Schmitz v. Schmitz

• Decision Date: 05 November 1992
• Docket Number: No. 91-465,91-465
• Citation: 841 P.2d 496,255 Mont. 159
• Parties: In re the Marriage of Charlene Kay SCHMITZ, Petitioner and Appellant, v. Roger Keith SCHMITZ, Respondent and Respondent.
• Court: Montana Supreme Court

Page 496

841 P.2d 496

255 Mont. 159

In re the Marriage of Charlene Kay SCHMITZ, Petitioner and

Appellant, v. Roger Keith SCHMITZ, Respondent and Respondent.

No. 91-465.

Supreme Court of Montana.

Submitted on Briefs June 11, 1992.

Decided Nov. 5, 1992.

Gary Ryder, Sidney, for petitioner and appellant.

Loren J. O'Toole, O'Toole & O'Toole, Plentywood, for respondent.

WEBER, Justice.

The petitioner, Charlene Kay Schmitz, appeals from the property distribution in this marital dissolution action as determined by the District Court of the Fifteenth Judicial District, Sheridan County. We affirm in part and reverse in part.

The restated issues are as follows:

1. Was the notice of appeal timely filed?

2. Did the District Court err by including petitioner's workers' compensation benefits in the marital estate?

3. Did the District Court err in its findings of fact and conclusions of law?

Roger Keith Schmitz and Charlene Kay Schmitz were married on June 18, 1971. Neither party brought any substantial assets to the marriage. Prior to the marriage, Roger served in the military and completed one year of automotive schooling. Charlene had recently graduated from high school.

In 1976, Roger purchased, by means of a contract for deed, a 50% interest in farm/ranch property in Sheridan County, Montana from his uncle. Roger's father, Joe Schmitz owns the other 50% interest. Both Charlene and Roger were active in farming and ranching during the 19 1/2 years of their marriage. The contract for deed was paid off in 1990. Charlene was very active in all aspects of the farm/ranch operation until the time of her injury. The parties also raised two sons during this time.

Charlene began working in 1984 as a part-time nurses-aide at the Culbertson Nursing Home. In February 1986, Charlene suffered a work-related back injury which prevented her from working at the nursing home and limited her activities on the ranch. In the spring of 1986, Charlene was classified as permanently totally disabled for workers' compensation purposes and began receiving monthly compensation payments of $358.76. These payments continued throughout the time of trial. Because the payments are subject to a 10-year limitation, Charlene will no longer qualify for workers' compensation benefits after May 1996.

Charlene presently attends Idaho State College with assistance provided under a plan for displaced homemakers. Roger has continued to operate the farm/ranch operation.

In addition to the real property purchased from Roger's uncle, the parties accumulated livestock, farm and ranch equipment, and numerous other items of personal property. The parties were essentially debt-free until 1987, when they borrowed $80,005.00 from Security State Bank in Plentywood to construct a new residence on the farm. In its Findings of Fact, Conclusions of Law and Order dated May 23, 1991, the District Court awarded most of the marital property to Roger. Roger received the real property, the house located on his father's land, which was built by the parties, all livestock, all farm equipment, and numerous other items of personal property. Charlene received $25,000.00 in cash, a 1982 Citation valued at $800.00, and her workers' compensation benefits with a present value of $21,127.80, as of the trial date. Roger was ordered to pay the debts associated with the property he received and Charlene was ordered to pay $4,400.00 in debts she incurred as living expenses after leaving the family home and prior to the trial. Roger was awarded physical custody of the one minor child, who is now 18 years of age.

I.

Was the notice of appeal timely filed?

Roger contends that the notice of appeal in this case was not filed on time. The resolution of this issue hinges upon the initial period under Rule 59(b), M.R.Civ.P., which provides:

Time for motion. A motion for a new trial shall be served not later than 10 days after service of notice of the entry of the judgment.

Because notice of entry of judgment was served by mail, three days are added under Rule 6(e), M.R.Civ.P., which provides:

Additional time after service by mail. Whenever a party has the right or is required to do some act ... within a prescribed period after the service of a notice ... and the notice or paper is served upon the party by mail, 3 days shall be added to the prescribed period.

Roger contends that adding three days to the prescribed period under Rule 59(b) increases the time to a total of thirteen days and, therefore, the exclusion of Saturdays, Sundays and holidays provided for under Rule 6(a), M.R.Civ.P., cannot apply. Rule 6(a), M.R.Civ.P., provides:

In computing any period of time prescribed or allowed by these Rules, ... the day of the act, event ... is not to be included.... When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays and holidays shall be excluded in the computation.

We conclude that the prescribed period referred to in the foregoing Rule includes the ten day period allowed for filing a motion under Rule 59(b), M.R.Civ.P., with the result that intermediate Saturdays, Sundays and holidays are excluded from the computation. The District Court granted Charlene and Roger Schmitz a dissolution on May 23, 1991. Roger mailed a notice of entry of judgment to Charlene's attorney on May 29, 1991. In civil cases, the notice of appeal must be filed within thirty days of the date of the entry of judgment. Rule 5(a), M.R.App.P. Charlene filed a motion for new trial and a motion to amend the court's findings under Rules 59(a) and 60(b), M.R.Civ.P., which extends the time for filing the appeal.

Rule 59(b), M.R.Civ.P., provides that a Rule 59(a) motion for a new trial must be filed within 10 days after service of notice of entry of judgment. Here the notice of entry of judgment was mailed on May 29, 1991. Charlene filed her Rule 59(a) motion for a new trial on June 17, 1991. The day of mailing is excluded under Rule 6(a), M.R.Civ.P. The combined total of days allowed under Rule 59(b), M.R.Civ.P. and Rule 6(e), M.R.Civ.P. is thirteen days. Counting from May 30 and excluding the intervening Saturdays and Sundays, we determine that the last day for filing a Rule 59(a) motion was June 17, 1991, the date Charlene filed her motion for a new trial.

We conclude that Charlene filed her appeal on time.

II.

Did the District Court err by including petitioner's workers' compensation benefits in the marital estate?

Charlene receives $358.76 per month in workers' compensation benefits for an injury classified as a "permanent total disability." She will receive these payments until May 1996. Roger presented testimony by a certified public accountant that the present value of Charlene's future benefit payments at the time of trial was $21,127.80. This figure was included as marital property and distributed to Charlene.

Charlene contends that to include her future workers' compensation benefits as marital property is error. She argues that to include the figure in the marital estate is speculative because the payments could terminate if she completes the education program or if her physical condition improves.

Charlene presented no evidence at the trial to support any likelihood that she might complete her education program early or that her physical condition could improve. Charlene further contends that her benefits should not be included as part of the marital estate because they are intended to replace her wages. She also argues that including workers' compensation benefits as a marital asset characterizes them as an assignment of the proceeds and therefore is against public policy.

Property which may be properly included in the marital estate is governed by Sec. 40-4-202, MCA, which provides that district courts "shall ... finally equitably apportion between the parties the property and assets belonging to either or both, however and whenever acquired and whether the title thereto is in the name of the husband or wife or both." (Emphasis supplied.) When the parties are unable to amicably settle their disputes, Sec. 40-4-202, MCA, provides the district courts with equitable powers to divide their property and assets.

In In re the Marriage of Blankenship (1984), 210 Mont. 31, 682 P.2d 1354, we concluded that a workers' compensation award could be a marital asset. In two subsequent cases, where a workers' compensation settlement had been commingled in marital funds we included the same in a marital estate. See In re the Marriage of Bos (1989), 238 Mont. 267, 776 P.2d 841; andIn re the Marriage of Jones (1987), 229 Mont. 128, 745 P.2d 350. In In re the Marriage of Cooper (1990), 243 Mont. 175, 179, 793 P.2d 810, 812, we concluded that disability benefits can properly be included in the marital estate as they clearly come within the definition of property "however and whenever acquired." Workers' compensation payments are disability payments. In Cooper, the disability payments were included in the marital estate and awarded to the person receiving the same as is true in the present case.

While Sec. 39-71-743, MCA, prohibits attachment or assignment of workers' compensation benefit payments, we conclude those provisions do not bar classification of workers' compensation awards as marital property.

We hold that the District Court did not err by including the present value of Charlene's future workers' compensation payments as marital property.

III.

Did the District Court err in its findings of fact and conclusions of law?

The District Court adopted Roger's proposed findings of fact and conclusions of law verbatim. Roger received the couple's entire one-half interest in the farm/ranch property, all farm equipment, all livestock, the family home and miscellaneous items of personal property. Charlene received a 1981 Chevrolet Citation valued at $800.00 $25,000.00 in cash payable within six months of the trial, and her future workers' compensation payments. ...