NO. 94-215
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
IN RE THE MARRIAGE OF
HILDA BINSFIELD,
Petitioner and Respondent,
and
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Joel G. Roth, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Don A. Labar and Royce A. McCarty, Jr.
Attorneys at Law; Church, Harris, Johnson &
Williams, Great Falls, Montana
For Respondent:
E. Lee LeVeque, Attorney at Law;
Conklin, Nybo, LeVeque & Murphy,
Great Falls, Montana
Submitted on Briefs: October 28, 1994
Decided: January 19, 1995
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.
Nicholas H. Binsfield (Nicholas) appeals from the findings of
fact, conclusions of law, and decree entered by the Eighth Judicial
District Court, Cascade County, dissolving his marriage to Hilda
Binsfield (Hilda). We affirm.
We consider the following issues on appeal:
1. Did the District Court err in denying Nicholas' motion to
compel Hilda to submit to a psychological examination?
2. Did the District Court err in making an equal distribution
of the marital assets?
3. Did the District Court err in awarding Hilda an in-kind
distribution of real property?
Nicholas and Hilda were married on September 1, 1956, in
Power, Montana. Prior to the marriage, Nicholas purchased a one-
half interest in his family's farm a few miles south of Great Falls
on the Missouri River; his brother owned the other one-half
interest in the farm. Their father retained a life estate in the
farm. In the early 194Os, Nicholas had purchased approximately 480
acres of land adjacent to the family farm for $2,000.
Hilda lived in Germany and Switzerland before immigrating to
the United States in 1955. While in Europe, Hilda had a son, Anton
Giger, and was married for a period of time.
When Nicholas and Hilda married, Hilda moved onto the family
farm and her son Anton moved to California. Hilda and Nicholas
lived on the farm with Nicholas' brother and father. Nicholas
2
farmed full-time, and Hilda performed the duties of a homemaker for
the three men. Nicholas' father died in 1963; his brother died in
1970.
At the time of the dissolution, Nicholas was 83 years old and
Hilda was 81 years old. Nicholas owned nearly 800 acres of land
including all 320 acres of the family farm. The 800 acres had an
appraised value of $546,000. In addition, he held bonds, savings
accounts, and other income-producing property worth approximately
$578,656. All of these assets were held solely in Nicholas' name.
At the time of dissolution, Hilda possessed just over $1,400 in
three bank accounts. She received about $260 per month in social
security benefits and approximately $390 per month in pensions from
the German and Swiss governments for work performed in those
countries prior to her immigration to the United States.
Early in 1993, Hilda was diagnosed as having a brain tumor.
She testified that she was concerned she would not survive. She
asked Nicholas to provide farm land for her son Anton. Hilda
testified that Nicholas replied that Anton could work on the land,
but would never own any of it. This refusal prompted Hilda's
interest in seeking a dissolution. The Mayo Clinic in Rochester,
Minnesota, successfully treated Hilda's tumor.
After returning from the Mayo Clinic, Hilda filed a petition
for dissolution. Nicholas responded, denying that there were
irreconcilable differences between the parties and asserting that
Hilda lacked the mental capacity to petition for dissolution.
Nicholas requested that Hilda's petition be dismissed or, in the
3
alternative, that the property and debts of the parties be
equitably divided.
On December 1, 1993, Nicholas moved for an order to show cause
why Hilda should not be compelled under Rule 35(a), M.R.Civ.P., to
submit to a psychological examination. The District Court held a
hearing and denied Nicholas' request. We denied Nicholas'
subsequent application for a writ of supervisory control on the
issue.
After a bench trial, the District Court entered a "bare"
decree of dissolution because Hilda's counsel was concerned that
none of the marital property was in her name and that one of the
parties might die before the decree of dissolution was entered. On
February 24, 1994, the court entered its findings of fact,
conclusions of law, and decree.
The District Court evenly divided future crop and annuity
payments and awarded Nicholas and Hilda personal property worth
$13,395 and $2,685, respectively. Nicholas received the farmstead
and five acres worth $30,000, and the court ordered the remainder
of the farm property, worth $516,000, divided evenly between the
parties. The division was to be accomplished by Nicholas dividing
the remaining acres into two parcels of approximately equal size
and value and permitting Hilda to choose the parcel she preferred.
To account for the disproportionate amount of personal and real
property Nicholas received, the court awarded Hilda investments
worth $309,683; Nicholas was awarded investments worth $268,973.
The assets each party received totalled approximately $626,902.
4
Nicholas appeals.
Did the District Court err in denying Nicholas' motion to
compel Hilda to submit to a psychological examination?
Nicholas moved the court to compel Hilda to submit to a
psychological examination pursuant to Rule 35(a), M.R.Civ.P., which
states in relevant part:
When the mental or physical condition (including the
blood group) of a party . . is in controversy, the
court in which the action is pending may order the party
to submit to a physical or mental examination by a
suitably licensed or certified examiner . . . The
order may be made only on motion for good cause shown and
upon notice to the person to be examined and to all
parties and shall specify the time, place, manner,
conditions, and scope of the examination and the person
or persons by whom it is to be made.
The language of the rule is discretionary. It authorizes, but does
not require, a district court to order a party to submit to a
psychological examination when the party's mental condition is in
controversy and good cause is shown. We will not reverse a court's
discretionary determinations absent an abuse of discretion. In re
Marriage of Rada (19941, 263 Mont. 402, 405, 869 P.2d 254, 255.
We previously have interpreted Rule 35(a) in the context of
criminal cases in which a defendant sought to compel a victim to
submit to a physical or psychological examination. In those
circumstances, we consistently held that Rule 35(a) was not
applicable because the victim was not a party to the proceeding.
See State v. Little (1993), 260 Mont. 460, 468, 861 P.2d 154, 159;
State v. Goodwin (1991), 249 Mont. 1, 18-19, 813 P.2d 953, 964;
State v. Gilpin (1988), 232 Mont. 56, 67, 756 P.Zd 445, 451; State
v. Liddell (1984), 211 Mont. 180, 191, 685 P.2d 918, 924. Those
5
cases provide no authority for, or guidance in, resolving the issue
presently before us.
The United States Supreme Court interpreted Rule 35(a) of the
Federal Rules of Civil Procedure, upon which Montana's Rule 35(a)
is based, in Schlagenhauf v. Holder (1964), 379 U.S. 104, 85 S.Ct.
234, 13 L.Ed.2d 152. In that case, a party filed suit based on an
accident between a bus and a tractor-trailer. One of the parties
alleged that the driver of the bus was neither physically nor
mentally fit to drive a bus at the time of the accident. The party
moved to compel the bus driver to submit to various physical and
mental examinations pursuant to Rule 35(a), F.R.Civ.P.
In vacating the lower court's order allowing the examinations,
the Supreme Court focused on the rule's "in controversy" and "good
cause" language. It noted that the "in controversy" and "good
cause" requirements:
are not met by mere conclusory allegations of the
pleadings--nor by mere relevance to the case--but require
an affirmative showing by the movant that each condition
as to which examination is sought is really and genuinely
in controversy and that good cause exists for ordering
each particular examination. . . . Rule 35, therefore,
requires discriminating application by the trial judge,
who must decide, as an initial matter in every case,
whether the party requesting a mental or physical
examination or examinations has adequately demonstrated
the existence of the Rule's requirements of " in
controversy" and "good cause" . .
Schlaaenhauf, 379 U.S. at 118-19.
In the present case, Nicholas submitted several affidavits and
presented witnesses at a hearing regarding the possible necessity
of a psychological evaluation. He testified that Hilda's petition
for dissolution was unexpected and unusual. Based on a review of
6
Hilda's medical records, a psychologist testifying for Nicholas
stated that Hilda "may" lack the mental capacity to make her own
decisions and that it would be difficult to determine her capacity
via an interview or question and answer format. The psychologist
had never met or talked to Hilda; nor was his testimony relating to
her possibly deficient mental capacity based on any personal
observation of her. Hilda testified on her own behalf at the
hearing. After listening to Hilda's testimony, the District Court
stated:
I've been observing Mrs. Binsfield ever since we've
been in court here. I must admit now, based upon her
testimony here, both on cross and on direct, there's
really little doubt in my mind but what this lady is
competent. She knows what she's doing.
Later, the court added: "I'm satisfied after having heard this lady
[Hildal that she does know what [she is1 doing."
Applying the Schlaqenhauf standard here, it is clear that
Nicholas relied on speculative and conclusory testimony by a
psychologist who had no personal knowledge of Hilda or her mental
capacity. He made no affirmative showing that Hilda's mental
capacity was genuinely in controversy. See Schlaqenhauf, 379 U.S.
at 118. We conclude that such evidence is wholly inadequate to
meet Nicholas' initial burden of establishing the existence of the
"in controversy" and "good cause" requirements of Rule 35(a),
M.R.Civ.P.
Nicholas relies on In re Marriage of Tesch (1982), 199 Mont.
240, 648 P.2d 293, in support of his argument that the court should
have ordered a psychological examination. His reliance is
7
misplaced.
In Marriaqe of Tesch, the husband obtained a default
dissolution from his wife, who was almost totally incapacitated by
multiple sclerosis. At the hearing prior to entry of the default
judgment, both the husband and his attorney informed the court that
they believed the wife was competent; neither the wife nor a
representative of the wife was present. After the district court
entered the default dissolution, the wife moved to set aside the
judgment. The district court denied the wife's motion. We
reversed on appeal, noting that:
[tlhe wife is totally disabled by multiple sclerosis.
Such a disability, in itself, might warrant the setting
aside of the default judgment. Here, however, other
circumstances also support the setting aside of the
judgment. Nothing on the record addresses the question
of the wife's competency or her voluntary relinquishment
of her interests in the farm. . We emphasize that
the crucial problem with this case is that nowhere are
the desires of the wife on record.
Marriaqe of Tesch, 648 P.2d at 296-97.
Here, unlike in Marriaqe of Tesch, the District Court held a
separate hearing to determine the merits of Nicholas' motion to
require Hilda to submit to a psychological examination. As a
result, the record before the trial court and this Court does
address the question of Hilda's mental capacity and desires.
Indeed, Hilda testified on her own behalf, providing the court the
ability to determine whether Hilda's mental capacity was genuinely
in controversy and whether good cause was established to compel her
to submit to a psychological examination. Noting that none of the
marital property was in her name and that Nicholas had informed her
that Anton would not receive any of the farm land, Hilda voiced her
concerns that she would die without providing for her son Anton.
Hilda adequately informed the court of her desires and demonstrated
her mental capacity to the court's satisfaction. We hold that the
District Court did not abuse its discretion in denying Nicholas'
motion to compel Hilda to submit to a psychological examination.
Did the District court err in making an equal
distribution of the marital assets?
The distribution of the marital estate is controlled by § 40-
4-202, MCA, which provides in relevant part:
(1) In a proceeding for dissolution of a marriage . .
the court, without regard to marital misconduct, shall ,
finally equitably apportion between the parties the
property and assets belonging to either or both, however
and whenever acquired and whether the title thereto is in
the name of the husband or wife or both . . .
This statute vests the district court with broad discretion to
apportion the marital estate in a manner which is equitable to each
party under the circumstances. In re Marriage of Zander (1993),
262 Mont. 215, 221, 864 P.2d 1225, 1229. When a district court's
findings of fact regarding marital property distribution are not
clearly erroneous, and when substantial credible evidence supports
the findings and judgment, we will not alter a district court's
marital property division absent an abuse of discretion. In re
Marriage of Maedje (1994), 263 Mont. 262, 265-66, 868 P.2d 580, 583
(citations omitted).
Nicholas argues that an equal division of the marital assets
is inequitable in this case. His position is based on assertions
that he brought most of the assets into the marriage with him; the
9
District Court did not trace several of his "E Series" savings
bonds as premarital assets; some of the savings bonds are in both
his and his sister's names; the court incorrectly valued a pickup
and trailer; and the court failed to consider Hilda's dissipation
of the marital estate.
At the time of the parties' marriage, Nicholas owned
approximately 480 acres of land in his own name and a one-half
interest in his father's 320 acre farm, with his father retaining
a life estate. During the marriage, he inherited another portion
of the farm and money with which he acquired the remainder.
Nicholas testified that he had other assets prior to his marriage;
his testimony was vague, however, regarding the value of these
assets.
When dividing property acquired prior to the marriage or
through inheritance, a district court must consider the
contributions of the other spouse, including the nonmonetary
contribution of a homemaker, the extent to which such contributions
facilitated the maintenance of the such property, and whether the
property division serves as an alternative to maintenance
arrangements. See § 40-4-202(I), MCA. Here, it is apparent from
the District Court's extensive findings of fact that Hilda's
contributions as a homemaker and general farmhand substantially
contributed to the maintenance of the property that Nicholas
brought into and acquired during the marriage. The District Court
made a separate finding addressing dozens of household and farm-
related tasks Hilda routinely performed during the 37year
10
marriage. In addition, Hilda was not awarded maintenance in the
dissolution. We conclude that the District Court did not abuse its
discretion by including the properties Nicholas brought into the
marriage and inherited during the marriage in the marital estate.
With regard to the Series E savings bonds, Nicholas testified
that he believed all of the bonds were purchased prior to his
marriage. However, the only documentary evidence regarding the
bonds was the accounting of Nicholas' brother's estate. Based on
that accounting, the District Court found that only 3 of 10 bonds
in Nicholas' and his brother's names were purchased in 1943 and the
remainder were purchased after 1956, the year Nicholas and Hilda
married. The three premarital bonds owned by Nicholas had a value
of only $550.32 sixteen years after the marriage, and no evidence
of their value at or around the time of the parties' marriage was
introduced.
The District Court properly could have separated the value of
these premarital assets only where sufficient evidence was
presented to trace the assets and their value to a time before the
marriage. See In re Marriage of Miller (1989), 238 Mont. 197, 203-
04, 777 P.2d 319, 324. No such evidence was presented here. We
conclude that the District Court's findings regarding the bonds
were not clearly erroneous.
We decline to address Nicholas' argument that the court erred
in distributing the value of bonds which included his sister as an
alternate payee. Nicholas did not object to the inclusion of the
bonds in the marital estate on this basis in the District Court.
11
We will not entertain issues raised for the first time on appeal.
In re Marriage of Prescott (19931, 259 Mont. 293, 299, 856 P.2.d
229, 232-33.
Nicholas also contends that the court erred in valuing a
pickup truck and a trailer. At trial, Nicholas testified that the
value of the truck was $3,800 and the value of the trailer was
$1,500. Hilda's son Anton testified that he believed the truck was
worth about $6,000 and the trailer worth $2,500. The court used
Anton's valuation for the truck and Nicholas' valuation for the
trailer. We conclude that there was sufficient evidence to support
the District Court's valuation of the pickup truck and the trailer.
Nicholas further argues that the court erred by failing to
include some of Hilda's assets in the marital estate. These assets
were the monies contained in three bank accounts totaling $1,424.70
at the time of the dissolution hearing. While the District Court
did err in failing to make findings regarding the $1,424.70, we
conclude that the error was harmless in the context of the District
Court's equal distribution of a marital estate valued at more than
$1.2 million.
Finally, Nicholas contends that the division of the marital
estate is inequitable because the District Court did not consider
Hilda's dissipation of the marital estate. Nicholas argues that
Hilda's failure to save her pension money and alleged gifts of
money to Anton's father constituted dissipation of the value of the
marital estate to an extent that the District Court was compelled
to take into account in distributing the marital assets. We
12
disagree.
We have stated that any finding of dissipation must be
supported by substantial evidence. In re Marriage of Stewart
(1988), 232 Mont. 40, 43, 757 P.2d 765, 767. In the present case,
Hilda testified that she used her pension money for household items
and gave some money to her son Anton. She denied that she had
given any money to Anton's father. In addition, Hilda was
inordinately frugal throughout the marriage and this frugality
aided in the acquisition and preservation of marital assets. We
conclude that the District Court did not err in failing to find
that Hilda dissipated the marital estate.
We hold that the District Court did not err in making an equal
distribution of the marital assets.
Did the District Court err in awarding Hilda an in-kind
distribution of real property?
The District Court awarded the family home and the five acres
upon which it sits to Nicholas. The court also awarded each of the
parties one-half of the remaining real property acreage. The court
adopted a method of division whereby Nicholas was to divide the
property in half, excluding the five-acre homestead, and Hilda was
to choose one of the parcels. Where substantial credible evidence
supports a district court's findings and judgment distributing a
marital estate, this Court will not alter that decision absent an
abuse of discretion. Marriaqe of Maedie, 868 P.2d at 583.
Nicholas correctly relies on In re Marriage of Glass (1985),
215 Mont. 248, 258, 697 P.2d 96, 102, for the proposition that
13
Montana's policy in favor of keeping a family farm intact may be
considered in distributing marital property after it has been
allocated. No authority is cited, however, and we have located
none, in support of the proposition that a family farm must be
retained intact.
Here, the District Court did not maintain the unity of the
family farm. Under the circumstances before us--where Hilda lived
on the farm for 37 years, is 81 years old and expressed her desire
to remain on the farm--we cannot conclude that the District Court
abused its discretion in ordering that the farm be divided.
In addition, we previously have approved a method of dividing
a family ranch in a dissolution proceeding similar to that used by
the District Court here. In re Marriage of Hancock (1987), 226
Mont. 383, 736 P.Zd 101. In Marriaqe of Hancock, we stated that
"[t]he method employed by the lower court will generally result in
an equal division. The party drawing the dividing line is
essentially forced to make an equal partition. Otherwise, he risks
receiving the smaller parcel left after the other party chooses."
Marriaqe of Hancock, 736 P.2d at 102. We hold that the District
Court did not err in awarding Hilda an in-kind distribution of real
property.
Affirmed.
14
15