No. 05-734
IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 20
IN RE THE MARRIAGE OF
SYDNE KAY HEIDEMA,
Petitioner and Respondent,
and
JACK DALE HEIDEMA,
Respondent and Respondent,
and
DOUGLAS FAW,
Intervenor and Appellant.
APPEAL FROM: The District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DR 05-0560,
Honorable Russell C. Fagg, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Gene R. Jarussi, Jarussi & Bishop, Billings, Montana
Toby Alback, Alback & Boschert, Billings, Montana
For Respondents:
William J. O’Connor II, O’Connor & O’Connor, P.C., Billings,
Montana (Jack Heidema)
Linda L. Harris, Harris Law Firm, P.C., Billings,
Montana (Sydne Heidema)
Submitted on Briefs: November 28, 2006
Decided: January 30, 2007
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Douglas Faw appeals from a Thirteenth Judicial District Court, Yellowstone
County, final decree of dissolution of Sydne and Jack Heidema’s marriage. We affirm
the District Court.
¶2 The issue on appeal is whether the District Court erred in precluding Faw from
exercising his right to participate in a dissolution action by entering a final dissolution
decree ending the Heidemas’ marriage.
BACKGROUND
¶3 Douglas Faw was injured while employed as a ranch hand for brothers Jack and
John Heidema in the Heidemas’ ranch operations. The Heidemas did not have workers’
compensation insurance coverage at the time Faw was injured. Faw’s medical expenses
as a result of his injury exceed $1,000,000. Faw filed suit against Jack and John Heidema
and the Heidema Partnership for negligence and failure to provide workers’
compensation coverage. He later filed suit against Jack and John and the newly-created
Heidema Ranch Limited Partnership for fraudulent transfer of assets into the new
partnership. Faw alleged that the limited partnership was created to protect the
Heidemas’ assets against the pending lawsuits.
¶4 In May 2005, Sydne Kay Heidema filed a petition for dissolution of marriage from
Jack Heidema. Faw alleged that Sydne and Jack’s dissolution was a sham because the
marriage was not irretrievably broken and the dissolution was being sought only to
protect Sydne’s inchoate interest in the marital estate against the pending lawsuits. He
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contended that the Heidemas’ attorney in the tort actions told them that a dissolution
would be one way to protect the wives’ interest in the Heidema assets. Incidentally,
Sydne’s sister-in-law, Connie Heidema, filed a petition for dissolution against John
Heidema that same month. Faw filed a motion to intervene as a matter of right in the
dissolution action. He asserted that he was not interested in receiving any specific
property from the marital assets, but rather, that the petition for dissolution was not
legitimate and therefore should not be granted. He also requested that a receiver be
appointed to take control of the marital estate to prevent its dissipation.
¶5 The District Court granted Faw’s motion to intervene pursuant to M. R. Civ. P. 24.
The court stated that the timing of the Heidema wives’ dissolution petitions, along with
Faw’s assertion that they were advised that dissolution could protect their inchoate
interest in the marital estate, warranted permissive intervention in order for the court to
adequately address Faw’s interests. Faw’s response to the dissolution petition denied that
the marriage was irretrievably broken.
¶6 When Sydne and Jack failed to provide preliminary declarations of disclosure to
Faw, Faw filed a motion to compel the declarations, stating he did not waive the
exchange. Jack objected to the motion, stating that Faw was attempting to obtain
discovery for his tort actions by intervening in the dissolution action, and the asset
disclosures had nothing to do with Faw’s assertion that the marriage was not irretrievably
broken and the dissolution was being entered into to protect assets. The District Court
granted Faw’s motion to compel the disclosures.
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¶7 After nearly a month went by and Sydne and Jack failed to provide the preliminary
disclosures, Faw filed a motion requesting the court to set a deadline for them to provide
the disclosures. The court ordered Sydne and Jack to provide the disclosures by
November 17, 2005. However, prior to that date, Sydne and Jack entered into a
settlement agreement and asked the court to enter the dissolution decree. Sydne served
her preliminary and final declaration of disclosure and declaration of income and
expenses, and two days later, Jack produced his disclosure which was identical to
Sydne’s. On November 9, 2005, the District Court entered a final decree of dissolution
over Faw’s objections. Faw appeals.
STANDARD OF REVIEW
¶8 We review a district court’s conclusions of law to determine whether its
interpretation of the law is correct. Shilhanek v. D-2 Trucking, Inc., 2000 MT 16, ¶ 24,
298 Mont. 101, ¶ 24, 994 P.2d 1105, ¶ 24 (citation omitted).
DISCUSSION
¶9 Did the District Court err in precluding Faw from exercising his right to
participate in a dissolution action by entering a final dissolution decree ending the
Heidemas’ marriage?
¶10 Faw based his original motion to intervene on M. R. Civ. P. 24, asserting that he
was entitled to intervene as a matter of right because he claimed an interest relating to
property in the marital estate and that he was so situated that distribution of the marital
estate in the dissolution would impede or impair his ability to protect his interests. He
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further stated that his interests were not protected by the existing parties in the dissolution
action. The District Court granted Faw’s motion to intervene, stating that permissive
intervention was warranted based on the timing of the Heidema wives’ dissolution
petitions, along with Faw’s assertion that they were advised that dissolution could protect
their inchoate interest in the marital estate. The court further stated that it would “not be
able to adequately address the interests of the proposed intervening party without his
participation in the dissolution proceedings.”
¶11 In this case, it is questionable whether the District Court should have allowed Faw
to intervene in the first place. The Heidemas have not, however, appealed from that
order. Although Faw had, and still has, pending lawsuits against Jack, John, and their
partnerships, he does not yet have a judgment. Thus, he has not made a prima facie
showing of an actual interest in the Heidemas’ property. See M. R. Civ. P. 24(a)(2);
Anniballi v. Anniballi, 255 Mont. 384, 387, 842 P.2d 342, 344 (1992). Secondly, as
demonstrated by the fact that Faw has filed lawsuits against Jack, John, and their
partnerships, Faw has other avenues available for protecting his alleged interest in the
property. See M. R. Civ. P. 24(a)(2); Anniballi, 255 Mont. at 386, 842 P.2d at 343.
Finally, in determining that permissive intervention was warranted, the District Court
failed to determine that Faw had a question of law or fact in common with the main
action. See M. R. Civ. P. 24(b)(2); Shilhanek, ¶¶ 47-48. Faw now asserts that the
questions of facts or law in common between his claim and the dissolution action are that
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both claims are concerned with the size of the marital estate, the dissipation of assets by
the parties, and the equitable distribution of marital assets between Jack and Sydne.
¶12 Appropriate or not, the court did allow Faw to intervene; thus, the question now is
whether Faw was prejudiced by entry of the dissolution decree before the parties
responded to Faw’s discovery requests regarding asset disclosure. We hold that he was
not.
¶13 Marriage arises out of a civil contract between a man and a woman, and requires
the consent of both parties. Section 40-1-103, MCA. When one or both of those parties
finds the marriage is irretrievably broken, that party has a basis for dissolution. Section
40-4-101, MCA. Dissolutions are statutory proceedings. The questions to be determined
in a dissolution action are whether the marriage is irretrievably broken, and if so, how to
allocate marital assets between the parties and provide maintenance and child support if
applicable. Sections 40-4-107, 40-4-202, 40-4-203, 40-4-204, MCA. In a dissolution
proceeding, the only proper parties are the spouses seeking to be divorced. Nielson v.
Thompson, 982 P.2d 709, 712 (Wyo. 1999) (citing In re Marriage of Soriano, 722 P.2d
132, 133 (Wash. App. 1986)).
¶14 Because Faw is not a party to the marriage, he has no standing to assert that the
marriage is or is not irretrievably broken. Furthermore, Faw’s request for relief, that
assets be entrusted to third parties, exceeds the jurisdiction of the court. In a dissolution
proceeding, the court has authority to apportion marital assets only between the parties.
Thus, even if the court committed error in entering the dissolution decree before Faw
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received the disclosures, such error was harmless because the court could not grant any
relief to Faw in the dissolution proceeding. Faw must pursue, and is pursuing, the other
remedies he has available to him.
¶15 We affirm the District Court.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS
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