No. 8 7 - 1 3 4
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
IN RE THE MARRIAGE OF
KENNETH JONES,
Petitioner and Appellant,
and
RITA ANN "GOBERT" JONES,
Respondent and Respondent.
APPEAL FROM: The District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable John S. Henson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Byron W. Boggs, Missoula, Montana
For Respondent:
-
Robert Skelton; Skelton & Cooley, Missoula, Montana
Submitted on Briefs: Aug. 6, 1 9 8 7
Decided: November 5, 1 9 8 7
#
*+L
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Kenneth Jones appeals from the final judgment entered in
the District Court of the Fourth Judicial District, Missoula
County, dividing property of the marital estate between the
parties. We affirm.
The following issues are raised:
1. Did the District Court err by including the lump sum
Workers' Compensation awards received by the husband in the
marital estate?
2. Did the District Court err in finding the husband's
Workers' Compensation awards to have been co-mingled?
3. Did the District Court err by awarding to the wife
certain monies of the marital estate twice?
4. Did the District Court abuse its discretion in not
allowing the husband credit for the money spent for his son's
legal expenses?
5. Did the District Court abuse its discretion in
granting the wife cash in lieu of her personalty?
6. Did the District Court abuse its discretion in not
allowing the husband credit for the money he expended for the
wife's benefit after the separation?
The record of this case and the findings of fact made by
the District Court disclose the following pertinent
information: Kenneth and Rita Jones were married in 1958.
The parties dissolved their marriage on June 15, 1985. On
September 22, 1986, the matter of property division was
addressed by the court.
During the marriage, the wife worked as a homemaker and
mother and was at times employed outside of the home. She
contributed her wages to pay family expenses and also
contributed her labor on the small farm the parties purchased
in 1971 in the State of Washington.
In 1978, the husband was injured in an industrial
accident. Since his injury, he has been receiving temporary
total disability benefits through FELA in the sum of $1,850
per month. He netted $18,000 from a third party claim
arising out of the disabling accident. The monthly FELA
payments as well as the third party claim proceeds were
deposited when collected in the couples' joint checking and
savings accounts in the Toppinish Branch of the Seattle-First
National Rank.
In May, 1981, the wife and her minor daughter left the
family home in Washington and came to Montana. The husband
testified at this time the couples' savings account had
approximately $20,000 in it. He continued to operate and
make payments on the farm and the family home.
In 1984, the husband, with a power of attorney from the
wife, sold the couples' real property. The net amount
received for the property was $60,048. At the present time,
the wife has not received any of the proceeds from the sale
of the home.
The District Court held the marital estate consisted of
$20,000 cash savings (1981), personal property worth $19,148
and net proceeds from the sale of the family home in the
amount of $60,048, the total value of the estate being
$99,196. The District Court further held that the wife was
entitled to one-half that amount being $49,598 less the value
of the car in the wife's possession or $43,598.
As the District Court correctly noted, the husband
contributed his benefits as well as the proceeds from his
third party claim to the marital estate. The husband asserts
that such funds are exempt from inclusion when determining
the value of the marital estate. We do not agree with this
assertion. The facts clearly demonstrate that the money in
question was properly found to be part of the marital estate.
The husband placed these monies in the couples' joint
account. Once the funds were placed in the :joint account,
the wife had an equal interest in and an equal right to those
funds. See Casagranda v. Donahue (1978), 178 Mont. 4 7 9 , 585
P. 2d 1286. Further, in utilizing the FELA funds to diminish
the debt on the family residence, the husband unequivocably
placed the funds in the marital estate.
Husband further contends that the FELA benefits which he
received were not commingled with other marital property and
therefore not includable in the marital estate. We find the
contrary to be true. As previously stated, the husband
deposited these monies in the couple's joint account where
the funds were mingled with other funds of the marital
estate.
We will now address issues 3, 4 and 5. The husband
alleges that the District Court abused its discretion
in: awarding the wife certain monies of the marital estate
twice; not crediting the husband for money spent for his
son's legal expenses; and, granting the wife cash in lieu of
her personalty. We disagree.
Section 40-4-202(1), MCA, controls the division of
property in a dissolution proceeding, it provides in
pertinent part:
40-4-202. Division of property. (1) In a
proceeding for dissolution of a marriage, legal
separation, or division of property following a
decree of dissolution of marriage or legal
separation by a court which lacked personal
jurisdiction over the absent spouse or lacked
jurisdiction to divide the property, the court,
without regard to marital misconduct, shall, and in
a proceeding for legal separation may, finally
equitably apportion between the parties the
property - assets belonging - either - -
and to or both,
however - whenever acquired and whether the title
and
thereto - - - - - - the husband - -
is in the name of or wife or
both. In making apportionment, the court shall
consider the duration of the marriage and prior
marriage of either party; the age, health, station,
occupation, amount and sources of income,
vocational skills, employability, estate,
liabilities, and needs of each of the parties;
custodial provisions; whether the apportionment is
in lieu of or in addition to maintenance; and the
opportunity of each for future a-cquisition of
capital assets and income. The court shall also
consider the contribution or dissipation of value
of the respective estates and the contribution of a
spouse as a homemaker or to the family unit
(Emphasis added.)
...
The District Court awarded the wife half of the money
from the couples' joint bank account at the time she left
her husband in 1981 and half of the net proceeds from the
1981 sale of the couple's family home.
The husband has failed to show the District Court was
clearly erroneous concerning the division of the property
comprising the marital estate. Rule 52 (a), M.R.Civ.P. The
husband in his brief seems to imply that in order for this
Court to uphold the judgment of the District Court, we must
find that the marital estate was divided equally between the
two parties. This is not true. Disposition of property in a
dissolution need not be equal but it must be equitable.
Section 40-4-202, MCA. Appellant has made no showing to this
Court that the disposition of the property of the marital
estate was done in anything but an equitable fashion.
In Re Marriage of Summerfelt (Mont. 1984), 688 ~ . 2 d8,
41 St.Rep. 1775, this Court reiterated the well-settled rule
that
The apportionment made by the District Court will
not be disturbed on review unless there has been a
clear abuse of discretion as manifested by a
substantial inequitable division of the marital
assets resulting in substantial injustices. In Re
the Marriage of Brown (1978), 179 Mont. 417, 587
P.2d 361.
See also In Re Marriage of Snyder (Mont. 1986), 714 P.2d 556,
43 St.Rep. 346; Marriage of McCormack (Mont. 1986), 726 P.2d
319, 43 St.Rep. 1833; Hurley v. Hurley (Mont. 19861, 721 P.2d
1279, 43 St.Rep. 1271; In Re Marriage of Garst (Mont. 1983),
669 P.2d 1063, 40 St.Rep. 1526. The husband asserts error on
the part of the District Court in failing to credit him for
monies expended for legal expenses on behalf of his son. The
record shows that the money used to pay the legal fees
incurred by the son came from the couples' joint account and
as such came from the parties marital estate. The evidence
further reveals that the wife contributed her own funds
toward the son's legal expenses.
Lastly, husband contends that the District Court abused
its discretion in not allowing the husband credit for monies
he expended for the benefit of his wife after the separation.
We disagree. When determining and distributing the marital
estate, monies expended for the living expenses of the wife
need not be credited to the husband. Burleigh v. Burleigh
(1982), 200 Mont. 1, 650 P.2d 753; In Re Marriage of Caprice
>
(1978), 178 Mont. 455, 585 P.2d 641.
We affirm.
Justice