No. 8 8 - 3 2 0
IN THE SUPREME COURT OF THE STATE OF MONTANA
IN RE THE MARRIAGE OF:
JOHN RANDOLPH EKLTJND,
Petitioner and Respondent,
and
JANET DENISE EKLUND,
Respondent and Appellant
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone
The Honorable Robert W. Holmstrom, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Janet Denise Eklund, Pro Se, Billings, Montana
For Respondent:
J. Andrew Patten; Patt.en Law Firm, Billings, Montana
Submitted on Briefs: Jan. 5, 1989
Decided: February 3, 1989
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led :
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Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Janet Eklund (wife) appears pro se appealing the disso-
lution decree entered by the Thirteenth Judicial District,
Yellowstone County, apportioning the marital estate.
Wife raises three issues on appeal:
Did the District Court err by:
(1) denying wife's motion to remove the judge for
cause;
(2) setting over $60,000 of the marital estate to
husband as a traceable gift from his parents;
(3) failing to compensate her for her contribution to
the family home.
We affirm.
Janet and John Randolf Eklund (husband) lived together
for three years before marrying in the spring of 1982. They
were married for four years when husband filed for dissolu-
tion in July 1986. One child was born as issue of this
union. The parties reached a satisfactory custody and sup-
port agreement adopted by the District Court which met all
code provisions and child support guidelines. The equities
of that agreement were not disputed at trial and are not at.
issue on appeal.
On the January 4, 1988, opening day of trial, wife's
attorney verbally moved for the district judge to remove
himself for cause based on an off-the-record comment by the
judge some three weeks earlier that the judge was acquainted
with husband's parents some thirteen vears earlier. Wife ' s
motion was denied. We agree.
To remove a judge for cause, counsel must follow the
procedure outlined in § 3-1-805, MCA, which provides general-
ly that an affidavit alleging facts showing the judge's
personal hias or prejudice must he filed thirty days in
advance of trial. Once this affidavit and its accompanyinq
certificate of good faith made by the counsel of record are
filed, the judge shall have no more power to preside over the
case, and the matter is referred to this Court. llpon that
referral, the Chief Justice assigns another district iudge to
hear the disqualification proceeding.
None of that occurred in this case. Arguahly, wife's
counsel never could have made the thirty-day deadline in this
case since the alleged comment evidencing personal bias only
came out three weeks prior to the scheduled hearing date.
However, counsel's failure to act immediately upon that and
failure to file the counsel's certificate of good faith is
conspicuous. It appears that counsel was either trying to
stall for time or to make an end run around the outlined
statutory procedure--neither of which is acceptable. This
motion was properly denied.
Wife next contends that it was error to set aside
$60,000 of the marital estate to husband. The $60,000 was
equity in the family home. We disagree.
The home was purchased by husband with funds borrowed
from his parents, William and Doris Eklund, and evidenced bv
a promissory note. The note named only the husband as obli-
gor and named both parents as payees. Each year for three
years the parents gave husband $20,000 in gift money as
evidenced by forgiveness of debt. Each year, parents wrote
husband a letter noting that $20,000 of his debt had been
relieved. The promissory note and letters were received in
evidence at the dissolution hearing.
Parents testified at trial that although some of these
letters were addressed to both husband and wife, their dona-
tive intent was only to make a gift to husband. Each parent
testified that they wanted to make a separate $10,000 gift to
their son each year as the maximum gift thev could give
without incurring tax liability, pursuant to the estate
planning advice they had received. Each parent testified
making similar gifts to their other children, also pursuant
to their estate planning.
The District Court set aside $60,000 of the marital
estate evidenced by equity in the family home to husband and
made a finding that it was a traceable gift from his parents.
The finding is not clearly erroneous. Based on this evi-
dence, we find no abuse of discretion by the trial court.
Wife next contends that the Court did not adequatelv
consider her contribution to the family home and compensate
her for the same. We disagree, although at first blush the
distribution of the marital estate appears unbalanced.
Wife received $5,948 of the marital assets and a cash
award of $6,000, payable in thirty days. Husband received an
award from the marital estate of $70,335 less the $6,000 cash
payment to wife. The following calculations were considered
by the District Court:
Husband: Wife:
70,335 net marital estate 5,948 net marital estate
-60,000 gift from parents - -
+6,000 cash award
10,335
- 6,000 cash payment to wife
$4,335 total $11,948 total
It is well established that divisions of the marital
estate need only be equitable under the circumstances of each
case and need not be exactly equal. In re the Marriage of
Jacobson (1973), 183 Mont. 517, 600 P.2d 1183.
The District Court took extensive testimony regarding
the occupation of husband, of wife and of the condition of
the familv home, which they were jointly improving. Wife
estimated the value of their home improvements at $10,000 and
testified that the supplies used in the improvements were
purchased with joint funds.
However, on cross-examination, wife admitted that this
estimate was speculation because she did not purchase any of
the materials, was not aware of their price, and had no
background in real estate or appraisals. Husband testified
that wife did one-third of the actual labor and estimated the
value of their labor at far less than the wife.
We do not find this distribution to be inequitable in
this case, when any alternative award for contribution to the
home would be purely speculative. It is evident from the
court's findings of fact that the trial judge considered the
wife's labors in the home improvement when he distributed
assets of $5,948 to her and a cash award of $6,000. The
court made specific findings as to wife's contribution in
Finding VII where the court noted the improvements to the
home and made a finding that wife's contribution to the
project was twenty hours of labor. This contribution has
been compensated. Wife fails to convince us that it was
error by the trial court not to award her $10,000 for her
contribution to the home improvements.
Wife had a heavy burden on this appeal. She needed to
show that the findings of the judge were clearly erroneous as
to each issued raised, and thus an abuse of the judge's
discretion based on the evidence of this case. In re the
Marriage of Stewart (Mont. 1988), 757 P.2d 765, 45 St.Rep.
850. Wife did not carry that burden, demonstrated by the
foregoing evidence.
Judgment affirmed. A/
We concur: