No. 94-212
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
IN RE THE MARRIAGE OF
KAY McLAIN,
Petitioner and Respondent, FE13 ? 4 19%
and
WALTER McLAIN,
Respondent and Appellant.
APPEAL FROM: District Court of the Twelfth Judicial District,
In and for the County of Hill,
The Honorable John Warner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Antonia P. Marra, Bell & Marra, Great Falls,
Montana
For Respondent:
E. Lee LeVeque, Conklin, Nybo, LeVeque and
Murphy, Great Falls, Montana
Submitted on Briefs: January 19, 1995
Decided: February 14, 1995
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Walter McLain appeals from the property distribution entered
by the District Court for the Twelfth Judicial District, Hill
County, in this dissolution of marriage. We reverse and remand.
The issue, which has been conceded by Kay McLain, is whether
the court erred in including in the marital estate assets which
were not marital property.
The assets at issue are a tractor and a computer. The parties
agreed these items were assets of their corporate car wash business
and were not marital assets subject to distribution. The court
ordered that the car wash business be "disposed of and any profit
or loss divided 50% to each of the parties." Nevertheless, the
court also distributed to Walter McLain the tractor and the
computer and included their value in his share of the marital
estate.
The tractor and the computer belonged to neither Walter nor
Kay and were not part of the marital estate subject to distribution
under § 40-4-202, MCA. This case is remanded to the District Court
for recalculation of an equitable division of the marital estate.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of the Supreme Court and by a report of its result
to the State Reporter and West Publishing Company.
Chief Justice