In re Marriage of Hochhalter, 00-661.

• Decision Date: 18 December 2001
• Docket Number: No. 00-661.,00-661.
• Citation: 2001 MT 268,37 P.3d 665
• Parties: In re the MARRIAGE OF Dorothy L. HOCHHALTER, Petitioner and Respondent, and Clyde K. Hochhalter, Respondent and Appellant.
• Court: Montana Supreme Court

37 P.3d 665

2001 MT 268

In re the MARRIAGE OF Dorothy L. HOCHHALTER, Petitioner and Respondent, and

Clyde K. Hochhalter, Respondent and Appellant.

No. 00-661.

Supreme Court of Montana.

Submitted on Briefs May 17, 2001.

Decided December 18, 2001.

For Appellant: Clinton H. Kammerer, Attorney at Law, Missoula, MT.

For Respondent: John H. Gilliam; Skjelset, Gilliam & Geer, Missoula, MT.

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

¶ 1 Clyde Hochhalter (Clyde) appeals from the Findings of Fact, Conclusions of Law and Final Decree of Dissolution of Marriage entered by the Fourth Judicial District Court, Missoula County, which, in pertinent part, divided the marital estate of Clyde and Dorothy Hochhalter (Dorothy). We affirm.

¶ 2 We address the following restated issues:

¶ 3 1. Did the District Court abuse its discretion in valuing all of the parties' assets at the time of their 1995 separation?

¶ 4 2. Did the District Court abuse its discretion in determining the parties' marital assets?

¶ 5 3. Did the District Court abuse its discretion in valuing certain of the parties' marital assets?

¶ 6 4. Did the District Court abuse its discretion in apportioning the parties' marital estate?

¶ 7 5. Is Dorothy entitled to sanctions against Clyde in the form of her attorney fees on appeal?

BACKGROUND

¶ 8 Clyde and Dorothy were married August 1, 1970, in Missoula, Montana. They had three sons, all of whom had reached the age of 18 by the time of this proceeding. Dorothy worked as a teacher for nine years prior to the marriage and continued to work as a teacher thereafter. Clyde worked sporadically before the marriage and later worked for Champion International Corporation from 1974 until 1994, when he was laid off. Thereafter, Clyde worked on a duplex the parties owned as rental property and then moved to Great Falls and began vocational training. Clyde and Dorothy separated several times during the marriage. In total, the parties were separated for over 12 years during the course of their 29-year marriage. They separated for the final time in January of 1995, after which Dorothy petitioned for dissolution of their marriage in May of 1995.

¶ 9 During the marriage, Dorothy and Clyde accumulated marital assets including financial accounts, four parcels of real property, three vehicles, and various items of personal property. They took part in two court-mandated settlement conferences in an effort to value and divide these assets; during the second conference in November of 1998, they agreed to value their real property assets as of 1995. Dorothy and Clyde also agreed to have the marital estate divided equally, but did not reach agreement on a specific division of the assets or a valuation for various items of personal property.

¶ 10 After their final separation in January of 1995, Dorothy lived in the marital home in Missoula and assumed responsibility for the parties' three rental properties, including providing maintenance, management, and rent collection. Clyde lived in and around the Great Falls area. The parties filed separate tax returns, and neither contributed monetary or nonmonetary resources to the other, after the final separation.

¶ 11 The District Court entered its findings, conclusions, and decree of dissolution on April 7, 2000. Clyde subsequently filed a "Motion and Objection to Findings of Fact, Conclusions of Law and Final Decree of Dissolution of Marriage and Brief." The motion was deemed denied by operation of law when the District Court failed to rule within 60 days. Clyde appeals.

STANDARD OF REVIEW

¶ 12 "We review a district court's findings on which division of marital property is based to determine whether they are clearly erroneous." In re Marriage of Geror, 2000 MT 60, ¶ 6, 299 Mont. 33, ¶ 6, 996 P.2d 381, ¶ 6 (citation omitted). If the findings are not clearly erroneous, we will affirm the division absent an abuse of discretion. Marriage of Geror, ¶ 6 (citation omitted).

DISCUSSION

¶ 13 1. Did the District Court abuse its discretion in valuing all of the parties' assets at the time of their 1995 separation?

¶ 14 The District Court found the marriage between Dorothy and Clyde effectively ended in 1995 when they separated for the last time prior to the dissolution in 2000. It further determined, after reviewing Dorothy and Clyde's agreement valuing their real property as of 1995 and taking into account that they had lived apart since that date, to value all of the marital assets as of 1995.

¶ 15 Clyde argues the valuation of all marital assets as of 1995 inequitably excludes all increases in the value of the parties' financial assets during the final five-year separation. He acknowledges he agreed to value the real property as of 1995, but contends the remainder of the marital assets should be valued as of the date of dissolution to include any gains in financial accounts and appreciation in property. He relies on In re Marriage of Swanson (1986), 220 Mont. 490, 495, 716 P.2d 219, 222 (citation omitted), in which we stated "the value of the marital estate should be determined at or near the time of dissolution."

¶ 16 Relying on Marriage of Geror, ¶ 16, Dorothy contends the District Court did not abuse its discretion in valuing the marital assets at the time of the parties' final separation because their marriage involved unique circumstances rendering Marriage of Swanson inapplicable. She further contends that, because she and Clyde agreed to value the real property assets of the marriage as of 1995 and the marriage effectively ended in January of 1995, the court properly valued all the assets as of the time of separation.

¶ 17 As a general rule, "the value of the marital estate should be determined at or near the time of dissolution." Marriage of Swanson, 220 Mont. at 495, 716 P.2d at 222 (citation omitted). However, the unique circumstances of marital relationships can modify this generally accepted date for the valuation of assets. Marriage of Geror, ¶ 14; In re Marriage of Gebhardt (1989), 240 Mont. 165, 170, 783 P.2d 400, 403; In re Marriage of Wagner (1984), 208 Mont. 369, 380, 679 P.2d 753, 758.

¶ 18 We recently identified some characteristics of a marriage which constituted unique circumstances rendering it appropriate to value marital assets at the time of separation. In Marriage of Geror, the parties married in 1987, but lived separately beginning in 1989 and through the time of the marital dissolution in the late 1990s. While living apart, they maintained separate financial and retirement accounts, made separate financial decisions, and contributed neither monetary nor nonmonetary resources to each other. Marriage of Geror, ¶¶ 15-16. We concluded the point at which the marital relationship ended for all practical purposes was the relevant time for valuation of the marital estate and that, under the facts before us, the district court did not abuse its discretion in valuing the marital assets at the time of separation rather than at the time of dissolution. Marriage of Geror, ¶¶ 11, 16.

¶ 19 The present case is similar to Marriage of Geror. The record indicates Dorothy and Clyde separated for the final time more than five years prior to the ultimate dissolution of their marriage. After that time, they lived in separate residences in different cities, maintained their own finances, including filing separate tax returns, and maintained their own retirement accounts. Neither Clyde nor Dorothy contributed financially to the other after January of 1995. As in Marriage of Geror, the circumstances in this case indicate Dorothy and Clyde "lived separate lives financially and otherwise" after their separation in January of 1995. See Marriage of Geror, ¶ 16. Accordingly, we conclude the District Court did not abuse its discretion in valuing the marital assets as of the 1995 separation.

¶ 20 2. Did the District Court abuse its discretion in determining the parties' marital assets?

¶ 21 Clyde contends the District Court failed to include several of the parties' financial accounts in the marital estate. According to Clyde, the financial accounts improperly excluded are: 1) Washington National variable annuity # XXXXXXXXXX; 2) a N.W. Mutual account; 3) Washington National account # XXXXXXX; 4) A.G. Edwards account # XXX-XXXXXX-XXX; and 5) an A.G. Edwards money market account. Clyde's contentions in these regards are, to say the very least, inartfully presented.

¶ 22 With regard to Clyde's assertions that Washington National account # XXXXXXXXXX was improperly excluded from the marital estate, the record indicates that such an account existed in 1987; however, the record is devoid of any evidence of the existence of that account since that time. Ultimately, "the appellant has the duty to establish error by the district court." In re Marriage of Pfennigs, 1999 MT 250, ¶ 33, 296 Mont. 242, ¶ 33, 989 P.2d 327, ¶ 33 (citation omitted). Because Clyde points to no record evidence of the status or existence of this Washington National account since 1987, we conclude he has failed to establish error by the District Court in this regard.

¶ 23 Clyde also contends the District Court excluded a N.W. Mutual account valued at $3,356, and Washington National account # XXXXXXX. We observe the District Court included a Washington National account # XXXXXX, with a value of $3,356, in the marital estate. The record with respect to the included Washington National account # XXXXXX also indicates that it may be the same account as the N.W. Mutual account valued at $3,356 given the identical values. Finally, the record reflects the likelihood that the included Washington National account # XXXXXX is the same account as the Washington National account # XXXXXXX to which Clyde refers, based on the similarity of the account numbers. In any event, however, no evidence of record supports the existence of either a N.W. Mutual account or Washington National account # XXXXXXX. We...