No. 84-300
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
IN RE THE MARRIAGE OF
SYBILLA V. KEEPERS,
Petitioner and Respondent,
and
DALE KEEPERS,
Respondent and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Diane G. Barz, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Moses Law Firm; Bruce E. Becker, Billings, Montana
For Respondent :
James J. Sinclair, Billings, llontana
Submitted on Briefs: September 27, 1984
Decided: November 16, 1984
~iled:AOV 1 6 1984
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Dale E . Keepers appeals from the April 17, 1984 judgment
of the Yel-lowstone County District Court dissolving his
marriage to Sybilla V. Keepers and dividing their property.
We affirm.
Sybilla and Dale were married on August 23, 1980, in
Billings, Montana. There is no issue from this union
although Sybilla had two children from a previous marriage
who resided with the couple. After three years of marriage,
the parties separated and soon sought to dissolve their
marriage. Cn April 12, 1984, the District Court entered
Findings of Fact and Conclusions of Law. On April 17, 1984,
iudgment was entered. thereon.
Dale was employed during the marriage and currently
earns net income of $1,175.00 per month. Sybilla was
employed during the marriage and earns $805.41 per month. In
addition, she receives $450.00 per month for the support of
her two minor children from a previous marriage.
The personal property belonging to the parties h a s been
divided and is not at issue on appeal. No maintenance was
awarded.
At the time of the marriage Dale owned real estate
located at 2028 George Street in Bill-ings, worth
approximately $65,000.00, that was subject to a S24,366.00
purchase money mortgage at the time of the hearing. The
property was later encumbered by an additional $13,518.00
debt which was incurred by the parties during marriage.
Part of the $13,518.00 loan was used for a downpayment
on the purchase of the Larimer home in which the parties
resided during marriage. The District Court ordered that
this home be sol-dl the mortgage retired a.nd the proceeds
divided equally between the parties. An additional $1,500.00
of the $13,518.00 which was secured by the George Street home
was used to pay delinquent payments on Sybjlla's Willona
Drive home before that home was sold.
Sybilla entered the marriage to Dale with some equity in
a home on Willona Drive which she derived from a previous
divorce settlement. After the mortgage arrearage was paid
the home was sold and Sybilla netted $9,000.00. Sybilla
secured a judgment from her former husband for delinquent
child support. She received a cash payment of $4,167.13 and
then received 17 monthly payments of $653.88 during her
marriage to Dale, a total of $15,283.09.
Sybilla had a $3,592.56 unsatisfied judgment against her
that was entered before marriage and paid during the
marriage.
The money received by Sybilla along with the wages of
both parties were commingled and spent for family purposes
during the course of the marriage. Dale rented his separate
property on George Street and used the proceeds to make
payments on the mortgages.
The District Court ordered the George Street property
sold, the mortgages paid off, an6 the remaining proceeds
divided between the parties. Dale is to receive $3,592.56
more than Sybilla from the sale to compensate for Sybilla's
premarital debt. Dale appeals from the property division.
Dale raises five points of error but they can all be
reduced to one issue.
Did the District Court err in applying section 40-2-202,
MCA, when dividing the marital estate between the parties?
Dale objects to the judgment of the District Court tha.t.
awards Sybilla one-half of the equity in his property
acquired prior to marriage minus $3,592.56. The division of
property in a marital dissolution case is governed by section
40-4-202, MCA.
"Section 40-4-202. Division of property.
( 1 ) In a proceeding for dissolution of a marriage,
legal separation, or division of property following
a decree of dissolution of marriage or legal
separation by a court which lacked personal
jurisdiction over the absent spouse or lacked
jurisdiction to divide the property, the court,
without regard to marital. misconduct, shall., and in
a proceeding for legal separation may, final ly
equitably apportion between - parties -
the the
roperty - assets belonging to either - -
and or both,
Rowever - whenever acquired anrwhether - title
and the
thereto - - - - - - the husband. - - -or
is in the name of or wife
both. In making apportionment, the court shall
consider the duration of the marriage and prior
marriage of either party; antenuptial agreement of
the parties; the age, health, station, occupation,
amount and sources of income, vocational skills,
employability, estate, liabilities, and needs of
each of the parties; custodial- provisions; whether
the apportionment is in lieu of or in addition to
maintenance; and the opportunity of each for future
acquisition of capital assets and income. The
court shall also consider the contribution or
dissipation of value of the respective estates and
the contribution of a spouse as a homemaker or to
the family unit. In dividing property acquired
prior to the marriage; property acquired by gift,
bequest, devise, or descent; property acquired in
exchange for property acquired before the marriage
or in exchange for property acquired by gift,
bequest, devise, or descent; the increased value of
property acquired prior to marriage; and property
acquired by a spouse after a decree of legal
separation, the court shall consider those
contributions of the other spouse to the marriage,
including:
"(a) the nonmonetary contribution of a homemaker;
" (b) the extent t-o which such contributions have
facilitated the maintenance of this property; and
" Ic) whether or not the property division serves
as an alternative to maintenance arrangements."
All property, however and whenever acquired by the
parties, becomes part of the ma.rita1 estate and is subject to
apportionment by the court under section 40-4-202. The
latter part of this section speaks specifically to property
acquired prior to marriage, property acquired by gift,
bequest, devise, etc.
This Court has recognjzed that when inherited property
or property acquired by one party prior to marriage is
subject to division in a dissolution proceeding, the lower
court must consider the origin of the property. Herron v.
Herron (1980), 186 Mont. 397, 608 P.2d 97; Metcalf v. Metcalf
(1979), 183 Mont. 256, 598 P.2d 1140; Vivian v. Vivian
(1978), 178 Mont. 341, 533 P.2d 1074. The property acquired
before marriage is still a marital asset subject to division.
There is no definite rule as to how the trial court is to
consider the asset. Each case has to be decided on its own
facts. Vivian, supra.
It is well settled in Montana that the District Court
has far-reaching discretion in resolving property divisions
and its judgment will not be altered unless a clear abuse of
discretion is shown. Kruse v. Kruse (1978), 179 Mont. 79,
84, 586 P.2d 294, 297; Cook v. Cook (1972), 159 Font. 98, 495
P.2d 591. Findings of fact will not be set aside on appeal
unless clearly erroneous. F.ule 52 (a), M.R.Civ.P. It is
against this backdrop of established law in Montana that we
view Dale's appeal.
Dale argues that the child support judgment and current
child support payments received by the wife should qo to the
benefit of the children. At any rate they were put into the
marital pot and spent like the parties' wages were spent.
Dale contributed to the marital pot. He contributed
$64,688.06 in wages as opposed to $33,305.20 in wages
contributed by Sybilla to the marital pot over the course of
the marriage. The support of SybillaEs children came from
the marital pot. Dale did not adopt these children. The
money Sybilla received from her ex-husband for back child
support was commingled with funds earned by both parties
during the marriage. Dale argues the child support payments
should not be considered as prior acquired property. Whether
these payments are technically considered prior acquired
property is not the point. These payments are not property
hefore the court to be divided but are evidence of
contributions of the other spouse, Sybilla. The evidence
shows at least some of these funds were spent by Dale. We
conclude the District Court did not err in considering these
payments when dividing Dale's prior acquired property
pursuant to section 40-2-202, MCA.
Dale also argues that the District Court erred in
finding that both parties brought the same net equities into
the marriage. The District Court expressly found that the
$13,518.00 encumbrance on appellant's real estate was
incurred by the parties during the marriage. Nonetheless,
the court deducted $13,518.00 from the equity appellant
brought into the marriage. Even counting the back child
support as pre-marital equity, Dale clearly brought more
property to the marriage than Sybilla.
The importance of this finding is relevant but not
determinative. Dale argues that in a marriage of short
duration the parties should be pl-aced in the position they
would have been in as if no marriage had occurred. See Tn
the Matter of Marriage of Card (1982), 60 0re.App. 1.17, 652
P.2d 866. Duration of marriage is a factor to be considered
in section 40-4-202(l), MCA. There is no set rule that
parties to a brief merriage be restored to premarital status.
Property need not be divided equally only equitably in
accordance with the factors set forth in section 40-2-202,
With respect to property acquired before marriage,
section 40-2-202(1) states the court shall consider those
contributions - - other spouse - - marriage including:
of the to the
" (a) the nonmonetary contribution of a homemaker;
" ( b ) the extent to which such contributions have
facilitated the maintenance of this property; and.
" (c) whether or not the property division serves
as an alternative to maintenance."
The wording of the statute does not make the three
factors listed above exclusive. The word "including"
"a.1~0,"or "in addition to." The statute must be construed
to mean that the court shall also consider other relevant
contributions of the spouse in making an apportionment.
The District Court also took into consideration the
monetary contributions of each of the parties, the extent to
which the contributions have facilitated the maintenance of
the property and the acquisition of other property acquired
as a result of a sale or exchange of premarital property,
together with the abilities of each of the parties to acquire
future assets or income from employment. The property
divided serves as an alternative to maintenance.
Reasonable minds could differ on what would be the most
equitable distribution of the partiesf property. That the
case may be decided differently is not the inquiry on appeal,
the question is whether the fact determination of the court
below is clearly erroneous. Rule 52 (a), M.R.Civ.P.
Even with the erroneous finding of fact pointed out by
appella.nt, we do not find that the District Court clearly
abused its discretion.
Affirmed.
We. Concur:
Justices