No. 86-602
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
IN RE THE MARRIAGE OF
SANDY J. MALQUIST,
Petitioner and Respondent,
and
DALE H. YJ-LQUIST,
Respondent and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Thomas C. Honzel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Dale H. Malquist, pro se, Lincoln, Montana
For Respondent:
Dennis G. Loveless, Helena, Montana
Submitted on Briefs: May 7, 1987
Decided: July 13, 1987
Filed:
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Dale H. Malquist appeals the findings of fact and
conclusions of law entered in dissolution of marriage
proceedings by the District Court, First Judicial District,
Lewis and Clark County. We affirm in part and remand in part
for further findings.
Dale and Sandy Malquist were married on April 19, 1969
in Milwaukee, Wisconsin. Two children, Darcy Lee, age 15 and
Sara Lynn, age 11, were born to the parties. Dale has been
employed as a master electrician, certified welder and
certified locksmith. Sandy owned a beauty salon in Wisconsin
and has worked at various jobs since then. In 1985, Dale was
convicted of willful failure to file income tax returns and
sent to a federal prison camp in California.
Sandy filed a petition for dissolution of marriage on
August 25, 1986, while Dale was still in prison. Dale filed
a response and amended response September 15, 1986. In the
response, Dale requested the District Court not to require
him to pay child support until he was released from parole;
stated the family home plus 20 acres had been placed in a
trust for the two minor children, of which trust Sandy was
the "executrix" [settlor]; requested one-half interest in the
1959 Chevrolet panel truck; and requested the District Court
to enumerate all other obligations incurred by the parties.
As to all the other information listed in the petition,
including the proposed property division and child support,
Dale agreed and waived, in writing, his right to appear
before the District Court in the dissolution proceedings.
On November 3, 1986, the District Court issued findings
of fact, conclusions of law, and a decree of dissolution,
from which Dale now appeals. He specifies the following
issues for our review:
1. Whether the District Court abused its discretion by
awarding property to the wife which had been placed in a
trust fund for the minor children of the marriage?
2. Whether the District Court can properly apportion
property not listed in the petition for dissolution and of
which the husband had not received notice?
3. Whether the District Court abused its discretion by
accepting the wife's proposed findings of fact verbatim and
by not first determining the net worth of the parties?
4. Whether the District Court abused its discretion by
failing to equitably divide the assets of the parties?
5. Whether the District Court committed error by not
considering the husband's pleadings or submitted findings of
fact?
The issue raised by Sandy is whether Dale's appeal is
without merit under Rule 32, M.R.App.Civ.P., and if so, she
requests this Court to assess costs and attorney fees against
Dale.
We note at the outset that both Sandy Malquist's
attorney and Dale Malquist, representing himself, have
appended to their briefs exhibits which were not introduced
at trial. This Court will not consider evidence extraneous
to the record. Downs v. Smyk (1980), 185 Mont. 16, 25, 604
P.2d 207, 312; Jerome v. Jerome (1978), 175 Mont. 429, 431,
574 P.2d 997, 998. While the exhibits may be helpful in
unravelling the parties' disputes over the contents of the
trust agreement, such evidence is properly within the
fact-finding realm of the trial court and should be
introduced at that level.
The first issue raised by Dale is whether the District
Court erred in awarding trust fund property to Sandy. He
argues that the family home and 20 surrounding acres were
part of the trust corpus and should not have been given to
Sandy. Sandy testified at trial that the home and 20 acres
were not part of the trust. The District Court found that a
1977 Blazer and a checking account were the only items in the
trust fund. Dale argues that the District Court cannot award
trust property to one party or the other when neither party
has an interest in that property.
Under S 40-4-202, MCA, the District Court has
jurisdiction to equitably apportion marital property
regardless of whether title to the property is in the name of
either husband or wife. In re Marriage of Schultz (1982),
199 Mont. 332, 339, 649 P.2d 1268, 1272. The question in
this case is whether the trust fund established for the minor
children is marital property? The answer to this question
lies in the trust agreement itself--whether it is a revocable
or irrevocable trust, whether the trust is for the present or
future benefit of the beneficiaries, whether the intention to
create the trust is clearly ascertainable. Savings account
trusts may be considered marital property where the trust is
a tentative trust only, and the beneficiaries had no
beneficial interest in the savings accounts at the time of
dissolution of the marriage. Salvio v. Salvio (Conn. 1982),
441 A.2d 190, 194-198. However, where the record reveals
little, if any, information from which this Court can
establish the elements of a trust, the case must be remanded
for findings to support the trial court's disposition of the
trust. Zering v. Zering (Conn. 1985), 497 A.2d 1023, 1025.
Since the trust agreement was not submitted into evidence at
trial, and the transcript reveals only that a trust was
established for the minor children of the parties, but not
the terms of the trust, we remand this case for findings to
support the distribution of the trust fund and its assets.
The second issue raised is whether the District Court
can apportion property not listed in the petition for
dissolution. The "property" in question is a debt to Sandy's
mother for monies loaned to the family in the course of the
marriage. These loans were not listed in the petition, and
the entire testimony from the hearing concerning the loans is
as follows:
Q. (By Mr. Loveless, attorney for Sandy Malquist):
And also $18,000, which represents part of the
money borrowed from your mother? A. (Sandy
Malquist) : Yes.
Q. And not all that is--not all of that $42,000
went towards the family home; did it? A. NO, it
didn ' t. He bought a--he bought a fifth-wheel
travel trailer that was used from job to job; and
then he sold that and consequently bought that
panel truck but she gave us the money to buy that;
and he did buy some snowmobiles. She gave us the
money for the snowmobiles, so it wasn't all just
for building the home.
Q. And you would like these payments to be made
from Dale to you in a timely manner; and you think
that he would be able to pay that off in the
five-year period or else obtain refinancing to pay
it off? A. It would be nice but I have no hope
for it.
9. You are requesting the Court to include that in
the order though.
There is no other evidence in the record, such as a loan
agreement, promissory note, cancelled checks, or any form of
receipt to substantiate the amount, existence or terms of the
loans from Sandy's mother. Proposed findings of fact and
conclusions of law must be sufficiently comprehensive to
provide a basis for the trial court's decision, and must be
supported by the evidence presented. In re Marriage of
Renner (Mont. 19851, 711 P.2d 802, 805, 42 St.Rep. 1943,
1947. This issue is therefore remanded for further findings
in support of the District Court's apportionment of the loan.
The third and fourth issues raised by Dale concern the
District Court's distribution of the marital property. With
the exception of the loan from Sandy's mother, and the debt
incurred by Sandy for paying off the money owed by Dale on
his welder and tools while he was in prison, the District
Court distributed the marital property precisely as was set
forth in the petition for dissolution. Dale had notice of
this distribution, and, with the exception of the family home
and 20 acres and the panel truck, he agreed with the
distribution in his response to the petition. Having agreed
to the distribution of property and waiving his appearance at
the hearing, this Court will not hear arguments now that the
distribution of the marital assets was inequitable. With the
exception of the status of the trust fund property and the
loans to Sandy's mother, we uphold the District Court's
division of the marital assets and debts. We find no abuse
of discretion in the District Court's division of property to
which Dale had assented.
Dale has also argued the District Court did not consider
the pleadings or findings of fact which he submitted. The
only pleadings submitted by Dale are the petition to proceed
in forma pauperis and affidavit of financial status, the
response and amended response, a motion and notice of motion
for a temporary restraining order, and his appellate motions.
No proposed findings of fact were submitted by Dale. The
District Court considered what little evidence Dale did
submit. On remand, both parties will have the opportunity to
submit further evidence in support of the distribution of
trust fund assets and marital debts.
The final issue raised by Sandy is whether costs and
attorney fees incurred by her should be assessed against Dale
for filing an appeal without merit. Since we have found
merit in two of Dale's five issues, the parties are
responsible for their own costs and attorney fees.
The case is remanded to the District Court for further
findings on the status of the trust fund property and the
debts t-o Sandy Mal-quist's mother.
i
We Concur:
Justices
/j