September 15 2009
DA 08-0575
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 302
IN RE THE MARRIAGE OF:
GINGER L. CAMERON,
Petitioner and Appellee,
and
JEFFERY W. CAMERON,
Respondent and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and For the County of Flathead, Cause No. DR-04-054(B)
Honorable Katherine R. Curtis, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Michael Keedy; Henning & Keedy, Kalispell, Montana
For Appellee:
Peter F. Carroll; Attorney at Law, Kalispell, Montana
Submitted on Briefs: July 15, 2009
Decided: September 15, 2009
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Appellant Jeffrey Cameron (Jeff) appeals from the Findings of Fact, Conclusions
of Law, and Decree of Dissolution entered by the Eleventh District Court. We affirm.
¶2 This Court considers the following issues on appeal:
¶3 I. Did the District Court err in identifying the Truman Creek property, in its
entirety, as a marital asset?
¶4 II. Did the District Court err in awarding attorney fees to Ginger Cameron
(Ginger)?
¶5 III. Did the District Court err in categorizing Ginger’s assets as not income-
producing in its decision to award maintenance?
¶6 IV. Is Ginger entitled to attorney fees on appeal?
BACKGROUND
¶7 This case arises from the marriage and subsequent divorce of Jeffrey and Ginger
Cameron. During their marriage, the parties acquired several properties, including 80
acres near Kila, Montana. The property is comprised of three parcels, collectively
referred to as the Truman Creek property. When the contract on the property was paid in
full, the deed was recorded naming Jeff and Ginger as joint owners. In 1991, at a time
when the parties had temporarily separated, Ginger executed a quitclaim deed to the
property in favor of Jeff. The parties eventually reconciled, but the property remained in
Jeff’s name. Jeff’s father, Earl Cameron (Earl), contributed to the development of the
property, building a road and installing power and phone service. The District Court
determined the improvements were worth $25,000. Jeff testified that his father
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contributed annually to a portion of the property payments, while Jeff made the
remainder of the payments. Jeff claimed he could never have purchased the property
without his father’s financial help and the use of Earl’s equipment to remove gravel from
the property, which he then sold. Jeff claims he and his father entered an informal
agreement to sell the property and share the profits. There is no written documentation of
this agreement.
¶8 The parties separated for the final time in January 2006. Ginger left the home with
few financial resources. She was primarily a homemaker during the parties’ marriage.
She does not have a high school education or GED but has a limited number of college
credits. Ginger has been diagnosed with bi-polar disorder, and in July of 2006 admitted
herself to a treatment center. The District Court found that Ginger suffers from a mental
disability which renders her unable to obtain meaningful, immediate employment.
Ginger reported her monthly needs, including medical care, at $2,300. Jeff operates
several businesses, including Smith Valley Shale and Excavating, The Sandman, and
Master Blaster. He estimated his monthly living expenses at $3,657, a number decreased
by the court to $2,800 after removing duplicate or unreasonable expenses. Jeff owns
several vehicles and pieces of business equipment.
¶9 On October 29, 2007, the District Court issued its Findings of Facts, Conclusions
of Law, and Decree of Dissolution. The court identified the Truman Creek property as
marital property and ordered Jeff to pay Ginger $750 in monthly maintenance until two
conditions are met: the Somers property is sold and Ginger obtains further education to
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secure appropriate employment to meet her needs. In its April 18, 2008 Order, the
District Court directed Jeff to pay Ginger’s attorney fees. Jeffrey Cameron appeals.
STANDARD OF REVIEW
¶10 We review a district court’s Findings of Facts to determine whether they are
clearly erroneous. Crone v. Crone, 2003 MT 238, ¶ 16, 317 Mont. 256, 260, 77 P.3d
167, 171. Findings of Fact are clearly erroneous if they are not supported by substantial
evidence, the court misapprehends the effect of the evidence, or this Court’s review of the
record convinces it a mistake has been made. In re Marriage of Toavs, 2002 MT 230,
¶ 23, 311 Mont. 455, 461, 56 P.3d 356, 360. If the Findings of Fact are not clearly
erroneous, we review the District Court’s final award decision for abuse of discretion to
determine whether the trial judge acted arbitrarily without employment of conscientious
judgment or has exceeded the bounds of reason resulting in substantial injustice. In re
Marriage of Toavs, ¶ 23. An award of attorney fees is reviewed for abuse of discretion.
In re Marriage of Lee, 282 Mont. 410, 423, 938 P.2d 650, 658 (1997).
DISCUSSION
¶11 Did the District Court err in identifying the Truman Creek property, in its entirety,
as a marital asset?
¶12 Jeff contends that only 40 of the 80 acres of the Truman Creek property should
have been identified as marital property because the property is an asset of a partnership
between Jeff and his father, Earl. Jeff argues that he and his father developed an informal
partnership, invested money and labor in the property, and had planned to sell the estate
and split the profits. Ginger contends the Truman Creek property was the parties’
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retirement asset and, under law, was acquired by the parties alone. The District Court
determined that the entire property was a marital asset, with Jeff’s portion reduced by
$25,000 in light of Earl’s contributions to the property. We affirm.
¶13 The District Court’s findings are clearly erroneous if they are not supported by
substantial evidence, the court misapprehends the effect of the evidence, or this Court’s
review of the record convinces it a mistake has been made. In re Marriage of Toavs,
¶ 23. None of these justifications apply.
¶14 When the contract on the property was paid in full, the deed was recorded naming
Jeff and Ginger as joint owners. Following Ginger’s quitclaim in 1991, the property
remained in Jeff’s name alone. While Jeff claims that he and his father agreed to
purchase the land together, the District Court determined there is no formal
documentation, no registration with the State of Montana, and no partnership tax returns
filed in their names. There is evidence, however, that Earl was responsible for building a
road and installing power and phone facilities on the property. The District Court
determined these contributions were worth approximately $25,000, an amount that should
be deducted from Jeff’s portion of the marital property as debt owed to Earl. In light of
the above evidence, the District Court properly identified all 80 acres as a marital asset,
with an adjustment for Earl’s contributions.
¶15 Did the District Court err in awarding attorney fees to Ginger Cameron?
¶16 Jeff avers the District Court erred in awarding attorney fees to Ginger. He claims
the District Court wrongly awarded her $17,988.78 in fees because it considered the
parties’ relative financial positions in a vacuum without regard to Ginger’s financial gains
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as a result of the Decree of Dissolution. Ginger claims the District Court properly
considered all marital and post-marital factors. On appeal, Ginger also contends Jeff
failed to obtain a transcript of the hearing addressing attorney fees.
¶17 Our standard of review regarding payment of attorney fees is whether the district
court abused its discretion. In re Marriage of Lee, 282 Mont. at 423, 938 P.2d at 658.
Under § 40-4-110, MCA, a district court must consider the financial resources of both
parties before it orders a party to pay the reasonable costs and attorney fees of another
party. We have held that an award under the statute “must be based on necessity, must be
reasonable, and must be based on competent evidence.” In re Marriage of Zander, 262
Mont. 215, 227, 864 P.2d 1225, 1233 (1993); In re Marriage of Barnard, 241 Mont. 147,
154, 785 P.2d 1387, 1391 (1990).
¶18 Ginger provided the District Court with competent evidence supporting an award
of attorney fees under § 40-4-110, including testimony regarding her health problems,
inability to generate income to support herself and simultaneously pay the attorney fees,
and Jeff’s ability to contribute to the fees. Ginger also argues on appeal that Jeff’s failure
to provide a transcript of the attorney fees hearing constitutes grounds for awarding her
fees. Jeff contends the hearing only addressed the amount of attorney fees, a quantity
he’s not contesting. He further claims that attaching the Order was sufficient.
¶19 Montana Rules of Appellate Procedure require parties to provide a record
sufficient to enable the Court to rule upon the issues raised. M. R. App. P. 8. In the
absence of the transcript in the record, we cannot review this issue. For that reason, we
affirm the District Court’s holding regarding the awarding of attorney fees.
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¶20 Did the District Court err in categorizing the property equalization payment and
the Somers property as not income-producing in its decision to award maintenance?
¶21 Jeff argues the District Court erred in identifying the Somers property and
property equalization payment as not income-producing. The District Court determined
that Jeff’s net distribution of property amounted to $658,786 and valued Ginger’s at
$422,542. As a result of this inequity, the District Court awarded Ginger $118,122 to
achieve an equitable distribution of the marital estate. Jeff asserts that the payment was
income-producing because it gave Ginger the immediate ability to pay her daily expenses
and invest the money. He also argues the Somers property was readily convertible to
cash, and was converted to $117,535 through the sale of the property, transforming the
2.4 acres into income-producing property.
¶22 Section 40-4-203(1), MCA, provides that the District Court may grant
maintenance only if it finds that the spouse seeking maintenance: (a) lacks sufficient
property to provide for his reasonable needs; and (b) is unable to support himself through
employment. We have held that the term “sufficient property” means income-producing
property rather than income-consuming property. Van Atta v. Van Atta, 252 Mont. 310,
313, 829 P.2d 3, 5 (1992).
¶23 While this Court has recognized that cash payments can be income-producing
when viewed in isolation, an analysis within the overall context of the Dissolution is
required. In re Marriage of Olson, 257 Mont. 208, 219, 848 P.2d 1026, 1033 (1993)
(noting that a $1,000 cash payment was income-producing but had to be used to replace
property, an act which depleted—not increased—its value to the recipient). Additionally,
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it is unclear from the record whether the equalization payments are readily available
within the marital estate. The equalization payments, therefore, cannot be predictably
identified as sufficient, income-producing property under § 40-4-203, MCA. The District
Court accurately identified the property equalization payment as not income-producing.
¶24 Jeff next argues the District Court erred in identifying the Somers property as not
income-producing. He claims it was readily convertible to cash and was, in fact,
converted to cash when Ginger sold the property for $117,535. The District Court,
however, correctly identified the property as not income-producing. In its original form,
the marital estate constituted property, not cash. The statute demands an analysis of
whether the property itself was sufficient for the recipient, not an analysis of whether the
recipient was able to sell it.
¶25 This understanding of the statute is supported by this Court’s precedent and the
rationale behind the statute. In the context of the maintenance statute, we have deemed
property “income-producing” in a limited number of situations in which living or
working on the property itself either sustains or grows the individual’s income. See
Pfeifer v. Pfeifer, 282 Mont. 461, 474, 938 P.2d 682, 692 (1997) (recipient able to
generate income from working on the property’s ranch); In re Marriage of Herron, 186
Mont. 396, 408, 608 P.2d 97, 103 (1980) (ongoing medical practice categorized as
“income-producing” property). This Court has also noted that the potential future
conversion of a home or real property into cash does not negate the reality that property
itself, even in significant volume, can be income-consuming. In re Marriage of Herron,
186 Mont. at 408, 608 P.2d at 103. This understanding is supported by the rationale
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justifying the property distinction, which expresses concern that one party will be left
“property poor” with an estate he or she cannot maintain. See In re Marriage of Herron,
186 Mont. at 408, 608 P.2d at 103. The rationale, like precedent on this issue, analyzes
what the property itself can provide. We therefore affirm the District Court’s
categorization of the property.
¶26 Is Ginger entitled to attorney fees on appeal?
¶27 Finally, Ginger asks this Court to award her attorney fees on appeal under § 40-4-
110, MCA. Having reviewed the facts of this case, we determine that fees on appeal are
not appropriate.
¶28 For the above-stated reasons, we affirm the District Court’s decision.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ JIM RICE
/S/ JAMES C. NELSON
/S/ PATRICIA O. COTTER
/S/ BRIAN MORRIS
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