No. 83-486
IN THE SUPREME COURT OF THE STATE OF PONTANA
1984
IN RE THE MARRIAGE OF
KARL A. GIES,
Petitioner and Respondent,
and
ELSIE L. GIES,
Respondent and Appellant.
APPEAL FROM: District Court of the Tenth Judicial District,
In and for the County of Petroleum,
The Honorable Peter L. Rapkoch, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John Paulson, Lewistown, Montana
Luxan & Murfitt, Helena, Montana
For Respondent:
Jon A. Oldenburg, Lewistown, Montana
Submitted. on Briefs: May 10, 1984
Decided: 31, 1984
Clerk
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
Elsie L. Gies (wife) appeals two orders of the Tenth
Judicial District Court, Petroleum County, distributing
certain marital real estate which had not been distributed in
an earlier dissolution proceeding, and ruling that Karl A.
Gies (husband) was not obligated to pay child support during
the summer months. We remand for further findings and
modification.
The husband and wife were married August 7, 1965. In
August, 1979 they separated. The marriage was dissolved by a
decree of the District Court entered April 15, 1980. The
dissolution decree adopted the provisions of a settlement
agreement, entered into April 7, 1980, which provided for
child custody, retention of personal property including all
motor vehicles, disposition of all indebtedness including
payments on the real property, future payment of health
insurance, and child support. The agreement did not divide
the jointly owned real property of the parties; rather, the
parties were to provide for the division of the property by a
separate agreement.
The parties were unable to reach an agreement as to the
division of their real property which consisted of the family
home and 48.3 acres of land. On June 3, 1983 the husband
petitioned the District Court to distribute the real
property.
The District Court found that both parties were
employable and in good health and that the "need for assets
is . . . not significantly greater for one party than for the
other." The court determined the net value of the marital
real property estate to be $90,034.54. The court determined
that it was the intention of both parties that the husband
should receive the family house. The court also found that
the best interest of the parties and the children would be
served if the property was not partitioned and that the
husband offered to pay the wife in cash for her share of the
real property.
The District Court credited the husband for the
$33,352.30 he spent on the property to retire the debt, and
to defend the property since the date of separation. In
addition he was credited $7,214.31 for money and property
supplied to the wife over and above what was required by the
dissolution decree. The husband was ordered to pay the wife
one half of the remaining $49,467.93 value of the estate.
On August 24, 1983, the wife moved the court to hold the
husband in contempt for failure to make child support
payments during the summer months when he had custody of the
children. The District Court denied the motion, ruling that
the husband had met his support obligation during those
months by caring for the children in his custody.
The wife appeals both orders, and raises the following
issues:
1. Whether the District Court abused its discretion by
not partitioning the property?
2. Whether the District Court erred by dividing the
property without determining the value of the total marital
estate?
3. Whether the District Court erred by giving the
husband certain credits against the equity of the parties in
the real property?
4. Whether the District Court erred by determining the
issue of maintenance?
5. Whether the District Court erred by not requiring
the husband to make child support payments during periods of
summer visitation?
The wife first argues that the District Court abused its
discretion by failing to partition the property. The
proceeding before the court was not a partition action,
although the court did have discretion to partition the
property. Beck v. Beck (Mont. 1983), 661 P.2d 1282, 40
St.Rep. 565. The court found that due to hard feelings and
problems with visitation, the parties could not exist as
neighbors, and that partition of the property would have an
adverse effect on the saleability of the property. These
findings are supported by the record. We hold the District
Court did not abuse its discretion.
The wife next argues that the District Court erred in
failing to value the marital estate before dividing the
property. It is well settled that. the District Court must
determine and consider the net value of marital assets before
the estate can be divided. Vivian v. Vivian (1978), 178
Mont. 341, 583 P.2d 1072; Turner v. Turner (Mont. 1983), 670
P.2d 568, 40 St.Rep. 1666.
However, the facts of this case present a unique
situation. With the exception of the real property, the
marital estate had already been divided by the dissolution
decree and the adopted settlement agreement. That division
must be assumed to be equitable. In short, by virtue of the
provisions of that agreement, the parties stood in equal
positions before the District Court when the real property
was to be divided. The only "marital estate" before the
court was the marital real property estate. The District
Court did properly value the latter.
The wife next argues that the District Court erroneously
credited the husband for expenditures made since the
separation. It is well settled that a District Court has
great discretion in dividing property, and that its judgment
should not be altered without a showing of clear abuse of
discretion. Zell v. Zell (1977), 174 Mont. 216, 220, 570
P.2d 33, 35.
We will address the credits individually:
1. Credit of $28,814.24 for payments on the debt
against the property.
The wife contends that the trial court should have
deducted from this credit an amount to offset his exclusive
use of the property for 3 years since the separation. She
argues that she should be credited for loss of reasonable
rental value of the property.
The argument is well taken. Indeed, the husband admits
in his brief that his keeping the payments current, together
with other lesser obligations, were "in exchange" for his
retaining possession of the family home.
The trial court did not explain the reason for his
calculation of the credit. F e must remand to the District
l
Court with directions to explain in its findings and
conclusions the basis for det-ermining this credit, and to
modify the credit if it does not fairly reflect the wife's
loss of her share of the rental value.
2. Credit of $4,538.06 for out-of-pocket expenses
incurred in a boundary dispute.
The wife argues that the boundary dispute lawsuit arose
prior to the construction of the house, and the obligations
were assumed by the husband in the settlement a.greement. We
disagree. The lawsuit was not finally settled until 1981.
Moreover, the dissolution settlement agreement specifically
retains to each party the assertion of rights, claims demands
and obligations which apply to the division of the real
property.
3. Credit for money paid and property given in excess
of what was required by the dissolution decree.
The wife argues such amouilts can.not be treated as
credits since they were gifts, citing Delaney v. Delaney
(19811, 195 Mont. 259, 635 P.2d 1306. Again the trial court
made no finding as to whether these payments were purely
gratuitous or as to why they should be treated as a d.epletion
of the marital real property estate. The trial court has
broad discretion in weighing factors which bear on the
question of equitable division of marital property. Its
judgment will not be overturned if it explains its decision
in findings and conclusions and such findings and conclusions
are rea.sonable.
4. Credit of $1,315.78 for 1964 Jeep Flagoneer and
insurance settlement.
It appears that under the settlement agreement, the wife
was specifically entitled to all vehicles in her custody. If
the Jeep was in her custody, the husband released all claims
regarding it. The trial court must determine and issue
findings showing why the wife was not entitled to the Jeep,
or remove the credit.
5. Credit for child support payments made while husband
had custody.
The wife contends the District Court erred in ruling
that the husband was not required to make child support
payments during periods of summer visitation. F e agree.
7
The issue is resolved by the unambiguous terms of the
adopted settlement agreement:
"CHILD SUPPORT:
"The Petitioner shall pay - - Respondent - -
to the the sum
- $150.00 a month, for each child, until such time
of
as each chrld becomes of legal a.ge, marries or is
otherwise emancipated." (emphasis added)
The trial court abused its discretion and modified the
plain meaning of this agreed-to provision.
The husband argues that his care for the children while
they are in his custody satisfies the spirit and purpose of
the child custody provision. We disagree. Not only is the
provision unambiguous and clear on its face, but the "spirit
and purpose" are to help the wife meet the expenses of care
for the children including year-round overhead such as the
additional expense of a larger home.
The wife also challenges the trial court's determination
that she was not entitled to maintenance. We agree that this
issue was not before the District Court under the petition
for distribution of the real property. However, the
determination is inconsequential. It is clear that -
all
obligations between the husband and wife are covered by the
April 15, 1980 dissolution decree and the subsequent real
property distribution.
The August 30, 1983 child support order of the District
Court is vacated. The case is remanded to the District Court
for further findings and conclusions and for modifications in
accordance with this opinion.
W e concur:
~ 4 A 4 , k d
Chief J u s t i c e