In Re the Marriage of Merry

No. 84-10

I N THE SUPREME COURT O F THE S T A T E O F MONTANA

1984

I N IIE THE MARRIAGE O F
A R D I S EILEEN J E R R Y ,

P e t i t i o n e r and R e s p o n d e n t ,

and

ROBER'T OWEN NERRY,

R e s p o n d e n t and A p p e l l a n t .

APPEAL FROM: D i s t r i c t C o u r t of t h e E i g h t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of C a s c a d e ,
T h e H o n o r a b l e H. W i l l i a m C o d e r , Judge p r e s i d i n g .

COUNSEL O F RECORD:

For A p p e l l a n t :

K e n n e t h R. Olson; Baiz & Olson, G r e a t F a l l s , Montana

For R e s p o n d e n t :

N a n c y Peterson; A l e x a n d e r & B a u c u s , G r e a t Falls,
Montana

S u b m i t t e d on B r i e f s : June 2 8 , 1 9 8 4
Decided: O c t o b e r 31, 1 9 8 4

Filed:
:I. J u s t i c e J o h n Conway H a r r i s o n d e l i v e r e d t h e Opinion of
the Court.

This is an appeal from a judgment of the District

Court of the Eighth Judicial District, in and for the

C o u n t y of C a s c a d e . Respondent, A r d i s , brought an a c t i o n i n

d i s s o l u t i o n of t h e p a r t i e s 1 m a r r i a g e , and a s k e d f o r c u s t o d y

of t h e p a r t i e s 1 minor child, asked for child support, set

f o r t h a v i s i t a t i o n s c h e d u l e , asked f o r an e q u i t a b l e d i v i s i o n

of t h e m a r i t a l p r o p e r t y and f o r h e r a t t o r n e y ' s f e e s . From a

judgment for the respondent the appellant, Robert, takes

t h i s appeal.

Prior to trial, the parties entered into an agreed

statement of facts which included stipulated agreements

between the parties as to the various criteria to be

considered by the court in the division of the marital

p r o p e r t y a s s e t f o r t h i n s e c t i o n 40-4-202, MCA.

The p a r t i e s e n t e r e d i n t o t h e i r m a r r i a g e September 1 3 ,

1959, in Circle, Montana. In May of 1982, after

approximately twenty-three years of marriage, the parties

separated, with the respondent, Ardis, leaving the family

home. During the years of their marriaqe, four children

w e r e b o r n , however a t t h e t i m e o f t h e d i s s o l u t i o n o n l y o n e ,

Julianne, born November 6, 1973, was under the age of

eighteen. I t was s t i p u l a t e d by t h e p a r t i e s t h a t r e s p o n d e n t ,

Ardis, would have the s o l e c u s t o d y of Julianne, with the

a p p e l l a n t , R o b e r t , t o have r e a s o n a b l e v i s i t a t i o n p u r s u a n t t o

a v i s i t a t i o n s c h e d u l e a g r e e d upon by t h e p a r t i e s .

T h e i r s t a t e m e n t i n d i c a t e s t h a t A r d i s worked o f f and on

a t d i f f e r e n t jobs, u n t i l 1 9 7 7 when s h e went t o work f o r t h e

Department of Highways for the State of Montana. Since
1977 she has been employed by the Department as a

right-of-way agent. Robert has been employed as a surveyor,
teamster and equipment operator throughout the period of the
parties' marriage.

The marital estate consists of both real and personal
property located both in and outside the State of Montana.
The real property comprising the marital estate includes the
parties' residence in Great Falls, Montana, which was
purchased by the parties in 1969. The home was purchased by

making a down payment of $4,000 and financing the balance
through a savings and loan association at Great Falls. At

the date of the hearing, approximately $5,000 remained to be
paid on the mortgage and the fair market value of the home
was agreed upon by the parties to be $40,000.
Due to appellant's objections, to be hereinafter
considered, concerning the distribution of property, we set
forth the court's findings of facts 9 , 10, 1 1 12, 12 [sic]

and 13 verbatim:
"9. The parties, throughout their
marriage, had accumulated certain
personal property. Since the separation
of the parties on May 24, 1982, the
parties have divided the personal
property amongst themselves, and agree
that each party may presently keep that
personal property which is in his or her
possession. Respondent is in possession
of the parties' 16-foot Larson boat with
Mercury outboard motor and the majority
of the household furnishings, including
the living room furniture, dinette set
and bedroom set. Petitioner is in
possession of her 1980 Datsun vehicle,
her daughter's bedroom furniture and
certain items which could not be removed
from the home such as a washer and dryer.
"10. The parties have incurred certain
liabilities during the course of their
marriage. These liabilities are as
follows:
Federal Land Bank $56,566.00
 First Federal Savings & Loan
Association of Great Falls $4,801.00
GMAC (Bob's truck) $3,180.00
Cicosta $900.00
Hershel and Irene Merry $3,400.00
Montana Dept. of Revenue $359.00
First National Bank $1,500.00
Attorneys' lien on cabin
(Dennis Clarke attorneys'
fees for Respondent in
representation of this
dissolution) $1,250.00
Land taxes on the Davison
County farm $1,239.00
TOTAL $73,195.00
"Certain of these liabilities, such as
the Montana Department of Revenue,
Cicosta, First National Bank and
attorneys' lien on the cabin are
liabilities incurred solely by
Respondent.
"11. Petitioner ha.s incurred debts on her
own behalf since the separation of the
parties at Sears, The Bon, and the credit
union.
"12. The parties have accumulated certain
real property during the course of their
marriage. The following is a list of
such real property and dates and methods
of acquisition:
"(a) The family residence located at 2721
Fifth Avenue South, Great Falls, MT (Lot
9 , Block 31, Black Eagle, Great Falls
Addition) was purchased by the parties in
1969 for $16,000. A down payment of
$4,000 was made from a joint savings
account and the balance was financed at
First Federal Savings and Loan
Association of Great Falls.
Approximately $5,300 remains owing on
that balance. The fair marked value of
the home is approximately $4,000.00 [sic]
[$4O,OOO.OO] and the parties' current
equity in the home is $34,700.
"(b) Cabin and lot in Lincoln, Montana.
In 1978, the parties purchased the cabin
and five lots near Lincoln, Montana.
(Lots 25, 26, 29, 30 and 32 Palmer
Subdivision, Lewis and Clark County,
Montana). The current fair market value
of this property is $34,400 and is debt
free. The cabin was financed by
renegotiation of the Federal Land Bank
loan discussed below, in 1978.
"(c) Aurora County, South Dakota farm.
In 1969 Petitioner inherited a one-sixth
(1/6) interest in an 80-acre tract of
farmland located in Aurora County, South
Dakota. (S1/2SW1/4, Section 17, TlO5N,
R6314, 5th P.M., Aurora County, South
Dakota). In 1962 Petitioner further
inherited a one-ninth (1/9) interest in
the same property from her father's
estate. Petitioner and her sister later
acquired a further five-eighteenths
(5/18) interest in the same property for
$4,200. This money was taken from a
joint savings account of Petitioner and
Respondent. Further, a note which was
owed to Petitioner's sister was
considered paid in full because of this
transaction. Petitioner's interest in
said property is approximately 33 acres
at the present time. The fair market
value of this property is $300 per acre,
thus making Petitioner's interest in said
property worth approximately $9,900.
This property was inherited and acquired
during the marriage of the parties,
however, Respondent made no contributions
to the property in terms of farming or
working the property. The property has
been leased to third parties, and
Petitioner has received only one payment
therefrom.
"This farm initially belonged to
Petitioner's maternal grandfather and was
later Petitioner's mother's property.
Petitioner inherited the property from
her mother and her father upon their
deaths in 1961 and 1962, respectively.
The property has alwasys [sic] been
maintained, since Petitioner's
grandfather's ownership of said property,
in Petitioner's family.
"(d) Davison County, South Dakota farm
property. Upon Petitioner's father's
death in 1962, Petitioner and her
siblings, after litigation, inherited 320
acres of farmland in Davison County,
South Dakota. (E1/2, Section 29, TlO4N,
361). The cost for the above litigation
was paid by Petitioner and her siblings,
Petitioner obtained the funds from joint
accounts. The 320 acres was initially to
be shared by the Petitioner and her two
sisters and one brother. The four
parties agreed to put the property up for
sale, but due to what Petitioner felt to
be an extremely low price, Petitioner
matched the existing purchase price and
purchased the property. Petitioner and
Respondent obtained a loan from the
Federal Land Bank in Mitchell, South
Dakota in 1971, in the amount of $18,600
to finance the purchase of the farm. The
parties also borrowed $2,000 from
Respondent's parents which has been paid
back. A note was given to Petitioner's
sister, Carol, for $6,000 for her
interest in the property.
"This farm is held by Ardis E. Merry and
Robert 0 . Merry as is evidenced by the
warranty deed on file herein. In 1974
the note to the Federal Land Bank was
refinanced for an additional $10,000.
This $10,000 was used by Respondent in
1974 and 1975 when he attempted to farm
the property himself. It was
Respondent's idea to farm the property
himself and it was his desire to farm the
property. Petitioner at no time asked
him to farm the property or suggested
that idea.
"In 1978 the note to the Federal Land
Bank was again refinanced when the
parties purchased the Lincoln property
discussed above. An additional $33,000
was borrowed at this time with $30,000
being applied directly to the purchase of
the Lincoln property. The $3,000
remaining went directly to Respondent and
into his sole checking account.
"From 1971 through 1978, the Davison
County farm basically made money overall.
During that period of time the farm was
either leased or Respondent attempted to
farm the property. After the refinancing
in 1978 for the purchase of the Lincoln,
Montana cabin, the farm has lost money in
varying amounts. Petitioner on several
occasions requested Respondent to raise
the amount of the lease payments, but
Respondent has failed or refused to do
so, even though Petitioner has told him
that the property was worth more that
[sic] what they were obtaining under the
Lease.
"The Davison County farm consists of 230
acres of farmland and 9 0 acres of
pasture. This farm belonged to
Petitioner's father and was farmed by him
during this lifetime. It is also the
home wherein Petitioner was raised and
spent her childhood.
"Respondent farmed the property for two
years, which Respondent offered to do on
 his own, and enjoyed doing. This was
done even though Respondent could have
leased the farm at that time. Respondent
and Petitioner both benefitted [sic] from
the expenses of the farm under joint
income tax returns every year in 1971.
In 1978, no farm payment was due to the
Federal Land Bank and an additional
$3,000 was acquired for the refinancing
of the Federal Land Bank note at that
time. Respondent took the lease payments
and the $3,000 and used these amounts for
his own benefit, without accounting for
these amounts to Petitioner and without
acquiring property that benefited the
marriage or the family. With the lease
payments and the $3,000 from the Federal
Land Bank, less the taxes, this amounted
to approximately $7,000. Petitioner had
no share in the receipt of that $7,000 in
any way.
"12. [sic] Petitioner inherited 80 acres
of the 320 acres of the above-described
farm. The remaining 240 acres was
purchased by the parties through the
Federal Land Bank financing. Petitioner
is willing to assume the entire Federal
Land Bank mortgage of approximately
$56,000-57,000, which includes the
mortgage on the cabin. Petitioner is
willing to give to Respondent, free and
clear excepting the attorneys' lien on
the cabin, the cabin and lots in Lincoln,
Montana.
"13. Petitioner desires to keep the
family home of the parties and is willing
to assume the mortgage on that home. The
home is presently rented to Petitioner
and Respondent's older daughter and her
husband. Petitioner has so rented the
house in order to make the necessary
repairs and be able to deduct them as
costs of improving rental property.
Petitioner intends to move back into the
home by July of 1985 with the minor child
of the parties. By renting the home to
the older daughter of the parties,
Petitioner is able to provide after
school care for the minor child of the
parties without cost in that the parties
eldest daughter then takes care of the
minor child."
As to the personal property of the parties, the agreed
statements of fact indicated that Robert took a majority of
the furnishings from their residence in Great Falls. In
addition, the court order gave Robert all of his personal
items that were in the cabin at Lincoln, Montana.
In addition Robert received $10,900 as a partial
settlement from a wrongful discharge suit against the City
of Great Falls. The wrongful discharge that led to the
settlement occurred in March of 1979, prior to the
dissolution of the marriage. At that time Robert withdrew
his retirement from the City of Great Falls in the amount of
approximately $13,500. He put $10,000 of that amount in a
Franklin fund in his name and that of his daughter,
Julianne. Controversy exists between the parties as to
whether or not that money was used for the family or was
entirely used by Robert for personal use.
Testimony indicates that all told, Robert received
approximately $31,000 since 1979 as a result of his
termination. $6,600 was placed back in his retirement
account as a city employee. Ardis has slightly over $5,000
in her retirement fund accrued while working for the State
of Montana.
Four issues are presented to this Court on appeal:
(1) Did the trial court err in adopting the
respondent's proposed findings of fact and conclusions of
law and order?
(2) Did the court err in distributinq the marital
estate and ignore the criteria set forth in section
40-4-202, MCA, in the distribution?
(3) Did the court err in making the distribution of
the marital assets by considering the alleged dissipation by
the appellant of certain martial assets?
(4) Did the court err in awarding respondent her
attorney's fees?
The first issue is directed to the adoption by the
trial court of the respondent's proposed findings of fact
and conclusions of law and order. Robert alleges that the
trial judge received the proposed findings of fact and
conclusions of law on November 14, 1983, and that the next
day left office, at which time he adopted the findings of
fact and conclusions and order en toto. He notes that
Ardis' proposed findings had obvious typographical errors,
and in adopting them the court even adopted the
typographical errors. For example the home was listed at
$4,000 instead of $40,000 and other minor word mispellings
were contained in the court's findings. Appellant argues
that with the wind-down of all of his affairs, the trial
judge did not take the necessary time to make a careful,
studied and fair decision. He alleges it was error for him
to "rely too heavily upon the proposed findings and
conclusions of one party," citing Tomaskie v. Tomaskie
(Mont. 1981), 625 P.2d 536, 38 St.Rep. 416; In re the
Marriage of Hunter (Mont. 1982), 639 P.2d 489, 39 St.Rep.
59; City of Billings v. Public Service Commission (Mont.
1981), 631 P.2d 1295, 38 St.Rep. 1162.
We have long held that the wholesale adoption of one
party's proposed findings and conclusion is not in itself an
automatic basis for vacating the judgment. Citing In re the
Marriage of Glasser (Mont. 1983), 669 P.2d 685, 40 St.Rep.
1518. In a long series of cases, this Court has disapproved
of the practice where it is apparent that the trial court
relied too heavily on proposed findings, "to the exclusion
of the proper consideration of facts and the exercise of
independent judgment." In In re the Marriage of Goodmundson
(Mont. 1982) 655 P.2d 509, 39 St.Rep. 2295, we noted that it
is acceptable procedure where findings and conclusions are

"extensive and detailed" and the court "explained its
reasons for adopting the findings of one party."
Rule 52 of Montana Rules of Civil Procedure, provide
the guidelines for the trial court to follow in entering its
findings of fact and conclusions of law following trial by
the judge. The pertinent part of that rule states:

"Findings of fact shall not be set aside unless clearly
erroneous, and due regard shall be given to the opportunity
of the trial court to judge the credibility of the
witnesses. .. "
By Robert's calculations, there is a seventy/thirty
percent split in the marital property. He complains that
the inequity was the result of unfounded allegations of
gambling losses and a dissipation of the marital assets.
Here we find there was a substantial amount of
conflicting evidence brought forth by the parties in this
case. Taking Robert's figures as correct, there was a

disparity in the distribution of the marital estate, the
seventy/thirty split mentioned above. The only question is
whether, under the facts of this case, this split was
warranted. There is testimony that several life insurance

policies, joint savings and checking accounts, stock
accounts and mutual funds were liquidated by Robert and used
for his benefit alone. According to Ardis' estimation, the
value of this is approximately $28,000, or twenty percent of
the marital property. The testimony of Robert indicates he
paid family bills and spent money for his own use. Studying
the findings of the court, it is ?iff icult to determine if
this dissipation equals the amount of the soventy/thirty
percent split, referred to above, since the court makes no

specific findings as to the amount of the alleged
dissipation by Robert. Robert argues that he cannot attack
the findings of the court because they were based on vague
allegations and were not specific enough. However, by
Ardis' account, they appear to be substantially correct.
Robert had his opportunity at the trial level to present the
specific amounts, account for where this money went, but was
unable to come up with any specific details by which the
court could set forth his position as to this money.
What Robert appears to be questioning from this Court
is for a remand to the District Court for more specific
findings. We find this not warranted, because Robert had
opportunity to present his evidence, did so, and the court
found against him. His lack of specificity was his downfall
and he should not benefit from it with a second chance.
Taking the evidence in a light most favorable to the
prevailing party below, there was substantial evidence to
sustain the trial court's judgment.
Next, Robert alleges the trial court erred in
distributing the marital property and did not follow section
40-4-202, MCA, in its order. Robert begins his argument in
this by saying he "believes" the trial judge made a "hasty

and inappropriate decision . . . because he was anxious to
wind up the affairs of his office before he left." He
contends that the findings are clearly wrong because the
court awarded the seventy/thirty percent distribution of the
marital estate. It should be noted that these figures do
not include all of the alleged dissipated funds, which

Robert controlled. Nor do the figures include the

settlement obtained by Robert from the City of Great

F a l l s due t o h i s i l l e g a l f i r i n g . The t r i a l c o u r t f o u n d t h a t

t h e s e t t l e m e n t was p a r t o f t h e m a r i t a l e s t a t e and awarded

t h a t t o Robert. I n a d d i t i o n i t would a p p e a r t h a t t h e t r i a l

c o u r t a t t e m p t e d t o t r y and b a l a n c e o u t t h e p r o p e r t y d i v i s i o n

in view of the fact that some of the funds had been

d i s s i p a t e d by R o b e r t . This is a c o n s i d e r a t i o n which was

r e v i e w e d by t h e t r i a l c o u r t a s m a n d a t e d by s e c t i o n 40-4-202,

MCA.

Robert cites and relies upon In Re the Marriage of

Herron (1980), 186 Mont. 396, 608 P.2d 97, arguing that

w h i l e i n h e r i t e d p r o p e r t y o r g i f t s may be c o n s i d e r e d p a r t o f

the marital estate, that does not n e c e s s a r i l y e n t i t l e the

o t h e r p a r t y t o any i n t e r e s t i n t h a t property. I n Herron,

supra, most of the marital property were gifts or

i n h e r i t a n c e from t h e w i f e ' s f a t h e r . W e noted: "If none o f

t h e v a l u e of t h e p r o p e r t y is a p r o d u c t of c o n t r i b u t i o n from

the m a r i t a l e f f o r t , t h e D i s t r i c t Court can j u s t i f i a b l y f i n d

that the non-acquiring spouse has no interest in the

property." 186 Mont. a t 404.

It is c l e a r from t h e record that none o f the cases

cited by Robert support his proposition that he has an

i n t e r e s t i n t h e Aurora County p r o p e r t y i n South Dakota. To

the contrary, the cases support the c o u r t ' s finding t h a t he

had no i n t e r e s t i n s a i d p r o p e r t y . A s t o t h e Davison County

farm p r o p e r t y , prior to the separation, Robert received a

c a b i n and f o u r l o t s i n L i n c o l n , Montana, t h a t were p a i d f o r

by r e f i n a n c i n g t h i s f a r m i n S o u t h D a k o t a .
 Lastly, under this issue, Robert argues that the award
of the family home in Great Falls to Ardis is clearly
erroneous because she abandoned the home. The facts in the
transcript reveal that such is not the case. She moved out
of the home so her daughter, her daughter's husband and
their new baby could have a place to live. In addition, she
said the memories of the home where such that she felt she
had to get away from it for a time. Also by moving into an
apartment with Julianne she could make some repairs to the
house and benefit from a deduction of rental expenses to the
daughter and her daughter's husband. It is clear from the
record that the court had several well established reasons
for dividing the property as it did. Therefore, we find no
error in said division.
The third issue is whether the court erred in making
the distribution of marital assets in consideration of
Robert's dissipation of the marital assets. While there was
considerable testimony relating to how Robert spent his
money from various withdrawals and various money he received
in managing the farm property in South Dakota, there is no
indication that the court decided the distribution of the
inarital asset on that basis. Ardis testified concerning
Robert's poor payment of child support, and the wage
assignments which she requested for child support had to
wait for months before they were paid. In addition, Ardis
testified that he wasted money from a joint checking account
and used that money for entertainment. However, testimony
went unrebutted, which supported her testimony in the
record. Testimony was given to support her allegation that
there was waste and dissipation of the assets, but as above
noted there is no indication that the court relied on this
because of the marital misconduct.
Pursuant to section 40-4-202, MCA, the court must
consider any dissipation of an estate by one party. Thus,
testimony concerning that dissipation is admissible. In
addition, the testimony concerning the failure of Robert to
regularly pay child support was introduced to show that a
wage assignment was ordered. There was sufficient evidence
before the trial court to justify the findings upholding its
decision as to the third issue.
The fourth issue is whether the court erred in
having Robert pay Ardis' attorney's fees. Robert argues
they are both employed, earn approximately the same yearly
income and that Ardis should pay her own attorney fees.
However, it should be noted that most of the attorney's fees
were caused by his failure or refusal to pay child support.
He refused or failed to agree to simple orders until the day
of the hearing when attorneys had to prepare and appear in
court. This Court in In re the Marriage of Carr (Mont.
1983), 667 P.2d 425, 40 St.Rep. 1263, 1266 held:
"This Court has held: 'Traditionally, a
showing of necessity has been a condition
precedent to the exercise of the court's
discretion to award attorney fees.
Whitman v. Whitman (1974), 164 Mont. 124,
519 P.2d 966. But the lower court's
discretion in the matter will not be
disturbed if substantial evidence is
found in the record to support the
award. ' Kaasa v. Kaasa (1979),
.
Flont , 591 P.2d 1110, 1114, 36
St.Rep. 425, 430.
"'Here, the trial court was well aware of
the parties1 financial situations. It
did not abuse its discretion in making an
award of reasonable attorney fees, based
on necessity. Houtchens v. Houtchens
(19791,
'.
Mont
St.Rep. 501, 505
. , 592 P.2d 158, 36
Bailey v. Bailey
 (1979)I Mont. , 603 P.2d 259,
261, 36 St.Rep. 2162.
"In the present case the District Court
was provided ample evidence to determine
the financial situation of the parties .
.. I1

As in Carr, where this Court upheld the attorney's

fees because the husband had a greater salary, held a secure
position and had a greater earning potential, we find that
the court did not err in finding Robert had a more secure
position than Ardis. Ardis was clearly entitled to
attorney's fees.
The judgment of the District Court is affirmed.

We concur:

9 ~ 4
Chief JS&
U-'
&D