No
No. 98-643
IN THE SUPREME COURT OF THE STATE OF MONTANA
1999 MT 321
297 Mont. 290
994 P.2d 1
IN RE THE MARRIAGE OF
ROBERTA M. HALL HARPER,
Petitioner and Appellant,
v.
RONALD RAY HARPER,
Respondent and Respondent.
APPEAL FROM: District Court of the Seventh Judicial
District,
In and for the County of Richland,
The Honorable Richard G. Phillips, Judge presiding.
COUNSEL OF RECORD:
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For Appellant:
Diane E. Savage, Habedank, Cumming, Best & Savage, Sidney, Montana
For Respondent:
Peter O. Maltese, Sidney, Montana
Submitted on Briefs: May 13, 1999
Decided: December 22, 1999
Filed:
__________________________________________
Clerk
Justice William E. Hunt, Sr. delivered the Opinion of the Court.
1. ¶ Roberta M. Hall Harper (Bobbie) appeals from the Findings of Fact, Conclusions
of Law and Decree of Dissolution of the Seventh Judicial District Court, Richland
County, dissolving the marriage of Bobbie and Ronald Ray Harper (Ron) and
equitably dividing the parties' marital assets and debts. We affirm.
Issues Presented
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2. ¶ Bobbie raises three issues on appeal:
3. ¶ (1) Did the District Court err in refusing to award Bobbie an equitable portion of
the value of Ron's stock shares in the closely-held family corporation?
4. ¶ (2) Did the District Court abuse its discretion in refusing to award Bobbie
maintenance in lieu of marital property?
5. ¶ (3) Did the District Court abuse its discretion in refusing to award Bobbie the full
amount of her attorney's fees?
Factual and Procedural History
6. ¶ Ron and Bobbie were married on June 25, 1966. They remained married for nearly
32 years, residing for most of that time period in Sidney, Montana. At the time of
trial, Bobbie was 52 years old and Ron was 53. Ron and Bobbie have five children,
all of whom had attained the age of majority at the time of dissolution. Both parties
are of good health. Ron and Bobbie each have college educations.
7. ¶ Bobbie did not work outside of the family home for the first seven years of the
marriage, during which time she was exclusively a homemaker and cared for the
parties' children. Then, for a period of years, Bobbie worked part-time as an
assistant teacher and continued to function as a homemaker with the remainder of
her time. For about the past ten to twelve years, Bobbie has been employed full-time
as a teacher for the Sidney Senior High School. While Bobbie was employed part-
time or full-time, Ron contributed to child-rearing and maintaining the family home.
However, Bobbie testified that even when she was working full-time outside of the
family home, her "principal role was that of homemaker and caring for . . . [the]
children and the home."
8. ¶ At the time of trial, Bobbie earned $31,445 annually, grossing $2,853.12 and
netting $1,904.49 in monthly salary. Bobbie also receives medical insurance through
her teaching employment, although she contributes $59.82 a month towards the
health insurance premium. Bobbie's employer also makes monthly contributions to
the teachers' retirement program, and a total of $64,000 had been contributed to
Bobbie's retirement fund as of the date of dissolution.
9. ¶ At the time of trial, Ron had multiple sources of income, earning between $35,000
and $45,000 per year. Ron's earnings stem from his work as a real estate salesman
(approximately $10,000 per year), an appraiser (approximately $5,000 per year), a
real estate property manager (approximately $2,500 per year), an employee of the
family corporation performing cattle feeding and other ranching functions
(approximately $12,000 per year), rental income from commercial and residential
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real estate (approximately $7,000 per year), and other miscellaneous sources of
income. At the time of trial, Ron's net monthly income was approximately $2,500 to
$3,000, exclusive of gambling revenues.
10. ¶ Ron, as a shareholder of the Sub-Chapter S family corporation, the Sidney Oil
Company (Sidney Oil), also receives some annual dividend income. However, that
dividend income is passed through to the shareholders only in an amount necessary
to offset any personal income taxes owed by the shareholders, such that, following
the payment of taxes, Ron receives little to no additional income from the dividends.
Ron receives no health insurance or retirement benefits through his various modes
of employment, although he testified at trial that his stock shares in the family
corporation are a "form of retirement."
11. ¶ The District Court found that Ron and Bobbie possessed little property at the time
of marriage and, therefore, "that substantially all of the property [was] acquired by
the parties during the time of the marriage." In this respect, a hotly disputed property
interest is 935 shares of stock in Ron's name in the closely-held family corporation,
Sidney Oil, incorporated in 1977. Sidney Oil consists of a retail and wholesale
gasoline business, a mechanic's shop, and a farm and cattle ranching operation.
Originally, all of the corporate stock was owned by Ron's parents; the shareholders
are now Ron's parents, Ron, his two brothers, and a sister. Ron is a corporate vice-
president, and he functions in both a managerial and labor capacity with respect to
the corporation's cattle ranching operation, devoting a majority of his time every
year to such ranching activities. For his "contract services," Ron receives income "as
needed," rather than a set monthly salary.
12. ¶ Ron's parents began gifting him shares of stock in the family corporation
approximately ten years after the couple was married. The first gift of Sidney Oil
stock occurred on December 31, 1976, when Ron received sixty shares of stock.
Thereafter, Ron received an additional sixty shares of corporate stock from his
parents each succeeding year through 1980, by which time Ron had accumulated
300 shares of stock. There was then a hiatus in the gift-giving for roughly nine
years. In 1989, the gifting of stock resumed, and Ron continued to receive stock
gifts from his parents through 1996. Today, Ron owns 935 shares in Sidney Oil,
which constitutes 23.9% of the 3,900 issued and outstanding shares of the
corporation.
13. ¶ The District Court found and valued the real property interests of the parties as
follows: the family home ($113,500), a one-half interest in the Meridian Building
($38,500), the blue rental house ($30,000), two surveyed lots and adjoining acreage
($5,500), the Concrete Building ($10,000), and a one-fifth undivided interest in Big
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Sky Condo ($24,000). As to the parties' real estate, the court found that the
following marital debts exist: approximately $7,500 owed on the family home;
approximately $2,000 owed on the Concrete Building; and approximately $4,500
owed against the surveyed lots and acreage.
14. ¶ The District Court further found and valued the parties' personal property interests
as follows: 935 shares of Sidney Oil corporate stock, valued at $319,000 based
solely on the value of the underlying assets owned by the corporation; $64,000 in a
vested retirement pension in Bobbie's name in the Montana State Teachers’
Retirement System; and a negligible amount of savings, as well as miscellaneous
household furnishings, appliances, and personal property.
15. ¶ In equitably dividing the marital property, the District Court found that:
[I]t would be equitable to divide the property so that [Bobbie] receives the house
and all of her teachers' retirement fund together with the savings and such personal
property located in the house as she wishes to keep. All of the remainder of the
property, being the business real estate, undivided interest in the condominium and
the corporate stock, should be received by [Ron. Bobbie] should be responsible for
payment of her credit card debt and doctor bills. [Ron] should be responsible for
payment of the debt owed against the personal residence, any debt owed against the
property he is receiving and any of his personal debts, including any alleged debts
owed to Sidney Oil Company, Inc.
16. ¶ Thus, although the District Court found that "the parties own 935 shares of . . .
corporate stock which has a value of approximately $319,000 based solely on the
value of assets owned," it declined to award Bobbie any share of the value of Ron's
stock shares in the family corporation. The court reasoned thus:
In determining the distribution of property, the Court considers that the house has
significant value. However, it is not an income-producing property; [Bobbie],
through her labors, has earned the retirement benefits of the teacher's retirement
fund; that the stock certificates in Sidney Oil Company, Inc. were gifted to [Ron]
and not to [Bobbie and Ron] jointly; that [Bobbie] has had no involvement in the
corporation nor is there any evidence that her work, either as a teacher or as a
homemaker and mother, has contributed in any significant fashion to an increase in
value of the Sidney Oil Company, Inc. stock; that the other real estate (except for
the condo unit) are income-generating properties upon which [Ron] relies to earn his
living while [Bobbie] has a full-time teaching job upon which she relies to earn her
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living; that [Ron's] past income appears to have been greater than the income of
[Bobbie], and so it is equitable that he should pay off the remaining debt against the
personal residence . . . .
In its dissolution decree, the District Court also awarded Bobbie $3,500 in attorney's
fees, $2,500 of which was intended to cover the costs incurred by Bobbie in forcing
Ron to comply with discovery requests during trial.
Standard of Review
17. ¶ In assessing an equitable apportionment of the marital estate, this Court reviews a
district court's findings of fact to determine whether the findings on which the court
relied are clearly erroneous. In re Marriage of Stufft (1996), 276 Mont. 454, 459,
916 P.2d 767, 770. We review a trial court's conclusion of law relating to the
division of marital property to determine whether those conclusions are correct. In
re Marriage of DeCosse (1997), 282 Mont. 212, 217, 936 P.2d 821, 824.
Notwithstanding the foregoing standards of review,
this Court is not in any way discounting the considerable discretionary power that
must be exercised by district courts in these cases. The courts are obligated to
fashion a distribution which is equitable to each party under the circumstances. In re
Marriage of Jones (1987), 229 Mont. 128, 745 P.2d 350; § 40_4_202, MCA. The
courts, working in equity, must seek a fair distribution of the marital property using
reasonable judgment and relying on common sense. Obtaining this equitable
distribution will at times require the lower court to engage in discretionary action
which cannot be accurately categorized as either a finding of fact or a conclusion of
law. These discretionary judgments made by the trial court are presumed to be
correct and will not be disturbed by this Court absent an abuse of discretion by the
lower court. Meridian Minerals v. Nicor Minerals, Inc. (1987), 228 Mont. 274, 742
P.2d 456.
In re Marriage of Danelson (1992), 253 Mont. 310, 317, 833 P.2d 215, 219-20.
18. ¶ In short, "it is not the function of this Court to conduct de novo determinations of
equity." In re Marriage of Luisi (1988), 232 Mont. 243, 246, 756 P.2d 456, 458.
Therefore, if the findings are supported by substantial credible evidence, we will
affirm the district court unless the court abused its discretion in equitably dividing
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the marital estate. In re Marriage of Hogstad (1996), 275 Mont. 489, 496, 914 P.2d
584, 588. Other standards of review will be set forth as necessary.
Discussion
19. ¶ (1) Did the District Court err in refusing to award Bobbie an equitable portion of
the value of Ron's stock shares in the closely-held family corporation?
20. ¶ In the dissolution decree, the District Court found that all of the 935 shares of
Sidney Oil stock owned in Ron's name were acquired during the course of the
parties' 32-year marriage by periodic parental gifting. However, the court declined
to include Ron's stock shares in the marital estate, finding that Bobbie had not been
involved in the day-to-day operations of the family corporation, and that her role as
a "teacher or as homemaker and mother" had not "contributed in any significant
fashion to an increase" in the stock's value.
21. ¶ Following issuance of the dissolution decree, Bobbie moved the District Court to
amend its decree. In part, Bobbie challenged the District Court's award of the
corporate stock to Ron, arguing that she should have been entitled to an equitable
share of the "asset value" of the corporate stock as marital property. The District
Court rejected her challenge:
While the Court agrees with [Bobbie] as to the value of the underlying assets of the
corporate stock . . . , the Court also considered that the corporate stock was gifted
property. . . . In this case the Court did consider [whether Bobbie made non-
monetary contributions to the marriage which facilitated the maintenance of the
corporate stock. Bobbie] in this case was not a ranch wife, and [Ron's] work for
Sidney Oil was only a part of his overall employment. [Ron's] employment for
Sidney Oil played no part in the stock acquisition as gifts were made to all the
children whether they worked for the corporation or not on a fairly equal basis, and
the ranch itself is only one part of the corporation’s business. Given all of these
contributing factors, the Court concluded that [Bobbie's] efforts had little or no
effect on maintenance and improvement of the value of the stock and, accordingly,
the Court did not consider the stock as a marital asset.
22. ¶ Bobbie contends that the District Court's finding that she did not contribute as a
homemaker and child-care provider to the maintenance of the stock value is clearly
erroneous because her contributions enabled Ron to devote the "bulk of his time" to
the cattle ranching operation of the family corporation, thus enabling him to not
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only maintain but increase the value of his stock shares. Bobbie maintains that this
error resulted in a "grossly inequitable" division of marital property.
23. ¶ In support of her position, Bobbie points to her testimony at trial:
I was the homemaker. I cared for the children, I cared for the house. . . . I didn't
work the first seven years or so. I cared for the first two children and worked part-
time with the last three and then worked full-time later, but my principal role was
that of a homemaker and caring for that part of the family, children and the home.
24. ¶ Bobbie further points to Ron's testimony at trial, which corroborates her
testimony:
Q: Throughout your marriage to Bobbie had you recognized that she contributed
throughout the marriage as homemaker, managed the house?
A: Yes.
Q: And throughout the marriage on a day-to-day basis until she taught and those
days of teaching that took her away from the hours at home, that primarily she was
the one at home on a twenty-four-hour-a-day basis with the children?
A: For that time period, yes.
25. ¶ At trial, Ron also testified that he put in "[a]pproximately twenty-five hundred
hours" to "thirty-five hundred hours per year" toward his duties for Sidney Oil. In
light of this testimony, Bobbie maintains that had she not been primarily attending
to the children all those years that Ron was putting in thousands of hours annually
for the family corporation, it would have been impossible for Ron to devote the
substantial time necessary to the successful management of his stock ownership
interest in Sidney Oil.
26. ¶ In essence, Bobbie claims that the District Court erroneously disregarded her
substantial nonmonetary contributions as a homemaker, and the extent to which
those contributions facilitated the maintenance of the value of Ron's stock shares.
Thus, Bobbie argues that she should be entitled to an equitable portion of the value
of that gifted interest. Section 40-4-202, MCA, sets forth the statutory guidelines for
equitable apportionment of marital property and provides in relevant part that:
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(1) In a proceeding for dissolution of a marriage, . . . the court, without regard to
marital misconduct, shall . . . finally equitably apportion between the parties the
property and assets belonging to either or both, however and whenever acquired and
whether the title thereto is in the name of the husband or wife or both. . . . In
dividing . . . property acquired by gift, . . . 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.
Section 40-4-202(1)(a), (b), (c), MCA.
27. ¶ This Court has recently clarified that:
[G]ifted property need not be included in the marital estate unless the nonacquiring
spouse contributed to its preservation or appreciation. In that event, we have held
that the nonacquiring spouse is entitled to an equitable share of the appreciated or
preserved value which is attributable to his or her efforts. [Emphasis added.]
In re Marriage of Engen, 1998 MT 153, ¶ 29, 289 Mont. 299, ¶ 29, 961 P.2d 738, ¶
29; see also In re Marriage of Foreman, 1999 MT 89, 294 Mont. 181, 979 P.2d 193.
28. ¶ Recognizing the foregoing rule, Bobbie claims on appeal that her contributions as
a homemaker actually increased the value of Ron's stock shares because those
siblings who work for the family corporation receive relatively greater gifts of stock
than those siblings who do not contribute their labor to Sidney Oil. Bobbie relies on
the testimony of Ron's brother Bill, the president of Sidney Oil, who stated that the
present family ownership of the corporation on the basis of stock shares is as
follows: Bill owns approximately 40%; Ron owns approximately 25%; the other
two siblings each own approximately 10%; and the parents own the remainder.
Bobbie reasons that the minimal monetary compensation that Ron receives relative
to the number of hours per year devoted to Sidney Oil (approximately $12,000 in
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annual salary for at least an estimated 2,500 hours of work) supports an inference
that the siblings employed by the family corporation receive a greater number of
shares in Sidney Oil than those siblings who do not work for the corporation.
Bobbie suggests that this pattern of "disparate gifting" is really a form of "deferred
compensation" or "future compensation" for the long hours that Ron devotes to the
family corporation and, thus, that her homemaking contributions effectively enabled
Ron to increase the number of Sidney Oil shares that he owns.
29. ¶ Bobbie relies on In re Marriage of Davies (1994), 266 Mont. 466, 880 P.2d 1368;
In re Marriage of Taylor (1993), 257 Mont. 122, 848 P.2d 478; and Larson v.
Larson (1982), 200 Mont. 134, 649 P.2d 1351. In Marriage of Davies, this Court
held that since there was substantial evidence that the wife had "spent 19 years
performing the duties generally associated with those of a ranch wife," she was
entitled to an equitable portion of the cash value of the husband's gifted and
inherited stock in two closely-held ranching corporations. Marriage of Davies, 266
Mont. at 476, 880 P.2d at 1374. We determine that Marriage of Davies is
distinguishable because, as Ron points out, the wife in that case was a classic "ranch
wife" who performed numerous tasks as a "ranch hand" in addition to her duties as a
homemaker. See Marriage of Davies, 266 Mont. at 474, 880 P.2d at 1373-74. The
District Court found that Bobbie did not perform any tasks associated with the cattle
ranching operation of Sidney Oil. Thus, she is not a "ranch wife" within the
meaning of Marriage of Davies.
30. ¶ In Marriage of Taylor, the husband had been gifted a minority shareholder interest
in a honey-producing family corporation. The husband worked "16 hour days, seven
days a week, in making the business a going concern." Marriage of Taylor, 257
Mont. at 126, 848 P.2d at 480. The trial court equitably divided the value of the
husband's honey business stock in its dissolution decree. On appeal, the husband
argued that the court erred in including any of the value of the stock in the marital
estate since he neither made any "monetary contributions to the stock, nor did he
facilitate the maintenance of the stock." As a result, the husband claimed that "it
would have been impossible for [the wife] to contribute to the value of the
stock . . . ." Marriage of Taylor, 257 Mont. at 126, 848 P.2d at 480. This Court
rejected the husband's contention:
[The wife's] contributions were of equal importance. She maintained the household
and took care of the children for 17½ years. The record reflects that on occasion she
also worked for the company. [The wife's] nonmonetary contributions as a
homemaker facilitated the maintenance of the honey business because [the husband]
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would not have been able to devote the considerable time and effort the business
required were it not for [the wife's] caring for the children and the home. [Emphasis
added.]
Marriage of Taylor, 257 Mont. at 126, 848 P.2d at 480.
31. ¶ In Larson, we employed similar reasoning in concluding that the trial court erred
in refusing to include the husband's "unified ranching operation" in the marital
estate. In that case, the husband managed the ranch while the wife "cared for the
children . . . and the home," as well as "occasionally help[ing] out with small ranch
chores and errands." Larson, 200 Mont. at 137, 649 P.2d at 1353. The trial court,
while finding that the wife "contributed 'services of a domestic nature' during the
marriage," refused to include the ranch property in the marital estate since the wife's
contributions to the marriage were not rendered in the ranch context. This Court
disagreed:
Though [the wife's] homemaking services and nonmonetary contributions may not
have been rendered in the ranch context, they nevertheless continued as [the wife]
had custody and primary responsibility for the physical and emotional needs of the
parties' minor children. This no doubt facilitated [the husband's] ability to maintain
his employment and ranch responsibilities as he was not required to take time from
these activities to ensure that the children’s basic needs were being met. [Emphasis
added.]
Larson, 200 Mont. at 141-42, 649 P.2d at 1355.
32. ¶ Bobbie argues that the same result as Marriage of Taylor and Larson should obtain
here, because her nonmonetary contributions as a homemaker enabled Ron to
devote a majority of his time to the cattle ranching operation of the Sidney Oil
enterprise without having to take time from his corporate duties to ensure that the
children’s basic needs were being met. We disagree. In both Marriage of Taylor and
Larson, the record showed that the wife had been responsible for raising the children
and maintaining the home, but there was no evidence that the husband had
contributed to or shared in these duties.
33. ¶ In contrast to Marriage of Taylor and Larson, the record in this case shows that
Bobbie was "primarily involved" in child-rearing during the parties' marriage,
especially during the first seven years of the couple's union when she did not work
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outside of the family home, but that Ron contributed significantly to homemaking
duties and the children’s upbringing later in the marriage when Bobbie entered the
workforce. While Ron did not dispute that child-rearing duties were never "split . . .
fifty-fifty" between the couple, he testified that he actively participated in the raising
of the parties' children over the years. Ron stated that this was particularly true once
Bobbie began to work outside of the family home, during which time he assumed
more significant child-rearing duties. Specifically, Ron testified that when Bobbie
began to teach full-time, the child-rearing "duties had to be split." Bobbie's
testimony, in turn, acknowledged that Ron "made contributions" to child-rearing.
34. ¶ As Ron points out, the first 300 of his 935 Sidney Oil shares were gifted between
1976 and 1980, when Bobbie was working outside of the family home on a part-
time basis and Ron began sharing in the parties' child-rearing duties; the remaining
two-thirds of Ron's shares were gifted from 1989 to 1996, during which time Bobbie
taught on a full-time basis and Ron assumed substantial child-rearing duties.
Notably, none of the stock shares were gifted to Ron during that period when
Bobbie was exclusively a homemaker; all of the stock shares were gifted when
Bobbie and Ron shared child-rearing duties, albeit not equally. Furthermore, there is
substantial evidence supporting the District Court's findings that Ron's work for
Sidney Oil was "only a part of his overall employment," and that the cattle ranching
operation constituted but a part of the corporate enterprise. Under these
circumstances, Bobbie's nonmonetary contributions as a homemaker cannot be said
to have enabled Ron to maintain the value of the stock. Thus, the "preserved value"
of the shares cannot be said to be "attributable to . . . her efforts." Marriage of
Engen, ¶ 29.
35. ¶ Nor do we agree with Bobbie that the record shows that she, as the nonacquiring
spouse, contributed to the "appreciation" of the stock's value. Marriage of Engen, ¶
29. This Court has made it " 'clear that speculation, conjecture, inference, or guess
do not constitute credible factual evidence.' " Marriage of Foreman, ¶ 37 (quoting In
re Marriage of Maedje (1994), 263 Mont. 262, 267, 868 P.2d 580, 584). While the
record might support an inference that gifting of stock was a form of "deferred" or
"future" compensation for Ron's labors, we cannot say, without more, that the
District Court's finding that the Sidney Oil stock was gifted to all the Harper
children "on a fairly equal basis" is clearly erroneous.
36. ¶ In evaluating whether preacquired or gifted property should be included in the
marital estate pursuant to § 40-4-202, MCA, a district court is required to consider
the contributions of the nonacquiring spouse, including the nonmonetary
contributions of a homemaker. Marriage of Davies, 266 Mont. at 473, 880 P.2d at
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1373. In this case, the District Court did just that. Moreover, it is important to keep
in mind that the statute vests a trial court with "far-reaching discretion to fashion 'a
fair distribution of the marital property using reasonable judgment and relying on
common sense.' " Marriage of Foreman, ¶ 23 (quoting In re Marriage of Rock
(1993), 257 Mont. 476, 480, 850 P.2d 296, 298; Marriage of Danelson, 253 Mont. at
317, 833 P.2d at 220); see also Marriage of Davies, 266 Mont. at 473, 880 P.2d at
1373 (the "statute grants the district court broad discretion"). Therefore, where the
nonmonetary contributions of a homemaker are found to have facilitated the
maintenance of preacquired or gifted property, the court "may" include that property
in the marital estate. Marriage of Davies, 266 Mont. at 473, 880 P.2d at 1373.
However, as we have noted, "[i]n the absence of a significant contribution on the
part of the non-acquiring spouse, the court remains free to exclude [gifted] assets or
property from the marital estate." Marriage of Luisi, 232 Mont. at 245, 756 P.2d at
458 (emphasis added).
37. ¶ The District Court's finding that Bobbie had not "contributed in any significant
fashion" to the stock's increase in value is supported by substantial credible evidence
in the record; nor is there any indication that the court misapprehended the effect of
the evidence or otherwise committed a mistake in making that finding. See Interstate
Production Credit Ass’n v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285,
1287 (setting forth a three-part test for determining whether a finding is clearly
erroneous). We hold that the District Court's findings of fact regarding Bobbie's
nonmonetary contributions as a homemaker are not clearly erroneous. We further
hold that the court properly applied § 40-4-202, MCA, and fairly concluded that the
value of Ron's gifted stock shares should not be included in the marital estate. In so
holding, it becomes unnecessary for this Court to address the parties' contentions
pertaining to the appropriate valuation of the stock.
38. ¶ In light of our conclusion that the District Court correctly excluded Ron's stock
from the marital estate, Bobbie's claim of a "grossly inequitable" property
distribution is baseless. In fact, once excluding the "asset value" of the shares from
the marital estate, it becomes apparent that Bobbie was granted a more favorable
property distribution than Ron. As Bobbie requested, the District Court granted her
the family home. The family home is an asset which, as the District Court noted,
"has significant value" even though it is "not an income-producing property." To
ensure that Bobbie would receive the full value of that asset, the court ordered that
Ron be responsible for the remaining $7,500 debt on the family home, and granted
Bobbie a "security interest" in Ron's Sidney Oil stock "to secure payment of the
residential debt in a timely fashion." The court allocated to Ron the remainder of the
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parties' real estate which, although "income-generating properties," are relied on in
part by Ron "to earn his living." The total value of the real estate allocated to Ron
($108,000) is nearly commensurate with the value of the family home awarded to
Bobbie ($113,500). And, in recognition of Ron's relatively greater historical earning
power, the District Court allocated nearly all of the parties' marital debt to Ron.
39. ¶ On balance, the property distribution was fair and equitable under the
circumstances. As noted previously, the discretionary judgments which a trial court
must make in equitably dividing a marital estate are entitled to a presumption of
correctness. See Marriage of Stufft, 276 Mont. at 459, 916 P.2d at 770. The test for
abuse of discretion in a marriage dissolution proceeding is whether the trial court
"acted arbitrarily without employment of conscientious judgment or exceeded the
bounds of reason resulting in substantial injustice." Marriage of Engen, ¶ 26. Bobbie
has simply failed to show that the District Court acted arbitrarily without
employment of conscientious judgment or exceeded the bounds of reason resulting
in substantial injustice to her. Thus, we hold that the District Court did not abuse its
discretion in equitably dividing the parties' marital estate.
40. ¶ (2) Did the District Court abuse its discretion in refusing to award Bobbie
maintenance in lieu of marital property?
41. ¶ Regarding maintenance, the District Court found as follows: "Since each of the
parties is gainfully employed and able to support himself or herself, the Court finds
that there is insufficient grounds upon which to base an award of maintenance."
Bobbie contends that if this Court declines to award her a share of the value of Ron's
Sidney Oil stock, then we should, in the alternative, hold that she is entitled to
maintenance since her monthly expenses substantially exceed her monthly income.
Ron counters that Bobbie's monthly expenses were shown through cross-
examination to be trumped-up estimates, rather than actual costs, and that he does
not have the financial ability to pay maintenance given the large debt that he
assumed under the District Court's dissolution decree.
42. ¶ Bobbie relies on Marriage of Luisi to argue that she should be entitled to
maintenance. In that case, this Court said:
The term "sufficient property," as used in § 40-4-203, MCA, has been interpreted by
this Court to mean income producing property. . . . [The statute] mandates that an
award of maintenance is appropriate when a spouse is unable to achieve a similar
standard of living after dissolution, and the other spouse is able to meet his or her
own needs as well as pay maintenance.
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Marriage of Luisi, 232 Mont. at 248, 756 P.2d at 459-60. Bobbie effectively asserts
that the statute "mandates" an award of maintenance should this Court decline, as
we have done, to award her a portion of the value of Ron's stock shares.
43. ¶ However, in Marriage of Luisi, we also noted that:
[T]he practical reality of the myriad of diverse factual situations confronted by
district courts often precludes strict adherence to the policy regarding maintenance
while achieving the overriding goal of an equitable dissolution. Consequently, the
court must first equitably distribute the marital property. Any additional needs of a
spouse are then addressed through maintenance.
Marriage of Luisi, 232 Mont. at 247, 756 P.2d at 459.
44. ¶ As discussed under issue one, the property distribution in this case was equitable.
Although the family home is not, as the District Court recognized, an income-
producing property, it is an asset with substantial value. Ron's payment of the
remaining debt on the family home is secured to ensure that Bobbie gets the full
value of that asset. Should Bobbie need income above and beyond that provided by
her monthly salary, she is free to sell the large, multi-bedroom family home to meet
her financial needs. Turning to the question of maintenance, then, the District Court
properly concluded that Bobbie does not have any "additional needs" justifying an
award of maintenance. She is gainfully employed as a tenured teacher, earning close
to the same monthly income as Ron. However, since Ron has historically had a
slightly larger monthly income than Bobbie, the court sensibly ordered that he be
responsible for most of the marital debt.
45. ¶ Although Bobbie claims that an "additional resource" supporting an award of
maintenance is Ron's "acknowledged gambling revenue," we agree with Ron that
the record is unclear as to what extent, if any, his gambling earnings actually
exceeded his losses. We further agree with Ron that the record does not support
Bobbie's claim that her monthly expenses far exceed her monthly income. Rather,
there is every indication that Bobbie will be able to achieve a standard of living
similar to that she enjoyed while married to Ron. By the same token, there is no
indication that Ron could afford to meet his own needs as well as pay maintenance
to Bobbie. We hold that the District Court did not abuse its discretion in declining to
award maintenance.
46. ¶ (3) Did the District Court abuse its discretion in refusing to award Bobbie the full
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amount of her attorney's fees?
47. ¶ As this Court has noted, an award of attorney's fees in marital dissolution actions
is "clearly permissive" under § 40-4-110(1), MCA. In re Marriage of McLean
(1993), 257 Mont. 55, 63, 849 P.2d 1012, 1017. Therefore, absent an abuse of
discretion, this Court will not overturn a district court's decision regarding attorney's
fees. In re Marriage of Lee (1997), 282 Mont. 410, 423, 938 P.2d 650, 658.
48. ¶ Bobbie argues that the court's award of $3,500 in attorney's fees is essentially "a
denial of attorney fees" in this case, since she established at trial that she had
incurred $9,168 in fees and since $2,500 of the fees awarded by the District Court
were directly associated with the court's earlier order levying discovery sanctions
against Ron. We disagree with the construction of Bobbie's argument, which goes
something like this: since the District Court awarded her only $1,000 towards her
$9,000-plus debt in attorney's fees, the court's award was an effective denial of
attorney's fees; that, in cases of denied fees, the court must indicate its reason for
such refusal; and, therefore, that the District Court erred in the instant case by
failing to indicate in its findings of fact why it declined to award her attorney's fees.
See generally In re Marriage of Perry (1985), 217 Mont. 162, 704 P.2d 41.
49. ¶ As Ron correctly indicates, Bobbie's argument misses the mark because the
District Court did not decline to award attorney's fees; it simply declined to award
her the full amount of her fees. In its order subsequent to the dissolution decree,
prompted by Bobbie's motion to amend, the District Court denied Bobbie's request
to increase her award of attorney's fees:
The amount of attorney's fees contribution is based upon what the Court in its
discretion considers fair. In reaching that decision the Court considered the work
involved and the resources of both parties, and the Court is satisfied with the amount
that has been ordered to be contributed.
50. ¶ This Court is also satisfied with the amount of attorney's fees awarded. Section 40-
4-110, MCA, directs that a court "may" award attorney's fees "after considering the
financial resources of both parties." Section 40-4-110(1), MCA; In re Marriage of
Walls (1996), 278 Mont. 413, 420-21, 925 P.2d 483, 487. The District Court
properly considered Ron's ability to pay a large award of attorney's fees in light of
the substantial debt that he assumed under the dissolution decree. Furthermore, the
record shows that Bobbie's counsel testified and was cross-examined as to the nature
and difficulty of work involved in this case. We cannot say, and Bobbie has not
demonstrated, that the District Court in any way abused its discretion. We hold that
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the District Court did not abuse its discretion in awarding Bobbie $3,500 in
attorney's fees.
51. ¶ Affirmed.
/S/ WILLIAM E. HUNT, SR.
We Concur:
/S/ J. A. TURNAGE
/S/ W. WILLIAM LEAPHART
/S/ JIM REGNIER
/S/ TERRY N. TRIEWEILER
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