In re Marriage of Kotecki, 99-293.

• Decision Date: 26 September 2000
• Docket Number: No. 99-293.,99-293.
• Citation: 301 Mont. 460,2000 MT 254,10 P.3d 828
• Parties: In re the MARRIAGE OF Jeanette M. KOTECKI, Petitioner and Respondent, and Richard B. Kotecki, Respondent and Appellant.
• Court: Montana Supreme Court

10 P.3d 828

301 Mont. 460

2000 MT 254

In re the MARRIAGE OF Jeanette M. KOTECKI, Petitioner and Respondent, and

Richard B. Kotecki, Respondent and Appellant.

No. 99-293.

Supreme Court of Montana.

Submitted on Briefs January 13, 2000.

Decided September 26, 2000.

Craig R. Buehler, Lewistown, Montana, For Appellant.

E. Wayne Phillips, Hubble, Ridgeway & Phillips, Stanford, Montana, For Respondent.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 Montana's Tenth Judicial District Court, Fergus County, awarded Jeanette Kotecki (Jeanette) a portion of Richard Kotecki's (Richard) retirement funds, along with $900 per month in child support and $300 per month conditional maintenance for 60 months pursuant to their marriage dissolution action. Richard appeals. We affirm the District Court's ruling.

¶ 2 Richard raises the following issues on appeal:

1. Whether the District Court erred when it awarded Jeanette a portion of Richard's retirement funds.

2. Whether the District Court erred when it awarded child support of $900 per month payable to Jeanette.

¶ 3 Jeanette Frounfelter and Richard Kotecki were married in December of 1987. Jeanette had acquired a home in May of 1987 in her name that both parties worked to improve in a number of ways, substantially raising its value concurrent with a general inflationary trend in property values in the Missoula, Montana, area.

¶ 4 Two sons were born to Jeanette and Richard during the course of their marriage, one of whom has had more than the normal health problems attendant to childhood. The children were born in 1992 and 1993. Jeanette is the residential custodian of the children under the decree of dissolution.

¶ 5 Richard and Jeanette were both employed during all phases of their relationship. Richard was a sheet metal worker, ultimately gaining his union card in 1989, and Jeanette worked for the U.S. Forest Service. Jeanette was convicted of embezzling nearly $25,000 from the Forest Service in 1995 and consequently lost her job. She made restitution from her government retirement account. By her own admission Jeannette has considerable difficulty managing money and her spending habits and has accumulated sizeable credit card obligations over the years.

¶ 6 Following Jeanette's job loss and criminal prosecution, the Lolo house was sold, most debts were paid, and the family moved to Lewistown to be closer to Jeanette's family. Jeanette has worked at a nursing home part-time, among other less gainful ventures. Richard continued work in his field but found it necessary to commute and be absent from home for periods of time.

¶ 7 Jeanette and Richard separated in 1997 and sought a divorce, which was finalized in March of 1999. The proceedings were contentious, centering principally around the distribution of marital assets. The District Court conducted extensive hearings and entered its Findings of Fact, Conclusions of Law and Decree of Dissolution on March 8, 1999. Under the decree Richard was required to relinquish one-fourth of his retirement fund to Jeanette, and pay $900 per month in child support for the two children and $300 per month in maintenance to Jeanette conditioned upon her managing her personal finances according to the court's requirements in the decree. Richard appeals the pension distribution and the monthly child support award.

¶ 8 The standard for reviewing the actions of district courts is well settled, and applies to both issues in this case. Findings of fact shall not be set aside unless clearly erroneous. Rule 52(a), M.R.Civ.P.; In re the Marriage of Eklund (1989), 236 Mont. 77, 80, 768 P.2d 340, 343. We employ a three-part test when determining whether a district court's findings are clearly erroneous. These elements are: 1) Whether the findings are supported by substantial evidence in the record; 2) whether the trial court has misapprehended the effect of the evidence; and 3) if substantial evidence exists and the effect of the evidence has not been misapprehended, the Court may still find that the trial court's findings are clearly erroneous when, although there is evidence to support it, a review of the record leaves the Court with the definite and firm conviction that a mistake has been committed. In re the Marriage of Schmitz (1992), 255 Mont. 159, 165, 841 P.2d 496, 500 (citing Interstate Production Credit Ass'n v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287).

¶ 9 After reviewing the record this Court is left with the definite and firm conviction that the District Court's findings are supported by substantial evidence ("[E]vidence that a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Barrett v. Asarco, Inc. (1990), 245 Mont. 196, 200, 799 P.2d 1078, 1080); the District Court has not misapprehended the effect of the evidence; and that no mistake has been committed. Therefore the District Court's findings are not clearly erroneous. If we conclude the court's findings are not clearly erroneous, we review the distribution to determine if the court abused its discretion. To determine abuse of discretion we look to whether "the trial court acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice." In re the Marriage of Wessel (1986), 220 Mont. 326, 333, 715 P.2d 45, 50. Here, the District Court's findings are not clearly erroneous. Because the court did not act arbitrarily without employment of conscientious judgment or exceed the bounds of reason, resulting in substantial injustice, given the appropriate and thorough analysis of requisite factors, the court did not abuse its discretion. We affirm the District Court's rulings as to both issues 1 and 2.

Issue 1

¶ 10 Whether the District Court erred when it awarded Jeanette one-fourth of Richard's retirement funds.

¶ 11 We have previously established that retirement funds are a part of the marital estate. In re the Marriage of Rolfe (1985), 216 Mont. 39, 46, 699 P.2d 79, 83. Therefore Richard's retirement funds were properly considered by the District Court in dividing the marital estate. Richard contends, however, that Jeanette's conviction for embezzlement and resultant need to exhaust her own retirement to pay restitution constituted marital misconduct, and she should therefore not be entitled to any portion of his retirement fund.

¶ 12 Marital misconduct is not a factor in a court's equitable division of marital property. Section 40-4-202, MCA; In re the Marriage of Griffin (1993), 260 Mont. 124, 141, 860 P.2d 78, 89; In re the Marriage of Collett (1981), 190 Mont. 500, 504, 621 P.2d 1093, 1095 (husband had exercised dominion over $26,000 realized from sale of marital assets; trial court imposed payment obligation on husband as "partial recompense" for prior acts. We stated unequivocally that marital misconduct is not to be considered in dividing the marital estate and vacated judgment for this and other reasons). Similarly, we conclude that Jeanette's actions here do not warrant an exception to the unequivocal statutory language.¹

¶ 13 Section 40-4-202, MCA, lists factors the court must consider when dividing marital assets in divorce proceedings. The record shows the District Court addressed these factors at some length. The principal issues raised by Richard were that Jeanette's embezzlement and consequent restitution resulted in dissipation of marital assets, and that under § 1-3-208, MCA, Jeanette cannot take advantage of her own wrong.

¶ 14...