No. 14735
IN THE SUPREME COURT OF THE STATE OF MONTANA
IN RE THE MARRIAGE OF
SHARON KAY METCALF,
Petitioner and Respondent,
-vs-
RONALD RAY METCALF,
Respondent and Appellant.
Appeal from: District Court of the Thirteenth Judicial District,
Honorable Nat Allen, Judge presiding.
Counsel of Record:
For Appellant:
Lynaugh, Fitzgerald, Schoppert, Skaggs and Essman,
Billings, Montana
For Respondent:
Berger, Anderson, Sinclair and Murphy, Billings, llontana
Submitted on briefs: June 27, 1979
Decided: AUG 2 2 1979
Filed: W 22
G 1979
Mr. Justice John Conway Harrison delivered the Opinion of
the Court.
This appeal arises out of a property settlement in a
divorce action in Yellowstone County.
Respondent wife and appellant husband were married in
1964 and have two children: Brett, age 11, and ~ a n i a ,age
14. During the marriage, appellant was employed as a mechanic,
salesman and carpet installer. Presently appellant works as
a salesman for a wholesale plumbing corporation. In increasing
his sales area income approximately six-fold, appellant has
earned the following steadily rising incomes: $18,101 in
1975; $27,758 in 1976; and $38,666 in 1977. Appellant also
projected his annual income for 1978 as $42,000.
Respondent has a high school education and has held
various jobs throughout the marriage: sales clerk, dental
assistant, and receptionist. Shortly after appellant se-
cured his present job, respondent quit her full-time enploy-
ment and has only worked occasionally since that time,
selling vitamins to friends and relatives.
During the course of the marriage, the parties acquired
several assets:
Value Obligation
Family home
Two lots
Boat, trailer
Dining room set
Household property
Car
Motorcycle
Guns
Trampoline
Horse and foal
As of the fall of 1978, the total value of the marital
estate was approximately $114,000 and was subject to approxi-
mately $55,000 worth of secured and $12,000 worth of unsecured
debts. A~SO,
during the marriage, a $5,000 inheritance was
received by appellant and used by both parties in the vari-
ous expenses of the marriage.
Respondent filed a petition for dissolution on April
17, 1978, and the matter came for hearing on October 24,
1978. The District Court entered its findings of fact and
conclusions of law on December 6, 1978. Among the findings
and conclusions, the court found that the dissolution should
be granted, that the custody of the two children should be
granted to respondent, that appellant should pay $400 per
month child support and maintain health and medical insur-
ance for the children, and that appellant should pay $200
per month maintenance until the court should further order
or petitioner should remarry. The court also ordered the
appellant to pay respondent's attorney fees of $1,620.
With regard to the distribution of property, the court
found that respondent should receive the home, the dining
room set, the household property, and the car, and that
appellant should receive the two lots, the boat and trailer,
the horse and foal, the motorcycle, the guns and the trampo-
line. The court further found that each party should be
individually responsible for the obligations owing on the
items received, except that appellant would be responsible
for the second mortgage on the home.
A judgment giving effect to the findings and conclu-
sions was entered on December 12, 1978, and appellant filed
a notice of appeal on January 11, 1979. Respondent there-
after requested an allowance for attorney fees to defend the
appeal. On April 19, 1979, the court granted respondent
attorney fees in the amount of $2,000. Appellant also
appealed this award.
Three i s s u e s a r e r a i s e d on a p p e a l :
1. Whether t h e D i s t r i c t C o u r t abused i t s d i s c r e t i o n in
f a i l i n g t o c o n s i d e r $ 1 2 , 0 0 0 worth o f u n s e c u r e d d e b t s i n
a r r i v i n g a t a n e t worth of t h e m a r i t a l e s t a t e .
2. Whether t h e D i s t r i c t C o u r t e r r e d b e c a u s e i t d i d n o t
make any f i n d i n g s a s t o a p p e l l a n t ' s i n h e r i t a n c e .
3. Whether t h e D i s t r i c t C o u r t awards o f a t t o r n e y f e e s
w e r e r e a s o n a b l e and s u p p o r t e d by s u b s t a n t i a l e v i d e n c e .
Before d i s c u s s i n g t h e f i r s t i s s u e , w e w i l l consider a
preliminary matter. Respondent c o n t e n d s t h a t a p p e l l a n t h a s
waived h i s r i g h t t o o b j e c t t o t h e D i s t r i c t C o u r t ' s f a i l u r e
t o i n c l u d e e i t h e r t h e unsecured d e b t s o r a p p e l l a n t ' s i n h e r i -
t a n c e i n t h e d e t e r m i n a t i o n and d i s p o s i t i o n of t h e m a r i t a l
estate. Respondent a r g u e s t h a t a p p e l l a n t s h o u l d have b r o u g h t
t h e s e " o v e r s i g h t s " t o t h e a t t e n t i o n o f t h e c o u r t under R u l e s
4 6 and 5 2 ( b ) , M.R.Civ.P., by moving t o amend t h e f i n d i n g s
and c o n c l u s i o n s o f t h e c o u r t . Since a p p e l l a n t f a i l e d t o
f i l e a motion t o amend w i t h i n t e n d a y s o f t h e n o t i c e o f
e n t r y of judgment, i t i s a r g u e d t h a t t h e r e i s a w a i v e r and
t h a t t h e r e i s no r i g h t t o o b j e c t t o t h e s e m a t t e r s on a p p e a l .
W disagree.
e To b e g i n w i t h , t h e r e c o r d r e v e a l s t h a t
t h e matters r a i s e d by a p p e l l a n t w e r e n o t " o v e r s i g h t s . "
A p p e l l a n t informed t h e c o u r t i n h i s t r i a l memorandum t h a t
r e s p o n d e n t ' s proposed f i n d i n g s o f f a c t w e r e n o t s u f f i c i e n t
w i t h r e s p e c t t o t h e i n h e r i t a n c e o r t h e unsecured d e b t s . The
c o u r t , however, c h o s e t o a d o p t t h e f i n d i n g s d e s p i t e t h e s e
objections. Under t h e s e c i r c u m s t a n c e s , i t i s u n l i k e l y t h a t
a motion t o amend would s e r v e any f u r t h e r purpose. Nor i s
s u c h a motion r e q u i r e d by t h e r u l e s . A motion t o amend i s
n o t , t h e r e f o r e , a p r e c o n d i t i o n t o t h i s a p p e a l , and t h e
m a t t e r s r a i s e d by a p p e l l a n t may p r o p e r l y be c o n s i d e r e d by
t h i s Court. S e c t i o n 1-3-223, MCA.
A p p e l l a n t ' s p r i m a r y o b j e c t i o n on a p p e a l i s t h a t t h e
t r i a l c o u r t e r r e d because it d i d n o t c o n s i d e r , i n a r r i v i n g
a t t h e n e t w o r t h o f t h e p a r t i e s , $12,000 w o r t h o f u n s e c u r e d
debts. A t t h e h e a r i n g on O c t o b e r 24, u n c o n t r a d i c t e d e v i d e n c e
o f t h e f o l l o w i n g u n s e c u r e d d e b t s was i n t r o d u c e d :
S e a r s & Roebuck Co. 700.00
Bankers L i f e 1,938.07
M r s . R. J . M e t c a l f 8,500.00
D r . Greenlec 940.00
The t r i a l c o u r t , however, f a i l e d t o i n c l u d e t h e above
u n s e c u r e d d e b t s i n d i s t r i b u t i n g t h e m a r i t a l e s t a t e when i t
a d o p t e d r e s p o n d e n t ' s p r o p o s e d f i n d i n g s and c o n c l u s i o n s . It
d i s t r i b u t e d t h e major a s s e t s of t h e m a r i t a l e s t a t e i n t h e
f o l l o w i n g manner:
T PETITIONER
O T RESPONDENT
O
A s s e t s Liabilities Assetsp Liabilities
Home 65,000 37,000
Two l o t s
Boat
D i n i n g r m 2,400 1,300
Household 1 3 , 6 0 0 600
Car 3,000
Motorcycle
Guns
Trampoline
Horse
The D i s t r i c t C o u r t a l l o w e d r e s p o n d e n t a p p r o x i m a t e l y
$84,000 a s s e t s and $38,900 l i a b i l i t i e s , o r a n e t w o r t h o f
$45,100. I t a l l o w e d a p p e l l a n t $30,450 a s s e t s and $19,800
l i a b i l i t i e s , o r a n e t w o r t h o f $10,650.
W e have p r e v i o u s l y h e l d t h a t t o have a p r o p e r d i s t r i b u -
t i o n o f m a r i t a l a s s e t s , t h e t r i a l c o u r t must f i r s t d e t e r m i n e
t h e n e t worth of t h e p a r t i e s a t t h e t i m e of t h e i r d i v o r c e .
G r e n f e l l v. Grenfell (1979), - Mont . , 596 P.2d 205,
207, 36 S t - R e p . 1100, 1103; V i v i a n v . V i v i a n (19781,
Mont. , 583 P.2d 1072, 1074, 35 St.Rep. 1359, 1361. In
a r r i v i n g a t n e t w o r t h , t h e t r i a l c o u r t must c o n s i d e r t h e ". . .
a s s e t s [and] l i a b i l i t i e s . . . of each of t h e p a r t i e s . . ."
Section 40-4-202, MCA. The trial court has far-reaching
discretion in resolving property divisions, and its judgment
will not be altered unless a clear abuse of discretion is
shown. In Re Marriage of Kramer (1978), Mont. I
580 P-2d 439, 442, 35 St.Rep. 700, 704; Zell v. Zell (1977),
Mont. , 570 P.2d 33, 35, 34 St.Rep. 1070, 1074.
In this case we believe the court abused its discretion.
Before distributing the property, the court should have
considered the $12,000 worth of unsecured debts in arriving
at the net worth of the parties. Without this considera-
tion, the property division was incomplete. Furthermore,
the liability for the unsecured debts should have been
considered because it could have greatly affected the burden
of each party respecting his or her share of the estate.
If, for example, appellant received the entire responsibility
for the unsecured debts, his total liabilities would have
exceeded his total assets and he would have experienced a
total net deficit of $1,350. The assumption of the debt
would have effectively reduced the 14 percent of the marital
estate he actually received to nothing. This factor, if
considered by the court, should have alerted it that the
property distribution was inequitable. Likewise, if respon-
dent assumed this debt, there may have been difficulty in
meeting all the obligations she assumed. Accordingly, it is
necessary to remand this case so that the unsecured debts
may be considered in determining the net worth of the par-
ties and that the assumption of debts may be viewed in the
totality of the circumstances. These considerations should
significantly affect the outcome of the property distribution.
With respect to the second issue, appellant argues that
the trial court was bound under a previous decision to make
a specific finding regarding appellant's inheritance.
V i v i a n , 583 P.2d a t 1 0 7 4 , 35 St.Rep. a t 1362.
W e disagree. Contrary t o a p p e l l a n t ' s i n t e r p r e t a t i o n ,
Vivian r e q u i r e s only t h a t t h e c o u r t t a k e an i n h e r i t a n c e i n t o
consideration i n d i v i d i n g t h e m a r i t a l e s t a t e , n o t t h a t it
make a s p e c i f i c f i n d i n g r e g a r d i n g t h e i n h e r i t a n c e .
". . . T h i s C o u r t , i n Morse v . Morse . . .held
t h a t an inheritance received during a marriage
i s a m a r i t a l a s s e t . W e went on t o e x p l a i n t h a t
t h i s h o l d i n g meant t h a t a n i n h e r i t a n c e had t o b e
taken i n t o consideration i n dividing t h e a s s e t s .
However, i n Morse, w e r e c o g n i z e d t h a t no d e f i n i t e
r u l e c o u l d b e e s t a b l i s h e d a s t o how t h e t r i a l
c o u r t was t o c o n s i d e r t h i s a s s e t . Each c a s e h a s
t o b e d e c i d e d o n i t s f a c t s . " V i v i a n , 583 P . 2d
a t 1074, 35 S t - R e p . a t 1362.
Here, w e b e l i e v e t h a t t h e t r i a l c o u r t d i d c o n s i d e r
appellant's inheritance, a t l e a s t a s best a s was possible
given t h e circumstances. The c o u r t was f a c e d , however, w i t h
t h e i m p o s s i b i l i t y of t r a c i n g t h e s e funds. Appellant testi-
f i e d t h a t h i s i n h e r i t a n c e was consumed by t h e e x p e n s e s and
a s s e t s of t h e marriage. S u p p o r t i n g t h i s t e s t i m o n y was t h e
f a c t t h a t t h e i n h e r i t a n c e was r e c e i v e d i n 1973 when t h e
income o f t h e p a r t i e s was below $10,000. Faced w i t h t h i s
predicament, t h e c o u r t c o u l d d o n o t h i n g more.
". . . W e do n o t f e e l t h a t t h e t r i a l judge must
become a n a p p r a i s e r , a n a c c o u n t a n t , a c o m p u t e r ,
and a n a l l - a r o u n d g e n i u s t o a p p r o p r i a t e l y de-
c i d e t h e f a c t s a s e s t a b l i s h e d by t h e documenta-
t i o n given a t trial. It is the p a r t i e s ' d u t i e s
t o a s s i s t the t r i a l court i n getting t h i s infor-
m a t i o n s o a p r o p e r judgment i s made a s t o t h e i r
marital assets." Downs v. Downs ( 1 9 7 9 ) ,
Mont. , 592 P.2d 938, 939, 36 St.Rep. 577,
579.
A c c o r d i n g l y , w e f i n d t h a t t h e c o u r t d i d n o t err i n
f a i l i n g t o make a s p e c i f i c f i n d i n g r e g a r d i n g t h e i n h e r i t a n c e .
With r e s p e c t t o t h e i s s u e o f a t t o r n e y f e e s , s e c t i o n 40-
4-110, MCA, v e s t s i n t h e D i s t r i c t C o u r t t h e d i s c r e t i o n t o
award a r e a s o n a b l e amount f o r a t t o r n e y f e e s i n a d i s s o l u t i o n
proceeding. In reviewing that discretion, we must determine
whether there is substantial evidence to support the amount
awarded. Allen v. Allen (1978), Mont. , 575 P.2d
74, 77, 35 St.Rep. 246, 249.
Here the District Court awarded respondent attorney
fees of $1,620 for the original proceeding and $2,000 for
the appeal. Respondent demonstrated necessity. Whitman v.
Whitman (1974), 164 Mont. 124, 132, 519 P.2d 966, 970. In
view of the circumstances of this case, the record, and the
documents and exhibits prepared by counsel, we believe the
award of attorney fees for the original proceeding was
supported by substantial evidence. However, the award of
attorney fees for the appeal was excessive and unsupported
by substantial evidence. The briefs were short, oral argu-
ment was waived, and no novel issues were presented. Ac-
cordingly, we vacate the award of attorney fees and remand
to the District Court for a determination of these fees.
This case is remanded to the District Court for further
proceedings consistent with this opinion.
We concur:
7A&$.
Chief Justice
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CIA- e ,
Justices