Cowan v. Cowan
| Decision Date | 23 March 2004 |
| Docket Number | No. 02-780.,02-780. |
| Citation | 2004 MT 68,87 P.3d 443,320 Mont. 332 |
| Parties | Arden COWAN, Petitioner and Appellant, v. Kathy COWAN, Respondent and Respondent. |
| Court | Montana Supreme Court |
For Appellant: Jennifer B. Lint, Boatwright Law Office, P.C., Hamilton, Montana.
For Respondent: Evonne Smith Wells, Attorney at Law, Missoula, Montana.
¶ 1 Appellant appeals from the Amended Findings of Fact, Conclusions of Law, and Decree of Dissolution entered in the Twenty-First Judicial District Court, Ravalli County, which ordered the sale of a parcel of property, and apportioned part of the proceeds to Respondent. Appellant contends that Respondent held the property in trust for his benefit and thus, she should not have been awarded any of the proceeds from its sale.
¶ 2 Five issues were raised on appeal. However, we hold the Appellant's claim to the property in question barred by judicial estoppel, therefore, we need not reach the remaining issues.
¶ 3 Arden Cowan (Arden) is the son of Elmer and Pauline Cowan. Arden has been married three times. He was first married to, and had children with, Joyce Cowan (Joyce). After he and Joyce divorced, Arden married Karen Cowan (Karen). After he and Karen divorced, Arden married Kathy Couchois Cowan (Kathy) on November 24, 1989. Arden and Kathy separated on May 7, 2000, and on August 9, 2002, an Amended Decree of Dissolution was entered, dissolving Arden and Kathy's marriage. In the dissolution action, the District Court determined that Kathy owned a tract of approximately 170 acres, dubbed the Stevensville/Bell Crossing property by the parties. Approximately eleven of these acres were purchased by Arden and Joyce in 1979, and approximately 110 of these acres were purchased by Arden and Karen in the early to mid-eighties. Title to the property, however, was never placed in Arden's name. Legal title was always held by either Arden's parents, or one of Arden's wives. At the outset of the marriage to Kathy, the property consisted of a 110-acre tract and an 11.14-acre tract. During the marriage, Arden and Kathy invested in additional acreage, and at the time of the dissolution, the entire 170 acres was subject to an agreement for sale with third-party buyers. The property was sold shortly after the Decree of Dissolution was entered, and the proceeds of the property were apportioned to Kathy and Arden as set forth in the decree.
¶ 4 We review a district court's division of marital property to determine whether the findings on which it relied are clearly erroneous. If the findings are not clearly erroneous, we will affirm the distribution of property unless the district court abused its discretion. In a marriage dissolution proceeding, the test for an abuse of discretion is whether the district court acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice. Marriage of Engen, 1998 MT 153, ¶ 26, 289 Mont. 299, ¶ 26, 961 P.2d 738, ¶ 26.
¶ 5 Arden's foremost argument is that the District Court erred when it found that his parents' transfer of the Stevensville property to Kathy was a gift to Kathy. He argues that his parents' intent in transferring the property was to establish Kathy as trustee of the property for Arden's benefit. There is evidence tending to support Arden's trust theory. However, we agree with the District Court that Arden is judicially estopped from establishing that Kathy held the property in trust and that he is the beneficiary of that trust, because he repeatedly and unequivocally denied that he had any interest in the property whatsoever in a prior lawsuit against him for past due child support.
¶ 6 Arden and his first wife, Joyce, were divorced in 1982. Arden's initial monthly child support payments were $100 per child, and were later increased to $200 per child. Arden attempted to make his support payments, but for health-related reasons, began falling behind. Eventually, the total arrearage reached roughly $18,000.
¶ 7 In 1993, or early 1994, Joyce filed a suit against Arden for past due support. At trial, in 1994, Arden testified as to his assets. Concerning the Stevensville property, Arden said that he and his second wife, Karen, bought the property in 1987, and placed it in her name. When he and Karen were divorced, Karen owed Arden's parents money and she deeded the property to them in lieu of a cash payment. Arden further testified that when he married Kathy, his parents deeded the property to her. Joyce's attorney questioned Arden about the reasons why Arden's parents deeded the property to Kathy and not to him:
¶ 8 Later in the questioning, Joyce's attorney asked Arden why he hadn't considered selling some of his personal property, or made other arrangements, to help make child support payments. The following dialogue ensued:
¶ 9 Jumping ahead to 2002, and the trial of this case, Arden was again questioned about his assets and the ownership of the Stevensville property. He testified that beginning in the mid-seventies, he began to have serious concerns about his medical condition, and the large medical bills he might incur. To insulate his property from the possibility of execution by creditors he began to invest in real estate, but he always placed title to the properties in other peoples' names. He said that while he recognized that legal title was in someone else, he always believed that he was the true owner of the properties. Specifically regarding the Stevensville property:
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