NO. 8 9 - 3 1 3
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
IN RE THE MARRIAGE OF
PHYLLIS T. BARNARD,
Petitioner and Respondent,
and
.
RODNEY D A. BARNARD,
Respondent and Appellant.
: I I-'
- 0
APPEAL FROM: District Court of the Eighth Judicial Distr&k-,
In and for the County of Cascade, C
-1
u?
The Honorable John McCarvel, Judge ~residingc.
COUNSEL OF RECORD:
For Appellant:
Rodney D.A. Barnard, pro se, Great ~ a l l s ,
Montana
For Respondent:
Michael L. ~anning;Scott & Tokerud, Great Falls,
Montana
submitted on ~riefs: Dec. 7, 1 9 8 9
Decided: January 23, 1 9 9 0
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
The parties' marriage was dissolved in the District Court for
the Eighth Judicial District, Cascade County, in April 1989.
Rodney D. A. Barnard (Rod), appearing pro se, appeals. We affirm
in part as modified, and remand in part.
The issues are:
1. Did the District Court err in determining that the shares
of stock in the Tadej farm were not a part of the marital estate?
2. Did the court abuse its discretion in its division of
property?
3. Did the court err in its award of child support?
4. Did the court err in awarding maintenance?
5. Did the court exceed its authority by ordering Rod to pay
Phyllis's attorney fees and accountant's fee?
Rod and Phyllis were married in 1968. Two children were born
of the marriage, one of whom had reached the age of majority prior
to this dissolution and the other of whom attained the age of
majority on November 20, 1989. During most of the marriage, the
parties lived on Phyllis's family's farm (the Tadej farm) near
Geraldine, Montana, where Rod took care of the hog operation and
Phyllis worked as a homemaker and part-time ranch hand. Prior to
the dissolution, Rod went to truck driving school and obtained a
long-haul truck driving job out of Great Falls, Montana.
The court found that personal property in the marital estate,
valued at $37,185, had been divided by the parties. It awarded
additional personal property valued at about $1,380 to Rod. It
awarded a paid-up life insurance policy on Phyllis, valued at
$2,152.78, to Phyllis to be held for the minor daughter s benefit.
The court found that stock in the Tadej farm which had been gifted
to Phyllis was not part of the marital estate.
The court further required Rod to pay Phyllis $200 per month
for current child support and $200 per month on back child support
retroactive to the date of the parties1 separation on November 4,
1986. It ordered Rod to pay Phyllis maintenance of $200 per month
for three years and to pay her attorney fees of $5,000 and
accountant fees of $500.
I
Did the District Court err in determining that the shares of
stock in the Tadej farm were not a part of the marital estate?
Rod maintains that he is entitled to a share of the Tadej farm
corporation for his years of work there. In the alternative, he
claims $30,000 as equity in the Tadej Ranch Company for housing
from 1973 to 1986. He believes that because housing was credited
as part of his earnings while he worked for the farm, he should
have equity in the house.
The District Court found that from 1973 until near the end of
the marriage, Rod worked on the Tadej farm. It found that, as an
estate planning device, beginning in 1968, Phyllis's parents gifted
shares of stock in the farm to their five children. It found that
Phyllis was given almost one-half of her shares of stock before the
parties moved back to the farm to work. It found that all of the
shares of stock are in Phyllis's name and that at the time of trial
she held title to 7.1 percent of the outstanding shares in the
corporation. The court found:
It is clear that the Tadejst gifts of stock to
their children were not to compensate them and
their spouses for work on the ranch. These
gifts represent the Tadejs childrent in-s
heritances and will only have value after both
Mr. and Mrs. Tadej die. The Court finds that
these shares of stock are not part of the
marital estate and are not divisible in this
proceeding.
The court further found that there was no agreement between Rod and
the farm that he would be compensated by stock in the corporation
but that, instead, his salary, including numerous fringe benefits,
was set annually at corporate meetings and was in line with the
prevailing wage for farm and ranch workers.
A District Court is not required to include gift property
given to one spouse during a marriage as part of the marital
estate. Becker v. Becker (1985), 218 Mont. 229, 232, 707 P.2d 526,
528. For example, such gift property need not be included where
none of the value of the property is a product of contribution from
the marital effort. Becker, 707 P.2d at 528.
Here, the situation is somewhat different. Rod argues that
the value of the stock in the farm increased due to his efforts in
working on the farm. This may be true. However, Rod was paid a
salary and benefits for his work, and he admitted at trial that
there was no agreement that he would receive stock in the corpora-
tion as compensation. Additionally, the fact that Phyllis's
siblings who did not work on the ranch were given the same amount
of stock as was Phyllis indicates that the stock was a gift, not
payment for work done. We hold that the District Court did not err
in ruling that the stock in the Tadej farm was not a part of the
marital estate.
Rod also argues that he was promised a salary equal to that
which he had made working for cable TV and that his wage was
reduced below that amount after he had worked for the farm for
several years. But the record shows that his salary was set yearly
at corporate meetings, which he attended, and he admitted at trial
that he did not object to the salary he was paid. There is no
record of any agreement that he would acquire equity in the house,
which was owned by the corporation. We hold that there was no error
in the absence of an award to Rod of equity in the corporation's
house.
I1
Did the court abuse its discretion in its division of proper-
ty?
Rod argues that he should have been awarded $3,000 in promis-
sory notes from Phyllis's father because they were made out to him.
He also argues that he should be credited for a .243 caliber rifle
awarded to him but which Phyllis sold to pay for their daughter's
glasses.
In reviewing a property distribution, this Court will not
disturb the district court's division unless there has been a clear
abuse of discretion. In re Marriage of Hall (1987), 228 Mont. 36,
39, 740 P.2d 684, 686. The notes about which Rod complains, while
made to Rod, were for a loan made to the Tadej farm during the
marriage. In reviewing the District Court's findings, we see that
it awarded property valued at $16,150 to Phyllis (including the
notes) and property valued at $22,415 to Rod. The findings show
that the District Court was aware that the .243 rifle had been
sold. In light of all the factors which must be considered under
§ 40-4-202, MCA, in property distributions, including the parties'
age, health, station, occupation, amount and sources of income,
vocational skills, employability, estate, liabilities, and needs,
we hold there was no abuse of discretion.
I11
Did the court err in its award of child support?
Rod argues that he should not be required to pay back support
because his daughter is living with Phyllis's parents, Ititappears
all her needs are being met," and Phyllis is putting the support
money into an account in the daughtertsname at D. A. Davidson.
Our standard of review of child support awards is whether the
district court had clearly abused its discretion. In re Marriage
of Benner (1985), 219 Mont. 188, 192, 711 P.2d 802, 804. This
Court has further stated that a district court has jurisdiction to
award child support retroactive to the time of separation of the
parties. In re Marriage of DiPasquale (1986), 220 Mont. 497, 499,
716 P.2d 223, 225. The controlling statute, 5 40-4-204, MCA, says
that the amount of child support shall be an amount reasonable or
necessary for the child's support. The statute requires, at 5 40-
4-204(2)(b), MCA, that the district court consider the child's
financial resources. This was done in Finding XII, which noted the
daughter's money market account at D. A. Davidson. The statute
also refers to the uniform child support guidelines under which
$200 per month in support payments with $25,000 per year income is
quite low. We conclude that even if the daughter's needs are being
met by her grandparents, the District Court awarded a reasonable
amount of child support and acted within its discretion.
Rod also argues that the date set by the court as the date of
the partiest separation is wrong. The court set the date of
separation as November 4, 1986. Phyllis testified that they
separated in November 1986. We conclude this is substantial
evidence to support that finding.
Rod raises one other matter under this issue. He asks who may
claim his daughter as an income tax deduction for 1989. The
District Court ruled that Rod could claim her for the year 1988,
but it made no ruling for 1989. Rod's support obligation ended in
November 1989 when his daughter reached the age of eighteen. We
hold that, provided he made his support payments in 1989, Rod shall
be entitled to claim his daughter as an income tax deduction for
that year. The parties and the court shall execute whatever
documents are necessary so that Rod may claim the exemption for
1989 if his contributions complied with federal regulations.
IV
Did the court err in awarding maintenance?
Rod argues that he should not be required to pay maintenance
because Phyllis was at fault in the breakup of this marriage.
The standard for awards of maintenance in the State of Montana
is established by statute at !j 40-4-203, MCA. The statute sets out
factors which a court must consider in determining whether and in
what amount to award maintenance. Under 5 40-4-203(2), MCA,
marital misconduct is not a factor to be considered in setting
maintenance.
The District Court found that Phyllists education and work
experience left her, at thirty-nine years of age, with no market-
able job skills and little possibility of obtaining secure employ-
ment. It found that after the partiest separation, Rod attended
truck driving school and that he had a secure job at the time of
trial. It found his salary at the time of trial to be over $25,000
per year. As described above under Issue 11, the parties did not
have extensive assets. Rod contends that his gross income for 1989
is likely to be only $15,918. However, his 1989 income was not in
evidence at trial. The District Court's findings are supported in
the trial record. We conclude that the court did not err in
awarding Phyllis $200 per month for three years in maintenance.
Did the court exceed its authority by ordering Rod to pay
Phyllis's attorney fees and accountant fee?
The District Court found that "[blecause of the parties very
limited assets and the completely unfounded claim of Rod in the
Tadej's corporate assets he has caused Phyllis to incur $5,000 in
attorney fees and $500.00 in accountants fees which he should be
required to pay."
Section 40-4-110, MCA, provides:
Costs -- attorney's fees. The 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 of maintaining or defending any
proceeding under chapters 1 and 4 of this
title and for attorney's fees, including sums
for legal services rendered and costs incurred
prior to the commencement of the proceeding or
after entry of judgment. The court may order
that the amount be paid directly to the attor-
ney, who may enforce the order in his name.
This Court has held that an award of attorney fees under this
statute must be based on necessity, must be reasonable, and must
be based on competent evidence. "Reasonableness is shown by means
of a hearing allowing for oral testimony, the introduction of
exhibits, and the opportunity to cross-examine. . . The award will
not be disturbed by this Court if it is supported by substantial
evidence." Wilson v. Bean (Mont. 1981), 628 P.2d 287, 289, 38
St.Rep. 751, 752. There is nothing at all in the record of this
case to support the amount of either the attorney fees or the
accountant fees. We therefore remand the award of these fees for
a hearing on attorney and accountant fees. Rod shall not be
required to pay Phyllis's attorney fees for this hearing. See In
re Marriage of Bliss (1980), 187 Mont. 331, 336, 609 P.2d 1209,
1213.
Affirmed in part as modified, and remanded in part.
Chief Justice
We concur:
Justices