NO. 95-258
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
IN RE THE MARRIAGE OF
MARTIN PAUL GRIFFIN,
Petitioner, Respondent and
Cross-Appellant,
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NANCY LIEN GRIFFIN, ,.., 3, I
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APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Beaverhead,
The Honorable Ed P. McLean, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Edmund P. Sedivy, Jr.; Morrow, Sedivy & Bennett,
Bozeman, Montana
For Respondent:
John S. Warren; Schulz, Davis & Warren, Dillon,
Montana
Submitted on Briefs: December 21, 1995
~ ~ ~ i d ~ d : 17, 1996
January
Filed:
Justice W. William Leaphart delivered the Opinion of the Court.
Nancy Lien Griffin appeals, and Martin Griffin cross-appeals,
from the June 16, 1994, Findings of Fact, Conclusions of Law and
Partial Judgment and the December 2, 1994, Order and Final Judgment
of the Fifth Judicial District Court, Beaverhead County, regarding
the distribution and valuation of the marital estate, a business
owned by the parties, and child support. We affirm in part,
reverse in part, and remand.
We consider the following issues on appeal:
1. Did the District Court err in making its determination of
the option purchase price set for the parties' business?
2. Did the District Court err in granting Nancy a new option
to purchase the parties' business?
3. Did the District Court err in not ordering Martin to
return the vacation pay?
4. Did the District Court err in its determination of back
child support?
5. Did the District Court err in allowing certain items of
personal property to remain in Martin's possession?
6. Did the District Court err in determining that Martin did
not have to indemnify Nancy with regard to two claims asserted
against the parties' business?
7. Did the District Court err in requiring Martin to return
the condemnation proceeds he received from the State of Montana to
the parties' business?
Martin Griffin (Martin) and Nancy Lien Griffin (Nancy) were
married on February 4, 1978. Four children were born of the
marriage. During their marriage, the parties established and
operated the Madison Lumber Company (MLC). The parties' marriage
was dissolved in 1991 and Martin and Nancy were granted joint
custody of the children, with Nancy designated as the primary
residential custodian. In the Decree, Martin was awarded MLC while
Nancy was granted a 180-day option to purchase MLC. Both parties
appealed from the District Court's determination. In re Marriage
of Griffin (l993), 260 Mont. 124, 860 P . 2 d 78. This is the
parties' second appeal arising out issues raised in their
dissolution of marriage. In the first appeal, we remanded the case
to the District Court for findings regarding the option contract to
purchase MLC, a determination of child support due under the
Uniform Child Support Guidelines, and valuation of certain items in
the marital estate. Marriase of Griffin, 860 P.2d at 84-86. A
complete discussion of the facts underlying this dispute is set
forth in this Court's opinion in the first appeal, Marriaqe of
Griffin, 860 P.2d at 80-84.
Following the first appeal, on remand, Nancy filed a motion
for summary judgment attempting to exercise her option to purchase
MLC. The District Court denied her motion and set the matter for
a hearing on April 26, 1994. After hearing testimony from a
business appraiser, the District Court entered its Findings of
Fact, Conclusions of Law and Partial Order on June 16, 1994. The
District Court determined that Nancy should have the opportunity to
purchase the business for $323,305. Nancy exercised her option to
purchase MLC and, on August 17, 1994, took control of MLC.
1. Did the District Court err in making its determination of
the option purchase price set for the parties' business?
Nancy alleges that the District Court made mathematical and
3
accounting errors in determining the $323,305 option price set for
MLC. However, we note that Nancy voluntarily exercised her option
to purchase MLC and paid the amount set by the District Court. In
exercising her option, she voluntarily complied with the District
Court's order. Where a party has voluntarily complied with a
judgment or court order, as Nancy did in exercising her option,
that party can be deemed to have waived objection to that aspect of
the judgment or court order. Turner v. Mountain Eng'g and Constr.,
No. 95-329, slip op. at 7 (Mont. Jan. 11, 1996) (citing State ex
rel. Hagerty v. Rafn (1956), 130 Mont. 554, 557-58, 304 P.2d 918,
920-21). In so complying, Nancy has waived her objection and
cannot now proceed inconsistently in pursuing an appeal as to the
option price. See Turner, No. 95-329, slip op. at 11 (Mont. Jan.
11, 1996) (citing Martin Dev. Co. v. Keeney Co. (1985), 216 Mont.
212, 220, 703 P.2d 143, 147-48). If Nancy objected to the
valuation of MLC, she should not have exercised her option to
purchase MLC based upon that valuation. In paying the amount set
by the District Court, Nancy negated any alleged error in the
valuation of MLC. Turner, No. 95-329, slip op. at 6 (Mont. Jan.
11, 1996) (citing Gates v. Deukmejian (9th Cir. 19931, 987 F.2d
1392, 1408). That is, she is deemed to have waived any objection
to the option price. Accordingly, we do not consider the merits of
Nancy's argument that the District Court over-valued MLC.
2. Did the District Court err in granting Nancy a new option
to purchase the parties' business?
In his cross-appeal, Martin alleges that the District Court
erred in granting Nancy a new option to purchase MLC. Based on the
4
foregoing reasoning, Martin can also be said to have waived any
objection to the option contract when he allowed the transaction to
proceed. Turner, No. 95-329, slip op. at 6 (Mont. Jan. 11, 1996).
Even assuming the District Court exceeded the scope of its
jurisdiction on remand, Martin waived any objection by not raising
this issue at the District Court. Instead, Martin accepted the
$323,305 and transferred his stock in MLC. Thus, we do not
consider whether the District Court abused its discretion in
granting Nancy a new option to purchase MLC
3. Did the District Court err in not ordering Martin to
return the vacation pay?
On August 1, 1994, just prior to Nancy's taking control of
MLC, Martin withdrew $3,000 from MLC which he argues he was
entitled to as vacation pay. Nancy asserts that Martin was not
authorized to make such a withdrawal from MLC and disburse it to
himself and, further, that the withdrawal was in violation of the
District Court's earlier order which required Martin to properly
manage MLC during the pendency of the proceedings. Nancy filed a
motion to declare Martin in contempt on September 6, 1994.
Evidence regarding the vacation pay issue was presented at a
hearing held on November 30, 1994. However, in its Order and Final
Judgment and Decree of December 2, 1994, the District Court made no
ruling regarding Martin's withdrawal of the $3,000 in vacation pay.
Thus, from the record, we are unable to determine whether the
District Court abused its discretion in not requiring Martin to
return the $3,000 of vacation pay. See In re Marriage of Smith
(1995), 270 Mont. 263, 267-68, 891 P.2d 522, 525. Accordingly, we
5
remand this issue to the District Court to determine whether Martin
was entitled to the vacation pay.
4. Did the District Court err in its determination of back
child support?
In reviewing a district court's award of child support, we
consider whether the district court abused its discretion. In re
Marriage of DeWitt (Mont. l995), 905 P.2d 1084, 1086, 52 St.Rep.
1089, 1090 (citing In re Marriage of Craib (1994), 266 Mont. 483,
490, 880 P.2d 1379, 1384). In the first appeal, we remanded the
issue of child support to the District Court to determine Martin's
child support obligation under the Uniform Child Support
Guidelines. Marriase of Griffin, 860 P.2d at 88. On remand, the
District Court referred the determination and calculation of child
support to Ann Steffens, a child support guidelines specialist with
Guidelines Consulting, ordering her to apply the guidelines and
submit her recommendation to the court.
Nancy now asserts that the amounts listed on MLC's financial
statements as "shareholder loans" should have been included in
Martin's income in computing the amount of child support due under
the guidelines. We agree. The monies withdrawn as "shareholder
loans" from MLC, along with materials taken from MLC's inventory,
were taken for Martin's personal use. Thus, these amounts should
have been included in Martin's gross income for purposes of
computing his child support obligation. We note that income
includes "expense reimbursements or in-kind payments received by
the parent in the course of self-employment or operation of a
business if such reimbursements or in-kind payments reduce personal
6
living expenses." 46.30.1508 (b), ARM.
(1) Accordingly, the full
amounts of the "shareholder loans" and materials taken from MLC
inventory should have been listed as other income on Martin's child
support worksheets. We remand for a determination of the child
support due when all of Martin's income, including the shareholder
loans and materials taken from MLC, is included in the computation.
5. Did the District Court err in allowing certain items of
personal property to remain in Martin's possession?
The standard of review of a district court's division of
marital property is whether the district court's findings of fact
are clearly erroneous. Marriaqe of DeWitt, 905 P.2d at 1087
(citing Marriase of Smith, 891 P.2d at 525); In re Marriage of
McLean (1993), 257 Mont. 55, 61, 849 P.2d 1012, 1015. Where
substantial credible evidence supports the court's findings and
judgment, this Court will not alter the district court's decision
unless there is an abuse of discretion. In re Marriage of Maedje
(1994), 263 Mont. 262, 266, 868 P.2d 580, 583.
In the original Findings of Fact and Conclusions of Law, dated
November 14, 1991, Nancy was awarded the "contents of the family
home" listed at a value of $20,290. In this appeal, Nancy asserts
that the award was to include certain items of property, namely: an
acoustic guitar, stationary bicycle, raft, mountain bike,
children's ski gear, cabinets, and a stereo system. Martin
counters that at the time of the 1991 order and decree that these
items were not located at the family home, rather, they were in his
possession or at a condominium located at Big Sky, Montana. Nancy
7
values this property at $8,100, however, from the record it is not
clear whether that was the value of the property in 1991 or at the
time of the hearing. The District Court noted that most of the
items at issue were of inconsequential value. Essentially, Nancy
argues that she has not received $8,100 of the $20,290 in property
that she was awarded. Martin asserts that these items were not
"contents of the family home," and, alternatively, that the
distribution of the marital property was equitable.
We note that the district court has broad discretion in
distributing the marital assets and this Court will not disturb an
equitable apportionment of the marital assets when it is clear that
the district court was acting within its discretion. 1n re
Marriage of Danelson (1992), 253 Mont. 310, 319, 833 P.2d 215, 221.
Here, the District Court ordered that the children's ski gear
should be delivered to the children, however, the court did not
compel Martin to return the remainder of the items to Nancy.
Finally, we note that in Nancy's original proposal for distributing
the marital estate, Martin would have been awarded each of the
items now at issue. From the record it is clear that the District
Court was acting within its discretion and the distribution of the
marital estate was not clearly erroneous.
6. Did the District Court err in determining that Martin did
not have to indemnify Nancy with regard to two claims asserted
against the parties' business?
At the time Nancy exercised her option to purchase MLC, one
lawsuit was pending against MLC and a second suit was filed on
November 16, 1994. Both suits arise out of events that occurred
while Martin was in control of MLC. Nancy argues that these
contingent liabilities were not considered in the appraisals of MLC
and, as a result, MLC was overvalued. The first suit sought
$20,035, however, it has now been dismissed with prejudice. The
second suit seeks $27,850 plus interest and attorney's fees.
In its Final Judgment and Decree of December 2, 1994, the
District Court stated "[slhould any judgments be rendered against
Madison Lumber Company in those two suits, such judgments are valid
liabilities against the Company, and Nancy purchased the Company's
liabilities as well as its assets." We agree with the District
Court. In any event, we note that the first claim has been
dismissed with prejudice. Based upon the evidence before the
District Court, it was within the court's broad discretion to deny
Nancy's motion for indemnification. As the District Court noted,
Nancy purchased the assets of the corporation as well as its
liabilities.
7. Did the District Court err in requiring Martin to return
the condemnation proceeds he received from the State of Montana to
the parties' business?
In reviewing a district court's findings of fact, we determine
whether the findings are clearly erroneous. Daines v. Knight
(1995), 269 Mont. 320, 324, 888 P.2d 904, 906 (citing Columbia
Grain Int'l v. Cereck (1993), 258 Mont. 414, 417, 852 P.2d 676,
678) . We have adopted a three-part test to determine whether
findings are clearly erroneous. Interstate Prod. Credit Ass'n v.
DeSaye (1991), 250 Mont. 320, 3 2 3 , 820 P.2d 1285, 1287. The test
provides that: (1) the Court will determine whether the findings
are supported by substantial evidence; (2) if the findings are
supported by substantial evidence, the Court will determine if the
district court has misapprehended the evidence; and (3) if the
findings are supported by substantial evidence and that evidence
has not been misapprehended, this Court may still find that a
finding is "clearly erroneous when, although there is evidence to
support it, a review of the record leaves the court with the
definite and firm conviction that a mistake has been committed."
DeSave, 820 P.2d at 1287 (citing United States v. United States
Gypsum Co. (1948), 333 U.S. 364, 68 S.Ct. 5 2 5 , 9 2 L.Ed. 746).
In 1992, the State of Montana condemned .14 acres of MLC's
land to widen a highway. MLC was paid $7,500 by the State for this
condemnation, a portion of the proceeds was allocated to the taking
of the .14 acres and the remainder was allocated to site
improvements, including a new gravel area and fence. However,
instead of depositing the $7,500 in an MLC account, Martin endorsed
the check and gave it to his father in partial payment for a motor
home that Martin had lived in for one and one-half years. Nancy
alleged that the condemnation proceeds were the property of MLC
and, as such, should be returned so that the visibility of and
access to MLC, which had been impaired by the widening of the
highway, could be restored. The District Court agreed, determining
that the proceeds were property of MLC and should be returned.
Substantial evidence supports the District Court's determination
that the condemnation proceeds should be returned to MLC.
Accordingly, we affirm the District Court on this issue.
Affirmed in part, reversed in part, and remanded for
proceedings consistent with this opinion.
W e concur: A
ccdz?- Justices