IN RE MARRIAGE OF GERHART, 03-200.

• Decision Date: 23 October 2003
• Docket Number: No. 03-200.,03-200.
• Citation: 78 P.3d 1219,2003 MT 292
• Parties: In re the MARRIAGE OF Kimberly K. GERHART, Petitioner and Appellant, and Kevin Gerhart, Respondent and Respondent.
• Court: Montana Supreme Court

78 P.3d 1219

2003 MT 292

In re the MARRIAGE OF Kimberly K. GERHART, Petitioner and Appellant, and

Kevin Gerhart, Respondent and Respondent.

No. 03-200.

Supreme Court of Montana.

Submitted on Briefs July 31, 2003.

Decided October 23, 2003.

For Appellant: James D. McKenna; Walsh & McKenna, Bozeman, Montana.

For Respondent: Magdalena C. Bowen; Bowen & Parker, Bozeman, Montana.

Chief Justice KARLA M. GRAY delivered the Opinion of the Court.

¶ 1 Kimberly K. Gerhart appeals from the Findings of Fact, Conclusions of Law and Decree of Dissolution entered by the Eighteenth Judicial District Court, Gallatin County. We affirm.

¶ 2 Kimberly raises the following issues on appeal:

¶ 3 1. Did the District Court abuse its discretion in failing to award her spouse's bonus and profit-sharing award to Kimberly when he disclosed them only two business days before trial?

¶ 4 2. Did the District Court abuse its discretion in failing to award her spouse's interest in an Employee Stock Ownership Plan (ESOP) to Kimberly?

¶ 5 3. Did the District Court improperly determine the amount and distribution of Kimberly's pretrial expenditures of home sale proceeds?

¶ 6 4. Is the District Court's distribution of the marital estate inequitable?

BACKGROUND

¶ 7 Kimberly and Kevin Gerhart married in 1981. Kimberly worked as a retail employee and a bank teller until the parties decided to have a family. Subsequently, she worked primarily as a homemaker. The couple had two children, born in 1994 and 1996. Kevin worked in the dairy industry throughout the marriage.

¶ 8 The parties separated in April of 1999, and Kimberly petitioned for dissolution in August of 2000. After the separation, Kevin voluntarily paid Kimberly's living expenses and child support until the couple sold the marital home in October of 2000. As agreed by the parties, the net proceeds of $118,958.73 were placed into a money market account in Kimberly's name. At that time, Kevin stopped paying for Kimberly's personal living expenses, but he continued to make monthly child support payments of $1,500. Kimberly spent some of the sale proceeds in the ensuing months. In September of 2001, when the account balance had fallen to approximately $83,000, the District Court issued its Findings of Fact, Conclusions of Law and Temporary Order, which it amended in October of 2001. In the Temporary Order, the District Court prohibited further withdrawals from the home sale proceeds account absent a court order. In addition, the District Court ordered Kevin to pay $1,326 in child support and $1,675 in temporary maintenance each month.

¶ 9 During the interim, Kevin had begun working for a new employer in a management position in December of 1999. Shortly thereafter, Kevin's employer instituted an ESOP program, in which Kevin could participate after completing one year of employment. Under the ESOP's vesting schedule, Kevin had no vested interest in the ESOP at the time of trial on Kimberly's dissolution proceeding. Kevin testified at trial that he had no vested interest in the ESOP shares, and Kimberly could have the asset "if it has no value."

¶ 10 In 2001, Kevin received a bonus and profit-sharing award totaling $45,532.70. He deposited the checks into an investment bank account which, at the time of trial in March of 2002, had declined in value to $28,798.23. Kevin testified that he planned to use the funds to pay increased taxes resulting from the bonus and award moving him into a higher tax bracket.

¶ 11 Kevin failed to disclose the account in his Final Declaration of Disclosure. After Kimberly's counsel requested Kevin's W-2 forms for the year 2001, Kevin amended his disclosure to include the account, and the amended disclosure was received two days before trial. Kevin testified he had inadvertently omitted the bonus and profit-sharing award, having placed his W-2 tax form in an envelope marked for his 2001 taxes without looking at it and simply forgetting about the account.

¶ 12 After trial, the District Court entered its Findings of Fact, Conclusions of Law and Decree of Dissolution. It valued the marital estate at $444,637, and apportioned $218,694 to Kimberly and $225,943 to Kevin. The court also ordered Kevin to pay child support of $1,736, as well as $2,000 in maintenance, per month. The trial court observed that Kevin had "no vested interested [sic] in the ESOP plan" and acknowledged the account containing the bonus and profit-sharing award, but included neither as a marital asset to be divided.

¶ 13 The trial court found that Kimberly had spent $43,958 of the marital home proceeds before Kevin stopped paying her living expenses. It divided the $83,635 home proceeds account balance equally between the parties, and added the $43,958 Kimberly previously had spent to her distribution, resulting in a $127,593 valuation of the account.

¶ 14 Both parties timely filed motions for amendment and/or clarification of the District Court's findings, conclusions, and decree. In its Order RE: Motions to Amend Findings of Fact, Conclusions of Law and Decree of Dissolution and Motion for Clarification of Court Orders, the court denied Kimberly's motion for amendment of the property distribution. Kimberly appeals.

STANDARD OF REVIEW

¶ 15 We initially review a district court's division of marital property to determine whether the findings of fact upon which the division is based are clearly erroneous. In re Marriage of Pospisil, 2000 MT 132, ¶ 19, 299 Mont. 527, ¶ 19, 1 P.3d 364, ¶ 19 (citation omitted). "A finding is clearly erroneous if it is not supported by substantial evidence, if the district court misapprehended the effect of the evidence, or if our review of the record convinces us that the district court made a mistake." In re Marriage of Steinbeisser, 2002 MT 309, ¶ 17, 313 Mont. 74, ¶ 17, 60 P.3d 441, ¶ 17 (citation omitted).

¶ 16 Pursuant to § 40-4-202, MCA, a district court has broad discretion to distribute a marital estate equitably according to the circumstances of the case. In re Marriage of Bee, 2002 MT 49, ¶ 34, 309 Mont. 34, ¶ 34, 43 P.3d 903, ¶ 34 (citation omitted). Absent clearly erroneous findings, we will affirm a trial court's property distribution unless the court abused its discretion. Marriage of Pospisil, ¶ 19 (citation omitted).

DISCUSSION

¶ 17 1. Did the District Court abuse its discretion in failing to award Kevin's bonus and profit-sharing award to Kimberly when he disclosed them only two business days before trial?

¶ 18 Kimberly argues that the presumption contained in § 40-4-253(4), MCA, required the District Court to penalize Kevin by awarding his late-disclosed assets to her. Her argument is without merit.

¶ 19 Section 40-4-253(4), MCA, provides, in pertinent part, that a party's failure to disclose an asset on his or her final disclosure declaration is presumed to be grounds for the court to award the undisclosed asset to the other party separate from the equitable division of the marital estate. Thus, it is undisputed that the statute clearly authorizes a court to award undisclosed assets to the opposing party.

¶ 20 The statute only creates a presumption, however. Section 26-1-601, MCA, sets forth a list of conclusive presumptions, including "any other presumption, which, by statute, is expressly made conclusive," while § 26-1-602, MCA, provides that all other presumptions are disputable and may be controverted by other evidence. Section 40-4-253(4), MCA, on which Kimberly relies, does not state that the presumption therein is conclusive. Consequently, the presumption at issue is disputable.

¶ 21 Kevin testified about why he was late in disclosing the account. Kimberly argues that Kevin's explanation of the late disclosure is insufficient to overcome the presumption in § 40-4-253(4), MCA. As the finder of fact, however, it was within the District Court's province to determine Kevin's credibility. In re Marriage of Nies & Cooper, 2003 MT 100, ¶ 18, 315 Mont. 260, ¶ 18, 68 P.3d 697, ¶ 18 (citation omitted); Albrecht v. Albrecht, 2002 MT 227, ¶ 47, 311 Mont. 412, ¶ 47, 56 P.3d 339, ¶ 47 (citations omitted). The trial court apparently accepted Kevin's explanation.

¶ 22 We conclude the District Court did not abuse its discretion by failing to award the profit-sharing and bonus account to Kimberly.

¶ 23 2. Did the District Court abuse its discretion in failing to award Kevin's interest in the ESOP to Kimberly?

¶ 24 Kimberly asserts that the District Court abused its discretion by failing to award Kevin's interest in the ESOP to her because Kevin agreed to allow her to have it. Even assuming arguendo that Kimberly properly characterizes Kevin's testimony, Kimberly has failed to cite any authority to support her position. Rule 23(a)(4), M.R.App.P., requires an appellant to cite to authorities in support of the arguments raised. Moreover, we have repeatedly held that absent such authorities, we will not consider the issue. See, e.g., In re Marriage of Clark, 2003 MT 168, ¶ 25, 316 Mont. 327, ¶ 25, 71 P.3d 1228, ¶ 25 (citation omitted). Consequently, we decline to address this argument.

¶ 25 3. Did the District Court improperly determine the amount and distribution of Kimberly's pretrial expenditures of home sale proceeds?

¶ 26 Kimberly sets forth two arguments regarding the trial court's determinations relating to the home sale proceeds she spent before the court awarded her temporary maintenance in September of 2001. First, Kimberly argues that the trial court abused its discretion when it awarded her "funds that did not exist" because she had spent them on reasonable living expenses. Second, Kimberly contends that the trial court erred in determining the pretrial expenditures were $43,958. We address her arguments in reverse order.

¶ 27 Kimberly claims the trial court erred in its calculation of the amount of home sale proceeds she spent. She states she spent $35,325.

¶ 28 At trial, Kevin testified that Kimberly had spent $34,958....