NO. 94-237
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
IN RE THE MARRIAGE OF
JENNIFER M. SMITH,
Petitioner and Respondent,
and
RICHARD A. SMITH,
Respondent and Appellant
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable ~homas-A. Olson, ~ u d presiding.
~ e
COUNSEL OF RECORD:
For Appellant:
Marcelle C. Quist, Carolyn S. Parker, Quist Law
Firm, Bozeman, Montana
For Respondent:
Kent M. Kasting, Kommers, Kasting & Roth, Bozeman,
Montana
Submitted on Briefs: December 22, 1994
Decided: March 1 6 , 1995
Filed:
Justice James C. Nelson delivered the Opinion of the Court.
Richard Smith (Richard), appeals from the Findings of Fact and
Conclusions of Law entered on December 20, 1993, by the Eighteenth
Judicial District Court, Gallatin County, apportioning the marital
estate. We affirm.
Richard raises ten issues on appeal, however we have
consolidated them into four issues and restate them as follows:
1. Was the District Court's distribution of the
marital property in this case clearly erroneous?
2. Whether the District Court's failure to award
maintenance was clearly erroneous?
3. Whether the District Court failed to apply the law
in a gender neutral fashion?
4. Whether the District Court abused its discretion in
failing to grant Richard additional time f o r
discovery?
Richard and Jennifer Miller Smith (Jennifer), were married in
1984. Prior to the marriage, Jennifer was the beneficiary of two
trusts, the Alma Decker Irrevocable Trust (Alma Decker Trust) and
the Jennifer Miller Smith Revocable Trust (Jennifer Smith Trust).
The Alma Decker Trust is a trust established by Jennifer's
grandmother in the early 1960's. Jennifer is a discretionary
beneficiary under the Alma Decker Trust, and since the trust's
inception, the trustee has always been an independent, corporate
trustee. The trustee has the exclusive power and duty to invest
and manage the trust assets, and exclusive discretion to distribute
income and corpus under the trust to the trust's beneficiaries.
The trustee is paid a fee for its services. Richard was never a
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beneficiary under this trust, did not contribute any monies to this
trust, nor were any marital monies ever contributed to this trust.
The Jennifer Smith Trust was created when Jennifer was
eighteen, to receive the income from the Alma Decker Trust that was
distributed to Jennifer. Like the Alma Decker Trust, it was
managed by an independent corporate trustee, which managed the
trust assets, and was paid a fee for its services. Jennifer is the
trustor and beneficiary of this trust. Richard has never been a
beneficiary of this trust and did not make any monetary
contributions to the trust.
The value of the Alma Decker Trust on September 30, 1993,
(approximately one month before trial), was approximately
$1,800,000. The value of the Jennifer Miller Trust on this same
date was approximately $282,500. While the value of the trusts
increased over the course of the eight year marriage, Richard did
not demonstrate that his actions in any way maintained or increased
the value of the trusts.
Shortly after the parties married, they opened the High County
Anglers, a retail fly fishing and guide services business.
Jennifer contributed the initial capitalization for the business
with money from the Jennifer Smith Trust. The business never
generated a profit, and never paid either party a salary, but did
pay for the parties' health insurance premiums and Richard's truck
payments. The store closed in October 1987, but the corporate
account stayed open and the parties deposited their fly fishing
guide earnings into the account. In 1992, the funds of the account
were distributed equally between the parties. Jennifer has never
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been reimbursed the capitalization money she contributed to the
business.
During the course of the marriage Richard earned $26,227, and
Jennifer earned $1,632, from third-party employers. Jennifer
contributed over $550,000 to the parties' living expenses with
monies from the Jennifer Smith Trust. The parties had three bank
accounts: a household account, to pay for daily living expenses;
a large expenditure account, for payment of expenses such as
taxes, furniture, home improvements, and other larger one time
expenses ; and the High Country Anglers' account. With the
exception of $2,382.68, which Richard deposited into the household
account, all sums deposited into the household account and the
large expenditure account came from distributions from the Jennifer
Smith Trust.
The parties purchased a residence in Bozeman in November 1986.
The purchase price was $99,900, and Jennifer contributed $50,000 in
cash from her revocable trust. The balance was paid with a $50,000
loan from the Alma Decker Trust. The monthly loan payments were to
be paid equally by Richard and Jennifer. Based upon the original
contributions and the parties' agreement, Jennifer received 75%
ownership interest, and Richard received 25% ownership interest.
Richard never paid his one half of the monthly loan payment.
Beginning December 1986, the loan payment has been made by the
Jennifer Smith Trust. In addition, Jennifer expended over $65,000
on home improvements, maintenance, and taxes on the home from her
revocable trust.
Jennifer filed a petition for dissolution on June 4, 1992, and
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the parties separated in September 1992. The parties resolved the
issues of custody and visitation concerning the child born of the
marriage, and an order governing these issues was entered June 2,
1993. This order is not disputed on appeal. The parties disagreed
however, over the distribution of the marital estate, and went to
trial on this issue on November 18-19, 1993. The District Court
issued its Findings of Fact and Conclusions of Law on December 20,
1993, and concluded that Richard was not entitled to any interest
in any of Jennifer's pre-marital gifted and inherited property
because he failed to demonstrate that he enhanced or increased the
value of the property during the marriage. The court awarded each
party their own vehicle, their own household furnishings, and
personal effects. The court awarded Richard the stock of High
County Anglers, and a drift boat and trailer. The court awarded
Jennifer the marital residence, and ordered her to pay Richard
$10,055 for his 25% equity interest in the home. Richard appeals
from this judgment. Additional facts will be added as is necessary
for the discussion of the issues.
DISTRIBUTION OF THE MARITAL ESTATE
The distribution of marital property in a dissolution action
is governed by 5 40-4-202, MCA. Under this statute, the district
court is vested with broad discretion to distribute the marital
estate in a manner which is equitable to each party according to
the circumstances of the case. In re Marriage of Maedje (1994),
263 Mont. 262, 265, 868 P.2d 580, 582. This Court's standard of
review in marital property distribution cases is whether the
district court's findings of fact are clearly erroneous. If
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substantial credible evidence supports the court's findings and
judgment, we will not change the trial court's decision unless the
court abused its discretion. Maedie, 868 P.2d at 583.
Richard presents several arguments which all essentially
contend that the trial court's distribution of the marital estate
was clearly erroneous because the court failed to award him any
portion of Jennifer's gifted or inherited property, and failed to
award him maintenance. However, after considering the record, we
do not find that the court abused its discretion.
Section 40-4-202, MCA, provides that in dividing marital
property a court may equitably apportion the parties' property and
assets "belonging to either or both, however and whenever
acquired." In distributing pre-marital property or its increased
value, property acquired by gift, or inheritance, the court must
consider the contributions of the non-acquiring spouse. The court
must consider:
IFI; t:;enonmonetary contribution of a homemaker;
extent to which such contributions have
facilitated the maintenance of this property; and
(c) whether or not the property division serves as an
alternative to maintenance arrangements.
Section 40-4-202, MCA.
Because the District Court concluded that Richard was not
entitled to any of Jennifer's pre-marital property, it had to find
that he "made no contribution" to justify the court's distribution
as equitable. Marriage of Turner (19831, 206 Mont. 292, 295, 670
P.2d 568, 570. In regards the two trusts, the court found that
Richard' had failed to demonstrate that his actions in any way
maintained or increased the value of the corpus of the trusts. The
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awards is whether the district court's findings are clearly
erroneous. Citing, In re Marriage of Eschenbacher (1992), 253
Mont. 139, 142, 831 P.2d 1353, 1355.
Richard argues that even though he did not request
maintenance, the court is required to consider an award of
maintenance pursuant to 5 40-4-202(1)(c), MCA. We will not reach
the merits of this argument, because the facts of this case
demonstrate that Richard is able to support himself through
appropriate employment, and is therefore not entitled to an award
of maintenance. Section 40-4-203(l) (b), MCA.
According to § 40-4-203(l), MCA, the court may award
maintenance if a spouse:
(a) lacks sufficient property to provide for his
reasonable needs; &
(b) is unable to support himself through appropriate
employment . . . [Emphasis added.]
The trial court found that Richard was 43 years old, in good
health, has two college degrees, both obtained before the marriage,
had been self-supporting before the marriage, had worked as
Regional Vice President for Dan Bailey's, Inc. from 1989-1990, iS
talented and well respected in the fly fishing industry, and is
presently employed as a clerk at Master's Anglers in Livingston
earning approximately $18,000 a year. After a review of these
findings, we conclude that Richard failed to meet the requirements
of the statute because they indicate he is able to support himself
through appropriate employment. Accordingly, we conclude that the
District Court's findings were not clearly erroneous, and affirm
the court's ruling concerning maintenance.
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GENDER BIAS
Richard argues that the court treated Richard differently "by
virtue of his gender." He contends that because he was a male
engaged in the non-traditional role of homemaker and caretaker, the
court failed to give credit to his nonmonetary contributions. We
find these allegations insupportable. The record is simply devoid
of any evidence that the court treated Richard differently
according to his gender.
As stated above, 5 40-4-202, MCA, requires the district court
to equitably distribute the marital property, and in distributing
pre-marital property, inherited property, or property acquired by
gift, the court must consider the non-acquiring spouse's
nonmonetary contributions. Here, the majority of the assets
consisted of Jennifer's trusts, or property acquired with money
from the trusts, and there is no evidence that Richard's
nonmonetary contributions substantially enhanced or helped to
maintain Jennifer's pre-marital assets. Therefore, the court was
correct in awarding that property to Jennifer. The court made its
property distribution award based upon the mandates of § 40-4-202,
MCA, and not upon gender stereotyping as Richard contends. Had
gender been reversed in this case, the result would have been the
same. Accordingly, we conclude that this argument is without merit.
DISCOVERY
Jennifer filed the Petition for Dissolution on June 4, 1992.
On August 20, 1992, the District Court issued a discovery order,
directing the parties to complete all discovery by December 19,
1992, and set a pretrial conference for January 25, 1993. On
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January 25, 1993, Richard requested that, the pretrial conference
be continued. In the order extending the date of the pretrial
conference, the court noted that "the motion is silent on whether
discovery is complete . . . or whether this request also includes
a request to reopen discovery . . .'I The court directed counsel
to advise the court concerning the status of discovery, however,
neither party so advised the court, or filed a formal motion to
reopen discovery. In May 1993, Richard sent general discovery
requests to Jennifer without seeking the court's permission.
Jennifer objected to the requests and the District Court scheduled
a hearing on the matter. After considering the parties' arguments,
the court ordered that discovery was closed, thereby sustaining
Jennifer's objection. Richard claims the court erred in failing to
grant him additional discovery time.
We review District Court rulings concerning granting or
denying discovery for abuse of discretion. In re Marriage of Caras
(1994), 263 Mont. 377, 384, 868 P.2d 615, 619. "Control over
pretrial discovery is best exercised by the District Court which is
in a better position than this Court to supervise the day to day
operations of pretrial discovery." State ex rel. Guar. Ins. v.
District Court (1981), 194 Mont. 64, 68, 634 P.2d 648, 650.
Rule 16, M.R.Civ.P., governs court established scheduling
orders. According to Rule 16(b), M.R.Civ.P., "[al schedule shall
not be modified except by leave of the judge upon a showing of good
cause. I' Here, the trial court allowed the parties approximately
six months to complete discovery. During this time, Richard never
moved to extend the discovery deadline date. After the discovery
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deadline date had passed, Richard failed to formally advise the
court of the status of discovery, or move to reopen discovery.
Accordingly, we conclude, that Richard failed to demonstrate he had
good cause to modify the discovery order, and hold that the
District Court did not abuse its discretion in adhering to its
discovery order.
AFFIRMED.
We Concur:
Chief Justice
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