No. 86-A99
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
IN RE THE MARRIAGE OF
ALLAIRE PI. FITZMORRIS,
Petitioner and Respondent,
and
JAMES P. FITZMORRIS,
Respondent and Appel-lant .
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Gregory 0 Morgan argued, Bozeman, Montana
.
For Respondent:
Richard J. Andriolo argued, Bozeman, Montana
Submitted: September 10, 1987
~ecided: November 5, 1987
r . Justice R. C. Mcnonough delivered the Cpinion of the
Court.
This case invclves a marriage dissolution. The issue on
appeal is the distribution of the marital estate.
The District Court of the Eighteenth Judicial District
ordered the division of the parties' assets in its final
decree dated June 24, 1986. The wife, Allaire W. Fitzmorris,
received property valued at $5,875,695.60. The majority of
her share came from stock acquired before the marriage which
was excluded from the marital estate. The husband, James P.
Fitzmorris, received property valued at $321,756.60. The
majority of his share consisted of assets from the marital
estate. We affirm.
James presents three issues for review:
(1) Did the lower court err by failing to grant a mistrial?
(2) Is the lower court's division inequitable?
(3) To what extent may the lower court rely on the source of
marital assets to determine their distributj-on? We will
consider each issue separately.
- I:
ISSUE
- James requested a mistrial because Allaire
attempted to testify on James' marital misconduct. The
alleged misconduct concerned James' motivation for supporting
the purchase of the parties' Belgrade ranch. According to
Allaire, James encouraged the purchase to convert her stock
to jointly held real property. James objected to the
testimony, and the trial court sustained the objection.
There is nothing in the record, to indicate that the trial.
court considered the testimony in deciding the division.
However, James contends that the mention of marital
misconduct, like the mention of defendant's liability
insurance in a tort claim, should be grounds for a mistrial.
We faced a similar contention in In re the Marriage of
Vance (1983), 204 Mont. 267, 664 P.2d 907. In Vance we
stated that the ~istrictCourt did not abuse its discretion
because it specifically refused to consider any allegations
of marital misconduct. Vance, 664 P.2d at 912. In this
case, the trial court refused to hear the testimony, and
struck the testimony from the record. We find that the lower
court refused to consider the alleged misconduct, and Vance
controls. Thus, the lower court correctly denied James'
mistrial motion.
ISSUE 2:
--
- James contends that the division is
inequitable on its face. He also contends that the division
is inequitable because it (1) omits a debt on his office
building, (2) excludes from the marital estate Allaire' s
stock while including his stock, and (3) fails to recognize
the irrevocable nature of gifts received during the marriage.
We recently clarified the standard for reviewing a
district court's division of marital property in In re the
Marriage of Hall (Mont. 1987), 740 P.2d 684, 686, 44 St.Rep
1321, 1323:
We have concluded that in a property distribution
review in marriage dissolution, this Court will
reverse a district court only upon a showing that
the district court has acted arbitrarily or has
corrmitted a clear abuse of discretion, resulting in
either instance in substantial injustice.
In support of the ccntention that the District Court
abused its discretion by ordering a division that is
inequitable on its lace, James cites In re the Marriage of
Brown (1978), 179 Mont. 417, 587 P.2d 361. In Brown, the
District Court erred by failing to fairly value appellant's
contribution to the parties' major asset, th.e family ranch.
Curing the parties' fcurteen years of marriage in Brown, the
ranch had appreciated 350 percent. The appreciation was the
result of both parties' efforts, and the District Court's
decision to give the appealing spouse only a small percent of
the ranch's value was clearly inequitable. Brown, 587 P . 2 2
at 365.
The facts of this case distinguish it from Brown. Here,
nearly all the assets included in the marital estate
originated from stock Allaire brought to the marriage. The
District Court found that these assets lost value as a result
of the business ventures of both parties. When "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."
In re the Marriage of Herron (1980), 186 Mont. 396, 404, 608
P.2d 97, 101. Clearly, none of the value of the property
allocated to Allaire resulted from the efforts of James, and
the District Court's decision is not inequitable on its face
as a result of Brown.
James also contends that the division is inequitable on
its face because Montana law favors equal division of assets.
This is a misstatement of the law. Equity, not equality,
should guide the District Court's discretion in dividing the
marital estate. Snell v. Snell (Mont. 1983), 668 P.2d 238,
40 St.Rep 1359, 1361.
James challenges the District Court's valuation of the
office building he received as part of his share of the
marital assets. According to james, the omission of the
building's debt constitutes a mistake in the District Court's
findings, and results in an inequity. It appears from the
record that only $33,000 worth of stock secured an
improvement loan on the building at the time of the District
Court's valuation. We find no evidence that $53,000 in stock
secured the debt as James contends. Thus, the District Court
nay have overvalued the building by failing to deduct the
$33,000 debt. But the District Court concluded that James
should receive the building and its debt to house his
business. Therefore, a mistake on the exact value of the
building was "unnecessary to support the District Court's
decision, and is harmless." In re the Marriage of Anderson
(Mont. 1986), 717 P.2d 11, 14, 43 St.Rep. 541, 544.
The parties held the major assets of the marriage in
joint tenancy. Allaire's stock financed the purchase of
these assets. James contends that the conversion of
Allaire' s stock to joint tenancy property constitutes an
irrevocable gift to him. On the basis of the irrevocable
nature of the gifted property, according to James, the
District Court should have divided the property equally.
Even before the passage of the Uniform Marriage and
Divorce Act, Montana recognized the rule that title does not
control the distribution of marital assets. See Morse v.
Morse (1977), 174 Mont. 541, 545, 571 P.2d 1147, 1149.
Presently, 40-4-202, MCA, embodies the same rule by
mandating that the court divide assets equitably "whether the
title thereto is in the name of the husband or wife or both."
Thus, the lower court properly refused to base its decision
on the fact that the parties held the property as joint
tenants.
ISSUE 3: James argues that the District Court relied on
source alone to determine that Allaire should receive the
bulk of the marital estate. He also contends that the
District Court ignored his contribution to the property's
maintenance, and that the lower court treated the marriage
like a business relati~nship in arriving at its distribution
scheme.
First, the source of the parties' assets was not the
so1.e criteria for the lower court's division. If it were,
James would r,ot have received the over $200,000 in Pioneer
stock gifted to him by Allaire and her grandmother.
Second, 5 40-4-202, MCA, requires the court to consider
the contributions of the parties in dividing the property.
The lower court in this case found that Allaire contributed
far more to the parties' accumulation of assets than James.
Under these circumstances, the lower court did not abuse its
discretion by awardinc most of the assets to Allaire.
Herron, 608 P.2d at 101..
Affirmed.
We Concur: /J