NO. 88-500
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
IN RE THE MARRIAGE OF
CONNIE A. DIRNBERGER,
petitioner and Respondent,
and
JEROME A. DIRNBERGER,
Respondent and Appellant.
APPEAL FROM: District Court of the Fourth ~udicial~istrict,
In and for the County of is sou la,
The Honorable Douglas G. arki in, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Paul Neal Cooley; Skelton & Cooley, Missoula, Montana
For Respondent:
Paulette C. Ferguson, Missoula, Montana
Submitted on Briefs: March 31, 1989
'7 Decided: May 18, 1389
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Mr. Justice Fred J. Weber delivered the Opinion of the Court.
This is an appeal from a dissolution proceeding in the
Fourth Judicial District Court, Missoula County. Husband
appeals. We affirm i n part, reverse in part and remand for
.
furt.her proceedings consistent with this opinion.
The issues are:
1. Did the District Court err in failing to make ade-
quate findings of fact before dividing the marital propertv?
2. Did the District Court err by not awarding specific
visitation rights to husband?
3. Did the District Court err in awarding attorney fees
to wife?
4. Did the District Court err in certain rulings?
The parties were married January 24, 1982. Dissolution
proceedings were initiated on December 12, 1986. Husband has
two minor children from a prior marriage. Wife has a minor
daughter whom husband adopted.
Jerome Dirnberger (husband) has a bachelor's degree in
theology and has done graduate studies in anthropology.
Connie Dirnberger (wife) has a high school diploma. Hus-
band's work experience includes bank teller, bank officer,
and bank manager. He has also owned and managed several
businesses, including Schrader Stoves, Montana Glass, Inc.,
United Building Services, and Business Advisory Services.
Wife has worked as a telephone operator, interior designer,
and as alcohol counselor for the Confederated Salish and
Kootenai Tribes. Wife is an enrolled member of these Tribes.
When the parties were married wife owned a home in East
Missoula, Montana. Husband had just closed the Schrader
Stoves business. Soon after marriage the parties sold the
East Missoula home and moved to Denver, Colorado. The par-
ties received approximately $2,300 in equity from the
Missoula home. During the marriage, husband received approx-
imately $62,000 by bequest from his father. When the parties
moved to Denver they purchased a home using proceeds from the
home sold in Missoula, combined with money from husband's
inheritance.
The parties later sold the home in Colorado and moved
back to Missoula, reinvesting the proceeds from the Denver
home into a home in Missoula. At dissolution the equity in
the Missoula family home was valued at $13,000. The court
ordered that the family home be sold and the proceeds divided
equally.
The parties owned two businesses at the time of dissolu-
tion: Montana Glass, Inc., and West Pine Partnership which
owns rental properties. Montana Glass, Inc. was purchased by
the parties in 1985 for $404,000. The purchase price of
Montana Glass, Inc. actually comprised the purchase of stock,
inventory, and the West Pine Partnership. Husband contrib-
uted $40,000 to the purchase price from funds obtained by
bequest from his father, and assumed a contract in the amount
of 9;347,000. Husband's brother contributed 515,000 to the
business and husband's two chiIdren each contributed 51,500.
Husband and wife owned 70% of this business.
Montana Glass, Inc. was found by the court to have a net
market value of $100,000. Because the parties owned 70% of
the business, their interest was valued at $70,000, From
this value the court deducted $44,000 which was attributaSle
to husban6's inheritance, leaving a value of $26,000 attrih-
utable to the marital estate. The court determined the net
value of the West Pine Properties to be $2645. Thus the
combined net value of the two businesses was $28,645. The
court awarded !X35,000 of this interest to wife, ordering
husband to pay this at the rate of $ 5 0 0 per month until paid.
Wife was to transfer her interest in these businesses to
husband.
L
Did the District Court err in failing to make adequate
findings of fact before dividing the marital property?
"A District Court has far-reaching discretion in divid-
ing the marital property. Our standard of review is that the
District Court's judgment, when based upon substantial credi-
ble evidence, will not be altered unless a clear abuse of
discretion is shown." In re Marriage of Stewart (1988), 45
St.Rep. 850, 852, 757 P.2d 765, 7 6 7 ; In re Marriage of Watson
(198?), 44 Mont. 1167, 1170, 739 P.2d 951, 954.
Tn a marital. dissolution the guidelines for property
division are enumerated in 5 40-4-202, MCA. This statute
lists many factors to consider in this apportionment, specif-
ically providing that the court shall consider the estate and
liabilities of the parties. The basic goal is that. the court
must "finally equitably apportion between the parties the
property and assets . . ." In construing this statute, this
Court has consistently held that this apportionment must be
predicated upon a finding of the net worth of the marital
estate. Only after a finding of net worth can the trial
court make an equitable apportionment. The District Court
must make complete findings of fact, including assets and
liabilities, from which can be established a net worth of the
parties. Schultz v. Schultz (1980), 188 Mont. 363, 613 P.2d
1022, and cases cited therein; Cook v. Cook (1980), 188 Mont.
472, 614 P.2d 511. Additionally, "[ilf the District Court's
findings and conclusions do not reflect the net worth of the
parties' marital assets at the time of their divorce, this
Court on appeal cannot determine if the property was equita-
bly divided." Robertson v. Robertson (1979), 180 Mont. 226,
3 3 1 , 590 P.?d 113, 116.
The District Court found the marital estate of the
parties included the family home, Montana Glass, Inc., and
the West Pine Partnership. However, the court made no spe-
cific finding as to marital debt, or as to the value of the
parties' personal property. The court simply allocated the
unpaid debt to husband. Husband produced evidence at trial
demonstrating debts exceeding $55,000, which have been in-
curred by both husband and wife. The amounts and sources of
these debts are uncontroverted. Husband argues that if this
debt is subtracted from his share of the marital estate, he
is left with a negative net value of over $35,000. In the
case of In re Marriage of Metcalf, 183 Mont. 266, 598 P.2d
1140, the trial court failed to consider $12,000 worth of
unsecured debt before distributing the marital property,
resulting in a net deficit to one party. This Court stated,
"This factor, if considered by the court, should have alerted
it that the property distribution was inequitable." Metcalf,
598 P.2d at 1143. Similarly, in the present case, there is
no basis for determining whether the apportionment of assets
is equitable without a finding on the parties' liabilities.
We conclude that the District Court's failure to make a
specific finding as to liabilities, thereby precluding a
determination of net worth, was an abuse of discretion.
Additionally, we note that the court's decree should include
a finding regarding the parties' personal property in this
case, as husband alleges that this value is substantial. "If
contested evidence i s presented regarding the existence of a
.
marital asset and no findings are made regarding that asset
or no explanation provided as to why the District Court did
not include or explain the exclusion of such property, the
District Court has abused its discretion." Hamrneren v.
Hammeren (1982), 201 Mont. 443, 447, 663 P.2d 1152, 1154. We
vacate the property division in this case and remand For a
redetermination of the property division, using all. relevant
factors including the consideration of net worth and personal
property in a manner consistent with this opinion.
Husband also contends that the court erred in not taking
his inheritance into consideration in dividing the proceeds
from the family home. While the court subtracted the hus-
band's inheritance from the parties' equity in the business,
it did not subtract any amount from the equity in the family
home which might be attributable to inheritance. The court
is required to take an inheritance into consideration in
dividing the assets. However, this Court has previously
stated that "no definite rule could be established as to how
the trial court was to consider this asset. Each case has to
be decided on its own facts." Metcalf, 598 P.2d. at 1143,
quoting Vivian v. Vivian (1978), 178 Mont. 341, 583 P.2d
1072. In the present case the court took husband's inheri--
tance into consideration in the property division. We con-
clude that the District Court did not err in its
determination that the equity in the family home should be
divided equally.
Did the District Court err in not awarding specific
visitation to husband?
The dissolution decree awarded custody of the minor
child to wife and gave husband "reasonable rights of visita-
tion." The court also decreed that "Husband may petition the
Court for a specific visitation schedule with the minor child
if the granting of 'reasonable visitation' becomes unwork-
able." The child involved in this custody issue is wife's
daughter, Sari, whom husband adopted. Sari is now 16 years
old.
Husband contends that it was error for the court not to
establish a specifj-c visitation schedule because there is
recognized animosity between him and his wife, and because
wife has previously discouraged visitation of Sari. We find
no abuse of discretion in this case. Considering Sari's age,
the granting of a lenient standard of "reasonable visitation"
may be appropriate. The court specifically allowed husband
to petition for a specific visitation schedule should the
parties' visitation arrangement turn out to be unworkable.
This Court has previously approved the granting of reasonable
visitation, rather than a specific schedule in certain cases.
See Meyer v. Meyer (1983), 204 Mont. 177, 182, 663 P . 3 d 338,
331; Sanderson v. Sanderson (Mont. 198!), 623 P.2d 1388,
1389, 3R Pt.Rep. l7?, 178. We hol-d that the District Court.
did not abuse its discretion in not establishing a specific
visitation schedule.
IIT
Did the District Court err in awardin9 wife attorney
fees?
Husband contends that the court abused its discretion in
ordering him to pay $3,000 of wife's attorney fees and costs.
He urges that the court's failure to consider the parties'
liabilities indicates that it failed to consider the finan-
cial resources of the parties' before awarding attorney fees.
In a dissolution proceeding, attorney Fees are awarded
pursuant to $ 40-4-110, MCA, which provides that "[tlhe court
from time to time, after considering the financial resources
of both parties, may order a party to pay a reasonable amount
for the cost to the other party . .."
In view of the court's failure to make findings on the
parties' 1iabilit.ies, it could not have properly considered
the financial resources of both parties. As in In re Mar-
riage of PcGjll (1380), 187 Mont. 187, 193, 609 P.2d 278,
279, rev'd on other grounds, 196 Mont. 40, 637 P . 2 d 1182
(1981-), we believe it is best t o vacate the attorney Fee
.
award and l e a v e t h i s t o t h e d i s c r e t i o n o f t h e t r i a l c o u r t on
remand. W t h e r e f o r e v a c a t e t h e award o f a t t o r n e y f e e s and
e
remand f o r f u r t h e r c o n s i d e r a t i o n .
IV
D i - d t h e D i s t r i c t C o u r t e r r i n all.owing c e r t a i n e v i d e n c e
a t trial?
Husband c o n t e n d s t h a t t h e c o u r t e r r e d allowing w i f e ' s
l a t e f i l i n g of proposed f i n d i n g s o f f a c t and c o n c l u s i o n s o f
law. Wife d i d n o t f i l e proposed f i n d i n g s o f f a c t and c o n c l u -
s i o n s o f law u n t i l t h e dav b e f o r e t r i a l . On t h e day o f
t r i a l , husband r e q u e s t e d s a n c t i o n s f o r l a t e f i l i n g p u r s u a n t
t o Rule 8 , Uniform D i s t r i c t Court R u l e s . The c o u r t f i r s t
imposed a s a n c t i o n p r o h i b i t i n g w i f e from p r e s e n t i n g any
evidence a t t.ria1. However, t h e c o u r t withdrew t h a t o r d e r
when w i f e reminded t h e c o u r t t h a t i t had p r e v i o u s l y a g r e e d t o
a l l o w h e r an e x t e n s i o n o f t i m e t o f i l e h e r p r o p o s a l s . We
n o t e t h a t t h e language o f Rule 8 a l l o w s t h e c o u r t d i s c r e t i o n
i n awarding s a n c t i o n s . I n t h e a b s e n c e o f any showing by t h e
r e c o r d t h a t t h e D i s t r i c t Court committed an abuse of d i s c r e -
t i o n , w e w i l l n o t o v e r t u r n t h e d e c i s i o n o f t h e lower c o u r t .
Husband a l s o a l l e g e s t h a t t h e c o u r t e r r e d when i t r e -
t r a c t e d i t s o r d e r e x c l u d i n g w i f e ' s e x p e r t from t e s t i f y i n g .
On t h e f i r s t day o f t r i a l , J a n u a r y 2 2 , t h e c o u r t e x c l u d e d
w i f e ' s e x p e r t , Tracy R l a k e s l e e , a CPA who was t o t e s t i f y t o
t h e v a l u e o f Montana G l a s s , I n c . T h i s e x c l u s i o n was based on
t h e f a c t t h a t w i f e had n o t supplemented i n t e r r o g a t o r i e s i n a
t i m e l y f a s h i o n t o n o t i f y husband o f t h i s e x p e r t .
R e l y i n g on t h i s o r d e r , husband d e c l i n e d t h e c o u r t ' s
o f f e r o f a c o n t i n u a n c e and e l e c t e d t o t r y t h e c a s e t h a t day.
However, a t t h e c l o s e o f t h e f i r s t day o f t r i a l , husband
requested a continuance i n order t o b r i e f a c e r t a i n i s s u e .
The c o u r t g r a n t e d t h i s c o n t i n u a n c e , and because o f s c h e d u l i n g
problems, t h e t r i a l was n o t resumed u n t i l March 1 6 , n e a r l y
two months later. When trial resumed on March 16, both
husband's expert and wife's expert were allowed to testify as
to the value of the business. Husband claims surprise, and
also that the retraction of the order negated his trial
tactics, in that he assumed only his expert would testify as
to the value of the business.
It is not clear from the record at which point or for
what reason the court retracted its order. In view of the
fact that the trial was continued for nearly 2 months, we
conclude no abuse of discretion has been shown on the part of
the trial judge in allowing wife's expert to testify. In the
event husband contends he should be allowed to submit addi-
tional evidence because of the Blakeslee testimony he may
present that request to the trial court for consideration on
remand.
We affirm in part, reverse in part and remand for fur-
ther proceedinqs consistent with this o~inion.
We Concur: