In re the Marriage of Brian Alexander, No. DA 10–0300.

• Docket Nº: No. DA 10–0300.
• Citation: 246 P.3d 712, 2011 MT 1, 359 Mont. 89
• Case Date: January 04, 2011
• Court: United States State Supreme Court of Montana

359 Mont. 89
246 P.3d 712
2011 MT 1

In re the MARRIAGE OF Brian ALEXANDER, Petitioner and Appellant,andSusan Alexander, Respondent and Appellee.

No. DA 10–0300.

Supreme Court of Montana.

Submitted on Briefs Dec. 8, 2010.Decided Jan. 4, 2011.

[246 P.3d 714]

For Appellant: Torrance L. Coburn and Raymond P. Tipp, Tipp & Buley, P.C., Missoula, Montana.For Appellee: Susan Alexander (self represented), Missoula, Montana.Justice MICHAEL E. WHEAT delivered the Opinion of the Court.

[359 Mont. 89] ¶ 1 The Fourth Judicial District Court, Mineral County, entered a decree dissolving the marriage of Brian Alexander (Brian) and Susan Alexander (Susan) and distributing their marital estate. Brian [359 Mont. 90] appeals. We affirm.

¶ 2 Brian and Susan were married January 28, 1981. Susan left the marriage in 2005. Brian petitioned for divorce on January 22, 2007. The parties owned a home in Superior, Montana. According to Brian's initial disclosure, filed with his petition, the home was valued at approximately $70,000 and was encumbered by a mortgage of approximately $40,000. Brian's initial disclosure also revealed marital debts on the following items: a Dodge Ram pickup ($2,800), Brian's work equipment ($20,000), a loan ($5,000), and a medical loan ($4,500).

¶ 3 On March 29, 2007, during the pendency of the divorce proceedings, Susan signed a quitclaim deed in which she granted all her interest in the marital home to Brian. Susan contends this was done under duress and at the request of her adult children. Nothing was filed with the District Court evidencing any agreement between Brian and Susan to dispose of the marital home in that manner.

¶ 4 After Susan executed the quitclaim deed, Brian repaired, refurbished, and enhanced the home in order to sell it. Brian took out a second mortgage on the home for approximately $25,635. The record shows approximately $4,000 was used to repair the home. The property sold for $133,500 in July of 2008. Brian received $55,807.14 from the sale.

¶ 5 Brian made a second disclosure of his assets, debts, income, and expenses on November 12, 2008. This second disclosure shows Brian acquired two vehicles and one motorcycle. The debts listed on the initial disclosure—the mortgage ($40,000), the Dodge Ram pickup ($2,800), Brian's work equipment ($20,000), a loan ($5,000), and a medical loan ($4,500)—were not listed. The second mortgage was also not listed.

¶ 6 In its Findings of Fact, Conclusions of Law, and Decree (Decree), the District Court found that despite the quitclaim deed, the home remained a part of the marital estate. It also found that the second mortgage, sale of the marital home, and the acquisition of the two vehicles and motorcycle were all done without the consent of Susan. The District Court then determined that an equitable distribution of the marital home was as follows:

In light of the duration of the parties' marriage and their initial position(s) in this

[246 P.3d 715]

case, the Court determines that a 60% division to [Brian] and a 40% division to [Susan] of the remaining proceeds of the house to be equitable and to adequately compensate [Brian] for his share of tax returns and time in maintaining and improving the house.

+-----------------------------------------------------------------------------+
                ¦ ¦$55,807 + ¦(Second mortgage less $4,000 actual expenses) ¦
                ¦ ¦$21,635 ¦ ¦
                +-----------------------------------------------------------------------------+
                

 = $77,442.00
                

 [Brian] 60% or $46,465.20
                 [Susan] 40% or $30,976.80
                

[359 Mont. 91] The Decree was issued on April 23, 2009. No notice of entry of judgment was filed.

¶ 7 On June 12, 2009, Susan, acting pro se, filed a Motion for Enforcement, seeking to have the District Court set a deadline for Brian to pay her the $30,976.80. Brian objected, arguing the only way to enforce a money judgment was to seek a writ of execution pursuant to § 25–13–201, MCA. The District Court granted Susan's motion and amended the Decree (“Amended Decree”) to include a timeline requiring Brian to pay $15,000 on or before October 1, 2009, and $15,976.80 on or before October 1, 2010. The Amended Decree was issued July 28, 2009. No notice of entry of judgment was ever filed. Brian filed his notice of appeal on June 18, 2010, appealing both the Decree and the Amended Decree.

¶ 8 Brian presents two issues on appeal, restated as follows:

¶ 9 Did the District Court err in its valuation and division of the marital property under § 40–4–202, MCA?

¶ 10 Did the District Court err in amending the Decree?

STANDARD OF REVIEW

¶ 11 In a dissolution proceeding, we review a district court's findings of fact to determine whether...