February 16 2011
DA 10-0281
IN THE SUPREME COURT OF THE STATE OF MONTANA
2011 MT 26N
KIMBERLY A. LOWRY,
Petitioner and Appellant,
v.
DAVID A. LOWRY,
Respondent and Appellee.
APPEAL FROM: District Court of the Third Judicial District,
In and For the County of Powell, Cause No. DR 07-82
Honorable Ray Dayton, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Lori A. Harshbarger, JD Law Firm, Whitehall, Montana
For Appellee:
Michael G. Alterowitz, Alterowitz Law Offices, Missoula, Montana
Submitted on Briefs: January 12, 2011
Decided: February 16, 2011
Filed:
__________________________________________
Clerk
Justice Michael E Wheat delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited as precedent.
¶2 Kimberly Lowry (Kimberly) appeals from various orders entered by the Third Judicial
District Court, Powell County, during dissolution proceedings between Kimberly and David
Lowry (David). We affirm.
¶3 Kimberly raises the following issues on appeal:
¶4 Did the District Court properly grant David’s motion in limine?
¶5 Did the District Court abuse its discretion in distributing the marital estate and err in
denying Kimberly’s motion for a new trial and/or motion to amend its findings of fact,
conclusions of law, and order?
¶6 Did the District Court err in requiring each party to pay his or her own attorney’s
fees?
¶7 Finally, David asks us to consider whether Kimberly’s appeal is frivolous.
¶8 David and Kimberly were married in September 2001 and separated in November
2007. Much of this dispute involves the parties’ personal and real property.
¶9 In 1992, David purchased the Snowshoe Ranch located near Avon, Montana. In
2001, the ranch was worth approximately $1.4 million, subject to a mortgage in the amount
of $182,940.86. David and Kimberly resided on the ranch throughout their marriage. David
closed on the sale of the ranch on October 31, 2007. One week later, as part of a like-kind
exchange, David signed a buy-sell agreement to purchase property located in Idaho known as
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“Sandy Creek.” Kimberly had visited the property with David numerous times over the
summer and was present when the buy-sell agreement was signed, although she later denied
having knowledge of the purchase.
¶10 Two days after David signed the buy-sell agreement, Kimberly served David with
dissolution papers and an economic restraining order. While the restraining order was in
effect, David took several actions, including closing on Sandy Creek, selling the parties’ herd
of cattle, and destroying items of jointly owned property. At trial, Kimberly argued that the
above actions, among others, dissipated the marital estate.
¶11 The parties’ additional property included Moose Lake Lodge, purchased with a down
payment derived from funds David’s mother contributed and the sale of David’s stock;
Barehaven (the down payment came from a second mortgage on the ranch); and, forty acres
purchased by David in 2008 (using funds he borrowed from his mother).
¶12 Following a bench trial, the District Court awarded each party property owned
individually prior to marriage. The court concluded Kimberly should receive a 25% share of
the proceeds from the sale of the ranch and ordered that Sandy Creek should be sold. The
court also ordered that Moose Lake Lodge be sold, with David recovering the first $101,000.
The court determined Barehaven need not be sold, as long as David paid Kimberly
$6,159.50. The court also awarded Kimberly all the items of personal property she requested
and half of the value of the items David destroyed.
¶13 This Court reviews a district court’s findings of fact in a dissolution proceeding to
determine whether they are clearly erroneous. A finding of fact is clearly erroneous if it is
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not supported by substantial evidence, the court misapprehended the effect of the evidence,
or our review of the record leaves us firmly convinced that the court committed a mistake.
In re Marriage of Crilly, 2005 MT 311, ¶ 10, 329 Mont. 479, 124 P.3d 1151. Absent clearly
erroneous findings of fact, we will affirm a district court’s distribution of property unless we
determine the court abused its discretion. An abuse of discretion occurs if the court acts
arbitrarily without conscientious judgment or exceeds the bounds of reason, resulting in
substantial injustice. Id.
¶14 We review the grant or denial of the following for an abuse of discretion: motion in
limine, In re Marriage of Nies, 2003 MT 100, ¶¶ 28-29, 315 Mont. 260, 68 P.3d 697; motion
for a new trial and/or to amend judgment, In re Marriage of Schoenthal, 2005 MT 24, ¶ 9,
326 Mont. 15, 106 P.3d 1162; and attorney’s fees, In re Marriage of Szafryk, 2010 MT 90,
¶ 19, 356 Mont. 141, 232 P.3d 361.
Motion in limine
¶15 Kimberly argues that the District Court should have allowed her to testify about the
abusive nature of her relationship with David in order to describe its impact upon her
decisions. The admission of testimony is a discretionary matter for the trial court, and we
will not disturb its decision absent an abuse of discretion. Marriage of Nies, ¶ 29. The
District Court concluded that the purpose of the trial was to distribute the marital estate
equitably and that testimony regarding abuse, even if true, was not probative of the value or
distribution of the estate.
Distribution of marital estate—motion for new trial and/or to amend
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¶16 Kimberly asserts the court erred in concluding David did not dissipate the marital
estate. She argues a new trial and/or amended findings of fact, conclusions of law, and order
is/are warranted because the court failed to consider dissipation. Specifically, Kimberly
alleges error in the court’s division of the Sandy Creek proceeds; the award to David of the
first $101,000 from the sale of Moose Lake Lodge; and, her award of existing personal
property still in David’s possession.
¶17 In a dissolution proceeding, the district court may apportion the parties’ property and
marital assets equitably, according to each party’s contribution and taking into account
multiple factors, including dissipation. Section 40-4-202, MCA. A finding of dissipation
must be supported by substantial evidence. In re Marriage of Stewart, 232 Mont. 40, 43,
757 P.2d 765, 767 (1988). A new trial may be granted for any reason set forth in Montana
statute if the grounds are stated with particularity. M. R. Civ. P. 59(a). An alteration or
amendment of a final order is appropriate “to correct manifest errors of law or fact upon
which the judgment was based, to raise newly discovered or previously unavailable
evidence, to prevent manifest injustice resulting from, among other things, serious
misconduct of counsel, or to bring to the court’s attention an intervening change in
controlling law.” Lee v. USAA Cas. Ins. Co., 2001 MT 59, ¶ 75, 304 Mont. 356, 22 P.3d
631. Alteration and amendment are not intended to “give a litigant a second bite at the
apple.” Vincent v. BNSF Ry. Co., 2010 MT 57, ¶ 24, 355 Mont. 348, 228 P.3d 1123 (citation
omitted).
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¶18 The District Court concluded that except for the items of personal property that David
destroyed, he did not dissipate the marital estate. The court concluded David’s purchase of
Sandy Creek and other actions involving personal property were reasonable. The court
found the evidence did not support Kimberly’s theory that David recklessly spent the family
fortune, nor did the court find Kimberly’s testimony credible. The court denied Kimberly’s
motion for a new trial and/or to amend on the basis that her legal and factual theories were
not substantiated by the evidence.
Attorney’s fees
¶19 Kimberly argues that because she has been unable to pay her attorney’s fees and
David has paid his attorney’s fees, David must pay her attorney’s fees.
¶20 A court may order one party to pay the attorney’s fees of another party where such
award is based on necessity, competent evidence, and is reasonable. In re Marriage of
Steinbeisser, 2002 MT 309, ¶ 58, 313 Mont. 74, 60 P.3d 441. The court considers such
factors as the requesting party’s inability to pay his or her attorney’s fees, the other party’s
ability to pay attorney’s fees, and the financial position of each party. Id.
¶21 In refusing Kimberly’s request for attorney’s fees, the court was not moved by
Kimberly’s recitation of the high costs of attorneys because she had extended the
proceedings at every turn. The court found David had borrowed money in order to pay his
own attorney’s fees and did not have the ability to pay Kimberly’s attorney’s fees.
Frivolous appeal
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¶22 David claims that Kimberly’s appeal is frivolous because it is merely based upon her
disagreement with the court’s findings and is not supported by substantial evidence.
¶23 We award sanctions for an appeal that is frivolous, vexatious, filed for purposes of
harassment or delay, or taken without substantial or reasonable grounds. M. R. App. P.
19(5); Cooper v. Glaser, 2010 MT 55, ¶ 16, 355 Mont. 342, 228 P.3d 443. In determining
whether an appeal is frivolous, we assess whether the arguments were made in good faith.
Cooper, ¶ 16.
¶24 The legal issues are clearly controlled by settled Montana law which the District
Court correctly interpreted, and the record supports the District Court’s conclusion. The
court’s findings are not clearly erroneous, and it did not abuse its discretion in distributing
the marital estate. Nor did the court abuse its discretion in granting David’s motion in
limine, denying Kimberly’s motion for a new trial and/or to amend, and denying Kimberly
attorney’s fees. Finally, although we reject Kimberly’s arguments, we conclude that her
appeal was not frivolous.
¶25 Affirmed.
/S/ MICHAEL E WHEAT
We Concur:
/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
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