Marriage of Barker, In re

• Decision Date: 10 March 1994
• Docket Number: No. 93-422,93-422
• Citation: 264 Mont. 110,870 P.2d 86
• Parties: In re the MARRIAGE OF Joseph Martin BARKER, Petitioner and Appellant, and Kristeen Maud Barker, Respondent and Respondent.
• Court: Montana Supreme Court

Page 86

870 P.2d 86

264 Mont. 110

In re the MARRIAGE OF Joseph Martin BARKER, Petitioner and Appellant,

and

Kristeen Maud Barker, Respondent and Respondent.

No. 93-422.

Supreme Court of Montana.

Submitted on Briefs Dec. 9, 1993.

Decided March 10, 1994.

Jerrold L. Nye, Nye & Meyer, Billings, for petitioner and appellant.

W. Corbin Howard, Billings, for respondent and respondent.

HARRISON, Justice.

Appellant Joseph Martin Barker (Joseph) appeals the distribution of marital property, the maintenance award to Kristeen Maud Barker (Kristeen), and the findings of fact and conclusions of law as set forth by the Thirteenth Judicial District Court, Gallatin County. We affirm.

Three issues are before this Court:

1. Did the District Court equitably divide the marital property?

2. Did the District Court err by awarding maintenance to Kristeen?

3. Did the District Court err by adopting, nearly verbatim, Kristeen's proposed findings of fact and conclusions of law?

Joseph and Kristeen were married on September 2, 1967. They live in Billings, Montana, and have two children, both of whom are now adults and enrolled in college. For most of the marriage, Joseph was an insurance salesman. After two years of being unemployed, he is again selling insurance. Joseph is also a reservist in the National Guard. Kristeen was a school teacher until 1982, when she quit to become a housewife. Kristeen is now working at a flower shop.

This case arises from the dissolution of the couple's twenty-six year marriage. Following a hearing on April 22, 1993, the District Court issued its findings of fact, conclusions of law and decree on June 15, 1993. The District Court valued the parties' marital estate (net)--the majority of which was the family home--at $53,300. It awarded $45,055, or 84 percent of the marital estate, to Kristeen. The remaining $8,545, or 16 percent of the marital estate, went to Joseph. In addition, the court awarded Kristeen maintenance of $150 per month "until she remarries, cohabits, dies, or for five years, whichever occurs first." Joseph appeals.

I

Did the District Court equitably divide the marital property?

Joseph and Kristeen have two assets of monetary significance: their home and Joseph's forthcoming military pension. Joseph and Kristeen purchased their home in 1974. At the time of trial, the home was worth $60,000; however, it was encumbered by an $18,000 mortgage. From 1991 through 1993, Joseph was not employed. The couple fell seriously behind on its mortgage payments on three occasions. To avoid foreclosure, Kristeen and Joseph borrowed $6,500 from relatives. Additionally, Kristeen borrowed $3,000 from First Interstate West Bank.

Kristeen has remained in the family home and has made monthly mortgage payments of $305 since the couple separated in May 1992. She wants to keep the home. In August 1992, just before the house was to be sold in a foreclosure sale, Joseph told Kristeen that she should let the bank foreclose on the house. Instead, Kristeen secured the help of a clergyman to co-sign for a $3,000 loan and saved the home from foreclosure.

Joseph and Kristeen agreed that Kristeen should keep the family home. However, at trial, Joseph requested one-third of the home's equity, or $14,000, and suggested that Kristeen be given six months to pay him that amount. To obtain the $14,000, Joseph was willing to participate in refinancing the home. The District Court awarded Kristeen the family home, including the total equity and debt associated with the home.

According to Joseph, the District Court's total award of equity to Kristeen is not supported by the facts or by any Montana case law dealing with the equitable division of home equity. Joseph argues that he and Kristeen are facing financial difficulties, and neither of them can pay their expenses. Joseph points to the necessity of obtaining an additional loan during the parties' separation as evidence that Kristeen cannot make the mortgage payments. Therefore, selling the house "is the only reasonable alternative for the parties" and it would "relieve the wife of debt and make assets available to her for her expenses."

Joseph draws an analogy between this case and In re Marriage of Martens (1981), 196 Mont. 71, 637 P.2d 523. In Martens, the wife was awarded two-thirds of the home equity and the husband one-third. In that case, we stated:

The distribution of the equity in the house was based on the wife's acceptance of responsibility for it in the months prior to trial, her ability to continue this responsibility, and her desire to continue to do so when the husband did not express such a desire.

Martens, 637 P.2d at 526. Joseph also refers us to In re Marriage of Rogers (1987), 226 Mont. 163, 734 P.2d 677. In Rogers, this Court ordered the sale of the family home and an equal division of the proceeds. Kristeen, in turn, refers us to cases where spouses have received equitable, though unequal, property distributions. See In re Marriage of Hecht (1982), 199 Mont. 363, 649 P.2d 1257 (wife received the entire equity in the home and 81 percent of the parties' net worth); In re Marriage of Sirucek (1986), 219 Mont. 334, 712 P.2d 769 (this Court approved an 18 percent to 82 percent split of the parties' net worth).

In the present case, the District Court also awarded Kristeen 45 percent of Joseph's military pension, which he will only be eligible to receive if he completes five more years of service in the Reserves. The court noted that Kristeen receives 45 percent of nothing if Joseph fails to complete his twenty-year service requirement. While Joseph does not specifically challenge the percentage award of his military pension, he does challenge the overall "vastly disproportionate" division of property considering the parties' "equal contribution" to the marital estate.

In reviewing factual findings which divide marital property, our standard of review is "whether the district court's findings are clearly erroneous." In re Marriage of Danelson (1992), 253 Mont. 310, 317, 833 P.2d 215, 219 (citations omitted). We review the district court's conclusions of law de novo and examine whether the court correctly interpreted the law. Danelson, 833 P.2d at 219-20.

Montana courts analyze the allocation of marital property under § 40-4-202(1), MCA, which provides in pertinent part:

In making apportionment, the court shall consider the duration of the marriage and prior marriage of either party; the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties; custodial provisions; whether the apportionment is in lieu of or in addition to maintenance; and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution or dissipation of value of the respective estates and the contribution of a spouse as a homemaker or to the family unit. In dividing property acquired prior to the marriage; property acquired by gift, bequest, devise, or descent; property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, bequest, devise, or descent; the increased value of property acquired prior to marriage; and property acquired by a spouse after a decree of legal separation, the court shall consider those contributions of the other spouse to the marriage, including:

(a) the nonmonetary contribution of a homemaker;

(b) the extent to which such contributions have facilitated the maintenance of this property; and

(c) whether or not the property division serves as an alternative to maintenance arrangements.

The district court must achieve an equitable distribution of the marital estate, not an equal distribution. In re Marriage of Shelton (1986), 219 Mont. 456, 459, 712 P.2d 782, 784. We grant the district court broad discretion to equitably apportion the marital property. Sirucek, 712 P.2d at 774.

The District Court rejected Joseph's request for $14,000 of equity in the home, finding that: 1) Joseph presented no evidence of the feasibility of refinancing the home; 2) the parties have poor credit and it would be highly unlikely that either or both of them could afford refinancing and associated costs; 3) since the separation, the home has only been saved through Kristeen's unilateral efforts; and 4) a decree requiring Kristeen to pay Joseph $14,000--absent refinancing the family home, which would double the existing encumbrance--would force Kristeen from her home. The court also declined to award Joseph equity in the home because he has a "substantially greater earning capacity" than Kristeen; because Kristeen saved the home from foreclosure and if it had been up to Joseph, there would be no equity to divide; because Kristeen wishes to stay in the family home; and because Joseph would receive very little net present value on a sale of the home.

The court found that Joseph's expenses were overstated, because he now lives with another person who is employed full-time and contributes to their joint expenses. The court considered Kristeen's chances of returning to the teaching profession--noting her twelve-year absence from teaching and that she has an application on file with the school system--as opposed to the likelihood that she will remain employed in the flower shop. The court noted that Kristeen voluntarily quit her position as an English teacher because she and Joseph mutually agreed that she should stay home to care for the children. The court also found that Kristeen has no investments or savings.

It is apparent that the District Court considered Kristeen's monetary and non-monetary contributions to the marriage and marital home over the twenty-six years of the marriage. The findings of fact illustrate the court's thorough consideration of the factors set out in § 40-4-202(1), MCA. The District Court's findings as to the division of marital...