author: JUSTICE HARRISON

text:
    CHARLES SCHAUBEL and EVA SCHAUBEL, Plaintiffs and Appellants, v. ENOCH IVERSEN and OLIVIA IVERSEN, Defendants and Respondents.
    No. 92-346.
    Submitted on Briefs December 17, 1992.
    Decided March 2, 1993.
    50 St.Rep. 213.
    257 Mont. 164.
    848 P.2d 489.

      For Appellants: J. Douglas Alexander, Attorney at Law, Sidney; Robert L. Johnson, Attorney at Law, Lewistown.
    For Respondents: Geoffrey Keller, Matovich, Addy & Keller, Billings.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the Seventh Judicial District, Richland County, the Honorable Richard G. Phillips presiding. Appellants Charles and Eva Schaubel (the Schaubels) appeal from a directed verdict and denial of their motion for a new trial. We affirm.

The Schaubels raise only the issue of whether the District Court erred in applying § 85-7-2212, MCA, in granting its directed verdict. However, because the Schaubels failed to specify as error and address an independent ground on which the District Court granted the directed verdict, we need not address this issue.

The Schaubels sued Enoch and Olivia Iversen (the Iversens) on the theory that they were negligent regarding the overflow of a drainage ditch that runs approximately twenty-five to fifty feet from the Schaubels’ residence and on the theory that they were operating a nuisance. According to the pre-trial order, whether the Iversens were negligent, and whether their negligence, if any, was the proximate cause of the Schaubels’ damage was to be determined at trial. Also to be determined as an issue of law was whether § 85-7-2212(2), MCA, barred the Schaubels’ claim. That section reads:

85-7-2212. Irrigation ditches - nonliabilities. An irrigation district or private person or entity owning or operating irrigation ditches is not liable for:
(2) personal injury or property damage occurring on another’s land and caused by water seepage that existed or began before the injured person first arrived on or obtained an interest in the land or before the damaged property was first placed on the land, if the seepage does not carry toxic chemicals onto the land;

At the close of the Schaubels’ case-in-chief the Iversens moved for a directed verdict. After lengthy discussion in chambers, the District Court granted this motion based on two reasons. The first reason was the defense provided by § 85-7-2212(2), MCA. The second reason was the Schaubels’ failure to establish a duty or breach of any duty by the Iversens or to show that the Iversens’ irrigation practices were different than would have been practiced by a reasonable person. The second reason amounts to failure to establish a prima facie case of negligence.

The Schaubels raised only the application of § 85-2-2212(2), MCA, in their motion for a new trial, which the court denied after briefing and oral argument. They raised only that issue on appeal also. However, as the Iversens correctly point out in their brief to this Court, that was not the only basis on which the District Court granted their motion for a directed verdict.

The issue of whether the District Court erred in determining that the Schaubels had failed to establish a prima facie case of negligence is not properly before this Court, as Rule 4(c), M.R.App.R, requires that the notice of appeal “designate the judgment, order or part thereof appealed from.” State v. Delap (1989), 237 Mont. 346, 351, 772 P.2d 1268, 1271. Furthermore, because the Schaubels did not raise the issue or argue it in their brief, the issue is deemed waived and we need not address it. Teesdale v. Anschutz Drilling Co. (1960), 138 Mont. 427, 431, 357 P.2d 4, 7; Hagerty v. Hall (1959), 135 Mont. 276, 283, 340 P.2d 147,151; See also Nutter v. Permian Corp. (1986), 224 Mont. 72, 727 P.2d 1338 (order denying sanctions would not be reversed where appellant filed no brief or transcript with this Court). “This Court will not endeavor to review a matter when appellant has directed no argument toward it.” Sands v. Nestegard (1982), 198 Mont. 421, 428, 646 P.2d 1189, 1193.

The Schaubels argue in their reply brief that the District Court did not specifically determine that they had failed to establish a prima facie case; rather, the court’s second enumerated reason also referred to § 85-7-2212, MCA, and not to another issue. The District Court specifically stated:

The other [reason for granting the motion for directed verdict] is I fail to find any evidence of any standard to establish the duty or any evidence of a breach of that duty to show that the irrigation practices were improper. There has been no evidence presented that the irrigation as practiced by the Iversens was not as would have [been] done by a reasonable person.

Contrary to the Schaubels’ argument, this statement is not unclear or ambivalent. It speaks directly to their failure to establish a prima facie case of negligence. There is no doubt that the court was speaking to this issue when its statement is viewed in light of the following:

1. The Schaubels sued on the theory of negligent irrigation practices;
2. The Iversens’ answer denied negligence and affirmatively pled lack of proximate cause and contributory negligence;
3. The Iversens raised the issue of proximate cause in their motion for summary judgment and the Schaubels responded to that issue;
4. The Iversens raised the issues of proximate cause and comparative negligence in their trial brief and the Schaubels squarely addressed negligence in their trial brief;
5. The pretrial order specifically raised the issue of negligence as a matter to be decided at trial; and
6. The Iversens stated that their motion for a directed verdict was based on the arguments set forth in their trial brief and motion for summary judgment and specifically cited the Schaubels’failure to establish proximate cause.

The record shows that negligence and whether the Schaubels could establish the elements were overriding issues in this case. Furthermore, a small sample of the arguments found in the transcript of the hearing on the motion for a directed verdict reveals that the argument focused mainly on the negligence issue and that the Schaubels’ counsel clearly addressed that issue.

MR. JOHNSON: [Schaubels’ counsel] ... we have certainly established control on the part of the plaintiffs — excuse me, the defendants, and we’ve certainly established causation. As a matter of fact, we’ve established something a good deal more than negligence.
MR. KELLER: [Iversens’ counsel]... There has been no proximate cause established between the 38.5-acre drainage and the building up of the silt as a proximate cause, a “but for” example, in the ditch that backed up the water .... What there has been is testimony, uncontroverted, that the Bureau of Reclamation or the Board of Control has the duty of maintaining that drainage ditch.... There’s been no evidence presented that there was any foreseeable consequence as a result of any actions. So I think that the proximate cause link is necessary for a finding of negligence. It is totally absent and something that warrants a granting of the motion for directed verdict.
THE COURT: ... I have absolutely no evidence that any of the practices of Iversens are negligent in their farming operation. I have no evidence that they used too much water. I have no evidence that the silt is not other than normal.
THE COURT: I don’t have any evidence that they have violated any standard of proper farming in terms of their operation in the irrigation that they’ve done.
MR. JOHNSON: ... Now, surely it’s for the jury to determine whether or not a failure to alleviate that problem with knowledge of it is negligence.

We need not belabor the point any longer. The Schaubels’ failure to allege error in this independent, sufficient, clearly articulated ground for granting the Iversens’ motion for a directed verdict constitutes a waiver of that claim. As this is an independent ground on which the directed verdict can stand, we affirm the District Court’s grant of the directed verdict and denial of the motion for a new trial.

Affirmed.

JUSTICES GRAY, TRIEWEILER, McDONOUGH and WEBER concur.


source: Caselaw Access Project

author: CHIEF JUSTICE TURNAGE

license: Public Domain

text:
    IN RE THE MARRIAGE OF LAVONNE L. WESTLAND, Petitioner and Respondent, and ROBERT R. WESTLAND, Respondent and Appellant.
    No. 92-464.
    Submitted on Briefs January 28, 1993.
    Decided March 2, 1993.
    50 St.Rep. 216.
    257 Mont. 169.
    848 P.2d 492.

      For Appellant: MLatthew W. Knierim, Attorney at Law, Glasgow.
    For Respondent: Keith Maristuen, Bosch, Kuhr, Dugdale, Martin and Kaze, Havre.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

The District Court for the Seventeenth Judicial District, Valley County, entered judgment dissolving the marriage of LaVonne Westland and Robert Westland and apportioning their large ranch between them. Robert Westland appeals. We affirm, and remand in part for clarification.

The issues are:

1. Do the District Court’s findings, conclusions, and decree legitimately and adequately provide for division of the marital property?

2. Do the court’s findings, conclusions, and decree adequately divide or assess responsibility for the parties’ indebtedness?

3. Do the court’s findings, conclusions, and decree adequately address and assess responsibility for the tax consequences of its division of the ranch operation?

LaVonne and Robert Westland entered into a common law marriage in 1958. At that time, Robert owned 3,562 acres of real property in eastern Montana, some equipment and machinery, about 100 head of cattle, some horses, grain, and feed. LaVonne owned a limited amount of personal property. By the time their marriage was dissolved in 1992, the parties had acquired an extensive farming and ranching operation of over 34,000 acres. Their marital estate was valued at over six million dollars, with some two and one-half million dollars of indebtedness. The living children of their marriage have all attained the age of majority.

At trial, Robert proposed that he be awarded the entire ranch and that he pay LaVonne $50,000 a year as a property settlement and maintenance. Instead, following LaVonne’s proposal, the District Court divided the marital property, apportioning the “North place” to LaVonne and the “South place” to Robert. LaVonne testified that this division of the ranch property, with 59 percent going to Robert and 41 percent to her, was consistent with the way the parties had divided responsibility for operation of the ranch for years. Robert appeals the order and judgment of the District Court.

I

Do the District Court’s findings, conclusions, and decree adequately and legitimately provide for division of the marital property?

Robert allows that LaVonne worked hard as a farm wife and mother. He contends, however, that the court did not give him enough credit for the property he brought into the marriage. He claims that his premarital property must now be worth in excess of two million dollars due to inflation alone.

Upon dissolution of a marriage, premarital property, or the value thereof, is not necessarily returned to the party who brought it into the marriage. Section 40-4-202, MCA; In re Marriage of Peetz (1992), 252 Mont. 448, 454, 830 P.2d 543, 547. The court’s responsibility is to equitably apportion marital property, taking into account, among other factors,

the duration of the marriage ... ; the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties; ... 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.

Section 40-4-202(1), MCA.

In this case, LaVonne’s contributions to the ranch during the parties’ thirty-four-year marriage and her dependence upon the marital estate for her future support were not contested. Her undisputed testimony was that she had done the “woman’s work” of raising the parties’ children, keeping house, and feeding ranch hands, and, in addition, served as a ranch hand and bookkeeper. She testified that, in fact, she had been in charge of the “North place” since the mid-1970’s. LaVonne’s contribution to the family and to the farm and ranch clearly facilitated the maintenance, appreciation, and growth of all of the marital assets, including those Robert brought into the marriage. We conclude that the District Court did not err in its disposition of the property which Robert brought to the marriage.

As stated above, Robert took the position at trial that he should be awarded all of the parties’ real property and pay maintenance to LaVonne. In its finding number 48, the District Court reasoned as follows in rejecting Robert’s proposal:

Payments over a period of time, particularly at the amount of $50,000.00 a year, would not be equitable, since [Robert] would have all the marital assets at his disposal and whim. [LaVonne] would have no assurance of her annual payment. [Robert] could encumber or transfer assets to [LaVonne’s] detriment, and [LaVonne] would remain liable for any existing debts of the parties including debts to the Farm Credit Services and Farmers Home Administration. In the event [Robert] filed a petition in Bankruptcy Court, [LaVonne’s] payment might be found to be unsecured. In the event of [Robert’s] death prior to [LaVonne’s] death, [LaVonne’s] payments are at risk in view of the federal estate tax problems.

Under Montana’s statutory scheme, maintenance would be proper only if LaVonne lacked sufficient property to provide for her reasonable needs and was unable to support herself through appropriate employment. Section 40-4-203, MCA. However, following the court’s division of the marital property, it appears that LaVonne will be able to support herself through operation of the “North place.” We have concluded that there is no reversible error in the District Court’s decision to divide the marital property between the parties. The court’s property distribution eliminates the need for maintenance.

Robert argues that the District Court had no power to distribute ranch property held by Westland Ranches, Inc. At the time of trial, stock in Westland Ranches, Inc., was owned by Robert (498 shares), LaVonne (one share), and an attorney (one share). A significant portion of the parties’ real property was held by Westland Ranches, Inc.

Inasmuch as it was an asset of the parties, the corporate stock was a marital asset subject to the court’s distribution in the dissolution of marriage. Section 40-4-202(1), MCA; Beck v. Beck (1983), 203 Mont. 455, 460, 661 P.2d 1282, 1285. We conclude that the District Court had the power to order distribution of Robert’s interest in Westland Ranches, Inc.

Although, as Robert points out, there is no order specifically transferring Robert’s stock in Westland Ranches, Inc., to LaVonne, the court found that “the partition action could be effected by transferring the corporate shares to LaVonne ....” The findings and conclusions, while not artfully drafted, demonstrate the court’s intent that Robert transfer his shares in Westland Ranches, Inc., to LaVonne as part of the property distribution.

Robert also contends that the court did not provide a rational or complete directive for dividing the marital estate. LaVonne offered extensive expert testimony concerning the workability of dividing the ranch into the “North place” and the “South place” as separate units. The court found, at its finding number 51, that

[t]he partitioning action would be relatively simple since the major portion of the land allocated to LaVonne is owned by the corporation. The Stellflug, Fox Coulee and Welch lands are transferred into the corporation, in exchange for the Neufeld CRP lands. Additionally, the machinery, equipment and vehicles are exchanged in and out of the corporation according to Table Seven of [LaVonne’s expert’s] Report. The historical intention was to have approximately 50 percent of the livestock in the corporation. Therefore, with a few changes, the partition action could be effected by transferring the corporate shares to LaVonne and with two exchanges, land and machinery.

The exhibits to the court’s findings list the real and personal property awarded to each party.

The District Court left to the parties and their counsel the responsibility of carrying out the exchanges of title to property necessary to execute its division of marital property. In this manner, the court allowed the parties some discretion in achieving the property distribution while avoiding the tremendous tax burden Robert predicts. If this presents insurmountable problems of execution, the parties may return to the District Court for further specific orders following this appeal. We hold that it was within the power and discretion of the court to divide the marital property as it did and that no error has been shown.

II

Do the court’s findings, conclusions, and decree adequately divide or assess responsibility for the parties’ indebtedness?

Robert claims the court ignored allocation of the ranch indebtedness. The court found that the livestock should be divided equally after payment of the Farm Credit Services operating loan. It also referred to the proposal of LaVonne’s expert, who suggested that the total amount of debt be divided in like proportion to the division of total amount of property owned, or 59 percent to Robert and 41 percent to LaVonne. However, neither the court’s findings, conclusions, and decree nor the proposal of LaVonne’s expert specifies which debts Robert is to pay and which LaVonne is to pay.

LaVonne suggests that this Court either reform the judgment to show what was intended as to the marital debts or remand the case so that the District Court may amend the judgment to show what was intended. A court has the power to amend its own judgment to express what it originally decided or to grant the relief originally intended. In re Marriage of Cannon (1985), 215 Mont. 272, 275, 697 P.2d 901, 902-03. We remand this matter to the District Court so that it may amend its judgment to indicate which specific marital debts are Robert’s responsibility and which are LaVonne’s.

III

Do the court’s findings, conclusions, and decree adequately address and assess responsibility for the tax consequences of its division of the ranch operation?

In his brief on appeal, Robert states that his
position at trial was that this was an appropriate case for a lifetime maintenance award so he did not feel obligated to assist the opposition in figuring the tax ramifications of their various proposals to chop up the ranching operation or invade the corporate property.

Now that the District Court has adopted LaVonne’s proposal to divide the ranch, Robert complains that the court did not adequately consider the tax consequences of that option. The District Court was only obligated to consider the evidence presented to it. The evidence was that there would be tax consequences no matter how the court distributed the marital property. We hold that no error has been shown in the court’s consideration of the tax consequences of its distribution of marital property.

Affirmed, and remanded in part for clarification.

JUSTICES HARRISON, HUNT, TRIEWEILER and GRAY concur.


author: JUSTICE WEBER JUSTICE TRIEWEILER

text:
    IN RE THE MARRIAGE OF RICHARD DALE ISAAK, Petitioner and Appellant, v. JUDY L. FUNK SMITH, Personal Representative of the Estate of LYNN M. ISAAK, Respondent and Respondent.
    No. 92-054.
    Submitted on Briefs August 20, 1992.
    Rehearing Denied March 25, 1993.
    Decided March 4, 1993.
    50 St.Rep. 219.
    257 Mont. 176.
    848 P.2d 1014.

      For Appellant: John L. Hollow, Helena.
    For Respondent: Robert T. Cummins and James P. Greenan, Helena.
   JUSTICE WEBER

delivered the Opinion of the Court.

Petitioner, Richard Dale Isaak (Dale), appeals the Findings of Fact, Conclusions of Law and Order of the First Judicial District Court, Lewis and Clark County, Montana, which distributed Dale’s inherited real property to Lynn M. Isaak (Lynn), required Dale to provide health insurance coverage for the minor child although Dale is unemployed, and ordered Dale to pay Lynn’s attorney fees. Respondent, Judy L. Funk Smith, personal representative for the estate of Lynn M. Isaak, cross-appeals claiming that the District Court incorrectly calculated the net assets of the marital estate. We reverse in part and affirm in part.

The restated issues are as follows:

1. Did the District Court correctly calculate the net assets of the marital estate?

2. May the trial court require a person to provide health insurance coverage for a child when the coverage is not available through an employer, and partially or entirely paid by the employer?

3. Did the District Court err procedurally by allowing Lynn to collect attorney fees from Dale?

Dale and Lynn were married on October 21, 1979 in Helena, Montana. One child was born during their marriage. Dale also adopted two children bom to Lynn prior to their marriage. At the time of the trial, Dale was 38 years of age and Lynn was 35 years of age. During their marriage, Dale and Lynn lived rent-free in houses provided by Dale’s father, Reinhold Isaak. In 1987, Reinhold Isaak built a new home on a 21-acre parcel at 5920 Highway 12 West for Lynn and Dale. The District Court found that Reinhold Isaak intended to provide a home for Lynn and Dale and included this property, valued at $115,500.00, in the marital estate, and subsequently distributed it to Lynn. Other than this real property, the marital estate consists of personal property valued at $7,060.00. Dale received personal property valued at $2,310.00; Lynn received personal property worth $4,750.00.

Dale is the only child of Reinhold and Josephine Isaak. Josephine Isaak predeceased Reinhold Isaak, who died in January of 1990, devising all of his real and personal property to Dale by a will dated January 4, 1986. The 21-acre parcel of real property with the new home built for Dale and Lynn (distributed to Lynn as marital property) was still in Reinhold Isaak’s name at the time of his death. This property is part of the Reinhold Isaak estate which is valued at $578,000.00. This estate includes other real and personal property, including income-producing real estate contracts. Despite the fact that Reinhold Isaak died while Dale and Lynn were married, the District Court did not include the bulk of Dale’s inheritance in the marital estate, finding that:

Except as herein modified, this Court is of the view that the marital estate does not include the estate that Dale has inherited from Reinhold Isaak. Not only did the inheritance occur after the parties had separated, but the parties had clearly done nothing to improve, maintain, or build that estate.

In addition to the 21-acre parcel of real property and the personal property valued at $4,750.00, the District Court’s order provided Lynn with $500.00 per month maintenance and $285.00 per month child support for Kristian, the parties’ minor child. It also required Dale to provide medical insurance for Kristian. The District Court found that Dale, although unemployed, is capable of earning at least $1,000.00 per month. Dale also can receive over $1,200.00 per month from his father’s estate. Many of Dale’s monthly expenses are paid by the estate. Although the probate has not been closed, the attorney for the estate testified that there is no reason not to do so. When this is done, Dale may be able to eliminate some estate-related monthly expenses such as the attorney and accountant, thereby increasing his monthly income. The gross monthly income from real estate contracts is approximately $3,000.00.

The District Court further found that Lynn was unable to work. Lynn suffered from breast cancer which had metastasized. At the trial (May 15 and June 4,1991), Lynn testified that she had no more than three years to live. Lynn died one year later on June 9, 1992. Her interest is represented in this appeal by the personal representative of her estate, Judy L. Funk Smith, who has cross-appealed, claiming that the entire Reinhold Isaak estate should have been included in the marital estate.

I.

Did the District Court correctly calculate the net assets of the marital estate?

The District Court found that it was not appropriate to include in the marital estate property devised to Dale by his father’s will. His father died after the parties had separated, although it appears from the record that Dale and Lynn made attempts to reconcile up to and after the date of Reinhold Isaak’s death. The testimony indicates that Reinhold Isaak built a home for Dale and Lynn in 1987. The District Court found that he intended to provide this as a home for Dale and Lynn. The home is located on a 21-acre parcel of land which was still in Reinhold Isaak’s name at the time of his death in January 1990.

Dale contends that a mere intention to make a future gift of real property does not meet the requirements for an inter vivos gift of real property. He argues that there was no completed gift because title had not passed to either of the parties. Dale, therefore, contends that the District Court incorrectly included this property in the marital estate because to do so requires a finding of a gift of real property.

We review a lower court’s conclusion of law by determining whether it correctly or incorrectly applied the law. In re the Marriage of Hamilton (1992) [254 Mont. 31], 835 P.2d 702, 49 St.Rep. 604, 606. Section 70-20-101, MCA, governs transfers of real property. It provides:

Transfer to be in writing — statute of frauds. No estate or interest in real property, other than an estate at will or for a term not exceeding 1 year can be created, granted, assigned, surrendered, or declared otherwise than by operation of law or a conveyance or other instrument in writing, subscribed by the party creating, granting, assigning, surrendering, or declaring it or by his lawful agent thereunto authorized by writing.

Section 70-20-101, MCA.

Reinhold Isaak executed no written document to effect a transfer of the property to Dale and Lynn. The general rule is that a parol gift of land is invalid and does not pass title to the donee, even where the gift is accompanied by a transfer of possession, unless the donee, after taking possession, makes permanent and valuable improvements or other factors exist that would make it a fraud upon the donee not to enforce the transfer. 38 C.J.S. Gifts § 57 (1943). Section 70-20-102, MCA, provides exceptions to this statute:

Exceptions to statute of frauds. Section 70-20-101 must not be construed to:
(1) affect the power of a testator in the disposition of his real property by a last will and testament;
(2) prevent any trust from arising or being extinguished by implication or operation of law; or
(3) abridge the power of any court to compel the specific performance of an agreement, in case of part performance thereof.

There are no circumstances present here which would constitute an exception to the statute of frauds under § 70-20-102, MCA. Without a writing signed by Reinhold Isaak to effect an inter vivos transfer to Dale and Lynn, the property must pass under the 1986 will executed by Reinhold Isaak.

Although we have concluded that this real property could not be part of the marital estate based on an inter vivos transfer from Reinhold Isaak, the District Court did not err by including it in the marital estate. Montana law provides:

Division of property. (1) In a proceeding for dissolution of marriage, ... the court, without regard to marital misconduct, 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. ... In dividing property acquired prior to the marriage; property acquired by gift, bequest, devise, or descent;... 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.

Section 40-4-202, MCA.

The District Court found that the marital assets included $7,060.00 in personal property and the 21-acre parcel of real property with the new home built upon it. It did not include the other assets inherited by Dale. Clearly, under § 40-4-202, MCA, Dale’s inheritance can be part of the marital estate.

Reinhold Isaak died in January of 1990. The record indicates that, although Dale and Lynn had separated in 1989, they attempted to reconcile in late 1989 and early 1990, with Dale moving back into the home and the parties seeking some marital counseling. It was not until after Reinhold Isaak’s death that they separated permanently.

Dale’s interest in all of his father’s property vested at the time of Reinhold Isaak’s death. Section 72-3-101(2), MCA, provides: “Upon the death of a person, his real and personal property devolves to the persons to whom it is devised by his last will ....” Section 72-3-606, MCA, allows the personal representative to take real or personal property if necessary for purposes of estate administration. We conclude that the real and personal property of Reinhold Isaak became vested in Dale upon Reinhold Isaak’s death in January 1990, subject only to the personal representative’s power to appropriate the assets, if necessary, for purposes of administration. The record does not contain any indication that this was or will be necessary.

Dale’s petition to dissolve the marriage is dated August 30, 1990, over seven months after his father died. Dale inherited property valued at $578,000.00 from Reinhold Isaak before the petition was filed. An inheritance received during the marriage is a marital asset. Vivian v. Vivian (1978), 178 Mont. 341, 344, 583 P.2d 1072, 1074. From the facts of this case, this inheritance should properly be considered for inclusion in the marital estate according to § 40-4-202, MCA. Section 40-4-202, MCA, is a flexible statute vesting wide discretion in the district court. In re the Marriage of Stewart (1988), 232 Mont. 40, 757 P.2d 765. An inherited asset is to be treated on a case by case basis when marital property is distributed. Stewart, 757 P.2d at 768. See also In re the Marriage of Dirnberger (1989), 237 Mont. 398, 402, 773 P.2d 330 (no definite rule can be established for considering inherited assets; each case must be decided on its own facts). We conclude that the District Court should have included Dale’s inheritance in the marital estate.

The dissent emphasizes the finding of the District Court that there is no evidence that either party contributed to or maintained any of the inherited estate. Based on that finding and a number of Montana cases, the dissent concludes that the marital estate should not include the inherited estate or property because the inheritance occurred after the separation of the parties, and because the parties had done nothing to improve, maintain, or build that estate. We do not believe that conclusion is appropriate under the facts of this case.

For the assistance of the District Court on remand, we emphasize it must be guided by the provisions of § 40-4-202, MCA. The requirement of the court is that it “finally, equitably apportion” the marital estate, and this extends to inherited property as well as other property. The statute requires the court to consider such items as duration of marriage, health, occupation, amount of income, and needs of the parties. The general provisions of subparagraph (1) also require that the corut consider the relationship of apportionment to maintenance and the opportunity of each for future acquisitions of capital assets and income. As above quoted, the statute also provides that in dividing property acquired by devise or descent, the corut shall consider the contributions of the other spouse to the marriage including:

(a) the nonmonetary contributions of a homemaker;
(b) the extent to which such contributions have facilitated the maintenance of the property; and
(c) whether or not the property division serves as an alternative to maintenance arrangements.

Section 40-4-202(1), MCA. We emphasize that the District Court should consider all appropriate provisions of § 40-4-202, MCA.

On remand, the District Court may also be assisted by In re the Marriage of Alt (1985), 218 Mont. 327, 708 P.2d 258, a case similar to this one in terms of the inheritance vesting after the parties separated, in which this Court approved the district court’s treatment of inherited property included in the marital estate. In Alt, the court awarded the husband’s inherited real property to him, with the proviso that if the property was sold before the child’s majority, one-third of the sale proceeds were to be put in trust for the education and general welfare of the minor child. The trust was to include conditions for distribution of the remainder of the trust to the child upon attaining majority. Alt, 708 P.2d at 262.

We hold the District Court did not correctly calculate the marital estate. We vacate the property distribution and remand to the District Court for recalculation of the marital estate in a manner consistent with § 40-4-202, MCA, and this opinion.

II.

May the trial court require a parent to provide health insurance coverage for a child when the coverage is not available through the parent’s employer, and partially or entirely paid by the employer?

Dale contends that, because he is unemployed, the District Court had no authority to order that Dale provide health insurance coverage for Kristian. In support of this argument, Dale cites § 40-4-204(4)(a), MCA, which provides:

(4) Each district court judgment, decree, or order establishing a final child support obligation under this title and each modification of a final order for child support must include a provision addressing health insurance coverage in the following cases:
(a) If either party has available through an employer or other organization health insurance coverage for the child or children for which the premium is partially or entirely paid by the employer or organization, the judgment, decree, or order may contain a provision requiring that coverage for the child or children be continued or obtained.

Dale’s reliance on § 40-4-204(4)(a), MCA, is misguided. That section is inapplicable in a situation such as the present one where there is no medical insurance plan provided by an employer. It merely requires the district court to include a provision relating to health insurance when there is such a plan. However, § 40-4-204(1) and (2), MCA, require the district court to order either or both parents owing a duty of support to a child to pay an amount reasonable or necessary for the child’s support and to consider all relevant factors. Among other things, the district court must consider the “physical and emotional condition of the child and his educational and medical needs.” § 40-4-204(2)(d), MCA. The District Court complied with Montana’s child support statute and required Dale to provide medical insurance as part of his support obligation.

We hold that the District Court can require a parent to provide health insurance coverage for a child, although such coverage is not available or paid for partially or totally by the employer.

III.

Did the District Court err procedurally by allowing Lynn to collect attorney fees from Dale?

Dale contends that Lynn did not file a motion to amend the judgment under Rule 59(g), M.R.Civ.R, and that her Affidavit in Support of Attorney Fees filed on January 16,1992 was neither timely nor in proper form. Dale relies on Cook v. Harrington (1983), 203 Mont. 479, 661 P.2d 1287, to support his contention that the correct procedure requires a Rule 59(g) motion to amend the judgment when a Notice of Entry of Judgment has been filed, as happened here. Ms. Smith, the personal representative for Lynn’s estate, contends that Rule 59(g) is not applicable in this situation. We agree with Ms. Smith.

Section 40-4-110, MCA, gives district courts the authority to order one party in a dissolution proceeding to pay a reasonable amount for costs and attorney’s fees to maintain or defend the action and for costs and fees incurred before the commencement of the proceedings or after entry of judgment. The District Court could properly order that Lynn’s costs and attorney’s fees be paid by Dale as part of the decree.

Rule 59(g), M.R.Civ.R, applies to petitions for costs and attorney fees filed after entry of judgment. In re the Marriage of McDonald (1979), 183 Mont. 312, 314, 599 P.2d 356, 358, citing Stacy v. Williams (1970), 50 F.R.D. 52 (construing Rule 59(e), Fed.R.Civ.P., which is identical in content to Rule 59(g), M.R.Civ.R); Lichtenstein v. Lichtenstein (1972), 55 F.R.D. 535 (construing Rule 59(e), Fed.R.Civ.P.); see also M & R Construction v. Shea (1979), 180 Mont. 77, 589 P.2d 138 (this Court applied Rule 59(g) to a motion to strike judgment for attorney fees). A Rule 59(g) motion to amend the judgment must be timely filed when the judgment does not contain a provision addressing attorney fees. McDonald, 599 P.2d at 358. Cook involved a case where attorney fees were sought after judgment was entered. It is not relevant to the circumstances of this case.

We hold that the District Court did not err procedurally when it allowed Lynn to collect attorney’s fees from Dale.

We reverse in part and affirm in part, vacating the property distribution ordered by the District Court with instructions for the District Court on remand to redetermine the marital estate and equitably distribute it in a manner consistent with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON and HUNT concur.

JUSTICE TRIEWEILER

concurring in part and dissenting in part.

I concur with the majority’s disposition of Issue II concerning health insurance, and Issue III concerning attorney fees.

I dissent from the majority’s opinion regarding Issue I. I would reverse the District Court’s judgment which awarded real property owned by the estate of Reinhold Isaak to Lynn and conclude that there was no basis for awarding any real estate to Lynn under the facts of this case.

The majority concludes that although there was no inter vivos transfer of the property which was awarded to Lynn, Dale inherited the property at the time of his father’s death, even though the property was still part of his father’s estate at the time the dissolution judgment was entered. Assuming that part of the majority opinion was correct, there was still no basis for awarding to Lynn any real property inherited by Dale.

Section 40-4-202(1), MCA, sets forth the factors which must be considered by the District Court before inherited property can be distributed to the noninheriting spouse. That section provides in relevant part that:

In dividing property ... acquired by gift, bequest, devise, or descent... 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.

In the case of In re Marriage of Herron (1980), 186 Mont. 396, 608 P.2d 97, the district court divided marital property on a fifty-fifty basis, even though the majority of the property had either been given or devised to Mrs. Herron by her father. However, this Court found that gifted or devised property was governed by the section previously quoted, and based upon that statute, concluded:

If none of the value of the property is a product of contribution from the marital effort, the district court can justifiably find that the non-acquiring spouse has no interest in the property.
... Both parties here should share equally in the portion of the value of the gift property attributable to contribution from the marriage and appreciation during marriage. The Herrons should not, however, share equally in the total value of the property since the marital assets came to the marriage principally as gifts for Mrs. Herron’s benefit.

Herron, 608 P.2d at 101-02.

In accord are In re Marriage of Barnard (1990), 241 Mont. 147, 785 P.2d 1387; In re Marriage of McFarland (1989), 240 Mont. 209, 783 P.2d 409; In re Marriage of Fitzmorris (1987), 229 Mont. 96, 745 P.2d 353; In re Marriage of Becker (1985), 218 Mont. 229, 707 P.2d 526.

In this case, the parties separated in November 1989, several months before Reinhold Isaak died. Whether or not they made occasional efforts to reconcile following Reinhold’s death, but before the dissolution decree was entered, there is no evidence that during that time any substantial contribution was made by the parties to the value or maintenance of the property. In fact, although not discussed by the majority, the District Court specifically found the following facts to be true:

There is no evidence in the record that would indicate to this court that either party in any way contributed to or maintained any of the inherited estate.
Except as herein modified, this court is of the view that the marital estate does not include the estate that Dale has inherited from Reinhold Isaak. Not only did the inheritance occur after the parties had separated, but the parties had clearly done nothing to improve, maintain, or build that estate.

Neither can distribution of this property be considered an alternative to maintenance arrangements since Dale was already ordered to pay $500 a month to Lynn for her maintenance.

Since Dale had not inherited the property during the time that the parties lived together, there could have been no contributions to the value or maintenance of the property during the parties’ marriage. Therefore, there was no basis, pursuant to our previous decisions interpreting § 40-4-202(1), MCA, for distributing any part of the real estate inheritance to Lynn.

For these reasons, I dissent from the opinion of the majority. I would reverse that part of the District Court judgment which awarded property from Reinhold Isaak’s estate to Lynn, and otherwise, affirm the District Court.


author: JUSTICE HUNT

text:
    IN RE THE MARRIAGE OF JAMES S. SPENCE, Petitioner and Appellant, and BARBARA L. SPENCE, Respondent and Cross-Appellant.
    No. 92-319.
    Submitted on Briefs December 3, 1992.
    Decided March 4, 1993.
    50 St.Rep. 225.
    257 Mont. 188.
    849 P.2d 161.

      For Petitioner and Appellant: Christopher Daly, Missoula.

      For Respondent and Cross-appellant: Gail M. Haviland, Worden, Thane & Haines, Missoula.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant James S. Spence appeals from an order of the Fourth Judicial District Court, Missoula County, distributing certain pension benefits, proceeds from out-of-state property, and an award of maintenance. Respondent Barbara L. Spence cross-appeals the order, alleging the court erred in its distribution of the marital estate and erred in failing to award her attorney fees and costs.

We affirm in part and remand.

James raises five issues on appeal while Barbara cross-appeals with four issues. Because the issues deal primarily with the distribution of the marital estate, we rephrase the issues as follows:

1. Did the District Court err in its distribution of the marital estate?

2. Did the District Court err in ordering $300 in temporary maintenance?

3. Did the District Court err in awarding Barbara $350 per month in maintenance for three years?

4. Did the District Court err in failing to award Barbara attorney fees and costs?

James and Barbara were married on May 20, 1977. At the time of the hearing, James was 65 years old and Barbara was 43 years old. James began working for Pacific Northwest Bell and its successor corporation, U.S. West Communications, in 1947 as a lineman, and continued working in that position for approximately 40 years until his retirement in 1988. Before taxes, James has a monthly income of approximately $1800 from social security and his U.S. West pension. During his employment, James participated in a savings plan and an Employee Stock Ownership Plan (ESOP). However, he did not have access to those funds until his retirement. James suffers from diabetes and high blood pressure, and because of his age and health problems, is unable to work.

Barbara worked as a nurses’ aide at the Shriner’s Hospital in Spokane prior to marrying James. During the marriage, Barbara earned an Associate of Arts degree in liberal arts and another Associate of Arts degree in hearing impaired services. Barbara worked as a deaf interpreter, and also obtained some computer skills at the University of Montana in Missoula. Throughout most of the marriage, Barbara maintained the household. From 1988 through 1990, Barbara earned between $3000 and $9000 a year. She currently lives in Spokane with her brother and is unemployed, with the exception of performing occasional odd jobs.

The parties separated on July 10,1991. On July 29,1991, Barbara filed a petition for dissolution in Spokane County, Washington. The summons and petition were served on James in Missoula on August 12, 1991. On August 7, 1991, James filed for dissolution in Missoula County. The Superior Court of Washington dismissed the pending action and changed jurisdiction to Missoula County.

On February 12, 1992, the District Court orally ordered James to pay $300 in a one time temporary maintenance award under the belief that the matter would be decided before the next maintenance check was due. On May 5, 1992, Barbara petitioned the court for clarification of the order. The court ordered James to pay maintenance until the final decree was issued. This resulted in James having to pay $1200 in back maintenance.

Trial was held on the matter on March 11 and 18,1992. On May 29, 1992, the District Court issued its findings of fact, conclusions of law, and order. On June 19, 1992, James filed his notice of appeal from the court’s decree and the order for temporary maintenance.

I.

Did the District Court err in its distribution of the marital estate?

This Court has stated that our standard of review relating to factual findings of the district court with regard to the division of marital property is whether the district court’s findings are clearly erroneous. In re Marriage of Danelson (1992), 253 Mont. 310, 315-16, 833 P.2d 215, 219, 49 St. Rep. 597, 599. With regard to this Court’s review of conclusions of law made by the district court, we have stated that “ ‘[w]e are not bound by the lower court’s conclusions and remain free to reach our ownDanelson, 833 P.2d at 219-20 (quoting Schaub v. Vita Rich Dairy (1989), 236 Mont. 389, 391, 770 P.2d 522, 523). In adopting these principles of review in division of the marital estate, we have stated that:

[Tjhis Court is not in any way discounting the considerable discretionary power that must be exercised by district courts in these cases. The courts are obligated to fashion a distribution which is equitable to each party -under the circumstances. The courts, working in equity, must seek a fair distribution of the marital property using reasonable judgment and relying on common sense. Obtaining this equitable distribution will at times require the lower court to engage in discretionary action which cannot be accurately categorized as either a finding of fact or a conclusion of law. These discretionary judgments made by the trial court are presumed to be correct and will not be disturbed by this Court absent an abuse of discretion by the lower court. [Citation omitted.]

Danelson, 253 Mont. at 317, 833 P.2d at 220.

In this instance, James argues that the District Court erred in determining that the ESOP stock was part of the marital estate, that the court misstated the total value of the ESOP stock, and that it miscalculated when dividing the stock between the parties. Barbara argues that the court erred in distributing the ESOP stock proceeds which were calculated by a formula that measured the length of the stock option plan over 40 years, instead of from 1976. Barbara also contends that the court’s valuation of the stock is erroneous.

We must first answer the question of whether the ESOP stock was properly included in the marital estate. Section 40-4-202(1), MCA, provides that when dividing a marital estate, the district court shall “equitably apportion between the parties the property and assets belonging to either or both, however and whenever acquired ....” In addition, the statute requires that the district court consider contributions of the other spouse to the marriage when dividing the marital estate, which includes the nonmonetary contributions of a homemaker and the extent to which such contributions have facilitated the maintenance of the property. Section 40-4-202(l)(a) and (b), MCA. We have stated that retirement benefits are properly included within the marital estate and are subject to division. In re Marriage of Holston (1983), 205 Mont. 470, 474, 668 P.2d 1048, 1050.

In its findings of fact, the court ruled that during most of the parties’ 14-year marriage Barbara maintained the home, her contributions as a homemaker contributed to the marital estate, and the stock was earned in a community property state. The domestic services provided by Barbara enabled James to continue working at his place of employment and contribute to his savings plans. Moreover, if James had passed away before receiving the stock, the benefits would have gone to Barbara. With the exception of the purchase of some lithographs, James used proceeds from the sale of stock to purchase jointly held marital property. Therefore, we conclude that the District Court properly included the stock as a marital asset.

Even though the stock was considered part of the marital estate, the District Court erred in the valuation and distribution of the stock. The court, in its conclusions, valued the total sale of the stock at $49,109. After the vesting of the retirement plans in 1988, James sold between $16,000 and $19,000 to purchase a pickup truck which was held jointly by the parties. In 1990, the parties sold additional stock for approximately $12,000 to $13,000 and used the proceeds to make a down payment on a home in Missoula and to purchase furniture for the home. After the date of separation, but prior to the dissolution, James sold the remaining stock for $30,109 and used $10,500 for the purchase of 35 lithographs. Athough the total value of the stock was apparently not stated by the parties, testimony concerning the proceeds from the sale of the stock leads to the conclusion that the District Court failed to take into account stock sold for the down payment on the home and the furniture when valuing the estate. We remand to the District Court for reconsideration of the value and distribution of the stock. Any additional concerns the parties may have relating to the distribution of the stock may be raised with the District Court.

James also contends that the District Court should not have included the Idaho property in the marital estate. Both parties argue that the division of the proceeds resulting from the sale of the property is incorrect. James argues that the property was purchased on a ten-year contract in 1970, seven years prior to the marriage, the property was paid off within three years of the marriage, and only taxes were paid on the property from 1980 to 1991. James declares that although payments came out of the parties’ joint checking account, no evidence was produced by Barbara to show that she contributed to that account. Citing In re Marriage of Scott (1992), 254 Mont. 81, 833 P.2d 710, 49 St. Rep. 634, James contends that property division in a Montana dissolution is not governed by community property laws of another state.

We reiterate that to divide property acquired prior to entering into a marriage contract, the District Court must examine the factors set out in § 40-4-201(1)(a) and (b), MCA. We have stated that in Montana, property division need not be equal, but instead, must be equitable. Scott, 254 Mont. at 83, 833 P.2d at 712. James and Barbara conveyed a one-half interest in the property to James’ son and daughter-in-law. The owners later sold their interest in the property. James’ and Barbara’s share was $9657. Barbara testified that they were paying on the property prior to the marriage. Barbara further testified that they had considered the property as a place to retire. The record shows that Barbara’s name appears on a 1977 warranty deed that was executed to convey interest in the property to James’ son and daughter-in-law. Barbara signed the buy-sell agreement as seller of the property. In addition, she testified that the monthly payments and taxes on the property were paid out of the parties’joint checking account. That statement was not contradicted by James. Therefore, it was proper for the District Court to include the Idaho property in the marital estate.

Finally, both Barbara and James complain that the District Court erred in its calculation when distributing the proceeds of the sale of the Idaho property. The court awarded Barbara two-thirds of the one-half interest ($9657) of the proceeds from the sale of the property. According to the District Court, Barbara’s share was $3235. We remand to the District Court to correct this mathematical error. With the exception of the mathematical error, we hold that the District Court equitably divided the Idaho property between the parties.

II.

Did the District Court err in ordering a $300 temporary maintenance award?

On February 12, 1992, the District Court held a hearing to determine whether Barbara should be entitled to temporary maintenance. The court orally ordered James to pay a one time maintenance award of $300, under the belief that the case would be decided the following month. The court minutes stated that James was responsible for a $300 monthly temporary maintenance payment. James paid the temporary maintenance in February, but did not pay any maintenance during the remaining months preceding the court’s decision. On May 5, 1992, Barbara filed a motion requesting that the court clarify its order regarding maintenance. On May 20, 1992, the District Court ordered James to pay $300 a month until the court rendered a decision. James appeals this order.

We previously stated that § 40-4-121(7)(a) and (b), MCA, grants considerable authority to make a temporary maintenance award retroactive. “It was well within the District Court’s power after hearing on the matter of... maintenance, to make the order retroactive.” In re Marriage of Revious (1987), 226 Mont. 304, 312, 735 P.2d 301. 306.

A hearing was conducted by the court regarding temporary maintenance and it found that there should be a $300 payment each month from February. We hold that the District Court did not err in ordering retroactive temporary maintenance payments.

III.

Did the District Court err in awarding Barbara $350 per month in maintenance for three years?

We have stated in the past that our standard of review to determine whether the award of maintenance is proper is whether the district court’s findings of fact are clearly erroneous. In re Marriage of Eschenbacher and Crepeau (1992), 253 Mont. 139, 831 P.2d 1353, 49 St. Rep. 393. The district court may award maintenance after the marital property has been equitably distributed and the court has properly applied the criteria of § 40-4-203, MCA. Also, the district court may grant an award of maintenance for either spouse if the court finds that the spouse requesting maintenance “lacks sufficient property to provide for his reasonable needs” and “is unable to support himself through appropriate employment....” Section 40-4-203(1)(a) and (b), MCA.

In its findings, the court believed that Barbara had not actively sought employment and her only income came from temporary maintenance and odd jobs. The court stated that for Barbara to be employed as a deaf interpreter she would need to take additional classes. Her expenses were $1075 per month, not including the cost of any further education. If she earned either minimum wage, or the wage she received at her previous employment, neither would cover her current expenses. The court considered her age, length of marriage, her standard of living during the marriage, her physical and emotional condition, and James’ ability to meet his needs while assisting Barbara for a reasonable period of time. As a result of these findings, the court concluded that Barbara was eligible for maintenance of $350 a month for three years. The court properly considered the factors set out in § 40-4-203(1), MCA. We hold that the District Court did not err in the award of maintenance.

IV.

Did the District Court err in failing to award Barbara attorney fees and costs?

Barbara claims that the District Court erred in not awarding her attorney fees. Section 40-4-110, MCA, states that the district court may, after considering the financial resources of the parties, order a party to pay reasonable attorney fees and costs. This is a permissive, not a mandatory statute. We have stated that absent an abuse of discretion, this Court will not overturn the district court’s decision denying attorney fees. In re Marriage of Manus (1987), 225 Mont. 457, 733 P.2d 1275. It is clear from the District Court’s extensive findings that the financial resources of the parties were considered and Barbara has a sufficient cash award to pay her attorney fees. We hold that the District Court did not abuse its discretion in failing to award Barbara attorney fees.

Affirmed in part and remanded to the District Court for reconsideration of the value and distribution of the stock and to correct a mathematical error regarding the distribution of the proceeds from the sale of the Idaho property.

CHIEF JUSTICE TURNAGE, JUSTICES TRIEWEILER, McDONOUGH, and WEBER concur.


author: CHIEF JUSTICE TURNAGE JUSTICE TRIEWEILER

text:
    CLAYTON MICHAEL MOONEY, Petitioner and Respondent, v. SHERRY LYNN BRENNAN, Respondent and Appellant, and MICHAEL ANTHONY MOONEY, a Minor Child.
    No. 92-089.
    Submitted on Briefs December 10, 1992.
    Decided March 5, 1993.
    50 St.Rep. 229.
    257 Mont. 197.
    848 P.2d 1020.

      For Respondent and Appellant: Judy A. Williams, Billings.
    For Petitioner and Respondent: George T. Radovich, Billings.
    For Amicus Curiae: Ann Hefenieder, Department of Social and Rehabilitation Services, Billings; K. Amy Pfeifer, Department of Social and Rehabilitation Services, Helena.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Sherry Lynn Keele, formerly Sherry Lynn Brennan (Brennan), appeals the modification of a child support order entered in the District Court for the Thirteenth Judicial District, Yellowstone County. We reverse.

We restate the issue presented as:

Does incarceration constitute a substantial and continuing change in circumstances so as to make the terms of an existing child support order unconscionable and, as such, warrant modification?

In 1983, Brennan gave birth to a son, Michael Anthony Mooney (Michael). Michael’s father was Clayton Michael Mooney (Mooney). In 1984, Mooney filed a petition seeking parental rights. After a substantial amount of legal maneuvering by both parents, a custody and support agreement was reached. Judgment on the agreement was entered in 1988. The order settled questions of paternity, custody, and support. The parents had joint custody with Mooney designated primary custodial parent.

In 1989, Brennan moved the District Court for modification of the final custody and support decree pursuant to § 40-4-219, MCA. In February 1991, the District Court denied Brennan’s motion. The District Court found Brennan had not satisfied the conditions set forth in § 40-4-219, MCA. In February 1991, and again in March 1991, Mooney was arrested and subsequently pled guilty to felonious criminal acts.

After the criminal incidents occurred in March 1991, Brennan moved the District Court for temporary custody of Michael. In April 1991, the District Court granted temporary custody to Brennan and issued a show cause order on the motion. Prior to a hearing on the show cause order, the parents stipulated that they would continue to have joint custody of Michael, but Brennan would have temporary physical custody. In addition, after it became apparent he would be incarcerated in Deer Lodge as a result of pleading guilty to the criminal charges, Mooney stipulated that Brennan would be the primary custodial parent.

Having been awarded primary custody of Michael, Brennan moved for an award of child support from Mooney in May 1991. After a hearing in November 1991, the District Court awarded Brennan child support in the amount of $500 per month for April, May, June, and July 1991. The $500 amount was based on Mooney’s income prior to his incarceration. The District Court then modified the amount of child support and ordered Mooney to pay support in the amount of $50 per month for August, September, October, and November 1991. Mooney began serving his prison sentence on July 31,1991. Additionally, the District Court ordered Mooney to pay future child support payments of $50 per month beginning in December 1991. These payments were subject to modification upon Mooney’s release from prison and return to employment.

The District Court reasoned that Mooney’s incarceration qualified as a change of circumstances so substantial and continuing as to make the terms of the support order based upon his pre-incarceration income unconscionable. It found incarceration was not a voluntary act of unemployment or under-employment. Therefore, income could not be imputed to Mooney because he was neither unemployed nor under-employed of his own volition. Brennan appeals the modification of the support order.

Does incarceration constitute a substantial and continuing change in circumstances so as to make the terms of an existing child support order unconscionable and, as such, warrant modification?

In this appeal, we decide for the first time whether the voluntary commission of a criminal offense and subsequent involuntary incarceration is grounds for a reduction or suspension of a child support obligation in Montana. Although the District Court couched its order in terms of findings, it was interpreting a statute in light of the facts presented and therefore made a conclusion of law as to the application of § 40-4-208(2)(b)(i), MCA. Our standard of review is “whether the tribunal’s interpretation of the law is correct.” Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603.

We are mindful that a number of jurisdictions which have addressed this issue have decided in favor of reducing or suspending the incarcerated parent’s support obligation. Some of these courts follow an Oregon Court of Appeals decision which was overruled in 1991. Edmonds v. Edmonds (Or.App. 1981), 633 P.2d 4, overruled by Willis v. Willis (Or.App. 1991), 820 P.2d 858. Under the Edmonds line of reasoning, an incarcerated parent is entitled to modification unless it can be affirmatively shown that he has assets or income with which to make the payments or the parent became imprisoned to avoid support obligations. See, e.g. Johnson v. O’Neill (Minn.App. 1990), 461 N.W.2d 507; Pierce v. Pierce (Mich.App. 1987), 412 N.W.2d 291.

Additionally, some courts reason the continuation of a child support obligation imposes an additional penalty upon one whom the state has already penalized for an offense. Pierce, 412 N.W.2d at 293. Still others reason the continuation of a support obligation while the parent is incarcerated does nothing to help the child and simply adds to an accumulated burden which falls upon the parent when released from prison. Leasure v. Leasure (Pa.Super. 1988), 549 A.2d 225, 227. We are not persuaded by these holdings.

The continuation of the child support obligation while incarcerated does not constitute double punishment. It is simply a continuation of that which the incarcerated parent is bound under the law to do. Furthermore, although the parent will have a debt burden to assume upon release, repayment of the arrearage may be scheduled by the District Court according to post-incarceration income.

This Court has held that “a substantial change in the financial condition of the parent ... has been recognized as grounds for modifi cation of a previously-entered child support order,” and we will continue to adhere to this holding in appropriate cases. In re the Marriage of Rome (1980), 190 Mont. 495, 497, 621 P.2d 1090, 1092. However, we believe a rule absolving a parent of a child support obligation while incarcerated due to a voluntary criminal act is “in conflict with other well-established principles of domestic relations law....” Willis, 820 P.2d at 859. As we have often held, the support of children is a matter of social concern. Fitzgerald v. Fitzgerald (1980), 190 Mont. 66, 70, 618 P.2d 867, 869. “It is an obligation that the father owes the state as well as his children.” Fitzgerald, 618 P.2d at 869.

Section 40-4-208, MCA, allows a decree of child support to be modified under certain circumstances. Subsection (2)(b)(i), which is applicable to the facts presented here, reads:

(b) Whenever the decree proposed for modification contains provisions relating to... support, modification... may only be made: (i) upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable;

There is no question that incarceration constitutes a substantial change in circumstances. Nor do we question the continuity of the change of circumstances through the duration of the incarceration. However, the issue is whether the change of circumstances caused by incarceration rises to the level of unconscionability so as to warrant a suspension or reduction of a parent’s moral, as well as legal, obligation to support his own. In re the Marriage of Hickey (1984), 213 Mont. 38, 45, 689 P.2d 1222, 1226.

In the past, we have declined to adopt, or rely upon, a solitary definition for the term “unconscionable” as used in § 40-4-208, MCA. Green v. Green (1978), 176 Mont. 532, 539, 579 P.2d 1235, 1238-39. Rather, our interpretation of the term hinges upon a case-by-case analysis after scrutinizing the underlying facts. In re the Marriage of McNeff (1983), 207 Mont. 297, 300, 673 P.2d 473, 475. As we have said, “we know when we are shocked.” Green, 579 P.2d at 1239. In light of the facts presented here, we conclude it is not unconscionable to deny a temporary termination or reduction in child support obligations due to incarceration, notwithstanding the fact that the jailed parent earns no income while incarcerated and does not have assets which could be utilized to pay the support.

We agree with, and adopt the reasoning of, the Oregon Court of Appeals in Willis. In Willis, the Court of Appeals reasoned:

Criminal conduct of any nature cannot excuse the obligation to pay support. We see no reason to offer criminals a reprieve from their child support obligations when we would not do the same for an obligorwho voluntarily walks awayfromhisjob. Unlike the obligor who is unemployed or faced with a reduction in pay through no fault of his own, the incarcerated person has control over his actions and should be held to the consequences.
A person who has a support obligation should not profit from his criminal conduct, particularly at his children’s expense. We recognize that an individual in father’s situation — assuming that he is genuinely indigent and unable to pay — cannot be found in contempt for not paying support while incarcerated. However, this is not a contempt proceeding; it is simply a modification proceeding. Father should not be able to escape his financial obligation to his children simply because his misdeeds have placed him behind bars. The meter should continue to run. Accordingly, we hold the father’s support obligation continues to accrue during his incarceration.

Willis, 820 P.2d at 860.

Additionally, Noddin v. Noddin (N.H. 1983), 455 A.2d 1051, and Proctor v. Proctor (Utah App. 1989), 773 P.2d 1389, are persuasive. Although these cases held modification of child support payments were unwarranted where the incarcerated parent had assets, the reasoning of both courts extends to the instant case. In Noddin, the New Hampshire Supreme Court reasoned that while unemployment and diminution of earnings were commonly grounds for modification of a child support decree, a change in financial condition brought about by the voluntary waste of one’s talents and assets is not reason for modification of a decree. Noddin, 455 A.2d at 1053 (citing 2A W. Nelson, Divorce and Annulment § 17.16, at87-88 (1961 rev. ed.)). The Utah Court of Appeals in Proctor reasoned similarly. “[A]n able bodied person who stops working ... as a result of punishment for an intentional act, nonetheless retains ... the duty to support his or her children.” Proctor, 733 P.2d at 1391.

The above reasoning, and that promulgated in Willis, is sound and in line with the public policy of this state. The provisions of Title 40, Chapter 4 are to be liberally construed to promote the underlying purposes of the chapter. Section 40-4-101, MCA. One purpose is to require parents to provide support for their children.

This chapter shall be liberally construed and applied to promote its underlying purposes, which are to:
(4) make reasonable provision for ... minor children during and after litigation;

Section 40-4-101(4), MCA. Under the facts of this case, we hold the District Court was incorrect as a matter of law in ruling incarceration meets the requirements of § 40-4-208(2)(b)(i), MCA, and justifies a modification of child support payments because of resultant loss of income.

The decision of the District Court is reversed and remanded for further proceedings consistent with this opinion.

JUSTICES HARRISON, McDONOUGH and WEBER concur.

JUSTICE TRIEWEILER

dissenting.

I dissent from the opinion of the majority.

Although the majority’s opinion is long on platitudes, it is short on practical benefit to the dependant child; it jeopardizes the father’s chances for successful reentry into law abiding society; and it ignores the vast majority of well-reasoned decisions on this subject.

Child support in Montana is governed by three principal statutes. Section 40-4-204(2)(e), MCA, lists as one of the principal factors to be considered in assessing a parent’s child support obligation the financial resources and needs of the noncustodial parent. Section 40-5-209, MCA, requires the Department of Social and Rehabilitation Services to adopt uniform child support guidelines, and § 40-4-204(3), MCA, requires that those guidelines be applied in the court’s calculation of a noncustodial parent’s child support obligation. The guidelines are found in § 46.30.1501, et seq., ARM, and provide for child support based almost exclusively on a parent’s financial ability to pay.

It is clear, therefore, that throughout our statutory and administrative scheme for arriving at a parent’s obligation to pay child support, the parent’s financial ability to make those payments is the primary concern.

It stands to reason that under § 40-4-208(2)(b)(i), MCA, which provides for a modification of a child support obligation where circumstances have changed to the extent that the prior obligation is unconscionable, the primary consideration has to be a change in the parent’s financial ability to continue making the support payments. If “unconscionable” means anything, it has to at least include the circumstances where a parent is unable to make continued payments because he or she has no income nor any other assets with which to make the payments.

Much of the majority opinion does not withstand scrutiny. For example, the opinion states that imposing an impossible burden on the father in this case is not double punishment because it is simply a continuation of his previous obligation under the law. However, that is not correct. His previous obligation under the law was to make support obligations which were based on his ability to pay. Under the majority decision, he incurs a debt for an obligation that he has no ability to pay.

The majority goes on to say that even though the parent may have a debt upon his release from prison, the District Court can figure out some schedule for payment of the debt. However, if we presume that upon his release from prison Mr. Mooney goes back to work, and if we further presume that his support obligation at that time reflects the maximum amount he is able to pay based on his income, where is he supposed to get the additional amounts with which to repay the debt that accumulated during his incarceration?

The majority dismisses the practical difficulties of the father’s predicament by concluding that he has a moral and legal obligation to support his own child. How is that moral obligation satisfied by entering judgment against the father which he is completely unable to satisfy and which will place additional financial pressure on a person who has already demonstrated that he has a difficult time following the law?

The majority cites with approval language from another jurisdiction to the effect that unless the child support obligation is continued during incarceration, the parent could potentially profit from his illegal conduct. How can the father in this case, who was earning $30,000 before his imprisonment, profit by giving up that income in exchange for being relieved of a $500 a month child support obligation? The accounting system by which these profits have been calculated is a novel one.

The problem with the majority’s analysis of this case is the manner in which it frames the issue. It is not necessary that we decide that incarceration always relieves a parent of his or her child support obligation, or that in the alternative, the parent is never relieved of that obligation. The vast majority of jurisdictions have decided that a parent who is imprisoned, and as a result loses his or her income, is relieved of the obligation to make child support payments unless the parent has other assets with which to make those payments. I agree with the decision of the Illinois Court of Appeals in People ex rel. Meyer v. Nein (Ill. App. 4 Dist. 1991), 568 N.E.2d 436, wherein that court stated:

Having considered all of the authorities from other States, we agree with the Pennsylvania court which compared incarceration to an involuntary loss of employment (Leasure v. Leasure (1988), 378 Pa.Super. 613, 616, 549 A.2d 225, 227; accord Peters v. Peters (Ohio Ct. App. 1990), 1990 WL 127193) [590 N.E. 2d 777]; we also agree, however, that incarceration, as a foreseeable result of criminal activity, does not ipso facto relieve one of the obligation to pay child support. (Division of Child Support Enforcement ex rel. Harper v. Barrows (Del. 1990), 570 A.2d 1180, 1183 (and cases cited therein)). Decisions on modification, when questions of this type appear, are best left to the discretion of the trial court. This view is consistent with the decisions of the courts of other States, apart from the decision in Ohler v. Ohler (1985), 220 Neb. 272, 369 N.W.2d 615]; and the exercise of that discretion has generally been guided by principles summarized in Barrows:
We have found no jurisdiction which currently suspends or discharges child support obligations if an affirmative showing has been made that an incarcerated support obligor has available assets.

Meyer, 568 N.E.2d at 437.

Other cases in accord with the Meyer decision are Pierce v. Pierce (Mich. App. 1987), 412 N.W.2d 291; Clemans v. Collins (Alaska 1984), 679 P.2d 1041; Nab v. Nab (Idaho App. 1988), 757P.2d 1231; Johnson v. O’Neill (Minn. App. 1990), 461 N.W.2d 507.

Even the New Hampshire and Utah decisions relied on by the majority found it significant in those cases that the parents against whom child support obligations were to be enforced had assets with which to satisfy the obligation. In this case, there was no evidence that Clayton Mooney had any assets with which to satisfy the support obligation which will continue to accrue during his imprisonment.

One of the original and leading decisions which denied suspension of child support payments during a period of incarceration was Ohler v. Ohler (Neb. 1985), 369 N.W.2d 615. However, the dissent to that opinion by Chief Justice Krivosha is more frequently cited and followed by other courts. In his dissent, Chief Justice Krivosha stated:

We obviously recognize that the child support judgment will not be paid during the time that the parent is incarcerated, and therefore the judgment will simply accrue with interest. Such a situation provides little or no benefit to anyone. The children do not receive the benefit of the proceeds during the time they require the funds, and the parent is simply confronted with a large, nondischargeable judgment upon release from prison, at a time when the prospect of paying a large judgment with interest is extremely unlikely. At current interest rates, the judgment will double every six or seven years. How this can be in the children’s best interest is difficult for me to imagine.
I am further persuaded by the reasoning of the Oregon court which concludes that a court should not be permitted to impose a judgment and itself make the payment of that judgment impossible. We would not permit such a result to exist in any other situation.
In dissenting, I do not for a moment ignore the fact that the parent against whom the judgment runs has been convicted of violating a law and has brought the problem into being by reason of his own act. Nevertheless, the violation of the criminal law was a matter which the State addressed, and for which the individual is now paying the penalty. To impose an additional penalty is not appropriate.

Ohler, 369 N.W.2d at 618-19 (Krivosha dissenting).

This case does not present a situation where the father has tried to avoid his obligation to his child. This father and mother were not married, and in spite of that fact, it was the father who initiated a paternity action to establish his parental rights. He was the primary custodian and sole financial supporter of his child from shortly after birth until several months after the offenses which resulted in his imprisonment. He neither requested nor received child support payments from the child’s mother.

Prior to his imprisonment, the father was employed in a family business in which he is a part owner. He did not leave his employment and give up his income by choice. There is no evidence that he chose imprisonment and unemployment as an alternative to a $500 monthly child support obligation.

The Child Support Enforcement Division of the Montana Department of Social and Rehabilitation Services has filed an amicus curiae brief in this case. In its brief, the Division opposes suspension of child support payments during a period of imprisonment, regardless of the imprisoned parent’s ability to make those payments. The Division makes the argument that it is the child’s best interest with which the court should be concerned, rather than the imprisoned parent. However, nowhere in the Division’s brief, nor in the majority opinion, is there any explanation for how this child’s interest is going to be served by imposing on the parent who has always voluntarily supported him, an obligation to make support payments during a period of time when he has no income and no assets with which to make those payments. Nowhere in the Division’s brief, nor in the majority’s opinion, is there any explanation for how the child is best served by imposing a debt on this parent which in all probability can never be satisfied.

The District Court did not suspend the father’s obligation to make child support payments as a reward because of his criminal conduct. The obligation was suspended during the father’s period of imprisonment because, as a practical matter, the obligation could not be paid and, as a principle of statutory law, his future obligation after his release from prison will have to be based on his ability to pay. To tack an accumulated debt on to what the father is able to pay is to impose an impossible obligation.

The majority subscribes to the view that to suspend an obligation that cannot be paid rewards an incarcerated parent and that to enforce an obligation that cannot be paid somehow benefits the dependent child. I cannot grasp the logic of the majority’s analysis. Therefore, I dissent from the majority opinion.

JUSTICES GRAY and HUNT join in the foregoing dissent of JUSTICE TRIEWEILER.