
also within its discretion to deny the Husband's amendments
to the findings and conclusions. Therefore, we find no
merit in this objection by the Husband.
The Husband argues that the court was in error by
"wholesale adoption" of the amendments proposed by the Wife.
Appellant cites In Re the Marriage of Beck (Mont. 1981), 631
P.2d 282, 38 St.Rep. 1054, for rejecting the courts
"wholesale adoption" of one parties proposed findings of
fact and conclusions of law proposed by Wife's counsel.
This Court admonished the trial court's practice of
rubberstamping the proposed findings of fact and conclusions
of law given by one counsel, and not doing their own work.
There, this Court found the findings to be clearly erroneous
and therefore set aside the judgment.
In Tomaskie v. Tomaskie (Mont. 1981), 625 P.2d 536, 38
St.Rep. 416, the court vacated a judgment that was based on
the Husband's proposed findings and conclusions adopted
verbatim. Those findings and conclusions failed to provide
the necessary information as specific in the statute, in
which to base a proper judgment. The Court warned, "[i] t is
becoming increasingly apparent to this Court, however, that
the trial courts rely too heavily on the proposed findings
of fact and conclusions submitted by the winning party.
That is wrong!" Tomaskie, supra, 625 P.2d at 539, 38 St.Rep.
In both of those cases, the findings and conclusions
were either clearly erroneous or insufficient. But, the
fact that the trial court adopted one side's proposal was
not in itself reason for vacating the judgment. Kowis v.
Kowis (Mont. 1983), 658 P.2d 1084, 40 St.Rep. 149, the court
made "wholesale adoption" of findings and conclusions.
However, in that case the findings and conclusions were
"extensive and detailed [and] the court painstakingly
explained its reasons for distribution." Kowis, supra, 658
P.2d at 1087, 1088, 40 St.Rep. at 153. This Court refused
to overturn the trial court base solely upon "wholesale
adoption ," " [w]here, as here, findings and conclusions are
sufficiently comprehensive and pertinent to the issue to
provide a basis for a decision, and are supported by the
evidence. They will not be overturned simply because the
court relied upon proposed findings and conclusions
submitted by counsel." Kowis, supra, 658 P.2d at 1088, 40
St.Rep. at 154.
In Speer v. Speer (Mont. 1982), 654 P.2d 1001, 1002,
39 St.Rep. 2204, 2205, this Court said:
"This Court has discouraged District
Courts from the practice of adopting the
prevailing party Is proposed findings of
fact and conclusions of law virtually
verbatim.
error. . .. . .
Such practice may lead to
once findings and conclusions
are adopted by the District Court,
however, the 'clearly erroneous standard
at Rule 52(a) supports them on appeal.'"
In this case, the Court drafted the original findings
and conclusions, but they contained some inaccuracies and
clerical mistakes. When both Husband and Wife submitted
amended findings and conclusions, the court adopted the
amendments submitted by the Wife. These amendments
substantially changed the original decreed property
distribution. Without a showing that the amended findings
and conclusions are clearly erroneous (see Rule 52(a),
M.R.Civ.P.) then they will stand despite "wholesale
adoption." Therefore, the findings and conclusions must be
examined in light of the evidence to determine if the
findings and conclusions were clearly erroneous.
Husband claims the amended findings and conclusions
regarding Wife's profit-sharing retirement plan were clearly
erroneous. Husband asserts that, "[c]ontributions to the
plan were made by Wife's employer during the marriage and
were part of "employee benefits," and therefore part of the
marital property. The court, however, found the
"[plrofit-sharing program incidental to her employment at
the bank .. .I1 and therefore the Wife's separate property.
We find the trial court erred in its finding the
profit-sharing plan to be the Wife's separate property.
The president of the First National Bank of White
Sulphur Springs, Michael Grove, explained this
profit-sharing program as follows:
"Q. Okay. Maybe I would be more correct
in saying it is an incentive program
because it is based on profits. If the
bank is profitable, if the employees work
well, they receive additional
compensation in the form of a
profit-sharing plan from the bank; would
that be true? A. That's true, and in
addition to that it is an incentive
program to retain with the Bank. The
longer they stay--that's the reason it is
vested. The longer they are there, the
more reason they have to be there, hoping
that their--
"Q. So this is really money Mrs. Glasser
has earned, by being a good and faithful
employee, and working with others to
insure the Bank a profit; wouldn't that
be true? A. I would say. It has been
contributed to the plan for her. She
won't earn it, or it is not, I guess
earned income that is available to her
benefit, as you would say, until
retirement age I hope."
This line of testimony clearly indicates that the
profit-sharting program is more than incidental to
employment, it is a form of deferred compensation and should
be treated in the same manner as retirement benefits (fnt.
#2). The Internal Revenue Service permits companies to
establish profit sharing plans for their employees that
provide certain tax benefits. Internal Revenue Code Section
401 et. seq.: "A profit-sharing plan within the meaning of
401 is primarily a plan of deferred compensation, * * *.I1
Federal Tax Regulation Section 1.401-l(b)(). In Kis v.
Kis (1982), 639 P.2d 1151, 39 St.Rep. 119, we found that the
husband's retirement benefits in the game warden's
retirement fund were marital property and thereby subject to
property distribution.
Wife argues, if the profit-sharing plan is considered
marital property and should be divided, then Husband would
be entitled to one-half of the present value of her vested
interest. We agree. In -
Kis, supra, we stated that,
" [plresent value is the 'proper test' for determination of
marital interest. However, further evidence may demonstrate
the value 'might be affected by the contingency of the
retirement benefits failing to reach levels used by the
court. I' Kis, 639 P.2d 1153, 39 St.Rep. at 123. In Kis,
the Husband was vested in his retirement fund and therefore
the court could use the entire amount of the present value
of his retirement funds.
Other states distribute retirement funds for property
settlement purposes in different ways depending upon if the
interest is vested, unvested, matured or not matured.
In the Matter of the Marriage of Rogers and Rogers
(1980), 45 0r.App. 885, 609 P.2d 877, a case involving an
appeal by the Husband of the awarding of part of the
retirement to the Wife, the court reviewed cases from
different states involving property distribution
retirement benefits and set forth the following guidelines:
"For example: (1) The distribution
should generally be based on the
contributions made during the marriage.
(2) The courts should continue to strive
to disentangle the parties as much as
possible by determining, where equitable,
a sum certain to be paid rather than a
percentage based upon expected future
contingencies. (3) In determining
whether a lump sum award is appropriate,
courts should consider the burden it
would place on the paying spouse in view
of required child support, spousal
support, and other property distribution.
(4) Where courts determine that the
parties will share in the benefits on a
proportional basis, the parties should
also share the risks of future
contingencies, e.g., death of the employe
spouse or delayed retirement of the
employe spouse, and payment should be to
the receiving spouse as the employe
spouse receives the retirement pay. (5)
Courts should consider, where
appropriate, an award of a portion of
retirement benefits where other property
awarded is not adequate to make an
equitable distribution." 609 P.2d at 882,
883.
It should be noted that in some cases federal statutes
preempt the distribution of retirement benefits in a
property division. For example, in Re Marriage of Knudson
(Mont. 1980), 606 P.2d 130, 37 St.Rep. 147, the Court found
that pension benefits under the Railroad Retirement Act may
not be included in property distributions. However, where
federal statute does not preempt, the retirement benefits
should be considered part of the marital property.
In this case, evidence was introduced that at the time
of the hearing Wife had worked at the bank for nine years
and was vested at 60 percent of her share with a present
value interest of $10,470. Therefore, the amount of
retirement benefit attributed to the marital property should
be 60 percent of $10,470.
The Husband next contends that the court erred in it's
findings and conclusions regarding the real property
acquired during the marriage. The court found that the
cinderblock house was the Wife's separate property, the
"Mulski" house the Husband's separate property and the new
family residence to be 71.939 percent Wife's share and
28.060 percent Husband's share.
Husband objects to the cinderblock house being found
to be the Wife's separate property. Although Edwards
(Wife's father) gave the house to Wife, the Husband contends
that his continued maintenance on the house during the eight
years they lived there brings this property into the marital
share. Husband relies upon Herron v. Herron (Mont. 1980),
37 St.Rep. 387, 608 P.2d 97, to support his argument. In
Herron, supra, the wife received gifted property from the
wife's father. Both parties contributed to the maintenance
of the property. The property appreciated in value. This
Court held that " [bloth parties should share equally in the
portion of the value of the gift property attributable to
contributions from marriage and appreciation during the
marriage." See also, In Re the Marriage of Balsam (1979),
180 Mont. 129, 589 P.2d 652.
It is not error for the court to give the Wife the
entire amount of this property. This is within the
discretion of the trial court. While we may disagree with
the findings of the trial court; the Husband did not present
sufficient contrary evidence to the record for these
findings to be reversed.
Husband next objects to the findings and conclusions
regarding the new residence property distribution. He
contends that the court should not have found Wife to have
contributed a greater percentage to the value of the new
residence. He argues that the money from the Wife's trust
fund no longer was traceable after it was deposited in their
joint bank account and therefore cannot be attributed as
added value of the new residence. He relies on Metcalf v.
Metcalf (1979), 183 Mont. 266, 598 P.2d 1140. In Metcalf,
this Court expressed the view that if inheritance funds are
not traceable, then they may not be considered as separate
property of the spouse. In that case, the appellant
inherited $5,000 and used it on expenses and assets of the
marriage, and thereby making it impossible to trace the
funds.
I n Herron, s u p r a , t h i s Court p e r m i t t e d t h e t r i a l c o u r t
t o f i n d a g i f t t r a c e a b l e , when i t was o r i g i n a l l y a p p l i e d t o
a down payment on a h o u s e i n S e a t t l e . Then, the Seattle
house was sold and the proceeds used for a house in
Connecticut. T h a t h o u s e was s o l d i n a s i m i l a r a r r a n g e m e n t
f o r a h o u s e i n N e w York. F i n a l l y , t h e proceeds of t h e s a l e
of the New York house were applied to the purchase of
F l a t h e a d Lake p r o p e r t y .
I n t h e c a s e a t h a n d , t h e t r u s t e e p a i d income f r o m t h e
"Edwards" r e v i s i o n a r y t r u s t t o t h e W i f e b e g i n n i n g i n 1 9 7 4 .
W i f e p l a c e d t h i s money i n c e r t i f i c a t e s o f d e p o s i t s ( C D 1 s ) .
These C D ' s were c a s h e d i n and p l a c e d i n s a v i n g s o r c h e c k i n g
a c c o u n t s and u s e d f o r payments f o r costs i n c u r r e d on the
construction of a new residence. There is sufficient
evidence t o support the court's findings. Therefore, we
w i l l n o t d i s t u r b t h e c o u r t ' s f i n d i n g s on t h e new r e s i d e n c e .
Husband objects to the court's failure to find a
c o n t r i b u t i o n of a d d i t i o n a l h o u r s worked, beyond t h e h o u r s 0
recorded f o r business purposes, for h i s contribution t o the
new residence. Husband claims he worked weekends, and
a f t e r business hours. H e claims t h a t the business records
introduced do not reflect this contribution. We may
disagree with t h e c o u r t ' s findings, but we w i l l not overturn
it. W e see n o a b u s e by t h e c o u r t i n r e a c h i n g t h i s f i n d i n g .
Husband o b j e c t s t o t h e f i n d i n g by t h e c o u r t t h a t t h e
"Mulski" house is e n t i r e l y w i t h i n h i s ownership. Husband
testified at the hearing that he owns the property in
p a r t n e r s h i p w i t h a Lawrence J o h n s o n . However, t h e e v i d e n c e
introduced indicates otherwise. A copy o f t h e deed t o t h e
property named Husband as the sole owner of the property.
Husband objects to the court's findings and
conclusions regarding "other property." Except for the
"coin collection," we find no error in the findings.
However, findings and conclusions regarding the "coin
collection" appear contradictory. The court, in finding no.
16 states: "the coins were acquired with Wife's wages
during the marriage and therefore constitute marital
property subject to division." However, in amended finding
no. 30, the court failed to include the value of the coin
collection as part of the list of property subject to
division. Then, in the amended decree at dissolution and
property division, the court awarded the coin collection to
the Wife. Clearly, there was error in awarding the coin
collection to the Wife without first including its value in
the marital property and adjusting the property division
accordingly.
The amended decree should be vacated and this case is
remanded for further action consistent with this Opinion.
We concur: U
9 4 d u ,
Chief Justice