Karr v. Karr

• Citation: 38 St.Rep. 506,628 P.2d 267,192 Mont. 388
• Decision Date: 28 May 1981
• Docket Number: No. 80-177,80-177
• Parties: In re the Marriage of Joanne D. KARR, Petitioner and Cross-Appellant, v. James H. KARR, Respondent and Appellant.
• Court: United States State Supreme Court of Montana

Page 267

628 P.2d 267

192 Mont. 388

In re the Marriage of Joanne D. KARR, Petitioner and Cross-Appellant, v. James H. KARR, Respondent and Appellant.

No. 80-177.

Supreme Court of Montana.

Submitted on Briefs Dec. 23, 1980.

Decided April 1, 1981.

Rehearing Denied May 28, 1981.

Robert J. Emmons, Great Falls, for petitioner and cross-appellant.

James L. Norris, Vermillion, S. D., for respondent and appellant.

SHEEHY, Justice.

James H. Karr appeals from a judgment entered in the First Judicial District Court, Lewis and Clark County, in favor of Joanne D. Karr in a marriage dissolution case where the District Court awarded the wife $190,926 as a lump sum settlement of the marital estate, and an additional $15,081.69 for attorney fees.

Judgment was entered on February 28, 1980. Notice of entry of judgment was served on the same day and James made timely motions objecting to the personal jurisdiction of the court over him. He also moved to amend the findings of fact, conclusions of law, and judgment entered by the court. Timely appeal was filed by James after his motions were deemed denied.

Joanne cross-appealed with respect to her right upon dissolution for an equitable portion of the husband's military retirement.

The facts in this case are long and especially complicated. For purpose of clarity, we take, essentially, the facts found by the District Court in its findings.

The first finding of the District Court is significant because it gives a clearer understanding of the reasons for the eventual judgment entered by the District Court. The court found that James was

"... a highly unreliable, untrustworthy, evasive, intentionally confusing, studiously misleading and, on occasion, patently perjurious witness. His testimony, given upon discovery or at trial, on material facts, was therefore approached with the greatest caution, accepted in full only where clearly substantiated by other evidence and weighed lightly in the face of conflicting evidence. The Court's distrust of this witness extends to profferred documents. As will be noted in the Conclusions of Law set forth herein, the fifty-one requests for admissions submitted by (James) after the close of discovery and immediately before trial by way of a pretrial memorandum are not deemed by the Court to be admitted for failure of the petitioner to deny them and are not relied upon in the following Findings of Fact."

The Court further found:

"(Joanne and James) were married in Mobile, Alabama on July 12, 1946. At the time of the marriage they had no assets. (James) was attending flight school for the United States Navy in Pensacola, Florida. (Joanne) joined (him) and was employed immediately thereafter. (James) was transferred to Guam in 1947 and after a few months (Joanne) joined him and found employment and continued to live in Guam for the next thirteen months. (James) was transferred from Guam in 1948 and (Joanne) returned to the United States, residing with her mother. (James) was assigned to Moffitt Field, California in January, 1949 and the parties moved to Palo Alto, California. While (James) was stationed at Moffitt Field (Joanne) was not employed outside the home but did some entertaining as she was required to do as an officer's wife. (James) got out of the Navy in 1950 and enrolled at Stanford University in Palo Alto, California. (Joanne) was employed outside the home and remained employed until she had to leave the job when the parties moved to San Francisco upon (James) being accepted for dental school in September, 1952. (Joanne) and (James) each received approximately $2,000 from their respective father's estates, which they used to help purchase a residence in the Palo Alto area in approximately 1950. After (James) was accepted for dental school and the parties moved to San Francisco, (Joanne) managed an apartment house in exchange for free rent. (Joanne) was accepted for dental hygiene school in 1953 and the parties moved to an apartment two blocks from the school. (Joanne) was in the dental hygiene school for two years and graduated in 1955. Immediately upon graduation, (Joanne) accepted a position at the University of California as director of the dental hygiene program and was so employed from 1955 until 1959. While (James) was in dental school he was accepted in the United States Army as a senior dental student in 1955 and upon graduation in 1956 he was assigned in the San Francisco Bay area until 1959. The parties adopted a daughter KATHERYN ANN in 1957. In that year the parties purchased a residence located ... (in) San Rafael, California. They sold the house in the Palo Alto area and used the proceeds for the down payment on the residence, which they purchased as joint tenants. They resided in the San Rafael home until August, 1960, when they were transferred to Turkey. They rented their property from 1960 to June, 1979; the mortgage payments on the property were paid from the proceeds of rent and at the time of trial the property was unencumbered. Their second daughter, KARYN IRENE was born to them in May, 1958. During their residence in San Rafael (Joanne) took care of the housekeeping and the children and was not employed. The parties' son, JAMES KURTIS, was born in September of 1961 while the parties were stationed in Turkey. While petitioner was in Turkey she was the secretary of the officers' wives club where she assisted in writing the club by-laws and constitution. In addition she was assigned to assist newly transferred Army families. She was expected to entertain as an officer's wife which she did while in Turkey as well as while she was in the San Francisco Bay area. In the spring of 1963 (James) was transferred from Turkey to Fort Douglas in Salt Lake City, Utah. The parties were stationed at Fort Douglas from April, 1964 until August of 1965. While there, (Joanne) participated in the officers' wives club and cared for families that were transferring into the area from other installations. In addition, she was on the church altar committee, taught Sunday School and was responsible for organizing a pre-school nursery. She also cared for the house and the children while in Salt Lake. In August, 1965, (James was) transferred to San Antonio, Texas but remained there only until December, 1965, when he became ill and was hospitalized in November and transferred to Denver, Colorado, where the parties lived from January, 1966 to February, 1967. The parties purchased a home while stationed in Denver, and sold it in 1970. They rented it from February, 1967, until it was sold. From the proceeds of the sale of this home (James) bought a 1960 Cessna 182 airplane for $9,000. While stationed in Denver (Joanne) helped in hospital recreation. In February, 1967, the parties were transferred to Fort Campbell, Kentucky and were stationed there until the latter part of 1968 when (James) retired from the Army. Fort Campbell was located in an isolated area and as a result (Joanne) was very involved in officers' wives activities and assisted the enlisted men's wives in community projects. She continued as a Girl Scout leader and helped newly-arrived Army families in becoming adjusted to the area. In September, 1968, (Joanne) began work on her master's degree in dental hygiene at the University of Iowa. This schooling was paid for by a federal government grant. (James) joined (Joanne) in December of 1968 and the parties resided in Iowa until the summer of 1969. (James) was not employed and drew unemployment benefits. The parties were both employed as teachers at the University of Edmonton, Alberta, in the fall of 1969 and taught there for two years. (Joanne) was paid $12,000 a year and (James) $16,000 a year. (Joanne) cared for the house and children in addition to her teaching. In 1971 they moved to Bounty, Saskatchewan, where they lived in a small house with a wood stove and grew most of their own vegetables. Neither party worked while they lived there until 1972. In 1972 they went to California to open a dental practice. (James) opened a dental practice in Chico, California, in February, 1973, but closed the office after six months. (Joanne) assisted (James) in the practice. They then moved to Oyen, Alberta, where (James) signed a lease with the Big County Medical-Dental Clinic. While (James) was to open his dental practice in Oyen in November of 1973, he left to go back to California in order to take flying lessons to get his pilot's license. (Joanne) worked in the dental office in Oyen, but since (James) failed to come back to Oyen until March of 1974 this led to a lawsuit, but the parties were successful and as a result stayed in Oyen for a period of two years. In August, 1975, (Joanne) came to Helena, Montana where she was employed by Carroll College teaching in the dental hygiene program and is so employed at time of trial. (James) lived variously in Canada, Montana and California until the filing of this action in May, 1977. He has been generally unemployed for the past four years."

The District Court concluded from the above facts, which were essentially uncontested, that during the 31 years of their marriage, the contributions of the parties to the family fortune are undistinguishable both as to amount and kind and should therefore be deemed equal.

After discussing the various assets owned by the parties and the activities with respect to those separate assets either as to acquisition or disposition, the court found the marital property should be valued as follows:

                "Real property located at 427
                Fairhills Drive, San Rafael
                California                         $185,000.00
                "Real property located at
                Stettler, Alberta                    26,000.00
                "Real property located in Bounty
                Saskatchewan                            550.00
                "Life insurance
                 --------------
                "Equitable Insurance Co.,             8,067.75
                "N.Y. Life Insurance Co.,             2,465.00
                "Fidelity Mutual Life Insurance
                Co
                "Policy 965730

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