February 3 2010
DA 09-0205
IN THE SUPREME COURT OF THE STATE OF MONTANA
2010 MT 21N
PAUL F. McDOWELL, KATHLEEN A. HEIDE, MARY
ELLEN BARTHOLOMEW and EILEEN McDOWELL,
Plaintiffs and Appellees,
v.
THOMAS A. McDOWELL,
Defendant and Appellant.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and For the County of Sanders, Cause No. DV 06-192
Honorable Deborah Kim Christopher, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Joseph C. Engel, III, Attorney at Law, Great Falls, Montana
For Appellees:
Doug Scotti; Morrison & Frampton, Whitefish, Montana
Submitted on Briefs: January 7, 2010
Decided: February 3, 2010
Filed:
__________________________________________
Clerk
Justice Brian Morris delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2006, the following memorandum decision shall not be cited
as precedent. It shall be filed as a public document with the Clerk of the Supreme Court and
its case title, Supreme Court cause number, and disposition shall be included in this Court's
quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 Thomas A. McDowell (Thomas) appeals from an order of the Twentieth Judicial
District Court, Sanders County, ordering the partition by sale of real property owned by
Thomas and his siblings (Siblings) as tenants in common. We affirm.
¶3 The parties’ parents, Thomas E. McDowell and Janice McDowell (Father and
Mother), acquired, as joint tenants, the forty-acre parcel by warranty deed in 1969. Father
and Mother executed a property settlement agreement as part of their marriage dissolution on
December 30, 1971. The settlement stipulated that Father would have the property surveyed
into five tracts of eight acres each and that he would convey one tract to each of the five
children.
¶4 Father and Mother divorced in February of 1972. The divorce decree explicitly
incorporated the property settlement agreement. The divorce decree did not order specific
performance of the property settlement agreement. Mother executed a quitclaim deed
granting her interest in the property to Father. Father never had the property surveyed or
divided as stipulated by the property settlement agreement. Father instead executed a
warranty deed granting the property to the five children on August 31, 1972. Father lived on
the property until his death in May of 1995.
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¶5 Thomas moved onto the property with Siblings’ permission in November of 1999.
Siblings agreed that Thomas could live on the property on a temporary basis if he maintained
it and paid the property taxes. Thomas paid the property taxes sporadically between 1999
and 2004, and made changes to the property without Siblings’ permission. Thomas operated
a business on the property, also without Siblings’ permission.
¶6 Siblings informed Thomas that they wished to sell the property. The parties met on
the property in July of 2004 to discuss sale of the property. Thomas opposed the sale.
Siblings filed their complaint and request for partition shortly thereafter.
¶7 Thomas claims that his status as a third party beneficiary entitles him to specific
performance of the 1971 property settlement agreement. Thomas further claims that the
1972 warranty deed executed by Father was void ab initio because Father did not own the
property in fee simple. Thomas argues in addition that he had obtained title to the property
through adverse possession.
¶8 The District Court made extensive findings of fact and conclusions of law. The court
recognized that “the parties are deadlocked and at an impasse relative to their co-ownership
and management of the property.” The District Court determined that partition by sale
promoted the best interests of the parties and that Siblings would be prejudiced by anything
other than partition by sale and division of the proceeds.
¶9 The District Court determined that the 1972 warranty deed executed by Father was
valid on its face and superseded the 1971 property settlement agreement. Neither the
property settlement agreement nor the divorce decree mentioned specific performance of the
property settlement agreement. The court concluded, therefore, that Thomas did not qualify
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as a third party beneficiary to an agreement with the force and effect of law, and also that he
lacked standing to enforce the 1971 property settlement agreement. The District Court
determined that all five children owned the property in fee simple as tenants in common.
Thomas’s failure to pay taxes on the property for the five year statutory period required by
§ 70-19-411, MCA, defeated his adverse possession claim.
¶10 Thomas argues on appeal that the District Court improperly adopted Siblings’
proposed findings of fact and conclusions of law verbatim. We review a district court’s
findings of fact to determine whether the court’s findings are clearly erroneous. In re
Williams, 2009 MT 282, ¶ 14, 352 Mont. 198, 217 P.3d 67. We review a district court’s
conclusions of law for correctness. Id.
¶11 We have determined to decide this case pursuant to Section I, Paragraph 3(d), of our
1996 Internal Operating Rules, as amended in 2006, that provide for memorandum opinions.
It is manifest on the face of the briefs and the record before us that substantial evidence
supports the District Court’s findings of fact and that the District Court correctly applied the
law.
¶12 Affirmed.
/S/ BRIAN MORRIS
We Concur:
/S/ MIKE McGRATH
/S/ JAMES C. NELSON
/S/ PATRICIA O. COTTER
/S/ W. WILLIAM LEAPHART
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