Cook v. Cook

• Decision Date: 07 November 1980
• Docket Number: No. 79-27,79-27
• Citation: 37 St.Rep. 1180,614 P.2d 511,188 Mont. 472
• Parties: Vivian S. COOK, Petitioner and Respondent, v. Alfred C. COOK, Respondent and Appellant.
• Court: Montana Supreme Court

Page 511

614 P.2d 511

188 Mont. 472

Vivian S. COOK, Petitioner and Respondent, v. Alfred C. COOK, Respondent and Appellant.

No. 79-27.

Supreme Court of Montana.

Submitted on Briefs May 27, 1980.

Decided July 17, 1980.

Dissenting Opinion Nov. 7, 1980.

See 619 P.2d 530.

Ann L. Smoyer, Helena, for respondent and appellant.

Keller, Reynolds, Drake, Sternhagen & Johnson, Helena, for petitioner and respondent.

HARRISON, Justice.

This appeal arises out of a proceeding for a dissolution of marriage and the equitable apportionment of assets of a marital estate filed in the District Court of the Eighteenth Judicial District, the Honorable W. W. Lessley presiding. Appellant husband appeals from the District Court's apportionment of the marital estate.

Appellant husband and respondent wife were married in Bozeman, Montana, on December 11, 1955. On October 18, 1977, after twenty-two years of marriage, wife petitioned the court for a dissolution of marriage and the equitable apportionment of assets of their marital estate. At the time of the filing of the petition, husband was 45 years old and wife was 42 years old. Husband had a college education and worked in various occupations during the marriage: foreman and ranch hand, insurance agent, teacher, and automobile salesman. Wife had approximately two years of college and worked primarily as a housewife, although she was employed at different times throughout the marriage as a waitress, newspaper reporter, and retail clerk.

Five children were born to the parties during their marriage. One child, Kevin, is a minor who presently lives with wife in Helena, Montana. Three children have attained the age of majority, and the remaining child died in an accident during the marriage.

The assets accumulated by the parties during the marriage include a family home in Bozeman, two cars, a motorcycle, several shares of corporate stock, a boat, home furnishings, clothing and other incidental items of personal property. In 1965, wife also received an inheritance from her grandmother, Ada Smith. The inheritance consisted of a cash bequest, which was used for family expenses, and a remainder interest in certain farm and ranch land near Saco, Montana (hereinafter referred to as the Smith Ranch). The value of the land was stipulated by the parties as being between one and two million dollars before taxes. The interest is subject to a life estate held by wife's father, Hugh C. Smith. From this interest, the parties have received approximately $39,554.15 in the form of mineral royalty payments and life estate principal and income distribution. These proceeds have also been applied toward family living expenses.

During the marriage, husband left a $5,500 teaching contract in White Sulphur Springs in 1958, and the parties moved to the Smith Ranch, where husband worked as foreman and ranch hand. Husband continued in this capacity for six years at a salary of $250 per month plus housing. During this time an additional 100 acres of wheat were put into production. In 1964, because of financial reasons, the parties moved from the ranch into the town of Saco, where husband taught vocational agriculture in the public school system. In 1971, because of wife's desire to leave Saco, the parties moved to Bozeman. Husband cashed his teacher's retirement fund and some smaller life insurance policies to finance the move.

Wife presently works as a clerk in state government in Helena, Montana. Husband is presently unemployed, having been terminated from his job in early 1977 and working for only four months in 1978. Husband has suffered both emotional and physical problems since the parties' separation and has incurred substantial medical and hospital expenses.

The marriage of the parties was dissolved by the District Court on April 10, 1978. The court apportioned the assets of the marital estate on February 15, 1979. Several of the assets were distributed pursuant to a stipulation of the parties. An agreement was made between the parties to equally split that portion of the proceeds which represented equity resulting from the sale of their Bozeman residence. That figure amounted to approximately $11,200. With respect to the other assets, the parties stipulated, with the exception of a few items, who was to receive each asset, but left the particular valuation of each asset to the court. The property was distributed and valued by the District Court in the following manner: Wife was awarded a 1967 model car (less than $1,000); a wedding ring ($800); home furnishings (unvalued); china closet (unvalued); clothing and other incidental items of personal property. Husband received a 1977 Buick Riviera automobile ($3,500); a Honda 90 ($150); a boat ($2,700); corporate shares of stock (unvalued); home furnishings (unvalued); clothing and other incidental items of personal property in his possession. It should be mentioned that the District Court noted in its findings that husband paid remaining purchase money mortgages on the 1977 car and the boat out of the proceeds received from the sale of the house.

The District Court further found that husband had not contributed to the maintenance of wife's remainder interest and awarded her sole ownership of the interest on the basis of the property distribution and as an alternative to maintenance. The District Court ordered husband to assume the remaining debts of the marriage, pay $110 per month for the support of the parties' minor child until he reached the age of majority and pay wife's attorney fees.

We consider three issues on appeal:

1. Whether the District Court erred or abused its discretion in apportioning the assets of the marital estate?

2. Whether the District Court erred in awarding wife sole ownership of the remainder interest as an alternative to maintenance?

3. Whether the District Court erred in ordering husband to pay wife's attorney fees?

The first issue raises the question of whether it is necessary for a District Court in a dissolution proceeding to first place a value upon all of the assets within a marital estate and determine the net worth of the parties before distributing property within that marital estate. In this case, the District Court distributed the marital estate without determining the net worth of the parties or valuing the following items of the marital estate: the china closet, the corporate shares of stock, and the home furnishings received by husband and wife.

Husband contends it was error for the court to apportion the assets without undertaking such preliminary matters. Husband relies upon several cases in which this Court has stressed the importance of valuing assets and determining the net worth of parties in dissolution proceedings before distributing property within the marital estate. See Herring v. Herring (1979), Mont., 602 P.2d 1006, 36 St.Rep. 2052; In re Marriage of Brown (1978), Mont., 587 P.2d 361, 35 St.Rep. 1733; Martinez v. Martinez (1978), 175 Mont. 280, 573 P.2d 667, 35 St.Rep. 61.

Wife argues that the District Court did not err in apportioning the assets of the marital estate. She asserts there was no need for the District Court to concern itself with the valuation of certain assets or with the determination of the net worth of the parties because there was a stipulation entered into between the parties regarding the distribution of assets. Wife contends, because of the stipulation, that this case is distinguishable from the authority relied upon by husband. Further, on the basis of Penn v. Burlington Northern, Inc. (1980), Mont., 605 P.2d 600, 37 St.Rep. 93, wife contends that husband is precluded from raising any issues relating to the stipulation on appeal.

In Penn both parties agreed that certain documentary evidence did not need to be introduced at trial if the railroad would admit that it had notice of the dangerous nature of a railroad crossing. The railroad admitted notice, and the plaintiff did not attempt to introduce the documents for other purposes at trial. On appeal, however, the plaintiff argued that the evidence was relevant to the issue of notice and punitive damages. We refused to consider that issue, however, because of the stipulation.

The transcript very clearly indicates in this case that there was a stipulation entered into between the parties. However, the transcript further indicates, unlike Penn, that the stipulation was limited in nature. The parties here agreed only as to which party would receive particular assets and not to a particular valuation. The valuation of assets was left to the court. The following colloquy occurred at the beginning of the trial:

"THE COURT: This is the time set by the Court and Counsel of Record in 24041 to hear the matter of property division and gentlemen you may proceed.

"MR. KOMMERS: Thank you, your Honor, I represent the petitioner and I have some proposed findings for the Court and I realize that some of these will have to be changed, but I submit that now. The Petitioner and Respondent in this matter have reached agreements with respect to several matters in dispute here, and we would stipulate for the record that the following items are true and need no proof. With respect to the personal properties acquired by the couple during the term of the marriage, property has been divided and the Petitioner is in possession of a 1967 automobile, home furnishings, and a wedding ring, and the Respondent is in possession of a 1977 Buick Riviera...