Hurley v. Hurley

Decision Date17 July 1986
Docket NumberNo. 86-041,86-041
Citation43 St.Rep. 1271,721 P.2d 1279,222 Mont. 287
PartiesIn re the Marriage of Margaret E. HURLEY, Petitioner/Appellee, v. Dennis P. HURLEY, Respondent/Appellant.
CourtMontana Supreme Court

Wright, Tolliver & Guthals, Kenneth D. Tolliver, Billings, for petitioner/appellee.

Radovich Law Firm, Eric K. Hendricks, Billings, for respondent/appellant.

SHEEHY, Justice.

Appellant, Dennis P. Hurley, appeals from the judgment of the District Court, Thirteenth Judicial District, County of Yellowstone, dissolving the parties' marriage and apportioning the property and assets of their marital estate.

Margaret and Dennis Hurley were formerly married in 1962. In 1968, the parties adopted a child, Kevin Hurley, who was 17 years old and a senior at Billings Central Catholic High School at the time of the dissolution proceedings in the District Court. In 1970, the parties were legally divorced in the State of Minnesota. In the two years following their divorce, the parties occasionally resided together on an irregular basis, until early 1973, when Dennis asked Margaret to move to Corning, Iowa where he had secured employment the previous year. Margaret testified that she agreed to move to Iowa on the condition that they resume their marital relationship. Accordingly Margaret quit her job and sold her home in Minnesota to facilitate the move.

After moving to Iowa, Margaret resumed wearing her wedding rings and the couple held themselves out as husband and wife. In November, 1973, Dennis and Margaret purchased a home in Corning, Iowa. Margaret testified she contributed $12,500.00 toward the downpayment, that being the proceeds from the sale of her Minnesota home. Dennis produced two cancelled checks indicating that he contributed the sum of $2,500.00. The parties gave conflicting testimony regarding the total purchase price of the home, Margaret recalling the amount to be $42,500.00 and Dennis $40,500.00. The balance of the purchase price was financed by a mortgage in the sum of $28,000.00. The parties executed the mortgage as "Dennis P. Hurley and Margaret E. Hurley, Husband and Wife."

For the years 1978-1981, Dennis prepared the family income taxes which he filed as "married-filing joint return," naming Margaret as his wife with her occupation shown as "housewife." Dennis denied that a common law marriage existed despite the fact that they held themselves out as married and despite the fact that he agreed he received "services that would be comparable or equivalent" to a wife. Based on the above evidence, the District Court concluded that the parties entered a common law marriage in April, 1973.

In 1981, the parties purchased a duplex in Eureka Springs, Arkansas, as an investment. The duplex was purchased under a contract for deed for the sum of $50,000.00, less a $20,000.00 downpayment. The record indicates the downpayment consisted of $14,000.00 in funds inherited by Dennis and $6,000.00 from the parties' joint savings account.

In 1982, Dennis obtained employment in Billings, Montana. The parties and their son resided in Billings until April, 1984, when they separated. The record discloses, as the District Court found, that the parties held themselves out as husband and wife and maintained joint checking and savings accounts while in Billings.

During 1983, Dennis was employed by I.R.I. Research in Georgetown, Guyana. While employed by I.R.I. Research, in March of 1983, Dennis completed a form designating Margaret as his beneficiary for insurance purposes, indicating her relationship as "wife."

In April 1984, Dennis disappeared from the Billings area. He later phoned Margaret from Las Vegas, Nevada, advising her that he had left a note with instructions in a post office box. The note instructed Margaret to take the funds from their joint checking and savings accounts to use to support herself and their son, and further advised that he would be living in Las Vegas.

At that time, Margaret withdrew $31,000.00 from the savings account leaving a balance of $13,994.00. She did not remove any funds from the joint checking account, in which there was a balance of $22,605.00. At this time, Margaret also had access to a savings account in her own name, with a balance of $15,000.00 which sum was the accumulation of gifts received from her family, her childhood savings, and a small inheritance from her father's estate.

Dennis returned to Billings a few days after he had phoned Margaret from Las Vegas and withdrew the sums remaining in the joint checking and savings accounts, totalling approximately $36,000.00.

In May, 1984, Dennis moved to Eureka Springs, Arkansas, and moved into one unit of the parties' duplex, where he presently resides. Dennis is a college graduate with a degree in accounting, and is presently employed for the firm of George S. May as a management consultant. The record indicates that Dennis' present earnings are approximately $1,700.00 per month. The record, however, also indicates that he has had an earning capacity of up to $4,000.00 per month.

In 1983 and 1984, Margaret attempted to establish a career in real estate in Billings, but earned only $2,300.00 in commissions. Thereafter, Margaret worked briefly as a receptionist from December, 1984, through February 1985, but has been unemployed since that time. Margaret, however, testified that she intends to attend a four-month paralegal training course in Denver, Colorado, to obtain marketable employment skills if she does not obtain suitable employment soon.

The District Court found that during the period of April 1973, up to the time of separation, the parties accumulated the following assets:

                Assets at time of separation
                Joint checking account               $ 22,605.59
                Joint saving account                   40,949.00
                Wife's separate savings account        15,000.00
                1981 Mercury Lynx                       3,500.00
                1974 Chrysler                             500.00
                IRA                                    10,000.00
                Furniture                               1,835.00
                Arkansas Duplex                        50,000.00
                3 shares Financial Corp. of America       120.00
                6 shares Pfazier                          120.00
                162 shares Amfac                        4,050.00
                3 shares N.W. National                     40.00
                               TOTAL                 $148,719.59

The District Court also found that the parties had accumulated the following liabilities at the time of trial:

                Liabilities at time of trial
                Mortgage of Arkansas Duplex   $ 18,000.00
                Mortgage of Billings House      40,000.00
                           TOTAL              $ 62,000.00
                Subsequent to the parties separation, Margaret purchased a home in
                        Billings for $60,000.00.  The "mortgage of Billings House" listed above
                        represents the amount still owing on the $60,000 purchase price
                At the time the parties separated in April, 1984, Margaret had custody
                        of the following assets
                Funds from joint savings account  $ 31,000.00
                Personal savings account            15,000.00
                1981 Mercury Lynx                    3,500.00
                Furniture                            1,835.00
                    TOTAL                         $ 51,335.00
                Of the $31,000.00 from the parties' joint savings account, Margaret
                        used $16,500.00 of the savings as a downpayment on the Billings house
                        Further, Margaret testified that she had also expended a portion of the
                        savings for living expenses for herself and the parties' minor child
                        leaving a balance of $15,208.00 in savings and $1,424.66 in checking
                        account funds.
                The District Court also found that Dennis had custody of the following assets:
                Funds from joint savings account   $ 13,994.00
                Funds from joint checking account    22,605.59
                1974 Chrysler                           500.00
                IRA                                  10,000.00
                Stocks-totaling                       4,330.00
                Arkansas duplex                      50,000.00
                    TOTAL                          $101,429.59
                Accordingly, the District Court allocated the assets and liabilities in the
                        marital estate as follows:
                Assets                          Value        Wife      Husband
                ------                          -----        ----      -------
                Wife's cash account balance  $ 15,208.00  $15,208.00  $
                Savings drawn by husband       13,994.00               13,994.00
                Checking drawn by husband      22,605.59               22,605.59
                1981 Mercury Lynx               3,500.00    3,500.00
                1974 Chrysler                     500.00                  500.00
                IRA                            10,000.00   10,000.00
                Furniture                       1,835.00    1,835.00
                Arkansas Duplex                50,000.00               50,000.00
                Stocks                          4,330.00                4,330.00
                Billings house                 60,000.00   60,000.00
                                             -----------  ----------  ----------
                TOTAL ASSETS                 $181,972.59  $90,543.00  $91,429.59
                Billings home mortgage       $ 44,000.00  $44,000.00  $
                Arkansas duplex                18,000.00               18,000.00
                                             -----------  ----------  ----------
                TOTAL LIABILITIES            $ 62,000.00  $44,000.00  $18,000.00
                Net Worth and Allocation     $119,972.59  $46,543.00  $73,429.59

In addition, the District Court awarded Margaret $31,439.18 to be paid in installments of $5,000.00, the first payment due 30 days after entry of the decree and the balance in five equal annual installments commencing July 1, 1986, together with interest at 10% per annum from the date of trial. In awarding Margaret the cash sum, the District Court reasoned that: "In light of the husband's superior earning capacity,...

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