Marriage of Moss, In re

Decision Date01 April 1999
Docket NumberNo. 98-071,98-071
Citation293 Mont. 500,977 P.2d 322
PartiesIn re the MARRIAGE OF Steve MOSS, Respondent and Appellant, and Julie Moss, Petitioner and Respondent.
CourtMontana Supreme Court

Lynda S. White, Sedivy, Bennet & White, Bozeman, Montana, For Appellant.

Kent M. Kasting, Kasting, Combs & Kauffman, Bozeman, Montana, For Respondent.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶1 Steve Moss (Steve) appeals and Julie Moss (Julie) cross-appeals from the Findings of Fact and Conclusions of Law which the Eighteenth Judicial District Court, Gallatin County, issued on May 21, 1997, and from the Decree of Dissolution which the court issued on November 15, 1997. Julie also requests her attorney fees, mediation fees and costs for defending Steve's appeal. We reverse and remand for further proceedings consistent with this opinion.

¶2 We address the following issues on appeal:

¶3 1. Did the District Court err in including one-half of the value of the Spaulding Bridge Property in the marital estate?

¶4 2. Did the District Court err in not imposing a constructive trust on the Spaulding Bridge Property?

¶5 3. Did the District Court err in not distributing an insurance check to either Steve or Julie?

¶6 4. Should this Court require Steve to pay Julie's attorney fees, mediation fees and costs for this appeal?

Factual and Procedural Background

¶7 Steve and Julie married on May 28, 1977. They separated on January 4, 1995. Nine months later, on September 14, 1995, Julie filed a petition for dissolution of marriage. On March 8, 1996, Julie moved the court to allow her to amend her petition for dissolution to add Don Moss (Don) and Shirley Moss (Shirley), Steve's parents, as additional parties to the case and to include a cause of action to quiet title in Steve and Julie's names to a 20 acre tract known as the Spaulding Bridge Property. The District Court granted Julie's motion on March 27, 1996.

¶8 On August 23, 1996, Julie filed an amended petition for dissolution wherein she alleged that Don and Shirley advanced her and Steve the money to pay for the Spaulding Bridge Property and that she and Steve repaid the advance. Thus, even though Don and Shirley held title to the Spaulding Bridge Property, Julie contended that she and Steve owned it and, consequently, that it should be included in the marital estate.

¶9 On September 30, 1996, Don and Shirley filed a response to Julie's amended petition wherein they alleged that neither Steve nor Julie had an ownership interest in the Spaulding Bridge Property. Don and Shirley also requested the court to quiet title to the Spaulding Bridge Property in their names.

¶10 The District Court held a bench trial on November 14 and 15, 1996. On May 21, 1997, the court issued its Findings of Fact, Conclusions of Law and Order wherein it found that Don and Shirley advanced Steve and Julie the money to buy the Spaulding Bridge Property and that Steve repaid Don and Shirley. Notwithstanding, the court found that Steve's interest in the Spaulding Bridge Property is equal to one-half of its value. As a result, the court included one-half of the value of the Spaulding Bridge Property in the marital estate.

¶11 The District Court also heard testimony at the trial on this matter regarding a $1,400 check which Julie's and Steve's homeowners insurance carrier paid them for damage to the siding of their garage which occurred when Julie and Steve were separated. The court, however, did not make any findings regarding the check nor did the court apportion it to either Julie or Steve.

¶12 Steve appeals and Julie cross-appeals from the court's decision to include one-half of the value of the Spaulding Bridge Property in the marital estate and from the court's failure to distribute the $1,400 insurance check. Julie also requests her attorney fees, mediation fees and costs for defending Steve's appeal.

Standard of Review

¶13 This Court reviews a district court's conclusions of law to determine whether they are correct. In re Marriage of Pfeifer, 1998 MT 228, p 9, 965 P.2d 895, p 9, 55 St.Rep. 953, p 9 (citing Ash Grove Cement Co. v. Jefferson County (1997), 283 Mont. 486, 491-92, 943 P.2d 85, 89).

¶14 This Court reviews a district court's findings of fact in a distribution of marital property case to determine whether the court's findings are clearly erroneous. Kovarik v. Kovarik, 1998 MT 33, p 20, 954 P.2d 1147, p 20, 55 St.Rep. 117, p 20. See also Rule 52(a), M.R.Civ.P. A finding is clearly erroneous if it is not supported by substantial evidence, if the trial court misapprehended the effect of the evidence, or if our review of the record convinces us that the district court made a mistake. Kovarik, p 20 (citing In re Marriage of Stufft (1996), 276 Mont. 454, 459, 916 P.2d 767, 770).

¶15 If a district court's findings are not clearly erroneous, we review the court's distribution of the marital estate to determine whether the court abused its discretion. Kovarik, p 21 (citing Marriage of Stufft, 276 Mont. at 459, 916 P.2d at 770). To determine whether a district court abused its discretion, we review the case to ascertain whether the court "acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice." Kovarik, p 21 (quoting In re Marriage of Wessel (1986), 220 Mont. 326, 333, 715 P.2d 45, 50).

Issue 1.

¶16 Did the District Court err in including one-half of the value of the Spaulding Bridge Property in the marital estate?

¶17 Julie argues that the District Court's finding that Steve owned a one-half interest in the Spaulding Bridge Property is clearly erroneous because it is not supported by substantial evidence. Steve argues that the District Court erred in including one-half of the value of the Spaulding Bridge Property in the marital estate because Don and Shirley own it.

¶18 Although it is undisputed that Don and Shirley hold title to the Spaulding Bridge Property, the testimony at the bench trial on this matter was conflicting as to who paid for the property. Julie testified that Steve purchased the property for them in April 1985 with money that Don and Shirley loaned them. Julie explained that she and Steve, at that point in time, planned to build a house on the property. Julie testified that Steve told her that he had paid off the loan and that she remembered him "feeling good about that." Julie also remembered a conversation which occurred at the Taco Time restaurant in Belgrade wherein she said, "now that we have the property paid for, Steve, we should probably have it put in our name." Julie testified that Steve replied, "Yeah, I gotta do that one of these days."

¶19 Julie's parents also testified that Steve told them that he bought the Spaulding Bridge Property. Julie's parents also recalled that Steve stated at Taco Time that he agreed that title should be transferred into his and Julie's names.

¶20 Steve, in contrast, testified that he told his parents about the property and that they purchased it. Steve stated that his parents owned the property and denied that he paid his parents for the property. Similarly, Don testified that he and Shirley own the property. Shirley, likewise, stated that she and Don bought the property as an investment and denied that the property was purchased for Julie and Steve.

¶21 The District Court specifically found Julie's and her parent's testimony credible. In contrast, the court specifically found Steve's, Don's and Shirley's testimony not credible. Therefore, the court found that "Don and Shirley advanced the money to Steve and Julie for the purchase of an interest in the Spaulding Bridge property" and that "Steve repaid his parents in cash." The court then found that Steve had an interest in one-half of the value of the Spaulding Bridge Property and thus, in effect, that Steve jointly owned the property with Don and Shirley.

¶22 Having reviewed the record, however, we conclude that there is no evidence to support the District Court's finding that Steve had an ownership interest in only one-half of the value of the property. The trial testimony left no room for the District Court to take the middle ground and find, in effect, that Steve jointly owned the property with Don and Shirley. Thus, since there is not substantial evidence to support the court's finding that Steve had an ownership interest in only one-half of the value of the Spaulding Bridge Property, the court's finding is clearly erroneous and we therefore reverse that finding.

¶23 Consequently, since § 40-4-202, MCA, states that the court shall "equitably apportion between the parties the property and assets belonging to either or both ...," the District Court erred in including only one-half the value of the Spaulding Bridge Property in the marital estate on the grounds that Steve owned a one-half interest in the property. Accordingly, we reverse the District Court's decision to include only one-half of the value of the Spaulding Bridge Property in the marital estate on the grounds that Steve owned a one-half interest in the property.

Issue 2.

¶24 Did the District Court err in not imposing a constructive trust on the Spaulding Bridge Property?

¶25 As noted above, it is undisputed that Don and Shirley hold title to the Spaulding Bridge Property. Julie, however, argues that the District Court should have imposed a constructive trust on the property, in favor of her and Steve, and, consequently, should have included the entire value of the property in the marital estate. 1 Steve argues that the District Court correctly concluded that a constructive trust should not be imposed in the instant case because there is no evidence of fraud or other wrongful acts to support such a remedy.

¶26 Steve cites In re Marriage of Malquist (1988), 234 Mont. 419, 763 P.2d 1116 and In re Marriage of Owen (1990), 244 Mont. 306, 797 P.2d 226, in support of his...

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