No. 87-404
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
IN RE THE MARRIAGE OF
NORDIS J. POWELL,
Petitioner and Respondent,
and
ARLO W. POWELL,
Respondent and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Michael Keedy, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
George B. Rest, Kalispell., Montana
For Respondent:
M. Dean Jellison, Kalispell, Montana
Submitted on Briefs: Feh. 4, 1988
Decided: March 8, 1988
Filed:
MAR 8 - 1988
Clerk
Mr. Justice William E. Hunt, Sr., delivered the opinion of
the Court.
Arlo Powell appeals the property settlement ordered by
the District Court of the Eleventh Judicial District,
Flathead County.
We affirm.
The issues raised on appeal are as follows:
1. Did the District Court err in admitting into
evidence petitioner's Exhibits A, B and C and further
compound the error by denying the admittance of respondent's
deposition?
2. Did the District Court abuse its discretion by
failing to base the finding of value of marital property and
the respondent's individual net worth on credible evidence?
3. Did the District Court abuse its discretion by
failing to properly consider the elements of 5 40-4-202, MCA?
Petitioner, Nordis Powell (wife) and respondent, Arlo
Powell (husband) were married on February 2, 1975 in Chico,
California. At that time, wife was 62 years old and husband
was 55 years old. Wife is a retired civil servant. During
their marriage husband worked for a few years as a telephone
industry consultant in private practice but has since
retired. Both parties held substantial assets at the time of
their marriage. Flife had approximately $80,000, mostly in
certificates of deposit, stocks and bonds. Husband had a net
worth of approximately $144,000. During the course of their
marriage, the parties kept their accounts a.nd assets totally
separate. Each paid for specific things with each providing
exclusively for their own personal needs and expenses.
The parties were married for approximately eight years.
They separated in March, 1983. The decree of dissolution was
entered on March 26, 1985, reserving the property settlement
until a later date.
At a hearing at which only the wife, her attorney and
husband's attorney appeared, the court found that, at the
time of their separation, the parties' marital estate was
worth approximately $862,000. As of May 31, 1984, wife's
assets were found to have increased from $80,000 to
approximately $137,000. The court found that on April 10,
1983, husband's assets had increased from $144,000 to
approximately $725,000. The court found no formal
antenuptial agreement was drafted by the parties, yet it was
clear from the parties conduct throughout their marriage that
they intended to keep their assets separate, retaining them
for eventual distribution to their children from prior
marriages.
Husband's first alleged error concerns the admission of
certain evidence by wife and the exclusion of husband's
deposition as evidence.
Wife petitioned the court for dissolution on July 24,
1983. In spite of wife's attempts to conduct discovery
relating to husband's assets, husband refused to candidly
answer interrogatories or cooperate with the discovery
process. Husband was held in contempt of court for
transferring property held in his name to his son despite a
restraining order prohibiting the transfer or sale of any
assets pending the final property distribution. After
numerous delays, a hearing date was set to resolve the
property distribution. Husband requested a further
continuance, which was denied by the court. Husband failed
to show up for the hearing, but gave no excuse or reason for
his absence other than his attorney having difficulty in
locat-ing him to give him notice of the hearing.
Wife appeared with her attorney at the hearing and gave
testimony concerning the parties' assets. Wife introduced
Exhibit A, which was a document prepared by husband, in
husband's handwriting, dated January 10, 1974. The document
was an inventory of husband's assets and liabilities at the
time of his previous wife's death, for estate purposes. Wife
found the original document among her husband's papers and
copied it, presenting the copy to the court as evidence of
husband's net worth near the date of their marriage.
Wife's Exhibit B was also a document prepared by husband
in his handwriting. It is an inventory of his assets and
liabilities as of April 10, 1983. Wife obtained this
document in the same manner as she obtained the document in
Exhibit A. The court accepted both of these as relevant
evidence accurately depicting husband's assets and
liabilities on January 10, 1974 and April 10, 1983. Wife's
Exhibit C was prepared by her attorney for illustrative
purposes. Exhibit C copied all of the information contained
in Exhibits A and B so that they were more easily read and
compared. Exhibit C also contained wife's assets and
liabilities on the date of the parties' marriage and on May
31, 1984, just following their separation. At the hearing,
wife verified the amounts as accurate. The court admitted
Exhibit C for illustrative purposes.
We hold that Exhibits A, B, and C were properly
admitted. Under Rule 801 (d)(2) , M. R.Evid., Exhibits A and B
were properly admitted. An admission by a party-opponent is
not hearsay and is admissible if the statement is offered
against a party and is his own statement. The copies of the
original documents were admissible under Rule 1004 ( 3 ) ,
M.R.Evid. Exhibit C was properly admitted for illustrative
purposes. Rule 1006, M.R.Evid.
Since husband did not appear at the hearing, his
attorney offered his deposition and several affidavits as
evidence of his testimony. Rule 32 (a), M.R.Civ.P. outlines
the uses of depositions in court proceedings. Husband argues
that his deposition should have been admitted pursuant to
Rule 32(a) (3) which allows the use of a party's deposition if
that person is at a distance greater than 100 miles from the
place of the hearing.
No proof was offered at the hearing that husband was
unable to attend because of too great a distance to travel.
The record did indicate, however, that husband was
uncooperative with the court and the opposing party
throughout the proceedings and decided not to attend the
hearing for personal reasons. The decision not to attend was
husband's prerogative, but he cannot later introduce
testimony which cannot be verified or cross-examined. We
hold that the court properly refused to admit husband's
deposition as evidence at the hearing.
Husband's next contention is that the District Court
erred by failing to base the values placed on the marital
estate at the time of separation and his individual net worth
at the time of marriage on credible evidence. All the court
had to base its calculations on were the exhibits and
testimony introduced by wife. No evidence was presented to
refute either the value which she placed on the net worth of
her assets at the time of marriage, nor the net worth of her
assets at the time the parties separated. The evidence
presented to the court evidencing husband's assets at the
time of marriage and date of separation were documents
prepared by husband himself near the dates in question.
These figures are reasonably reliable.
"The trial judge is free to select and reject appraisal
values as he wishes, so long as there is substantial credible
evidence in support of the values he selects." In re
Marriage of Williams (Mont. 1986), 714 P.2d 548, 554, 43
St.Rep. 319, 326. (Quoting In re Marriage of Glass (Mont.
1985), 697 P.2d 96, 100-01, 42 St.Rep. 328, 332 (citations
omitted) . ) In order to prevail on appeal, husband must show
an abuse of discretion by the District Court and overcome the
presumption that the judgment of the District Court is
correct. In re Marriage of Blades (Mont. 1984), 692 P.2d
1215, 1217, 41 St.Rep. 1806, 1809. We find no evidence that
the District Court abused its discretion in relying on the
evidence presented.
Husband's last contention is that the District Court did
not properly consider the elements of $ 40-4-202, MCA, in
dividing the marital estate. In this case, both parties
entered a marriage with considerable personal assets.
Although no formal antenuptial agreement existed, the conduct
of the parties during their marriage reflected their intent
to keep separate those assets which they brought into the
marriage. Premarital property is a factor which the court
shall and, in this case, did consider, but the court is not
bound to restore the parties to their premarital status. In
re the Marriage of Tonne (Mont. 1987), 733 P.2d 1280, 1283,
44 St.Rep. 411, 414; In re the Marriage of Keepers (Mont.
1984), 691 P.2d 810, 812, 41 St.Rep. 2163, 2165-66.
In its findings of fact, the District Court considered
the duration of the parties' marriage, their respective ages
and health, their retired status and apparent needs and
wife's contributions as a homemaker during their marriage.
From the findings, the District Court concluded that each
party should be awarded the value of the property he or she
originally contributed to the marital estate. This amount
was $80,000 for the wife and $144,000 for the husband.
The court found that the value of the marital estate on
the date of the parties' separation was $862,000. Although
wife requested half of the increase ($638,000 - 2 =
$319,000), the court awarded her only the corresponding
percentage of the appreciated estate she had contributed when
married. This amounted to $170,714 with 10 percent interest
from the date of separation.
The District Court has far-reaching discretion in the
division of marital property. In re Marriage of Perry (Mont.
1 9 8 5 ) , 704 P.2d 41, 43, 42 St.Rep. 1101, 1104. We find no
error nor abuse of discretion by the court in this case.
Affirmed.
We concur: I