No. 01-289
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 128N
IN RE THE MARRIAGE OF
RANDALL E. MAGILL,
Petitioner/Counter Respondent and Appellant,
and
JARI L. MAGILL,
Respondent/Counter Petitioner and Respondent.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Dorothy McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Charles A. Smith, Attorney at Law, Helena, Montana
For Respondent:
Timothy J. McKittrick, Attorney at Law, Great Falls, Montana
Submitted on Briefs: November 8, 2001
Decided: June 13, 2002
Filed:
__________________________________________
Clerk
Justice Terry N. Trieweiler delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent but shall be filed as a
public document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number, and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.
¶2 Randall E. Magill (Randy) appeals from the Findings of Fact,
Conclusions of Law and Decree of Dissolution of the District Court
for the First Judicial District in Lewis & Clark County dissolving
the marriage of Randy and Jari L. Magill, equitably dividing the
marital estate, adopting a parenting plan for their two minor
children, and adopting appropriate child support and medical
support provisions. We affirm in part, reverse in part, and
remand.
¶3 The following issues are presented on appeal:
¶4 1. Did the District Court err when it excluded the testimony
and market analysis of a realtor who valued the house Randy
acquired prior to the marriage?
¶5 2. Did the District Court err when it awarded Jari one-half
of the equity in the house Randy acquired prior to the marriage?
¶6 3. Did the District Court err when it ordered Randy to pay
child support to Jari?
¶7 4. Did the District Court err when it rescinded the ex parte
order which amended the original parenting plan?
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FACTUAL AND PROCEDURAL BACKGROUND
¶8 Randy and Jari Magill married on March 20, 1994, and separated in June of 2000.
The parties have two daughters whose ages are seven and three years.
¶9 Four months prior to getting married, Randy purchased a house
located at 1404 Madison Avenue in Helena, Montana, for $51,000.
The parties lived in that house from the time it was purchased
until their separation. On his Income and Expense Disclosure
Statement filed with the District Court, Randy stated that the
current value of the house was $85,000, however, the house was
encumbered by a mortgage in the amount of $70,000. During the time
the parties lived together and were married, only minor
improvements were made to the house, most notably painting and
wallpapering the bathroom. From the time of the birth of their
first child in 1994, Jari was a homemaker and cared for the
parties' children while Randy worked outside the home at Allen's
Super Store. After the parties separated, Jari obtained part-time,
nighttime employment at UPS. Her evening job enabled her to avoid
daycare expenses and spend time with the children. It also
provided health insurance for the children.
¶10 In July 2000, Randy petitioned the District Court to dissolve
their marriage, to adopt a proposed parenting plan, to equitably
distribute the marital estate, to order Jari to pay child support,
to award neither party maintenance, and to award both children as
his dependents for state and federal tax purposes. Jari counter-
petitioned that Randy should be ordered to pay child support and
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maintenance, and that each parent should be permitted to claim one
of the two children for tax purposes.
¶11 Following a hearing on January 4, 2001, the District Court
entered its Findings of Fact, Conclusions of Law and Decree of
Dissolution on February 8, 2001. The Court dissolved the marriage
and adopted the parenting plan agreed upon by the parties.
Furthermore, the Court ordered Randy to pay Jari $259 per month for
child support and awarded Jari one-half of the equity in the house
acquired by Randy prior to the marriage. No maintenance was
awarded. Randy filed a Notice of Appeal of the District Court's
judgment on February 14, 2001.
¶12 After filing his appeal, Randy filed an ex parte motion to
amend the parenting plan pursuant to § 40-4-202(2)(a)(ii), MCA. On
April 4, 2001, the District Court issued an order amending the
parenting plan adopted in the February 8, 2001, Decree, and made
Randy the primary custodian and residential care provider for the
two children until a show cause hearing could be held on April 30,
2001. Jari filed a motion to vacate the order on April 25, 2001,
based on her contention that Randy's Notice of Appeal divested the
District Court of jurisdiction to amend the judgment. Apparently
agreeing with Jari, the District Court telephoned both counsel of
record and rescinded its April 4, 2001, Order. The parties have
since followed the parenting plan set forth in the February 8,
2001, Decree.
DISCUSSION
ISSUE 1
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¶13 Did the District Court err when it excluded the testimony and market analysis of a
realtor who valued the house Randy acquired prior to the marriage?
¶14 Two weeks prior to the hearing, Randy amended his witness and
exhibit list to include Parker Heller, a Helena realtor, and a
market analysis using recent comparable sales to arrive at a market
value for the home Randy acquired prior to the marriage. Jari
filed a Motion in Limine to exclude Heller and his exhibit, arguing
that the value that Randy included in his Income and Expense
Disclosure Statement could not be amended. The District Court
agreed and refused to allow Heller to testify. In Heller's
opinion, the actual market value of the house was between $67,000
and $72,500. In his disclosure statement, Randy indicated that the
value was $85,000.
¶15 The standard of review for evidentiary rulings is whether the
district court abused its discretion. Evert v. Swick, 2000 MT 191,
¶ 11, 300 Mont. 427, ¶ 11, 8 P.3d 773, ¶ 11. The district court has
broad discretion to determine whether or not evidence is relevant
and admissible, and absent a showing of an abuse of discretion, the
trial court's determination will not be overturned. State v.
Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257, 1263; State v.
Crist (1992), 253 Mont. 442, 445, 833 P.2d 1052, 1054.
¶16 Here, Randy represented in his Income and Expense Disclosure
Statement filed with the District Court that the house located at
1404 Madison Avenue was worth $85,000. Immediately preceding the
signature line, the Income and Expense Disclosure Statement
included the following language:
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THIS STATEMENT IS A FULL DISCLOSURE OF ALL ASSETS AND
LIABILITIES AS REQUIRED BY LAW. FAILURE TO PROVIDE A
COMPLETE DISCLOSURE MAY CONSTITUTE PERJURY. I DECLARE
UNDER THE PENALTY OF PERJURY THAT THE FOREGOING,
INCLUDING ANY SCHEDULES OR ATTACHMENTS, IS TRUE, CORRECT,
AND COMPLETE.
The Income and Expense Disclosure Statement was signed by Randy,
and notarized by his attorney. Jari did not contest Randy's
$85,000 valuation of the house.
¶17 Randy's purpose for adding Heller as a witness and including
his exhibit was to repudiate the value he had previously assigned
to the house – a value on which Jari relied in her preparation for
the hearing. However, it was Randy's obligation to correctly value
the house before filing his Income and Expense Disclosure
Statement. We conclude that the District Court did not abuse its
discretion when it granted Jari's Motion in Limine.
ISSUE 2
¶18 Did the District Court err when it awarded Jari one-half of the equity in the house
Randy acquired prior to the marriage?
¶19 Randy contends that the home he purchased four months prior to
his marriage with Jari should not have been included in the marital
estate. The District Court included the home in the marital
estate. Because the present value of the house was $85,000, and
the outstanding debt on the house was $70,000, the District Court
ordered Randy to pay Jari one-half of the equity in the house, or
$7,500.
¶20 We review a district court's division of marital property to
determine whether the findings on which it relied are clearly
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erroneous. In re Marriage of Engen, 1998 MT 153, ¶ 26, 289 Mont.
299, ¶ 26, 961 P.2d 738, ¶ 26. If the findings are not clearly
erroneous, we will affirm the division of property unless the
district court abused its discretion. Engen, ¶ 26. The test for
abuse of discretion is "whether the trial court acted arbitrarily
without employment of conscientious judgment or exceeded the bounds
of reason resulting in substantial injustice." In re Marriage of
Meeks (1996), 276 Mont. 237, 242, 915 P.2d 831, 834 (citation
omitted). The court is free to adopt any reasonable valuation of
marital property which is supported by the record. Meeks, 276
Mont. at 242-43, 915 P.2d at 835.
¶21 Section 40-4-202, MCA, controls the division of property as
part of a marriage dissolution, and provides in relevant part as
follows:
(1) In a proceeding for dissolution of marriage . .
. the court . . . 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 prior to
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 the property; and
(c) whether or not the property division serves as
an alternative to maintenance arrangements. [Emphasis
added.]
¶22 We have construed § 40-4-202, MCA, to mean that pre-acquired
property should not be included in the marital estate unless the
non-acquiring spouse contributed to its appreciation or
preservation. Engen, ¶ 29. In that event, the non-acquiring
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spouse is entitled to an equitable share of the appreciated or
preserved value which is attributable to his or her efforts. See
Engen, ¶ 29; Stoneman v. Drollinger, 2000 MT 274, ¶ 18, 302 Mont.
107, ¶ 18, 14 P.3d 12, ¶ 18; In re Marriage of Smith (1995), 270
Mont. 263, 268-69, 891 P.2d 522, 525; Bradshaw v. Bradshaw (1995),
270 Mont. 222, 230, 891 P.2d 506, 511; In re Marriage of Smith
(1994), 264 Mont. 306, 312, 871 P.2d 884, 888. Therefore, for Jari
to claim an interest in the home, she must prove that the property
value had appreciated or been preserved during the marriage and
that she somehow contributed to that appreciation or preservation
in value.
¶23 Here, the reason for the house's appreciation and what role,
if any, Jari played is unclear from the record. Randy and Jari
lived together in the house from the date it was purchased in
November 1993 until the couple separated in June of 2000. Randy
and Jari worked together to paint and wallpaper the bathroom but
otherwise did little to improve the house. Jari testified that she
performed the duties of a homemaker and mother, such as cleaning,
cooking, doing laundry, and caring for the children. Randy asserts
that the increase in value from 1993 to the present is due to
market factors alone and not to any contributions made by Jari.
¶24 The District Court awarded Jari one-half of the appreciated
value of the home, or $7,500, and found that "since both parties
contributed to the mortgage payments on it during the marriage and
to improvements on the house," the house should be included in the
marital estate. However, there is no evidence that Jari
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contributed to the mortgage payments. Furthermore, the
improvements to the home were not of a magnitude sufficient to
account for a $15,000 increase in property value. Therefore, we
conclude that the District Court abused its discretion when it
awarded Jari one-half of the equity in the house and reverse that
part of the District Court's Decree. We remand to the District
Court for a determination of an equitable share of the appreciated
value of the house which is attributable to Jari's efforts and
consistent with the factors set forth in § 40-4-202(1), MCA.
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ISSUE 3
¶25 Did the District Court err when it ordered Randy to pay child support to Jari?
¶26 The standard of review of a district court's award of child
support is whether the district court abused its discretion. In re
Marriage of Craib (1994), 266 Mont. 483, 490, 880 P.2d 1379, 1384.
However, "a district court must apply its discretion in a
realistic manner, taking into account the actual situation of the
parties." In re Marriage of Noel (1994), 265 Mont. 249, 252, 875
P.2d 358, 359. We conclude that the District Court did not abuse
its discretion.
¶27 The District Court found that the children are cared for by
Jari for 182.5 days during each year and by Randy for 182.5 days.
The Court ordered Randy to pay Jari $259 per month for child
support. The Court considered Randy's gross income of $33,724 and
Jari's gross income of $11,243, and found that for purposes of
child support, the parties share custody of the children equally
"based on the actual hours the children spend with each parent and
the number of meals each parent provides to the children."
¶28 Randy contends that the District Court abused its discretion.
Based on the parenting plan agreed to by the parties, Randy
asserts that he cares for the children for the majority of a 24-
hour period for five days a week, or at least 260 days a year. He
contends that Jari cares for the children only 52 days per year, or
one out of every seven days during the week. The parenting plan
provides as follows:
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1. Jari has the children from 8:45 a.m. to 6:15 p.m., and
Randy has the children from 6:15 p.m. to 8:45 a.m. on
Monday, Thursday, and Friday.
2. Randy has the children from Tuesday at 6:30 p.m. until
8:30 a.m. on Thursday.
3. Jari has the children from 8:30 a.m. on Saturday until
noon on Sunday.
4. Randy has the children from noon on Sunday until 8:30
a.m. on Monday.
¶29 Paragraph 25 of the Montana Child Support Guidelines indicates
that a parent who cares for their children 110 days or less has an
obligation to pay support to the other parent. Therefore, Randy
contends that Jari should be paying him monthly child support, and
that he owes none.
¶30 However, for practical purposes, the parents do share custody
of the children equally. The children are exchanged on a daily
basis with the exception of Wednesday, and to strictly apply the
child support guidelines because the children spend five more hours
a day with Randy during the middle of the night would create an
unjust result. While we agree that Randy cares for the children
during the night while they sleep, the District Court's
determination that custody is shared equally was not an abuse of
discretion. The District Court took into account the actual
situation of the parties, and on that basis ordered Randy to pay
child support. We conclude that the District Court did not err in
doing so.
ISSUE 4
¶31 Did the District Court properly rescind the ex parte order which amended the original
parenting plan?
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¶32 After the Notice of Appeal was filed, Randy filed a motion to
amend the parenting plan pursuant to § 40-4-220(2)(a)(ii), MCA,
based on facts and matters which occurred after the entry of the
Decree. On April 4, 2001, the District Court issued an ex parte
order which amended the parenting plan and designated Randy as the
primary custodian and residential care provider until a hearing
could be held on April 30, 2001. Jari filed a motion to vacate the
order, and claimed the District Court lost jurisdiction when Randy
filed his Notice of Appeal. The District Court then contacted
counsel for both parties by telephone and verbally rescinded the
order. Following the rescission, the parties have operated
pursuant to the original parenting plan.
¶33 It is well established in Montana that the district court's
jurisdiction in matters of child custody is of a continuing nature.
Foss v. Leifer (1976), 170 Mont. 97, 100, 550 P.2d 1309, 1311;
Libra v. Libra (1969), 154 Mont. 222, 229, 462 P.2d 178, 181;
Barbour v. Barbour (1958), 134 Mont. 317, 320, 330 P.2d 1093, 1095.
Jurisdictional questions emphasize first and foremost a
determination consistent with and supportive of the best interests
of the child. In re Marriage of Skillen, 1998 MT 43, ¶ 21, 287
Mont. 399, ¶ 21, 956 P.2d 1, ¶ 21.
¶34 A party may seek an ex parte order amending a parenting plan,
even though a previous parenting plan has been adopted, if "an
emergency situation has arisen in the child's present environment
that endangers the child's physical, mental, or emotional health
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and an immediate change in the parenting plan is necessary to
protect the child." § 40-4-220(2)(a)(ii), MCA.
¶35 Here, the District Court amended the original parenting plan
and ordered Jari to show cause, at a hearing on April 30, 2001, why
Randy should not be awarded primary custody of the children.
Because Randy had met all relevant statutory criteria to seek
temporary custody pursuant to § 40-4-220, MCA, the District Court
had jurisdiction to issue such an order.
¶36 However, on April 27, 2001, the District Court rescinded its
order during telephone calls with the parties' counsel. The
precise reason for the District Court's action is not reflected by
any subsequent order in the District Court file. However, Jari's
counsel states in a memo included as an appendix to Randy's brief
that the District Court indicated in its phone call that it lacked
jurisdiction to issue the order. With no reason to believe
otherwise, we will proceed on the assumption that the District
Court rescinded the order on that basis. If so, the District
Court's rescission of the ex parte order was in error.
¶37 However, the practical effect of our determination is minimal.
By the time the District Court learns of our decision that it
always had jurisdiction, this case will have been clearly returned
to the District Court for the complete exercise of its
jurisdiction. Whether there is cause to amend the parenting plan
will depend on the circumstances at that time. Therefore, since
the District Court's ex parte order was interim and could not have
been made final until a hearing was held at which both parties were
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represented, and a hearing will still be necessary if Randy pursues
modification following remand, we conclude that it is in the
children's best interests to maintain the status quo until that
hearing can be held.
¶38 Therefore, this case is remanded to the District Court for
further considerations required by this Opinion.
/S/ TERRY N.
TRIEWEILER
We Concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ JIM REGNIER
/S/ W. WILLIAM LEAPHART
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