IN RE MARRIAGE OF KILLPACK

Decision Date09 March 2004
Docket NumberNo. 03-459.,03-459.
Citation87 P.3d 393,2004 MT 55
PartiesIn re the MARRIAGE OF James Hewett KILLPACK, Petitioner and Respondent, and Sara Edwards Killpack, Respondent and Appellant.
CourtMontana Supreme Court

For Appellant: Ronald F. Waterman, Gough, Shanahan, Johnson & Waterman, Helena, Montana.

For Respondent: John L. Hollow, Helena, Montana.

Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

¶ 1 This case arises from the dissolution of the marriage of James and Sara Killpack, who were married in Wisconsin on June 19, 2000. At the time of their marriage, both Sara and James had children from previous marriages, but James's children did not live with him. Following a prolonged custody dispute between Sara and her former husband, James legally adopted Sara's children. James obtained employment in Helena, Montana, and relocated there shortly after marrying. Sara and the children subsequently joined him in Montana in July 2001. Sara and James spent more than $1.4 million buying land and building a house near Clancy, which was the major asset of the marital estate. However, following the couple's separation, the home sold for only $680,000. On January 29, 2002, James filed a petition for dissolution of marriage in the District Court of the First Judicial District, Lewis and Clark County, which entered its decree of dissolution on April 18, 2003. Sara now appeals. We affirm. ¶ 2 The appellant raises the following issues on appeal:

¶ 3 1. Did the District Court err in refusing to enforce the settlement agreement?

¶ 4 2. Did the District Court err in excluding Sara's monetary losses incurred in entering into the marriage and moving to Montana?

¶ 5 3. Did the District Court err in its division of the marital estate?

¶ 6 4. Did the District Court err in allocating amounts already paid to Sara as maintenance and child support?

¶ 7 5. Should the District Court have awarded on-going maintenance?

DISCUSSION

¶ 8 We review a District Court's division of marital property to determine whether the findings of fact on which the division is based are clearly erroneous. In re Marriage of Rolf, 2003 MT 194, ¶ 14, 316 Mont. 517, ¶ 14, 75 P.3d 770, ¶ 14. "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 Gerhart, 2003 MT 292, ¶ 15, 318 Mont. 94, ¶ 15, 78 P.3d 1219, ¶ 15. District courts have broad discretion pursuant to § 40-4-202, MCA, to distribute the marital estate equitably. Gerhart, ¶ 16. Absent either erroneous findings, or an abuse of discretion, we will affirm the distribution of property. In re Marriage of Pospisil, 2000 MT 132, ¶ 19, 299 Mont. 527, ¶ 19, 1 P.3d 364, ¶ 19. In a dissolution proceeding, the test for an abuse of discretion is whether the district court acted arbitrarily without employment of conscientious judgment or whether the district court exceeded the bounds of reason resulting in a substantial injustice. In re Marriage of Engen, 1998 MT 153, ¶ 26, 289 Mont. 299, ¶ 26, 961 P.2d 738, ¶ 26.

Did the District Court err in refusing to enforce the settlement agreement?

¶ 9 On August 21, 2002, the parties advised the court that they did not need to have a hearing on the merits because they had reached an agreement. The agreement was read into the record, and the court was further advised that the full written agreement would be forthcoming. However, because the parties had difficulties agreeing on certain terms, the agreement was not reduced to writing. Meanwhile, thinking she had resolved matters in Montana, Sara had already moved back to Wisconsin and moved the District Court to enforce the agreement. The District Court refused, finding there was no enforceable agreement. Without a valid agreement to enforce, the District Court held a hearing on the merits of the dissolution in March 2003. Sara now claims that the District Court committed reversible error in not enforcing the agreement. James replies that Sara cannot now raise this issue because she neglected to make the argument at the hearing on the merits and has thus failed to preserve the issue for appeal. Sara retorts that the Montana Rules of Civil Procedure do not allow a motion for reconsideration, and thus, she was precluded from doing anything else to raise the issue.

¶ 10 The general rule is that we will not address an issue raised for the first time on appeal because it is unfair to fault the trial court on an issue it was never given the opportunity to consider. Renner v. Nemitz, 2001 MT 202, ¶ 15, 306 Mont. 292, ¶ 15, 33 P.3d 255, ¶ 15. Furthermore, our policy is to encourage only one appeal from any case and to discourage piecemeal interlocutory appeals. See, e.g., In re D.A., 2003 MT 109, ¶ 19, 315 Mont. 340, ¶ 19, 68 P.3d 735, ¶ 19. In the present case, written motions were submitted regarding the enforceability of the oral agreement, and the District Court entered its order refusing to enforce the agreement. This is sufficient to preserve the issue for appeal.

¶ 11 We previously addressed situations in which parties make an oral separation agreement but are then unable to reduce their agreement to a writing in In re Marriage of Simms (1994), 264 Mont. 317, 871 P.2d 899, and in In re Marriage of Hayes (1993), 256 Mont. 266, 846 P.2d 272. Settlement agreements are governed by § 40-4-201(1), MCA, which provides in relevant part:

To promote amicable settlement of disputes between parties to a marriage attendant upon their separation or the dissolution of their marriage, the parties may enter into a written separation agreement containing provisions for disposition of any property owned by either of them, maintenance of either of them, and support, parenting, and parental contact with their children. [Emphasis added.]

In both Simms and Hayes, we refused to enforce separation agreements which were not in writing, because § 40-4-201, MCA, only discusses the enforcement of a written agreement. Simms, 264 Mont. at 325, 871 P.2d at 900; Hayes, 256 Mont. at 268, 846 P.2d at 273.

¶ 12 In the present case, the parties apparently exchanged written drafts of an agreement, but were ultimately unable to agree on key terms. The only agreement in the record is the unsigned document drafted by Sara and attached to her motion to enforce the oral agreement. The District Court concluded this was unenforceable because it did not comply with § 40-4-201, MCA. Pursuant to the plain terms of the statute, and our decisions of Simms and Hayes, we agree.

¶ 13 However, merely because the oral agreement never matured into an enforceable written agreement does not mean that the parties' work of negotiating the agreement was all for naught. In Simms, we stated that although an oral agreement read into the record may not be enforceable in and of itself, parties are nonetheless bound by stipulations made by them, or their counsel, in open court. Simms, 264 Mont. at 325, 871 P.2d at 900. Sara contends that pursuant to our decision in Simms, decisions as to maintenance and division of property should be based on the parties' stipulations made in open court. This is correct. However, Sara neglects to point to any stipulations which were made by the parties in open court which were subsequently disregarded. Indeed, the record does not include transcriptions of the proceedings of the day in question. Rule 9(b), M.R.App.P., requires a party claiming error to transmit the record. We cannot find error without the record, and we do not have a record of any stipulations made in open court to which the parties are bound.

Did the District Court err in the exclusion of Sara's monetary losses incurred in entering into the marriage and moving to Montana?

¶ 14 Sara claims to have incurred roughly $300,000 in expenses in relocating her children to Helena to facilitate the marriage. Part of these expenses involved the custody dispute and termination of parental rights of the children's biological father. The District Court excluded these expenses from the marital estate, yet included the expense related to James's adoption of Sara's children. Sara claims that both expenses are causally linked, and it was thus error to exclude the former yet admit the latter.

¶ 15 James repeatedly asked for documentation of Sara's claimed relocation expenses. Not only was such documentation never forthcoming, the District Court made numerous evidentiary rulings excluding oral references to the claimed expenses as irrelevant and not meeting the best evidence rule. On appeal, Sara makes no claim of error with regard to these evidentiary rulings. Thus, this Court does not now have before it a record relating to the claimed expenses. Further, Sara points to no authority which would support her claim to include relocation expenses. In the absence of supporting evidence or legal authority, we cannot find error with the District Court's ruling.

Did the District Court err in the division of the marital estate?

¶ 16 Both James and Sara are beneficiaries of trusts from their respective families. The parties both contributed their own money and trust money to the marital estate, most of which went towards building their house near Clancy. Sara contributed $3,060 for the house design and $50,000 towards its construction. Sara's trust also contributed $33,122 to the estate. James contributed $1,404,132. James testified that this money came from an advance on his inheritance from his trust and that he was obligated to pay interest on the advance.

¶ 17 Because James's financial contribution to the marital estate far exceeded Sara's contribution, the District Court awarded James the net proceeds from the sale of the family home. After satisfying the mortgage and paying off two lines of credit, the sale of the house only...

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