Marriage of Jolly

No. 05-439

IN THE SUPREME COURT OF THE STATE OF MONTANA

2006 MT 352N

IN RE THE MARRIAGE OF

BRIAN J. JOLLY,

Petitioner and Appellant,

v.

KIM M. JOLLY,

Respondent.

APPEAL FROM: The District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. DDR 2004-023(c),
Honorable Kenneth R. Neill, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Marcia Birkenbuel, Attorney at Law, Great Falls, Montana

For Respondent:

Daniel L. Falcon, Falcon, Lester and Schaff, P.C., Great Falls, Montana

Submitted on Briefs: November 1, 2006

Decided: December 29, 2006

Filed:

__________________________________________
Clerk
Justice W. William Leaphart 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. It 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 in this Court=s quarterly list of nonciteable

cases published in the Pacific Reporter and Montana Reports.

¶2 Brian J. Jolly appeals from an Eighth Judicial District Court, Cascade County,

dissolution decree and an order denying his motion to alter or amend the decree.

¶3 Brian raises two issues on appeal, which we restate as follows:

¶4 1. Did the District Court abuse its discretion when it allocated $70,151 worth of

debt as joint marital debt?

¶5 2. Did the District Court abuse its discretion when it based the value of the parties’

retirement accounts on values that included projected cost-of-living increases?

BACKGROUND

¶6 On May 6, 2005, the District Court entered a decree of dissolution ending Brian J.

and Kim. M. Jolly’s marriage. They had been married since 1977 and had two children

born of the marriage, one of whom was a minor at the time of dissolution. At the time of

trial on April 6, 2005, Brian was forty-five years old and was an active member of the

military. Kim was also forty-five years old and was a civilian employed by the federal

government. During the marriage, Kim was primarily responsible for managing the

family’s finances.

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¶7 Throughout the dissolution proceedings, Brian alleged that Kim dissipated the

marital estate by incurring substantial credit card debt that was solely for her benefit, as

well as cashing joint mutual funds without giving him his equal share.

¶8 At trial, Kim introduced Exhibit A-1, a report prepared by her expert witness, Dan

Vuckovich. The report listed credit card debt and set forth a proposed allocation of assets

and liabilities. The top half of the list set forth joint credit card accounts and Brian’s

credit card accounts totaling $63,413. Kim proposed allocating half this debt to Brian

and half to her, with the instruction that this debt was to be paid with proceeds from the

sale of jointly owned land and a boat. The bottom half was a list of credit accounts held

in Kim’s name only in the amount of $70,151. Kim allocated this debt to herself.

Because Kim was taking on more liability, she proposed that more assets be allocated to

her.

¶9 In response to Brian’s allegation that most of the credit card debt was solely for

her benefit, Kim introduced Exhibits W-1 through W-10. These exhibits were apparently

lists that stated the purpose of some of the expenses, such as family gifts, clothing for the

family, family vacations, and school supplies. We do not have the benefit of these

exhibits, however, because the original trial exhibits were not included in the District

Court file as part of the record sent to this Court. Further, Kim testified that the mutual

funds she withdrew were used to pay off some of the debt.

¶10 Both parties had experts testify at trial with regard to the valuation of Brian’s

military retirement account and Kim’s federal employee retirement account. Brian’s

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accounting expert, Nicholas Bourdeau, testified that the present-day value of Brian’s

retirement account was $432,171, and the present-day value of Kim’s retirement account

was $67,121. Bourdeau stated that he did not include periodic cost-of-living increases

that will be added to the pensions over time as part of the valuation. His opinion was that

including those amounts was speculative because an increase may or may not occur, and

the amount of increase is unknown.

¶11 Kim’s accounting expert, Dan Vuckovich, included cost-of-living increases in his

valuation of the retirement accounts. He calculated that the present-day value of Brian’s

retirement account was $576,680, and the present-day value of Kim’s was $88,477. He

relied on the Military Officers Association of America’s (MOAA) chart that tracked

retired pay cost-of-living increases from 1952 to 2003 to make the valuation. In

Vuckovich’s opinion, if the court divided the marital assets without including the cost-of-

living increases, the assets would be undervalued. Vuckovich used his valuations to

propose the allocation of assets and liabilities in Exhibit A-1, resulting in an equal

division of net assets between the parties.

¶12 The District Court issued findings of fact, conclusions of law and the final decree.

The court recognized the conflicting expert testimony as to the valuation of the retirement

accounts, but found Kim’s calculation to be appropriate. The court found that Kim’s

proposed allocation of marital property in Exhibit A-1, which gave Kim more assets as

well as more liability, was equitable. The court also recognized that evidence indicated a

tendency of spendthrift buying on Kim’s part, especially toward the end of the marriage,

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and that Brian paid some of the debts she incurred. The court further noted it found

evidence to justify at least some of Kim’s spending. To address Kim’s withdrawal of

mutual funds, the court adjusted the amount of back child support owed to Kim. Based

on these findings, the District Court adopted Kim’s proposed assets and liabilities

allocation.

¶13 Brian filed a motion to alter or amend the court’s decree requesting the court to

allocate $70,151 indebtedness solely to Kim. The court denied this request and Brian

appeals.

STANDARD OF REVIEW

¶14 We review a district court’s division of marital property to determine whether the

findings of fact upon which the division is based are clearly erroneous. In re Marriage of

Harris, 2006 MT 63, ¶ 16, 331 Mont. 368, ¶ 16, 132 P.3d 502, ¶ 16. If the findings are

not clearly erroneous, we will affirm a district court’s division of property unless the

district court abused its discretion. Marriage of Harris, ¶ 16. An abuse of discretion

occurs if the district court acted arbitrarily without employment of conscientious

judgment or exceeded the bounds of reason resulting in substantial injustice. In re

Marriage of Engen, 1998 MT 153, ¶ 26, 289 Mont. 299, ¶ 26, 961 P.2d 738, ¶ 26.

DISCUSSION

¶15 ISSUE 1: Did the District Court abuse its discretion when it allocated $70,151

worth of debt as joint marital debt?

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¶16 A district court has broad discretion when dividing property in a marital

dissolution. In re Marriage of Binsfield, 269 Mont. 336, 343, 888 P.2d 889, 893 (1995).

Section 40-4-202, MCA, provides that a court shall equitably apportion property and

assets of the parties, no matter how or when acquired, and the “court shall also consider

the contribution or dissipation of value of the respective estates” in making the

apportionment. A finding of dissipation must be supported by substantial evidence.

Marriage of Binsfield, 269 Mont. at 345, 888 P.2d at 894. A district court’s decision with

regard to property distribution is presumed correct. In re Marriage of Clyatt, 267 Mont.

119, 122, 882 P.2d 503, 505 (1994). It is the appellant who bears the burden of

establishing error by the court; such error cannot be established in the absence of legal

authority. State v. Bailey, 2004 MT 87, ¶ 26, 320 Mont. 501, ¶ 26, 87 P.3d 1032, ¶ 26.

Further, it is the appellant’s duty to provide this Court “with a record sufficient to enable

it to rule upon the issues raised.” M. R. App. P. 9(a). Failure to do so may result in

dismissal of the appeal. M. R. App. P. 9(a).

¶17 On appeal, Brian argues that the District Court failed to consider the $70,151 debt

as evidence of Kim’s dissipation of the marital estate. Brian further argues that he did

not get credit for money he paid toward some of that debt, nor did he get an equal share

of the mutual fund checks withdrawn by Kim. Brian states that there was no evidence of

the nature or purpose of the debts listed on the bottom half of the list of debt in Kim’s

Exhibit A-1, without pointing to any specific part of the record. Brian alleges that Kim

addressed only the joint debt specified on the top half of that list, but does not point to

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any specific part of the record. We assume he refers to the portion of the transcript where

Kim introduced Exhibits W-1 through W-10 which apparently explained the nature of her

spending. However, since the exhibits are not part of the record on appeal, we cannot

address Brian’s argument.

¶18 Brian does not cite to the record or to any legal authority to support his assertions

that the District Court erred in its findings, as required by M. R. App. P. 23(a)(4). Brian

has not established that the court acted arbitrarily or exceeded the bounds of reason when

it apportioned the marital assets and liabilities as it did. Further, he has not cited to

substantial evidence of the nature or purpose of Kim’s spending to support a finding of

dissipation. Therefore, we conclude that Brian has not met his burden on appeal, and we

affirm the District Court on this issue.

¶19 ISSUE 2: Did the District Court abuse its discretion when it based the value

of the parties’ retirement accounts on values that included projected cost-of-living

increases?

¶20 Federal law grants state district courts authority to treat military retirement pay as

marital property according to the laws of that state. 10 U.S.C. § 1408(c). Military

retirement pay must be increased annually to reflect cost-of-living adjustments based on

the Consumer Price Index. 10 U.S.C. § 1401a. Federal employee retirement accounts

are similarly increased for cost-of-living adjustments. 5 U.S.C. § 8340. A district court’s

valuation of property can be premised on expert testimony, lay testimony, documentary

evidence, or a combination thereof. In re Marriage of Meeks, 276 Mont. 237, 242, 915

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P.2d 831, 835 (1996) (citation omitted). The court may adopt any reasonable valuation if

it is supported by the record; we will not disturb such a finding on appeal. Marriage of

Meeks, 276 Mont. at 242-43, 915 P.2d at 835.

¶21 In this case, Brian argues that the court’s adoption of Kim’s expert’s valuation of

the retirement accounts to include cost-of-living increases is speculative. Brian relies on

his expert’s testimony that there is no guarantee that cost-of-living adjustments will occur

or will continue at the rate experienced in the past. Kim’s expert testified based on the

MOAA chart showing the cost-of-living increases since 1952 and the average rate of

those increases, and in accordance with 10 U.S.C. § 1401a and 5 U.S.C. § 8340. The

District Court adopted this valuation.

¶22 Brian cites no authority in support of his argument that statutorily mandated cost-

of-living increases to retirement accounts are speculative. See M. R. App. P. 23(a)(4).

Absent any authority, and again recognizing that the appellant bears the burden of

establishing error by the trial court, we decline to address this argument further and find

no need to disturb the District Court’s finding. See Bailey, ¶ 26.

¶23 We affirm the District Court.

/S/ W. WILLIAM LEAPHART

We concur:

/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS

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Justice Patricia O. Cotter concurs and dissents.

¶24 I concur with this Court’s resolution of Issue 2, but I dissent from our resolution of

Issue 1.

¶25 In Finding of Fact XV, the District Court found that the evidence tended to show

“spendthrift buying behavior on the part of [Kim] . . . .” This “spendthrift buying”

included credit card debt amounting to over $70,000.00. While the court appropriately

allocated this amount to Kim, it improperly awarded her the same amount in assets in

order to equalize the distribution. The court further erred, in my judgment, in concluding

that Brian was compensated for this excess debt occasioned by Kim’s spending in light of

the allocation to him of $10,000.00 in mutual funds. Not only is $10,000.00 a wholly

inadequate “equalizer,” Brian was not even allowed to retain the entire sum, as he was

ordered to apply it in part to delinquent debt.

¶26 Although I agree with this Court that the district court has broad discretion in

dividing property in a marital dissolution (¶ 16), this discretion is not unfettered. The

court made a specific finding that Kim engaged in spendthrift buying behavior, and then

inexplicably failed to take her dissipation of the estate into consideration in making the

apportionment, as § 40-4-202, MCA, requires. In this respect, the court’s division of the

estate cannot be reconciled with its finding of spendthrift buying behavior on the part of

Kim. I would therefore reverse and remand for a new trial as to Issue 1 with instructions

that the District Court make informed findings regarding Kim’s dissipation of the marital

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estate and an appropriate distribution based upon that finding. I dissent from our refusal

to do so.

/S/ PATRICIA COTTER

Justice John Warner dissents.

¶27 I dissent. The District Court erred when it increased the present value of the

parties’ retirement accounts by adding projected cost-of-living increases provided for in

10 U.S.C. § 1401a. Such increase in the value of the parties’ retirement accounts is both

unreasonable and contrary to law.

¶28 Contrary to the Court’s statement at ¶22, Brian’s citation to 10 U.S.C. § 1401a

provides authority for his arguments to both the District Court and to this Court. As the

Court indicates, 10 U.S.C. § 1401a requires that military pay be increased annually to

reflect cost-of-living adjustments based on the Consumer Price Index. However, the

Court fails to take into account that the statute sets forth a methodology for determining

what that cost-of-living adjustment could be. It is entirely possible that in any given year

the cost-of-living adjustment will be zero. The statute only mandates a cost-of-living

increase if the Consumer Price Index shows that the cost of living increased. If it does

not, the statute provides that there shall be no increase.

¶29 Nor does the statute indicate how much of a cost-of-living increase there may be

in any given year. While it is true that there has been a history of yearly increases, it

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requires substantial speculation to fix the amount of each cost-of-living increase for the

next five decades, and include that increase in the calculation of the value of a marital

estate.

¶30 Furthermore, including future cost-of-living increases when assessing the marital

estate turns the valuation process on its head. The marital estate is valued at or near the

time of dissolution. Beck v. Beck, 203 Mont. 455, 458, 661 P.2d 1282, 1284 (1983); In re

Marriage of Loegering, 212 Mont. 499, 506, 689 P.2d 260, 264 (1984). Doing so

provides the most accurate view of the status of the property at the time of trial. See

Hamilton v. Hamilton, 186 Mont. 282, 283, 607 P.2d 102, 102 (1980). Section 40-4-202,

MCA, also requires that the court divide the marital estate at dissolution. The statute

does not provide that the court divide what it anticipates the marital estate may be in the

future.

¶31 Potential cost-of-living increases that are effective only after the marriage has

ended are not a part of the couple’s marital property at the time of dissolution. Such

property does not exist for the Court to divide. Any increase in the value of a parties’

retirement account will occur, if at all, after the marriage has been dissolved. Thus, such

increases must not be considered as an existing part of the marital estate in which both

parties have an interest. Section 40-4-202, MCA.

¶32 In this case, by including the potential future cost-of-living adjustments, the

District Court increased the value of Brian’s retirement account from $432,171 to

$576,680 – a significant increase indeed. In doing so, the District Court both incorrectly

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valued the marital estate at the time of its decree of dissolution, and also included in the

estate speculative increases that will only be acquired, if at all, after dissolution of Brian

and Kim’s marriage. Such is error.

¶33 I dissent to the Court’s resolution of issue two. I would remand for a

determination of the proper value of the marital estate and an equitable distribution

thereof.

/S/ JOHN WARNER

Justices Patricia O. Cotter and Jim Rice join in the foregoing dissent.

/S/ PATRICIA COTTER
/S/ JIM RICE

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