NO. 92-282
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
IN RE THE MARRIAGE OF
DEBORAH ANN ANIBALLI,
Petitioner and Respondent,
and
RANDALL PAUL ANIBALLI,
Respondent and Respondent,
vs .
RICHARD ANIBALLI and MARY LOU ANIBALLI,
Intervenors and Appellants.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Jack L. Green, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Peter S. Dayton and Grant D. Parker, Tawney and
Dayton, Missoula, Montana
For Respondent:
Richard A. Volinkaty, Missoula, Montana;
Lori Ballinger, Paulette Ferguson Law Office,
Missoula, Montana
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Richard and Mary Lou Aniballi appeal from the denial of their
motion to intervene in the dissolution of the marriage of their son
and daughter-in-law, entered by the District Court for the Fourth
Judicial District, Missoula County. We affirm.
The issue is whether Rule 24(a), M.R.Civ.P., entitles Richard
and Mary Lou Aniballi to intervene in this action as a matter of
right to protect their interest in the marital home of Randall Paul
Aniballi and Deborah Ann Aniballi.
In May 1991, Deborah Ann Aniballi filed a petition for
dissolution of her marriage to Randall Paul Aniballi. In their
motion to intervene, Randall's parents, Richard and Mary Lou
Aniballi, claimed they loaned $63,630 to Randall and Deborah,
primarily to construct and improve Randall and Deborah's home.
Although no notes, mortgages, or other such documents were
executed, Richard and Mary Lou maintain it was understood that
Randall and Deborah were obligated to pay the loans back eventual-
ly, if and when they were financially able to do so, or when the
house was sold. They state that Deborah seeks in these proceedings
to obtain the home free and clear of any obligation to repay them.
Richard and Mary Lou filed their motion to intervene under
Rule 24(a), M.R.Civ.P.:
Upon timely application anyone shall be permitted to
intervene in an action: (1) when a statute confers an
unconditional right to intervene; or (2) when the
applicant claims an interest relating to the property or
transaction which is the subject of the action and the
applicant is so situated that the disposition of the
action may as a practical matter impair or impede the
applicant's ability to protect that interest, unless the
applicant's interest is adequately represented by
existing parties.
Randall did not oppose the motion to intervene, but stated that he
cannot adequately represent his parents' interests. Deborah
opposed the motion.
The District Court ruled that because Richard and Mary Lou
have not shown an instrument in writing to support their claim, it
is barred by the statute of frauds at S 72-1-203, MCA. The court
also ruled that because the alleged loans were made between 1977
and 1988, a large part of the claim is barred by the five-year
statute of limitations applicable to a contract, account, or
promise not founded on an instrument in writing. It ruled that
Richard and Mary Lou have therefore not met the requirement under
Rule 24 (a), M.R. Civ.P., of showing "an interest relating to the
property or transaction which is the subject of the action.If
Richard and Mary Lou argue that the rule allowing for inter-
vention is to be liberally interpreted and that intervention must
be allowed whenever an applicant claims an interest relating to the
property or transaction involved in the lawsuit, citing Gammon v.
Gammon (1984), 210 Mont. 463, 469, 684 P.2d 1081, 1084. Because
they have claimed an interest in Randall and Deborah's house, they
argue, they are entitled to intervene in this action. They contend
it was not proper for the District Court to rule on the merits of
their claim in the context of the motion to intervene.
3
Gammon was an action to determine title to real property. An
Oregon court awarded title to real property located in Montana to
Betty Gammon, in a decree dissolving her marriage to Edward Gammon.
After that award was made, Edward Gammon conveyed title to the
Montana property to the proposed intervenor, Christiana, Inc., by
quitclaim deed and assignment. Betty Gammon brought an action in
Montana to enforce the Oregon decree. Edward Gammon defaulted.
This Court held that the district court erred in failing to allow
Christiana, Inc., to intervene. Gammon, 684 P.2d at 1084.
In Gammon, unlike the present case, the central issue was who
held valid title to the property in which the proposed intervenor
claimed an interest. While resolution of this action will allocate
title to marital property as between Randall and Deborah, any
decree entered in this matter will not prohibit Richard and Mary
Lou from bringing separate proceedings against Randall, Deborah, or
both of them, for the debt allegedly owed. As this Court stated in
Gammon, a decree of dissolution resolves rights to the marital
property as between the parties seeking dissolution of marriage,
but will not determine title in rem. Gammon, 684 P.2d at 1087.
Further, unlike Richard and Mary Lou, the proposed intervenor
in Gammon made a prima facie case supporting its claim on the
property. There, the proposed intervenor held title to the
property at issue through a quitclaim deed and assignment executed
by Edward Gammon. In this case, no prima facie case has been
shown. A mortgage on real property can only be created by a
4
written instrument. Section 71-1-203, MCA. Richard and Mary Lou
have admitted that there is no written instrument documenting their
claim on Randall's and Deborah's home. The record before this
court contains no writing to evidence the debt.
If intervention must be allowed whenever an applicant makes a
claim on property, there would be no reason to require leave of
court to intervene. There must be some purpose in the rule's
requirement that leave of court be obtained. In applying the
federal rule of procedure after which Montana's Rule 24 (a),
M.R.Civ.P., is modeled, federal courts have examined the merits of
the proposed intervenor's claim. See, e.g., In re Lopez-Soto (1st
Cir. 1985), 764 F.2d 23, 26-27; Lake Investors Dev. Group v. Egidi
Dev. Group (7th Cir. 1983), 715 F.2d 1256, 1259. Intervention
requires a "direct, substantial, legally protectable interest in
the proceedings. [Citation omitted.]" Diaz v. Southern Drilling
Corp. (5th Cir. 1970), 427 F.2d 1118, 1124, cert. denied, 400 U.S.
878, 91 S.Ct. 118, 27 L.Ed.2d 115.
We hold that a prima facie showing must be made to support a
claim for intervention under Rule 24(a), M.R.Civ.P. We so limit
the holding in Gammon. Thus, in ruling on a motion to intervene,
a district court properly considers whether a prima facie case has
been made to support the claim. This is in accord with the rule in
Montana under a previous statute concerning intervention. Equity
Co-operative Ass'n. v. Equity Co-operative M. Co. (i922), 63 Mont.
26, 37, 206 P. 349, 352.
5
We hold that the District Court did not err in denying Richard
and Mary Lou Aniballi's motion to intervene.
Deborah argues that she is entitled to her attorney fees on
appeal. The District Court reserved ruling on whether she is
entitled to attorney fees incurred in opposing the motion to
intervene. It would therefore be premature for this Court to rule
on this issue at this time.
Affinned.
\
I Chief Justice
We concur:
November 24, 1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Peter S. Dayton and Grant D. Parker
Tawney & Dayton
P. 0. Box 3658
Missoula, MT 59806-3658
Richard A. Volinkaty
Attorney at Law
P. 0. Box 8272
Missoula, MT 59807
Ms.Lori Ballinger
Paulette Ferguson Law Office
210 North Higgins Avenue, Suite 302
Missoula, MT 59802
1 D SMITH
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CLERK OF THE SUPREME COURT
STAT@, OF MONTANA