NO. 95279
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
IN RE THE MARRIAGE OF
ADRIAN G. WALLS a/k/a A.G.
WALLS and/or JOE WALLS,
Petitioner and Respondent,
and
MARILLEN WALLS, @-J I 8 19%
APPEAL FROM: District Court of the Ninth Judicial District,
In and for the County of Toole,
The Honorable R.D. McPhillips, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
1.
Joan Meyer Nye, Nye & Meyer, Billings, Montana
For Respondent:
Don LaBar, Church, Harris, Johnson &Williams, Great
Falls, Montana
Submitted on Briefs: July 25, 1996
Decided: October 18, 1996
Filed:
Justice William E. Hunt, Sr. delivered the Opinion of the Court.
Appellant Marillen Walls (Marillen) appeals the decision of
the Ninth Judicial District Court, Toole County, dissolving her
marriage to Respondent Adrian G. Wells (Joe) and dividing the
marital estate. We affirm.
ISSUES
The following issues are dispositive of this appeal:
1. Did the District Court's err in its valuation of the
marital estate?
2. Did the District Court's err in its distribution of
marital property and debts?
3. Did the District Court err by denying maintenance to
Marillen?
4. Did the District Court err by denying attorney's fees to
Marillen?
5. Did the District Court err by substantively adopting Joe's
proposed findings of fact?
FACTS
Joe and Marillen were married in 1983. They separated in 1991
and divorced in 1994. No children were born of the marriage,
although each party has a minor son from a former marriage. At the
time of the divorce, Joe was 66 and Marillen was 34. Before and
during the marriage, Joe worked in the oil and gas business,
managing his own corporation, A & G Drilling, as well as his other
oil and gas interests. Marillen did not work outside of the home
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during the marriage, except to occasionally run an errand for ~oels
business.
When Joe and Marillen were married, Joe's oil and gas
interests were valued at in excess of $2 million. At the time of
the divorce, the oil and gas interests had decreased in value to
between $500,000 and $l,OOO,OOO. In dividing the marital property,
the District Court awarded the entirety of these interests to Joe,
but also made Joe responsible for all debts attendant to them.
Marillen was awarded her car, jewelry, furniture, clothing, and
various bank accounts. Marillen appeals this division of the
marital estate.
STANDARD OF REVIEW
The standard of review of a district court's division of
marital property is whether the court's findings of fact are
clearly erroneous. In re Marriage of Hogstad (1996), 275 Mont.
489, 496, 914 P.2d 584, 588. If substantial credible evidence
supports the district court's judgment, it will not be disturbed
absent an abuse of discretion. Hoqstad, 914 P.2d at 588; 1n re
Marriage of Meeks (Mont. 1996), 915 P.2d 831, 834, 53 St.Rep. 365,
366.
Further, the district court has broad discretion in
determining the value of property in a dissolution. It may adopt
any reasonable valuation of marital property which is supported by
the record, and its findings regarding property valuation will not
be disturbed unless clearly erroneous. Meeks, 915 P.2d at 835
(quoting In re Marriage of Robinson (1994), 269 Mont. 293, 888 P.2d
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895) . In dividing a marital estate, the district court must reach
an equitable distribution, not necessarily an equal distribution.
In re Marriage of Barker (1994), 264 Mont. 110, 114, 870 P.2d 86,
88 (citing In re Marriage of Shelton (1986), 219 Mont. 456, 712
P.2d 782).
DISCUSSION
1. Did the District Court err in its valuation of the marital
estate?
Marillen alleges that the District Court erred in its
valuation of the marital estate because the court failed to
determine the net worth of the marital assets at or near the time
of the dissolution. Instead, the District Court valued the assets
given to Joe at the time of trial but valued the assets given to
Marillen at the time of separation.
Generally, a district court must determine the net value of
the marital estate at or near the time of dissolution, prior to
dividing the property. In re Marriage of Lippert (1981), 192 Mont.
222, 627 P.2d 1206; In re Marriage of Stephenson (1989), 237 Mont.
157, 772 P.2d 846. However, this Court has recognized that "under
[some] circumstances, selection of a single evaluation point for
determining net worth of the parties could create an inequitable
disposition." Lippert, 627 P.2d at 1208. A net valuation by the
district court therefore is not always mandatory. Rather, "the
test is whether the findings as a whole are sufficient to determine
the net worth and to decide whether the distribution is equitable."
Stephenson, 772 P.2d at 848 (citing In re Marriage of Nunnally
(1981), 192 Mont. 24, 625 P.2d 1159).
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1n this case, several assets last known to be in Marillen's
possession had disappeared,by the time of trial. In particular,
Marillen claimed that two diamond rings, other jewelry, and a large
amount of cash were stolen from her car during the time the parties
were separated. The District Court valued these missing assets at
close to $30,000 and charged their loss against Marillen's share of
the estate. It found that, if these items were in fact stolen, the
loss resulted from her negligence and carelessness in keeping such
items in her car. In effect, the District Court determined that
Marillen had dissipated this part of the estate. Such dissipation
can justify a district court's selection of separate valuation
dates for the estates of the respective parties. In re Marriage of
Hurley (19861, 222 Mont. 287, 297, 721 P.2d 1279, 1286.
Marillen also disputes the inclusion of $5000 in her share of
the estate, when she had used that money to pay a retainer to her
attorney prior to trial. Again, the District Court found that such
payment was properly charged to Marillen as an expense incurred on
her behalf during the separation. For this reason, it valued the
asset as if it were still in her possession. Under the facts of
this case, the valuation of the parties' assets at different times
was not an abuse of discretion.
2. Did the District Court err in its distribution of marital
property and debts?
Marillen also disputes the District Court's apportionment of
the marital estate. As noted above, the District Court allotted to
Joe all of the oil and gas interests, which are, at least in
theory, income-producing, as well as the debts associated
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therewith. At the same time, the District Court allotted to
Marillen the household furnishings, her car, her clothing and her
jewelry. Marillen asserts that it was clearly erroneous for the
court to divide the marital estate in this manner. Specifically,
she asserts that the District Court erred in awarding all the oil
and gas interests to Joe.
Section 40-4-202(l), MCA, provides in part:
In dividing property acquired prior to the
marriage . . . the court shall consider those
contributions of the other spouse to the marriage,
including:
(a) the nonmonetary contribution of a homemaker;
(b) the 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.
In this case, the oil and gas business was owned and operated by
Joe prior to the marriage. While some of the specific interests
were sold and others acquired during the marriage, the business as
a whole did not change, and it continued to be managed solely by
Joe throughout the marriage. In considering the factors listed in
§ 40-4-202(l), MCA, the District Court found that, while Marillen
had made limited contributions as a homemaker, her contributions
had not facilitated the maintenance of the oil and gas interests.
Moreover, the division of the marital estate in this case was
premised not only on the fact that Joe brought the oil and gas
interests into the marriage, but also on the recognition that those
interests carry substantial debts and have decreased in value
significantly during the time of the marriage. At the time of the
marriage, Joe's net worth exceeded $2 million. Because of the
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depression in the oil and gas industry, Joe's net worth at trial
had decreased to between $500,000 and $l,OOO,OOO. This net worth
reflected over $350,000 in debts attendant to the business, but did
not include the future expense of plugging the depleted wells,
which the District Court estimated would cost well over $l,OOO,OOO.
In this case, the District Court chose to return the parties
to the approximate positions they occupied before the marriage.
While such a result is not required, it is permissible if the
resulting apportionment is equitable. In re Marriage of White
(1985), 218 Mont. 343, 345, 708 P.2d 267, 269. When, as here, the
marriage was of relatively short duration and the husband's net
worth has significantly decreased, such a division is not
inequitable. ___, e.g.,
See Inre Marriage of Turbes (1988), 234 Mont.
152, 762 P.2d 237. Given that Joe's business interests predate the
marriage, have decreased in value during the marriage, and were not
facilitated or maintained by Marillen, the District Court's
division of the marital estate was an equitable one.
3. Did the District Court err by denying maintenance to
Marillen?
Marillen next alleges that the District Court erred by denying
her request for maintenance. She contends that the District
Court's finding that she is able to support herself through
appropriate employment is clearly erroneous
Section 40-4-203(l), MCA, provides in part:
In a proceeding for dissolution of marriage or legal
s e p a r a t i o n the court may grant a maintenance order
for either spouse only if it finds that the spouse
seeking maintenance:
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(a) lacks sufficient property to provide for his
reasonable needs; and
(b) is unable to support himself through appropriate
employment or is the custodian of a child whose condition
or circumstances make it appropriate that the custodian
not be required to seek employment outside the home.
In this case, the District Court determined that Marillen was able
to support herself through appropriate employment. It found that
she is relatively young and in good health, while Joe is retired
and unable to meet his own expenses because of a monthly loan
payment exceeding $5000. Further, it noted that Marillen has
secured work as a waitress and should be able to meet her own
monthly expenses without an award of maintenance. These findings
were supported by the evidence presented and are not clearly
erroneous.
4 . Did the District Court err by denying attorney's fees to
Marillen?
Marillen claims that the District Court erred by denying her
claim of attorney's fees. Section 40-4-110, MCA, provides:
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 attorney, who may enforce the order in
his name.
This statute is discretionary; while it allows the District Court
to award attorney fees if warranted, it does not mandate such a
result. A district court's determination regarding attorney's fees
will not be disturbed in the absence of an abuse of discretion. In
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re Marriage of Sullivan (1993), 258 Mont. 531, 540, 853 P.2d 1194,
1200.
Here, the District Court awarded Marillen assets totalling
over $65,000. While the majority of premarital assets were awarded
to Joe, the disproportionate nature of the property division does
not automatically entitle Marillen to attorney's fees. The
District Court found that Marillen had the financial ability to pay
her own fees. Given the value of the property she was awarded,
this determination was not an abuse of discretion.
5. Did the District Court err by substantively adopting Joe's
proposed findings of fact?
The District Court adopted many of Joe's proposed findings of
fact and conclusions of law as its own in this case. Marillen
asserts this adoption was error.
As we have repeatedly noted, adoption of one party's proposed
findings and conclusions is not in itself grounds for reversal. In
re Marriage of Stufft (Mont.19961, 916 P.2d 767, 769, 53 St.Rep.
467, 467-68 (citing In re Marriage of Purdy (1988), 234 Mont. 502,
764 P.2d 857). If proposed findings and conclusions are adopted by
the court, they become the court's own and, as such, are reviewed
for clear error and correctness of law. Stufft, 916 P.2d at 769
(citing Daines v. Knight (1995), 269 Mont 320, 888 P.2d 904; and
Kreger v. Francis (1995), 271 Mont. 444, 898 P.2d 672). Here, we
have reviewed the District Court's findings of fact and judge that
they are supported by the ,record and are not otherwise clearly
erroneous.
A thorough review of the record in this case reveals no
reversible error. The decision of the District Court is affirmed.
Justices
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