No. 82-437
IN TI-IE SUPREME COURT OF THE STATE OF MO?SITAI?A
1983
IN RE THE MARRIAGE OF
LOUISE I. PARENTEAU,
Petitioner and Respondent,
-vs-
MITCHEL J . PARENTEAU
Respondent and Appellant.
Appeal from: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone, The Honorable
William J. Speare, Judge presiding.
Counsel of Record:
For Appellant:
Jerrold L. Nye, Billings, l4ontana
For Respondent:
Robert W. Holmstrom, Rillings, Montana
Submitted on Briefs: February 3, 1983
Decided: May 31, 1983
Filed: MAY 3 1. 1983
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Mitchel Parenteau (respondent) appeals from the division
of marital property by the Thirteenth Judicial District
Court, Yellowstone County, in its order granting Louise
Parenteau's (petitioner's) petition for dissolution of the
pa-rties' second marriage to each other. We affirm the
District Court, but remand for modification of the judgment.
Respondent raises the following issues for review:
1. Whether it was an abuse of discretion for the
District Court to adopt verbatim the findings of fact and
conclusions of law of petitioner.
2. Whether the award by the District Court to
petitioner of the entire equity in the marital home is
supported by the facts at trial and the applicable law.
3. Whether the valuation of personal property awarded
to the respondent is supported by the evidence.
4. Whether the respondent is entitled to reimbursement
of his contribution during the second marriage to pay off a
certain loan taken by petitioner to pay his equity in the
marital home from the first divorce of the parties.
5. Failure of the District Court to find and award
property divided before trial by stipulation of the parties.
The parties were first married in 1959 and divorced in
1976; they remarried each other in 1978 and divorced in 1982.
There were no children of either marriage. The family home
comprised the bulk of marital assets in 1976 and in 1982.
In the 1976 dissolution, the court determined that the
marital assets should be equally divided. Respondent was
awarded savings and miscellaneous sports equipment, tools,
vehicles, basement furniture, and an organ, much of which he
brought into his remarriage to petitioner. Petitioner was
awarded household goods and furnishings, a vehicle, a stereo
and records, in addition to the family home. She brought
many of these assets to her remarriage to respondent. Under
the provisions of the 1976 decree, petitioner was required to
pay respondent $9,950 (one-half the difference in value of
assets awarded) in order to obtain ownership of the home. In
1976, she mortgaged the home, and took out an $11,000 loan
from the Yellowstone Bank in Laurel. She then paid
respondent $9,950, obtaining in return a quitclaim of his
interest in the home. In 1978, petitioner still owed the
bank $9,268.
In 1978, petitioner took out a $20,000 real estate loan
from the Yellowstone Bank. Of this amount, $9,268 went to
pay off the 1976 loan, and $10,700 was loaned to respondent
for payment of a property settlement in his divorce from
another woman. In October of 1978, $10,936 from respondent's
sale of certain property in Laurel was applied to the $20,000
real estate loan in satisfaction of petitioner's $10,700 loan
to him.
Shortly after they remarried, the parties legally
established joint ownership of their checking account, the
house in Laurel previously in petitioner's name, and a
two-and-one-half acre parcel with several buildings on it, in
the Swan Valley, known as "the Condon property," previously
in respondent's name. The parties disagree as to their
purpose in creating joint ownership in the real property.
According to petitioner, it was a matter of convenience;
according to respondent, they intended that each should have
a 50% interest in both properties. During the marriage,
respondent made some improvements on the Laurel home,
painting and installing new appliances and carpeting; costs
for this work came from the parties' joint checking account.
For a time the Parenteaus planned to sell the Laurel home and
move to the Condon property. With this in mind, they
borrowed $22,000 from the bank in May of 1979, paid off the
$6,989 owing on the $20,000 real estate loan, and applied the
remaining $15,011 to remodeling buildings on the Condon
property and upgrading that property. Certain of the costs
were paid from the joint checking account.
In October of 1980, after the Parenteaus decided to
remain in the Laurel home, they sold their Condon property
for $19,550. Respondent claims that the property, which was
debt-free, had been appraised at $40,000 a few years earlier.
(The Parenteaus recognized the loss on their joint tax
return.) $9,427 from the sale of the Condon property was
applied to the $22,000 bank loan made in 1979; the remainder
was spent on a trip to Australia, a vehicle subsequently
awarded to the husband, and various expenses paid from the
joint checking account.
During the marriage, all income and virtually all
expenditures, including loan payments, passed through the
Parenteaus' joint checking account. Respondent's monthly
retirement income of $894.82 (plus $419.25 for petitioner)
and petitioner's monthly retirement income amounting to
$969.73 (plus $350.05 for respondent) after petitioner's
retirement in 1980, were deposited in the joint checking
account.
In 1982, the parties were again divorced. Trial was
held June 1, 1982. At that time, the balance owing on the
1979 real estate loan for $22,000, was about $5,000.
Findings of fact and conclusions of law were entered
September 10, 1982; judgment was entered September 13, 1982.
The District Court found the marital assets amounted to
$83,000.00, and divided them as follows:
"TO THE WIFE:
Assets:
"House $57,500.00
1976 Buick 2,175.00
Lowrv Organ 2,000.00
Piano 1,000.00
Stereo 200.00
New television 500.00
Miscellaneous household furniture
and household goods 1,900.00
Miscellaneous appliances 500.00
Record collection 350.00
[Microwave oven] [150.00]
Collection of National Geographic
magazines and antiques received from
wife's parents No Value
Total Assets $66,275.00
Liabilities:
Yellowstone Bank, mortgage on
home $ 5,000.00
Net worth of wife $61,275.00
TO THE HUSBAND:
1980 Chevrolet pickup $ 5,650.00
Colorado pickup camper 1,200.00
17 Ft. Larson inboard/outboard boat,
trailer and 120 hp Mercury motor 4,000.00
14 Ft. Aluminum boat, trailer and
motor 1,500.00
Miscellaneous boating equipment
consisting of depth finder, skis
life jackets, fishing tackle, et
cetera
Camera equipment
Guns
Miscellaneous tools, drills,
grinders, lathes, saws, welders,
et cetera
Metal detector 400.00
Basement furniture consisting of
couch, chair and stove 100.00
Net worth of husband $21,725.00"
The District Court listed the total value of assets
awarded petitioner as $66,275, but awarded her specific
assets totaling only $66,125 in value. Because the only
marital asset not awarded to either party was the microwa-ve
oven valued at $150, we assume that item was meant to be
awarded to petitioner.
Respondent maintains that the District Court's virtually
verbatim adoption of petitioner's proposed findings of fact
and conclusions of law amounts to an abuse of discretion.
Respondent concedes that where the adopted findings and
conclusions are supported by the evidence, they will not be
disturbed on appeal.
This Court has repeatedly stated its position that
findings and conclusions which are sufficiently comprehensive
and pertinent to the issues to provide a basis for decision,
and which are supported by the evidence, i.e., are not
"clearly erroneous" in light of the evidence, will not be
overturned simply because the trial court relied upon
proposed findings and conclusions submitted by counsel.
Kowis v. Kowis (1983), Mont . , 658 P.2d 1084, 1088,
40 St.Rep. 149, 154; In re Marriage of Hunter (1982),
Mont. , 639 P.2d 489, 495, 39 St.Rep. 59, 67; In re
Marriage of Jensen (19811, Mont . , 631 P.2d 700,
703-04, 38 St.Rep. 1109, 1113. Because the remaining
questions raised by petitioner are primarily challenges to
the sufficiency of evidence to support valuations and awards
of assets, this first question may be resolved by a
resolution of the remaining issues.
Respondent argues that the District Court abused its
discretion in awarding petitioner the entire equity in the
family home. He asserts first that Finding of Fact No. VI is
"not supported by the clear evidence at trial," and the
District Court's conclusion therein establishes no equitable
right in petitioner to the entire equity in the Laurel home.
Finding of fact No. VI states:
"That during the parties' marriage the title to the
family home was transferred to their joint names
and the Condon property was placed in their joint
names; respondent claims that the title to the
property was so transferred in connection with an
oral antenuptial agreement that they were to each
own a 50 per cent interest in the property,
however, the petitioner denies that there was any
such aareement and has testified that it was done
.
,
merely to keep peace in the family; the Court finds
that there - - valid antenuptial arrangement
was no
agreement --- transfer -- merely -
and that the was done for
convenience sake." (Emphasis supplied.)
In dissolutions of marriage, the award of marital
property is not controlled by the name on the title or the
source of the asset. Section 40-4-202, MCA establishes the
authority of the court to "finally equitably apportion
between the parties the property and assets belonging to
either or both, however and wherever acquired and whether the
title thereto is in the name of the husband or wife or both."
See Morse v. Morse (1977), 174 Mont. 541, 571 ~ . 2 d1147.
(Property quitclaimed to husband by wife before dissolution
held to be part of marital estate. Vacated on other
grounds. 1
Since the age, income, needs, and opportunities for
future acquisition of capital by the parties appear to be
fairly equal, the most important factor of those listed in
section 40-4-202, MCA, and obviously that weighing most
heavily in the court's award of assets, is the relative
contribution of each spouse to the marital estate. In
Finding of Fact No. X, the District Court stated:
"The major asset of the parties is the family home
which was owned by the wife at the time of the
marriage ; that during the marriage her
contributions in the form of money to the joint
living expenses of the parties exceeded that of the
respondent by an amount in excess of $12,000.00 and
i.n addition thereto she performed the household
duties of cooking, cleaning house, washing, et
cetera; that the respondent's contributions in
addition to his retirement benefits as herein
specified consisted of the proceeds from the sale
of the Condon property; however, said proceeds were
less than the monies borrowed upon the family home
used to complete the improvements on the Condon
property and in addition thereto the respondent
performed certain minor maintenance upon the family
home; having in mind the assets - - brought
that each
into- marrlage - - contributions - - -to
- the and the of each
the maintenance of those assets - - acquisition
and the
- additional assets,eCourt
of - finds the assets of
the parties should - divided as follows: [List of
be
property awarded, see infra. 1 " (Emphasis
-
supplied.)
There is ample evidence on the record to support these
findings by the trial court. But respondent argues that
because his substantial contributions to the joint checking
account helped pay off a series of mortgages against the
Laurel home, and because his remodeling efforts enhanced the
value of that home, it was an abuse of discretion for the
District Court to award the entire equity in the Laurel home
to petitioner.
We do not agree. After the contribution of each party
is weighed, any equity the respondent might have in the
Laurel home is so insignificant that it does not warrant a
reversal. The record supports the District Court's finding.
At the time the parties remarried, the petitioner was sole
owner of the house, having paid off respondent's equity two
years earlier. Thus, petitioner contributed the Laurel house
to the marital estate. She also contributed over $12,000
more in her work and retirement earnings than did respondent
over the four years of the second marriage. It is true that
the $19,550 received for the Condon property was deposited in
the joint checking account; but much of that money was spent
on the parties' trip to Australia and the purchase of the
1980 pickup and camper awarded to respondent. Furthermore,
$15,000 of the $22,000 borrowed against the Laurel home was
spent on improving the Condon property. Approximately $5,000
remained for petitioner to pay after the 1982 dissolution.
"The standards governing review of a district
court's property distribution . are
well-settled in Montana. The District Court has
far-reaching discretion in making property
divisions. Torma v. Torma (1982), Mon t . I
645 P.2d 395, 399, 39 St.Rep. 839, 843; Zell v.
Zell (1977), 174 Mont. 216, 220, 570 P.2d 33, 35.
"The reviewing court does not substitute its
judgment for that of the trial court, and will not
alter a judgment unless it finds an abuse of
discretion, i.e., that the trial court acted
arbitrarily without employment of conscientious
judgment or exceeded the bounds of reason resulting
in substantial injustice. Torma, 645 P.2d at 399,
39 St.Rep. at 843; Zell, 174 Mont. at 220, 570 P.2d
at 35; Creon v. Creon (1981), Mont. , 635
P.2d 1308, 1309, 38 St.Rep. 1828,1830."
"[Wlhile a district court, in its discretion, may
equally divide the marital assets, section
40-4-202, MCA, does not mandate equal distribution.
Martens v. Martens (1981), Mont . , 637 P.2d
523, 526, 38 St.Rep. 2135, 2138; In re Marriage of
Aanenson (1979), Mont. , 598 P.2d 1120,
1123, 36 St.Rep. 1525, 1528- Kowis v. Kowis
Here, the assets brought to the marriage by petitioner
were substantially greater than those contributed by the
respondent, and included in the family home; petitioner's
contributions during the marriage exceeded respondent's. We
find no "substantial injustice" in the award of the entire
equity in the Laurel home to petitioner.
Respondent next argues that the District Court
overvalued certain of the assets awarded him, relying on an
unsupported and biased estimation of values submitted by
petitioner. He asserts that a pickup camper purchased for
$700 was valued at $1,200; that a boat and trailer purchased
for $500-600 was valued at $1,500; that another boat and
motor valued at $4,000 in 1976 and. only slightly improved was
again valued at $4,000; and that tools valued in 1976 at
$2,000 and including, in addition, a $275 table saw and "some
minor hand tools," were valued in 1982 at $6,100.
We note that petitioner testified at some length
concerning how she arrived at the figures she did in
evaluating the worth of marital assets. The transcript
contains the following statements by petitioner:
"(2. Now, you've indicated that the value placed
for the home is based upon an appraisal, is that
correct? A. That's right.
"Q. And are the other values which are shown for
the vehicles and other items of property your
estimation of their value? A. Well, they're my
estimation of the value, but in quite a few of
them, I did make inquiries; and vehicles, I went to
Frontier Chevrolet and got their blue book prices,
what they were worth, and I did the same with the
boats. I went to Montana Marina and talked to a
man there and described them as best I could, and
he gave me prices on those, what he thought they
would be worth.
"Q. Would the same thing be true relative to the
guns and tools and the -- A. Yes. The guns, I
had a gunsmith look at those, and he had his books
-- He had three or four books there, and he looked
each one up.
"Q. So after having done that, then would I be
correct in my understanding that you believe the
values which are shown on Petitioner's proposed
Exhibit 4, then, is your estimation of the value of
the various items of personal property? A. Yes,
it is. [Tr. at 12-13]
"Q. Did you have somebody else out and and look at
[the tools]? A. No. - - - - - - - of them and
I made a list
took it to someone - - talked - -
- - - else and to them, -
and
someone -- about tools. I suppose he would
that knew
have come up if I would have asked him to. [Tr. at
381
"Q. Did you use the blue book values when you came
up with that $4,000? [Valuation of Larson boat]
A. No, I didn't. I talked to one of the men in
the shop, and from my description, he gave me --
And he asked some questions, and I answered them
the best I could; and he gave me that, and that
sounded like a good estimate to me but he didn't
use a book, no. [Tr. at 441"
Respondent testified that, although he had not had items
appraised, he considered them to have certain values because
of purchase price, deterioration or improvement.
The standard of review in considering a District Court's
resolution of disputed facts was stated in Cameron v. Cameron
(1978), 179 Mont. 219, 227, 587 P.2d 939, 944:
"Although conflicts may exist in the evidence
presented, it is the duty of the trial judge to
resolve such conflicts. His findings will not be
disturbed on appeal where they are based on
substantial though conflicting evidence, unless
there is a clear preponderance of evidence against
such findings. [Olson v. Westfork Properties, Inc.
(1976), 171 Mont. 154, 557 P.2d 821, 823, 33
St.Rep. 11331 : Butte Teachers' Union - Board -
v. of
Education of School District No. 1, Silver Bow
County (1977), Mont., 567 P.2d 51, 53, 34 St.Rep.
726; Rule 52 (a), M.R.Civ.P. "
We do not find a clear preponderance of evidence against
those valuations submitted by petitioner. Therefore we will
not disturb the District Court's adoption of those values.
Respondent maintains that the District Court erred in
including in the marital estate certain items of "personal
property," such as his guns, tools, boats, and petitioner's
household goods, which were brought into the marriage by each
party, and whose value was altered little by contributions of
either during the marriage. Respondent relies upon this
Court's decision in In Re Marriage of Brown (1978), 179 Mont.
417, 587 P.2d 361, and In Re Marriage of Herron (1980),
Mont . , 608 P.2d 97, 37 St.Rep. 387. Brown held that
where the homemaking contributions of the non-acquiring
spouse (wife) were substantial, the award to her of $25,000
of an estate valued at $350,000 or more was inequitable, even
though the property was inherited solely by the husband.
Herron held that to the extent that the value of marital
property acquired by one spouse was not enhanced by
contributions of the other spouse, the trial court should not
have equally divided those items. Nothing more. The cases do
not suggest that the District Court must, on pain of
reversal, exclude such property from the marital estate.
Rather, the cases relied upon by respondent stand for the
proposition stated in Herron that " [ilf none of the value of
the property is a product of contribution from the marital
effort, the District Court can justifiably find that the
non-acquiring spouse has no interest in the property." 608
P.2d at 101, 37 St. Rep at 392. This finding would affect
the award of the property, but not its inclusion in the
marital estate. As section 40-4-202, MCA, indicates, the
equitable distribution of the parties' property in a
dissolution proceeding includes "the property and assets
belonging to either or both, however and whenever acquired."
Furthermore, the District Court - award respondent the
did
guns, tools and boats, and awarded petitioner the household
goods, with the exception of certain basement furniture. We
find no error here.
Respondent next asserts that he is entitled to
reimbursement of $4,630 for his contribution, during the
second marriage, to retiring the 1976 loan permitting
petitioner to purchase his equity in the Laurel home. He
argues that effectively he "has been required to pay his own
1976 divorce settlement."
We do not agree. In the first place, the parties owed
no financial obligation to each other when they remarried;
respondent's equity in the house had been purchased by
petitioner in 1976 pursuant to the terms of the first divorce
decree. It is true that respondent contributed his
retirement income and the proceeds from the sale of the
Condon property to the joint checking account, and that
payments made on successive refinancing loans against the
Laurel home came from that joint account. But what
respondent urges here is nothing more nor less than
recognition by this Court of respondent's equity in the
Laurel home. We have already rejected that argument, finding
sufficient evidence to support the District Court's findings
that petitioner's significantly greater contribution to the
marital estate supports an award to her of full equity in the
Laurel home.
Finally, respondent claims that because the District
Court failed to expressly recognize a stipulation by the
parties, he is unable to obtain certain property to which he
is entitled.
The transcript contains the following statements:
" [Counsel for Petitioner] :
[Plrior to this time, we've stipulated that
[respondent] may have the stove and refrigerator in
the basement, as well as the refrigerator in the
shop. That's not in issue that I know of. We are
prepared to stipulate to it on the record.
[Counsel for respondent]:
Fine. "
The findings and judgment make no reference to this
stipulation, but do award respondent basement furniture
consisting of couch, chair and stove. It is clear from the
transcript that the stipulation included the "refrigerator in
the basement as well as the refrigerator in the shop." To
the extent that the record indicates agreement by the parties
to divide property, the findings and judgment should be
amended to include that agreement.
We affirm the District Court, but remand for amendment
of the findings and judgment as to the final issue onlv.
We concur:
/
Justice
Mr. Justice Daniel J. Shea specially concurring:
I join in the result but adhere to my opinion that
findings and conclusions adopted verbatim by a judge without
any supporting indication that the case was independently
considered and decided, are, among other things, in violation
of Canon 19 of the Canons of Jud.icia1 Ethics. Beyond this,
however, a judge owes it to his profession,to the parties, to
the lawyers, and to the public, to provide the ind.icia that
he rather than the lawyer, has done the necessary work
leading to a decision. Verbatim parroting of findings and
conclusions, with nothing more, hardly fulfills these duties.