author: JUSTICE HUNT JUSTICE WEBER

text:
    STATE OF MONTANA, Plaintiff and Appellant, v. JEFFREY LAYNE GARN, Defendant and Respondent.
    No. 93-409.
    Submitted on Briefs November 18, 1993.
    Decided March 24, 1994.
    51 St.Rep. 285.
    264 Mont. 296.
    871 P.2d 878.
    For Plaintiff and Appellant: Joseph P. Mazurek, Attorney General, Cregg W. Coughlin, Assistant Attorney General, Mike McGrath, Lewis and Clark County Attorney, Helena.
    For Defendant and Respondent: Edmund F. Sheehy, Jr., Cannon & Sheehy, Helena.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant State of Montana appeals from the order of the First Judicial District Court, Lewis and Clark County, granting a new trial to defendant Jeffrey Layne Garn for admitting irrelevant evidence at trial, based on State v. Keys (1993), 258 Mont. 311, 852 P.2d 621, which was decided between Garn’s conviction and motion.

We affirm.

The sole issue raised on appeal is whether the District Court erred when it granted the defendant a new trial.

In August and early September 1992,15-year-old K.M. was staying with her father in Helena while her mother moved from Reno, Nevada, to Spokane, Washington. K.M.’s mother was to arrive in Helena on September 2,1992, and K.M. was to return to Spokane to reside with her. K.M. did not want to live with her mother because of conflict in their relationship. On September 2,1992, K.M. decided to nm away to avoid returning to Spokane with her mother. She gathered her clothes into a duffle bag and hid them in her father’s home. Then she went to the mall to see T.R., a young man she had met the night before who worked at a record and video store. K.M. told T.R. that she was 15 years old and had run away from home and needed a place to stay. T.R. told her that he could not provide her with a place to stay. He introduced her to Garn, the manager of the record and video store. T.R. told Garn that she was a runaway and needed a place to stay and left them alone to talk. Sometime during their conversation, Garn showed K.M. a brochure regarding a modeling contest. Garn asked her if she was interested in modeling for photographs that could be entered in the contest, and told her she could win $500. K.M. agreed to model for Garn at his house that evening. K.M. testified that Garn did not tell her that nudity would be involved in the modeling.

After the record and video store closed, K.M. met Garn at the outside entrance to the mall. Before they drove to Garn’s house, he drove her to her father’s house to get her duffle bag. After arriving at Garn’s house, the two sat on the couch in the living room. K.M. testified that Garn told her to undress, and that she was hesitant and confused, and was unsure whether she should run and try to get away, or do what she was told. K.M. testified that she went to the bathroom and put on a slip that Garn had given her, but left her underwear on. She returned to the living room and sat on the couch by Garn. They talked about nudist colonies that Garn had visited. Then Garn asked her to take off her top. K.M. testified that although Garn did not threaten her, she was intimidated by him. She took off her top and Garn fondled her breast. K.M. testified that she shook her head no. Garn testified that he had asked her if he could touch her breast and that she said “enjoy it.” He then asked her to remove the rest of her clothing and turn around in a circle for him. K.M. complied with his request. K.M. testified that after Garn took two polaroid pictures of her, he exposed himself to her, and then had sexual intercourse with her by penetrating her vagina with his fingers. K.M. told Garn that she was tired and asked to stay at his home or go somewhere else. Garn agreed to pay for a motel room for her to stay in. On her way out, she picked up the photographs to take with her. Garn took them from her saying she would not need them because he was choosing someone else for the photo contest. He unsuccessfully tried to burn and cut the photographs. Garn then drove her to a motel and paid for a room for her to stay in. Since early that evening, her father had been searching for her and reported her absence to the police. She called her father who immediately drove to the motel and brought her home.

On December 8,1992, Garn was charged with two felonies, sexual intercourse without consent, and deceptive practices. Prior to trial, the District Court dismissed the deceptive practices charge. On January 25,1993, the State gave notice to Garn pursuant to the notice requirements of State v. Just (1979), 184 Mont. 262, 602 P.2d 957, modified in State v. Matt (1991), 249 Mont. 136, 814 P.2d 52, that it intended to introduce evidence of other crimes, wrongs, or acts involving Garn’s convictions of unlawful transactions with minors. The State argued that the other crime or acts evidence were relevant to determine whether K.M. consented to the sexual contact by demonstrating Garn’s plan or common scheme, whereby he would entice teenage girls to pose nude with promises of money and modeling opportunities, thus proving any consent given to him by K.M. was achieved by deception and invalid. Garn opposed the evidence, arguing that the evidence could not meet the similarity requirements of the modified Just analysis, and therefore, was inadmissible character evidence.

The other crimes or acts evidence involved testimony by two teenage girls, S.M. and A.W., who modeled for Garn for a photo contest to promote his record and video store. S.M., who was 16 years old, testified that she knew Garn because she worked in the mall and would see him at the record and video store. She testified that he would often tell her dirty jokes and tell her about nudist colonies he had visited. On October 19,1992, at the record and video store, Garn promised to pay the girls $50 to model for him at his house the next day, and also promised to provide them with alcohol while they modeled. The three met at Garn’s house the next afternoon. After talking a while, Garn gave the girls wine coolers and had them change into different attire that they had brought with them. As the girls danced to music, Garn videotaped and took Polaroid pictures of them. Later, Garn urged the girls to remove more clothing and directed the girls actions, while continuing to take pictures of them. Eventually, the girls were naked except for their underwear.

S.M. had to leave for work at five o’clock so the girls began dressing. Garn asked A.W. to stay and continue modeling for him, but A.W. made excuses to leave. When the girls left they took a couple of the Polaroid photographs with them. Later, they tried to destroy them and threw them in the garbage. S.M.’s mother learned of the incident, retrieved the photographs, and notified authorities. Garn was charged with unlawful transactions with minors for supplying the girls with alcohol, to which he pled guilty.

On March 17,1993, the District Court allowed the other crimes or acts evidence at trial. After hearing the evidence and testimony, the jury found that Garn was not guilty of sexual intercourse without consent, but found him guilty of sexual assault.

After Garn’s conviction, and before his motion for a new trial, this Court decided Keys, 852 P.2d 621. Garn requested a new trial arguing that Keys supported his contention that the other crimes or acts evidence allowed at trial were not relevant to prove any issue at trial. The District Court granted his motion for a new trial based on Keys stating that the evidence was not sufficiently similar to the present charges concerning sexual contact without consent because the evidence did not involve sexual assault or sexual advances toward the girls. Therefore, the court found the evidence was not relevant under Rule 404(b), M.R.Evid.

Did the District Court err when it granted defendant a new trial?

The State contends that the District Court abused its discretion when it granted Garn a new trial by finding the other crimes or acts evidence allowed at trial did not meet the modified Just requirements. The State argues that the evidence was necessary to prove the central issue in dispute, that K.M. did not consent to sexual intercourse with Garn, and that the requirements under the modified Just rule had been met. The State’s purpose for admitting the other crimes or acts evidence was to show motive, intent, plan, and common scheme, which it contends was relevant for the determination of whether K.M. consented to the sexual contact by demonstrating a plan or common scheme whereby Garn would entice teenage girls to pose nude with promises of money and modeling opportunities, thus rendering any consent invalid. The other crimes evidence involved Garn’s conviction for supplying alcohol to the underage girls.

Garn opposed the evidence arguing that the evidence could not meet the similarity requirement under the modified Just rule because his prior crime of supplying the teenage girls with alcohol was not similar to the charges in the present case involving sexual intercourse without consent. Further, the other acts evidence did not involve any sexual contact or advances. Garn argues that the District Court’s decision was correct when it determined that the evidence was not relevant to prove any issue in dispute. He argues that the evidence was inadmissible character evidence.

Section 46-16-702(1), MCA, provides that a district court may grant a motion for a new trial if required in the interest of justice. The order granting or denying a motion for a new trial will be upheld by this Court absent an abuse of discretion. State v. Staat (1991), 251 Mont. 1, 9-10, 822 P.2d 643, 648; State v. Goodwin (1991), 249 Mont. 1, 17, 813 P.2d 953, 963.

The basis for a trial court’s decision admitting or excluding evidence is whether the evidence is relevant to the issues at trial. Relevant evidence means “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Rule 401, M.R.Evid. Further, relevant evidence may be excluded if the probative value of the evidence is substantially outweighed by the prejudice to the defendant. Rule 403, M.R.Evid. Rule 404(b), M.R.Evid., provides that:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

To guard against admission of inadmissible character evidence, this Court has provided a four-part analysis which requires that:

(1) The crimes, wrongs or acts must be similar.
(2) The other crimes, wrongs or acts must not be remote in time.
(3) The evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity with such character; but may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
(4) Although relevant, evidence maybe excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading of the jury, considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Matt, 814 P.2d at 56. Further, the party offering such evidence must comply with the procedural precautions in Just. Matt, 814 P.2d at 56. In this case, the parties do not dispute that the proper procedural precautions were taken.

The District Court allowed the evidence at trial after applying the modified Just analysis and finding that the evidence met all four parts of the analysis. The court found a similarity between the acts specified in the notice to Garn and the crime charged because all the acts involved young girls, were of a sexual nature, and involved a discrepancy in positions of power of the various actors. The court found the evidence was not remote in time, having occurred a year earlier, and was admissible to show motive, intent, plan, and common scheme. Further, the court found that although this type of evidence is always prejudicial, the probative value of the evidence substantially outweighed the danger of unfair prejudice or confusion of the issues.

The State contends that our recent opinion in State v. Brooks, (1993), 260 Mont. 79, 857 P.2d 734, is most closely analogous to this case. Brooks was convicted of sexually assaulting an 11-year-old victim in Havre, Montana. At trial, the State introduced other crimes or acts evidence involving a prior conviction whereby Brooks sexually assaulted a 13-year-old boy in Washington state. In both the charged offense and the other crimes evidence, Brooks used a systematic plan to entertain boys in swimming or water games, where he would play with them, catch them off guard, and then sexually assault them unexpectedly. Brooks, 857 P.2d at 735-36. Similarly, the State argues that Garn’s other acts evidence was relevant to prove that Garn had sexual contact with K.M. without her consent. The State contends the evidence of Garn’s plan, scheme, or method of approaching young girls and offering them modeling, prizes, and money demonstrated that he had ability and capacity to exercise control and authority over the girls, therefore, inferring that the girls were deceived by him, proving that K.M.’s apparent consent was invalid.

Brooks is distinguishable from the present case. The charged offense in Brooks was sexual assault of a young boy. The prior crime or acts evidence admitted at trial involved Brook’s prior conviction of sexual assault of another boy in Washington state. The crime of sexual assault in Washington state, and the systematic plan used to sexually assault the boy in Havre, were obviously similar. Brooks, 857 P.2d at 736. Here, the charged offense was sexual intercourse without consent. However, the other crimes or acts evidence did not involve any sexual touching or sexual advances toward the girls.

In granting the new trial, the District Court relied on Keys, which involved the question of whether or not the defendant’s prior act of indecent exposure and assault was admissible to prove sexual intercourse without consent. Similarly, the issue in the present case is whether Garn’s prior crime of giving alcohol to underage girls, and his prior acts of enticing them to pose nude with promises of money and modeling opportunities, were admissible to prove Garn subjected K.M. to the same scheme to coerce K.M. to consent to sexual contact. The District Court applied the four-part Just analysis and found the evidence could not meet the similarity requirement that the evidence have some relevance to prove an issue in dispute. The court, in its memorandum and order, quoted the following paragraph in Keys as its basis for granting a new trial:

While there is no rigid rule for determining when conduct is sufficiently similar, the determination of similarity depends on whether that conduct has some relevance to prove an issue in dispute. We reiterate that in this case the only issue before the jury was whether N.B. consented. We do not find that the indecent exposure incident, followed by an apology from Keys and the fact that he left P.B. alone, is similar or relevant to determine what occurred between N.B. and Keys. The two incidents are so completely different in surrounding circumstances, acts committed, and victims, that we cannot reasonably conclude that one is probative of the other.

Keys, 852 P.2d at 624.

The issues in the present case were whether Garn had sexual intercourse without consent; whether Garn reasonably believed that K.M. was older than 16; and whether Garn subjected KM. to sexual contact without her consent. The District Court reasoned that the prior crimes or acts did not present facts that Garn touched either of the two girls or that he made any sexual advances toward them, therefore, the evidence was not similar to the present case, where K.M. alleged that Garn sexually assaulted her. The court found that the prior crime evidence whereby Garn supplied alcohol to underage girls, and the prior acts evidence where Garn enticed the two girls to pose naked for him while he photographed them, were not similar or relevant to determine whether Garn subjected K.M. to sexual contact without her consent. We agree with the District Court. Garn’s prior crimes or acts are not sufficiently similar or relevant to prove sexual intercourse without consent or sexual assault, and the evidence is inadmissible character evidence.

In Keys, we cited State v. Crist (1992), 253 Mont. 442, 833 P.2d 1052, where we held that evidence of the defendant showing a young girl pornographic magazines and enticing her to dress in a nightgown were not sufficiently similar to a charge of sexual abuse. Keys, 852 P.2d at 624-25. Rather, the evidence was inadmissible character evidence which would tend to distract the trier of fact from the main issue at trial of what occurred on the occasions charged. Keys, 852 P.2d at 625. We concluded that the innuendos that could be drawn from the evidence in Crist, and also from the evidence in Keys, tended to go to the defendants’ character and their propensity to act in conformity with the evidence. Keys, 852 P.2d at 624-25. Here, innuendos from Garn’s prior crime and acts could also tend to go to his character and his propensity to act in conformity with the evidence. Therefore, the prior crimes and acts evidence could have distracted the jury from the main question at trial of whether Garn had sexual contact with K.M. without her consent.

In sum, we do not find enough similarity between the acts to conclude that the crime of supplying alcohol to underage girls and the prior acts enticing two girls to pose naked for photographs tend to prove whether K.M. consented. The District Court did not abuse its discretion by granting Garn a new trial.

Affirmed.

JUSTICES GRAY, TRIEWEILER and NELSON concur.

JUSTICE WEBER

dissents as follows:

The majority concluded that Garn’s prior crimes or acts are not sufficiently similar or relevant to prove sexual intercourse without consent or sexual assault, and the evidence is inadmissible character evidence. I disagree with that conclusion.

As pointed out in the majority opinion the issues are whether Garn had sexual intercourse without consent, whether Garn reasonably believed K.M. was older than 16, and whether Garn subjected K.M. to sexual contact without her consent. The majority relies upon State v. Keys (1993), 258 Mont. 311, 852 P.2d 621, and concluded that innuendoes from Garn’s prior crimes and acts could also tend to go to his character and his propensity to act in conformity with the evidence and that such evidence could have distracted the jury from the main question at trial. The majority then concludes that it did not find sufficient similarity between the acts to conclude that the crime of supplying alcohol to underage girls and enticing them to pose nude for photographs tends to prove whether K.M. consented or not. The position in that regard is set forth in my dissent in Keys and I will not restate the same. I do suggest there has been an improper focus on the actual issue for consideration in this opinion.

I believe that the majority has disregard paragraph (1) of the Modified Just analysis which states:

(1) The crimes, wrongs or acts must be similar. In substance the majority has concluded that the crimes must be similar before there can be an admission under the Modified Just Rule. As held in numerous other cases, the evidence may be admissible even though it does not consist of crimes or wrongs and consists only of “acts.”

The acts on the part of Garn with regard to K.M. showed that he persuaded her to take her clothing off and to be photographed before proceeding further. In a similar manner, the evidence as to S.M. and A.W. established that after Garn had them change into different attire he had them dance while he took polaroid pictures and urged the girls to remove more clothing while he continued to take pictures. Up to that point it is clear that the acts committed against the three girls were similar and almost identical in nature. The evidence further showed that Garn attempted to persuade A.W. to stay and continue modeling for him, but she refused to do so. In the present case, Garn proceeded further, and based upon the evidence submitted at trial engaged in sexual intercourse without consent with K.M., reasonably believing that she was older than sixteen, and subjected K.M. to sexual contact without her consent. It is true that the crimes with which Garn was charged could not have been charged in connection with his conduct with S.M. and A.W. It is apparently that difference in conduct which leads the majority to conclude that Garn’s prior acts are not sufficiently similar to prove sexual intercourse without consent or sexual assault, and the evidence is therefore inadmissible. I believe the conclusion of the majority ignores the express wording of the Modified Just Rule which in paragraph (1) does not limit the similarity to crimes only, but allows the proof if “acts” are similar. The acts which are a significant part of the whole transaction in both cases are similar. Under previous cases, the evidence would have been admitted and I believe should have been admitted in this case.

I disagree with the effective narrowing of the Modified Just Rule. I would reverse the granting of a new trial.


source: Caselaw Access Project

license: Public Domain

text:
    IN RE THE MARRIAGE OF JEFF M. SMITH, JR., Petitioner and Appellant, and LISA SMITH, Respondent and Respondent.
    No. 93-241.
    Submitted on Briefs March 10, 1994.
    Rehearing Denied April 14, 1994.
    Decided March 24, 1994.
    51 St.Rep. 277.
    264 Mont. 306.
    871 P.2d 884.

      For Petitioner and Appellant: Don C. St. Peter and Linda Osorio St. Peter, Worden, Thane & Haines, Missoula.
    For Respondent and Respondent: Paulette C. Ferguson and Lori Ballinger, Missoula.
   JUSTICE HUNT

delivered the Opinion of the Court.

Petitioner/appellant, Jeff Smith, appeals from a final decree of dissolution from the Fourth Judicial District Court, Missoula County, ordering the establishment of a trust fund for the minor child and child support, reassigning custodianship of another trust account for the minor child, evaluating the marital estate, and awarding cash, monthly maintenance, and attorney fees to respondent, Lisa Smith.

We affirm in part, reverse in part, and remand for further proceedings in accordance with the provisions of this opinion.

Appellant raises the following issues on appeal:

1. Did the District Court err when it ordered Jeff to establish a $200,000 trust account for the parties’ minor child?

2. Did the District Court err when it ordered the minor child’s trust account to be set up under the joint control of petitioner and respondent?

3. Did the District Court erroneously evaluate the marital estate?

4. Did the District Court err when it awarded Lisa $500,000 in cash?

5. Did the District Court err when it awarded Lisa $1250 in monthly maintenance in addition to $500,000 in cash?

6. Did the District Court err when it awarded Lisa $1250 in monthly child support?

7. Did the District Court abuse its discretion when it ordered Jeff to pay Lisa’s attorney fees?

The parties married on June 21, 1986, at Buckingham, Virginia. It was Jeff’s third marriage, and Lisa’s second. Jeff is 34 years old and Lisa is 31. The parties have lived in Missoula since 1989. One child was born the issue of the marriage. The parties separated in February 1991 when the child was six months old. Lisa has provided the day-to-day care for the child. Jeff is frequently out of the Missoula area on trips, and during the separation he did not visit the child on a regular basis. Lisa testified that the reasonable monthly expenses for her and the child are approximately $2500.

Jeff is a high school graduate. He attended college, but did not receive a degree. He attended outdoorsman school and is a certified dive master, a multi-engine rated pilot, and a licensed hot rod driver. Jeff has worked in Montana as a trapper, started a video business, and has been an entrepreneur. He inherited $1,696,164 in distributions from his mother’s estate, approximately $2.1 million dollars in insurance proceeds, and expects to receive approximately $6 million more from her estate.

Lisa is a high school graduate who also attended outdoorsman school and one adult education class each in art and photography. She has worked as a food preparer in a small cafe, as a farm hand on Jeff’s family horse farm in Virginia, and for a short time as a trapper. She aided her husband in the beginning of a video business and in a communications business. She has been a homemaker and a full-time mother of the parties’ minor child. In addition, she was a hostess for Jeff’s business clients in their home.

Jeff testified that he had intended to set up a trust fund for the child by purchasing an annuity, and that he had already researched the cost of the annuity. Also, prior to her death, Jeff’s mother gifted $20,000 to the parties’ minor child in the form of a check delivered to Montana, naming Jeff as the custodian of that account. Thereafter, Jeff borrowed $15,000 of the gift for his business, Underwater Fantaseas. Jeff maintained that the money had been invested, but the record does not reveal that he has protected the investment. Further, Jeff testified that he planned to sell one-half of the stock in the corporation to his companion for $1000.

ISSUE 1

Did the District Court err when it ordered Jeff to establish a $200,000 trust account for the parties’ minor child?

The District Court ordered Jeff to fund a $200,000 trust for the minor child by the purchase of an annuity. We have held that “there is an abuse of discretion where the court adopts a proposed trust that is beyond the authority of the court to order.” In re Marriage of Alt (1985), 218 Mont. 327, 334-35, 708 P.2d 258, 262. In a dissolution proceeding, § 40-4-202(2), MCA, governs whether a district court may set aside a portion of the marital estate in a trust for the benefit of the parties’ children. Section 40-4-202(2), MCA, provides:

The court may protect and promote the best interests of the children by setting aside a portion of the jointly and separately held estates of the parties in a separate fund or trust for the support, maintenance, education, and general welfare of any minor, dependent, or incompetent children of the parties. [Emphasis added].

Here, the court exceeded the authority granted in § 40-4-202(2), MCA, to set up a trust. The record does not establish that the trust was needed for support, maintenance, education, and general welfare of the parties’ minor child until he reached majority. In fact, in addition to a $200,000 trust account, the court awarded Lisa $1250 per month in child support which, Lisa had stated, was the amount of monthly expenses necessary to support the child.

The District Court abused its discretion when it ordered Jeff to establish a $200,000 trust for the minor child, and we reverse on this issue.

ISSUE 2

Did the District Court err when it ordered the minor child’s trust account to be set up under the joint control of petitioner and respondent?

The gift to the parties’ minor child from Jeff’s mother was deposited by Jeff in a separate account and subsequently invested by Jeff in some of his enterprises. Apparently because there was joint custody of the parties’ minor child, the court directed the account be established with both Lisa and Jeff as custodians of the fund. In the decree of dissolution, the court ordered:

The petitioner shall immediately return the $20,000 plus interest he borrowed from the minor child. The money shall be deposited in a savings account in a reputable, secure financial institution. Both parties shall be trustee for the money and the money shall not be borrowed by either party. Prior to the time the child reaches the age of majority, the money [can] be used for educational or unusual expenses for the minor child.

We conclude that this order of the court will protect the interest of the minor child. We affirm on this issue.

ISSUE 3

Did the District Court erroneously evaluate the marital estate?

The District Court found that all assets acquired during the marriage should be included in an equitable distribution of the marital estate. The District Court failed to identify or describe the assets acquired during the marriage, or assign values to them, and failed to consider the contingent liabilities associated with those assets. We hold that this was an abuse of discretion. Marriage of Dirnberger (1989), 237 Mont. 398, 401-02, 773 P.2d 330, 332. The court also abused its discretion for failure to follow the provisions of § 40-4-202, MCA.

We reverse the District Court on this issue and remand for a determination of the value of the estate in accordance with § 40-4-202, MCA.

ISSUE 4

Did the District Court err when it awarded Lisa $500,000 in cash?

In April 1991, several months after the parties separated, Jeff’s mother died leaving him $2.1 million in life insurance proceeds and over $7.6 million in inheritances.

The District Court found that Jeff’s prior-acquired, gifted, vested inheritance properties and property acquired during the marriage should be included in the marital estate and subject to an equitable division of assets and liabilities. The court then apportioned $500,000 to Lisa as a cash settlement.

While in a dissolution proceeding the trial comb has far-reaching discretion in making a determination as to whether an asset is included in the marital estate and in making the final property division, it still must comply with the statute governing division of property. Becker v. Becker (1985), 218 Mont. 229, 232, 707 P.2d 526, 528. Section 40-4-202, MCA, controls the division of property in a proceeding for dissolution, and provides in pertinent part:

(1)... the court... shall... finally equitably apportion between the parties the property and assets belonging to either 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. [Emphasis added].

Recently, we held that an inheritance received by one spouse during the parties’ separation, but before a decree of dissolution, could be included in the marital estate. Marriage of Isaak v. Smith (1993), 257 Mont. 176, 848 P.2d 1014. In Isaak, we vacated the property distribution ordered by the district court that had excluded from the marital estate some of the property devised to the husband by his father’s will. The father built a home for the parties on a 21-acre parcel of land. The land and home were still in the father’s estate at the time of his death. The parties’ marriage was dissolved over seven months after the father died while the probate on the father’s estate was still open. The district court found that the father had intended a future gift of the home to the couple and included it in the marital estate. The court excluded from the marital estate the rest of the fathers’ estate that the husband inherited. We held that the district court properly included the 21-acre parcel and home under § 40-4-202, MCA, but should have included all of the inheritance property in the marital estate. We reasoned that although the parties had separated several months before the father’s death, at which time the husband’s inheritance vested, the parties had attempted to reconcile before and after the father’s death. The husband moved back into the home with the wife and the couple sought some marital counseling. We concluded that the appropriate result was that, on remand, the district court should include not only the 21-acre parcel and the home, but the other inherited property in the marital estate. However, we emphasized that the district court should be guided by all the provisions of § 40-4-202, MCA.

This case is distinguishable from Isaak in that, unlike the couple in Isaak, Jeff and Lisa had separated permanently before Jeff’s inheritance had vested. Regardless, we hold that the fact that an acquiring spouse may receive an inheritance after separation but prior to dissolution of the parties’ marriage does not, in and of itself, justify inclusion of the inheritance in the marital estate. What is key in a separation situation is that the district court apply the factors in § 40-4-202, MCA, before including inheritance property in the marital estate. The court cannot distribute to the non-acquiring spouse property acquired prior to the marriage or acquired by gift, bequest, devise, or descent when there is no evidence that the spouse made any contribution to those assets in any form.

Therefore, we overrule that portion of Isaak that allows a district court to distribute inheritance property in the marital estate without strict application of the factors set out in § 40-4-202, MCA.

It is clear from the record here that Lisa had nothing to do with the property to which Jeff became entitled after the separation. The District Court should not have distributed in the marital estate properties that Jeff received after the parties separated, absent application of the factors in § 40-4-202, MCA. We hold that the court abused its discretion in including Jeff’s inherited property in the marital estate. We reverse the District Court on this issue.

ISSUE 5

Did the District Court err when it awarded Lisa $1250 in monthly maintenance in addition to $500,000 in cash?

For the reasons set forth in our holding in Issue 4, we reverse the District Court’s award of a $500,000 cash settlement and remand on the issue of monthly maintenance for a determination by the court on whether Lisa is entitled to maintenance, and if she is, what is reasonable maintenance under § 40-4-203, MCA.

ISSUE 6

Did the District Court err when it awarded Lisa $1250 in monthly child support?

Lisa testified that the total monthly expenses for her and the child were $2500. The District Court found that Lisa was entitled to $1250 in monthly child support for the minor child. We agree with Jeff that the District Court is bound to determine an award of child support pursuant to the factors set forth in § 40-4-204, MCA, as well as the Uniform Child Support Guidelines. The record does not reveal the basis for the support obligation under the Guidelines or why application of the Guidelines would be unjust or inappropriate. We hold that the District Court erred when it awarded $1250 in monthly child support, and remand for a redetermination of child support in accord with § 40-4-204, MCA, and the Guidelines.

We reverse and remand on this issue.

ISSUE 7

Did the District Court abuse its discretion when it ordered Jeff to pay Lisa’s attorney fees?

In a dissolution proceeding, “[t]he court from time to time, after considering the financial resources of both parties, may order a party to pay a reasonable amount for the cost to the other party....” Section 40-4-110, MCA. Recently, we have restated that the party receiving the award of attorney fees first must make a showing of necessity. Marriage of Welch (1993), 257 Mont. 222, 228, 848 P.2d 500, 503. We reverse and remand on the issue of attorney fees for a determination of whether or not there is a necessity for the award of attorney fees.

We affirm in part, reverse in part, and remand for further proceedings in accordance with the provisions of this opinion.

JUSTICES HARRISON, GRAY, TRIE WEILER and NELSON concur.

JUSTICE WEBER

concurs and dissents as follows.

I dissent from the conclusions and holding in Issue 4 and concur in the balance of the issues in the majority opinion.

Under Issue 4, the issue is stated as Did the District Court err when it awarded Lisa $500,000 in cash? The majority held that the District Court should not have distributed to Lisa marital estate properties which Jeff received after the parties separated, absent application of the factors in § 40-4-202, MCA. The foundations for the holding of the Court are the following statements in the majority opinion:

... The court cannot distribute to the non-acquiring spouse property acquired prior to the marriage or acquired by gift, bequest, devise, or descent when there is no evidence that the spouse made any contribution to those assets in any form.
Therefore, we overrule that portion of Isaak that allows a district court to distribute inheritance property in the marital estate without strict application of the factors set out in § 40-4-202, MCA.

In substance the majority reached the conclusion that because the wife had not made any contribution to the specific asset received after separation, she was not entitled to receive a share of such assets. I disagree emphatically with that conclusion.

Following are the pertinent portions of § 40-4-202(1), MCA, underscoring the beginning portion which was not included in the majority opinion:

Division of property. (1) In a proceeding for dissolution of a 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; property acquired in exchange for property acquired before the marriage or in exchange for 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. [Emphasis supplied.]

Section40-4-202(1), MCA. The underscored portion states that the court shall “equitably apportion” between the parties the property belonging to either or both, however and whenever acquired and whether titled to either one or both. Clearly that portion of the statute affords no basis to suggest that property acquired by descent or devise after separation is not to be equitably apportioned between the parties.

In a similar manner, the following portion of § 40-4-202(1), MCA, requires the court to “consider those contributions of the other spouse to the marriage” and requires the court to consider the nonmonetary contributions of Lisa in this case, the extent to which such nonmonetary contributions have facilitated the maintenance of this property, and finally whether the property division serves as an alternative to maintenance. Of particular import is the requirement that the court consider the nonmonetary contribution of a homemaker. As above quoted, the majority has concluded that there could not be distributed to Lisa property acquired by Jeff by bequest, devise or descent where there is no evidence that Lisa made any contribution to those assets in any form. That is a significant reduction from the broad requirements of the statute. Under the statute the court is required to consider Lisa’s contribution “to the marriage” including the nonmonetary contribution on her part as a homemaker — those contributions to the marriage and as a homemaker may have nothing to do with contribution to the assets themselves but are still required by statute to be considered. In addition, the statute requires the court to consider whether the property division serves as an alternative to maintenance arrangements for Lisa. The majority has disregarded those other provisions of the statute.

The above quotation of the majority opinion stated the majority has overruled that portion of Isaak that allows a district court to distribute inherited property without strict application of the factors set out in § 40-4-202, MCA. As I read Isaak there is no portion oí Isaak which allows the district court to distribute inherited property without strict application of § 40-4-202, MCA. In fact Isaak states the following for the assistance of the District Court on remand:

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 sub-paragraph (1) also require that the court 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 court shall consider the 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 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.

Isaak, 848 P.2d at 1017-18. As the reader will note, Isaak emphasizes that the district court should consider all appropriate provisions of § 40-4-202, MCA. As a result, I don’t find a basis for overruling any portion of Isaak.

My particular concern is that the above quoted portion of the majority opinion appears to require that a spouse must have made contribution to the specific assets which constitute property acquired prior to marriage or acquired by gift, bequest, devise or descent — and if there has been no contribution to the specific assets, there can be no distribution to the spouse. I conclude that is in direct derogation of § 40-4-202(1), MCA, and incidentally is prohibited under Isaak.

As I review the District Court’s action in this case, I do not conclude that it abused its discretion in including Jeff’s inherited property in the marital estate. I further conclude that there are a number of reasons set forth under which the District Court properly included that property, even in the absence of any direct contribution to the property by Lisa.

I dissent from the majority’s holding on Issue 4.

CHIEF JUSTICE TURNAGE joined in the concurring and dissenting opinion of JUSTICE WEBER.


author:
JUSTICE NELSON JUSTICE GRAY
      JUSTICE WEBER

text:
    IN RE THE MARRIAGE OF GARNET SIMMS, Petitioner and Respondent, and ARLYN SIMMS, Respondent and Appellant.
    No. 93-110.
    Submitted on Briefs December 2, 1993.
    Decided March 28, 1994.
    51 St.Rep. 306.
    264 Mont. 317.
    871 P.2d 899.

      For Respondent and Appellant: Julio K. Morales, Morales Law Office, Missoula.
    For Petitioner and Respondent: Neil M. Leitch, Missoula.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal from Findings of Fact, Conclusions of Law, and a subsequent Decree of Dissolution entered by the Fourth Judicial District Court, Missoula County. We reverse and remand.

The issues on appeal are as follows:

1. Is the oral marital settlement agreement entered into between the parties enforceable?

2. Did the District Court err in distributing the property of the parties?

3. Did the District Court err in awarding maintenance?

4. Did the District Court err in establishing a trust for the minor child’s college education?

The petitioner, Garnet Simms (Garnet), and the respondent, Arlyn Simms (Arlyn) were married on August 8,1959 and had five children. During the pendency of these proceedings, only one of the parties’ children, Katy, was a minor.

During the course of the marriage, Arlyn worked outside the home and Garnet worked in the home. The major asset acquired by the parties was a ranch purchased in 1971 from money gifted to Arlyn by his late grandmother. The rest of the assets acquired by Garnet and Arlyn during their marriage consisted of some personal property and various retirement and pension accounts. However, immediately preceding and subsequent to their separation in 1989, Arlyn received substantial inheritances from his family.

Garnet filed for a dissolution of marriage on July 17, 1987; however, the parties apparently reconciled after this pleading was filed. The parties separated on June 6,1989, and, on September 13,1989, Garnet filed an Amended Petition for Dissolution of Marriage. Arlyn subsequently requested that a settlement conference be conducted and the presiding judge, Jack Green, invited District Judge John Henson to conduct the conference. Judge Henson met with the parties for the settlement conference on December 3,1990.

Both parties, with counsel, were present at the settlement conference and entered into an oral “marital settlement agreement”. This agreement granted joint custody of the minor child with residential custodianship to Garnet and reasonable visitation to Arlyn, ordered Arlyn to pay $250.00 per month in child support until the minor child reached the age of eighteen, awarded Garnet certain personal property and cash in the amount of $62,500.00, awarded Arlyn certain personal property and the family home, and waived Garnet’s claim on maintenance. This agreement was entered on the record and both parties were sworn and testified they agreed to its contents.

Judge Henson approved the agreement and, on March 19, 1991, entered Findings of Fact, Conclusions of Law, and a Decree of Dissolution. On that same day, Judge Green sent a letter to Judge Henson objecting to the entry of the Decree based on Judge Henson’s lack of jurisdiction for anything but the settlement conference itself.

Thereafter, on May 20, 1991, Garnet filed a Motion to Vacate Decree of Dissolution, because Judge Henson was not the presiding judge in the case. As a result, Judge Henson filed a memorandum on July 15, 1991, declaring that the Decree was a nullity and declining to assume jurisdiction over the case. However, Arlyn continued to pay $250.00 per month in child support, despite the fact that there was no binding order in place requiring him to do so.

Garnet then filed a Motion to Set Aside Property Settlement Agreement and Request for Trial, alleging that there was possible fraud, mistake, misrepresentation, and undue influence. On February 10, 1992, Judge Green granted Garnet’s motion, vacated the parties’ oral marital settlement agreement, and ordered the case to be set for trial. In the meantime, on June 19,1992, Garnet moved for temporary maintenance in the amount of $300.00 per month and for an increase in the child support Arlyn had been voluntarily paying from $250.00 per month to $500.00 per month. Due to time constraints, a hearing on these motions was never held. However, the trial in the matter was held on August 10, 1992.

On December 21,1992, Judge Green entered Findings of Fact and Conclusions of Law and, on December 23, 1992, entered a Decree of Dissolution incorporating those findings and conclusions. The Decree awarded the parties joint custody of the minor child, with Garnet named as the primary residential custodian. Garnet was awarded the family home worth approximately $100,000 and was awarded her personal property worth approximately $23,056.61. Arlyn was awarded some personal property valued at $60,888.00 and the inheritance he received subsequent to the parties’ separation. He received no portion of or credit for the family home. Based on the District Court’s finding that Arlyn’s total known inheritance was approximately $624,917.00, Arlyn was ordered to pay Garnet $900.00 per month in maintenance until death or marriage. This award was retroactive to June 19, 1992, the date of Garnet’s motion for temporary maintenance. In addition, Arlyn was ordered to pay $400.00 per month in child support, also retroactive to the date of the motion for an increase in child support; and to pay all insurance for medical, hospital, ocular, orthodontic, counseling and drug expenses, as well as all medical expenses not covered by insurance. The District Court also ordered Arlyn to set up a trust for the minor child’s college education. From the Findings of Fact, Conclusions of Law, and Decree of Dissolution entered by the District Court, Arlyn appeals.

I — ORAL MARITAL SETTLEMENT AGREEMENT

Arlyn contends that the oral marital settlement agreement stipulated to between the parties is enforceable as a property settlement agreement. We disagree.

Section 40-4-201, MCA, allows only one sort of marital settlement agreement (referred to in the statute and in this opinion as a separation agreement), and that is one which is reduced to writing.

That section provides, in pertinent part:

(1) To promote amicable settlement of disputes between parties to a marriage attendant upon their separation or the dissolution of their marriage, the parties may enter into a written separation agreement containing provisions for disposition of any property owned by either of them, maintenance of either of them, and support, custody, and visitation of their children.
(2) ... [T]he terms of the separation agreement, except those providing for the support, custody, and visitation of children, are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the separation agreement is unconscionable. (Emphasis added.)

In this case, there was no written separation agreement. While the parties stipulated on the record to settlement and disposition of the various issues mentioned above, including property distribution, debt distribution, maintenance, custody and support, nevertheless their agreement was never reduced to writing as required by the statute. The fact that the parties may orally agree to a certain disposition of the various matters usually covered by a written separation agreement does not negate the requirement that, to be enforceable as a separation agreement contemplated by the statute, the agreement must be reduced to writing.

It is only when the agreement is reduced to writing that the court is statutorily bound by the agreement as to matters involving property distribution and maintenance (assuming the court finds that the agreement on those matters is not unconscionable). Whether the parties have entered into a written agreement or an oral, in-court stipulation, the court is not bound by the parties’ determinations on matters of support, custody and visitation but, on those issues, must apply the appropriate statutory criteria. See § 40-4-201(2), MCA, and In re the Marriage of Mager (1990), 241 Mont. 78, 785 P.2d 198, wherein we held that the district court did not err in refusing to follow the oral stipulations of the parties, but correctly applied the statutory criteria to issues of custody, visitation and support.

We recently dealt with the matter of the enforceability of oral separation agreements and held that a separation agreement not reduced to writing was not enforceable. In re the Marriage of Hayes (1993), 256 Mont. 266, 846 P.2d 272. In Hayes, the terms of the separation agreement were read into the record and the court directed that the terms of the agreement be incorporated into a formal written document. No formal agreement was prepared, but the district court proceeded to enter findings of fact, conclusions of law, and a decree. The husband appealed those findings and conclusions, and argued that the parties had never agreed to the settlement. We stated that:

The pivotal question here is whether an agreement exists between the parties upon which the court could have based its Findings and Conclusions. The record does not contain a written separation agreement. The record does contain the court’s directive to counsel to prepare such a document. It is clear that the court understood the importance of having the agreement reduced to writing. And while we commend the court for its efforts in getting the parties to reach a settlement agreement, such agreement of necessity needs to be specific to avoid the type of controversy presented here.

Hayes, 846 P.2d at 273.

Section 40-4-201, MCA, provides that the district court is bound by the parties’ separation agreement in matters of property distribution and maintenance if the court finds that the separation agreement is not unconscionable. However, the only separation agreement referred to in the statute is the written separation agreement. Absent a written separation agreement, there is nothing for the district court to review and on which to make a finding regarding conscionability. Under such circumstances, the district court has no alternative but to try the case on the merits and to dispose of the property, maintenance, support, custody and visitation issues on the basis of the applicable statutory criteria, evidenced by the entry of appropriate findings of fact, conclusions of law and judgment. See In re the Marriage of Miller (1989), 238 Mont. 197, 777 P.2d 319. (The district court erred in applying the “not unconscionable” standard where the parties had no agreement on division of property and, instead, should have applied the “equitable apportionment” standard required by § 40-4-202, MCA.)

In that respect, Judge Green was not in error in setting aside the oral separation agreement and in trying the case on the merits.

Notwithstanding, we must, nevertheless, reconcile the statutory requirements and rules above referred to with another principle of law regarding enforcing the stipulations of parties and counsel made on the record during litigation.

Within a few weeks prior to our decision in Hayes, we also made it clear that parties are bound by the stipulations made by them, or by their counsel, in open court. In re the Marriage of McLean/Fleury (1993), 257 Mont. 55, 60, 849 P.2d 1012, 1015.

In McLean /Fleury, the parties, prior to trial, attended several hearings and meetings with the district court in an effort to reach an agreement relating to maintenance, child support, and custody. The parties were unable to enter into a separation agreement, however, and, ultimately, the court determined those issues and others after a trial on the merits. During trial, the parties, by counsel, stipulated to certain matters regarding custody. On appeal, the wife claimed that her counsel’s stipulation was made without her knowledge or consent, notwithstanding that the record showed that the matters stipulated to were in open court and with both parties in attendance. McLean/Fleury, 849 P.2d at 1015.

In response to the wife’s claim, we stated:

Section 40-4-201(1), MCA, allows the parties to enter into agreements regarding support, custody, and visitation of the children. We have held that parties are bound by the stipulations made by their counsel in open court. Daniels v. Dean (1992), 253 Mont. 465, 833 P.2d 1078, 1081, 49 St. Rep. 535, 537; Section 37-61-401, MCA. We hold that the District Court did not err in awarding joint custody to both parties.

McLean/Fleury, 849 P.2d at 1015.

While in that case, we found no abuse of discretion in the district court holding the parties to their in-court stipulations regarding matters of custody, we, nevertheless, hasten to reaffirm what is obvious from the plain language of § 40-4-201(2), MCA, and our decision in Mager: in matters of custody, support, and visitation, the district court is not bound by the parties’ oral or written agreements but, in those matters, is required to apply the applicable statutory criteria. Mager, 785 P.2d at 200.

In the instant case, Arlyn’s counsel recited the terms of the separation agreement into the record. Those terms included ones addressing custody, support, property and debt distribution, maintenance, and Arlyn’s inheritance. Garnet’s counsel stipulated that the recited terms were correct, and both parties were then sworn. The following exchange took place on the record between the District Judge and Garnet:

The Court: Now, you have heard [Arlyn’s counsel] recite this settlement agreement to which your counsel has stipulated. And you should understand that all this is being taken down here and you are going to be bound by it. Do you understand that?
Mrs. Simms: Yeah.
The Court: Now, in light of the settlement agreement, do you have full knowledge of the value of all the assets of the marriage and the amount of the debts and so forth?
Mrs. Simms: Yes.
The Court: At this time do you agree to this as a full and final settlement?
Mrs. Simms: Yes.

The following exchange took place on the record between the District Judge and Arlyn:

The Court: Now, you do have full knowledge of the assets of the marriage and the debts of the marriage; is that correct?
Mr. Simms: Yes.
The Court: You do understand that all this is being taken down and if you agree to it you will be bound by this agreement?
Mr. Simms: Yes, sir.
The Court: Do you agree to this as a full and final settlement?
Mr. Simms: Yes, Your Honor.

While the holding of Hayes regarding the necessity for written settlement agreements and the holding oí McLean I Fleury regarding the binding effect of oral, on-record stipulations appear to conflict, in actuality, they do not.

Reading together and harmonizing the requirements of § 40-4-201, MCA, and our decisions in Miller, Mager, McLean / Fleury, and Hayes, the following rules emerge.

A. LEGAL EFFECT OF STIPULATIONS AND AGREEMENTS

A party is bound by and may not contravene the stipulations and agreements he, she, or counsel, make on the record.

In the case of stipulations and agreements (whether oral or written) regarding custody, support and visitation, those are not binding upon the district court; the court must decide those issues on the basis of the applicable statutory criteria.

In the case of stipulations and agreements regarding the division of marital property and maintenance, those agreements, to be binding upon the district court, must be reduced to writing and must be found by the court to be not unconscionable. If the separation agreement is not reduced to writing, there is nothing for the district court to review, and the court cannot make a finding of conscionability. Under those circumstances, the court must then proceed to a trial on the merits, and in disposing of the property division and maintenance issues (and any other issues regarding custody, support and visitation), the court must apply the applicable statutory criteria and enter appropriate findings of fact, conclusions of law and judgment.

In short, in a marriage dissolution case, the parties, as between themselves, are bound by their written agreements found by the court not to be unconscionable and by their on-record oral stipulations whether those agreements and stipulations concern matters of property division, maintenance, custody, support and visitation. The district court, however, is not bound by the parties’ oral or written agreements or stipulations in matters of custody, support and visitation (the applicable statutory criteria always being paramount), and is bound on matters of property division and maintenance only to the extent that the parties’ agreement is reduced to writing and is found, after review, to be not unconscionable.

B. USE BY COURT OF STIPULATIONS AND AGREEMENTS

Finally, there remains the matter of how, if at all, the district court is to utilize the parties oral, on-record stipulations and agreements when there is no written separation agreement. We conclude that in matters of property division and maintenance the parties’ oral, on-record stipulations should, to the extent possible, form the evidentiary base upon which the district court applies the statutory criteria. Since the court’s decision must be based upon those criteria, the court is not precluded from ordering and considering, in its discretion, such additional evidence as may be necessary to properly apply those statutory criteria, nor are the parties precluded from offering evidence on matters and issues to which there are no stipulations. Nevertheless, to the extent that the court is able to apply the statutory criteria while, at the same time, holding the parties to their on-record stipulations and agreements, it should do so.

In matters of custody, visitation and support, the court’s primary obligation is to decide those issues on the basis of the applicable statutory criteria regardless of the written agreements or on-record stipulations of the parties. The district court must order and consider whatever evidence, in its discretion, it requires to properly make its decision in accordance with the mandates of the applicable statutes, and the parties may offer evidence on matters and issues to which there are no stipulations. Again, however, to the extent that the court is able to correctly apply those statutory requirements while, at the same time, holding the parties to their on-record stipulations and written agreements, it should do so.

Applying the above rules to the instant case, we hold that Judge Green was not in error in proceeding to trial on the various matters at issue, given the parties’ failure to reduce their stipulated agreements to writing. Further, the District Court was, as stated above, required to dispose of all contested issues on the basis of the statutory criteria ap1 ' ’' ^ each, while, to the extent possible, holding the parties to ■ jrd stipulations and agreements.

In that regard, it appears that the District Court ignored or rejected the parties’ on-record stipulations and agreements. Under the rules set forth above, the court should have considered those, and should have held the parties to their stipulations and agreements to the extent that was possible and consistent with the court’s paramount duty to apply the appropriate statutory criteria in deciding the various property division, maintenance and support matters as issue.

Furthermore, the matter of the parties’ on-record stipulations and agreements aside, the District Court failed to properly apply the applicable statutory criteria to the issues of property division, maintenance and support in this case.

By reason of the District Court’s failure in the foregoing respects, we reverse and, in so doing, discuss the following issues for the guidance of the court on remand.

II — PROPERTY DISTRIBUTION

The distribution of the marital estate is governed by § 40-4-202, MCA, which provides, in pertinent part:

(1) In a proceeding for dissolution of a 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. ...

This statute vests the district court with broad discretion to apportion the marital estate in a manner which is equitable to each party under the circumstances. In re the Marriage of Zander (1993),_Mont._, 864 P.2d 1225, 1230.

In this case, the District Court awarded Garnet the family home worth approximately $100,000 and personal property worth approximately $23,056.61. Arlyn was awarded personal property valued at $60,888.00. Arlyn received no credit for or portion of the family home, despite the fact that his grandmother is the person who gave the parties the funds to purchase the home. We note that, when dividing property acquired by gift, bequest, devise, or descent, the court must consider the 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(1), MCA.

In this case, there is no question that Garnet contributed to the maintenance of the family home which was acquired through a gift from Arlyn’s grandmother. However, it is equally clear that the District Court failed to give appropriate consideration to the statutory factors when it awarded Garnet the entire value of the major marital asset simply because of Arlyn’s receipt of a substantial, post-separation inheritance — an inheritance to which there is no evidence that Garnet contributed. We have required in prior cases that the district court give appropriate consideration to the source of the property in dividing the marital estate. See In re the Marriage of Summerfelt (1984), 212 Mont. 332, 688 P.2d 8. We have also held that, if the contributions of the non-owning spouse have not facilitated the maintenance of property brought into the marriage by the other spouse, the district court may properly exclude that property from the marital estate. In re the Marriage of Gallagher (1991), 248 Mont. 100, 103, 809 P.2d 579, 581. Here, the District Court’s award of the entire value of the marital home to Garnet without credit to Arlyn was clearly an abuse of discretion. We hold that the District Court erred in failing to award Arlyn any credit for or portion of the family home merely on the basis of his receipt of the post-separation inheritance, and we reverse and remand for further consideration of the property distribution in this case.

The District Court made other findings which are erroneous and not supported by the evidence. However, because we are reversing and remanding on the issue of property division, we need not address those other findings.

III — AWARD OF MAINTENANCE

In considering the award of maintenance, this Court will not reverse a district court’s award of maintenance unless the findings of fact are clearly erroneous. Zander, 864 P.2d at 1231. An award of maintenance is governed by § 40-4-203, MCA, and is dependent upon a finding that Garnet lacks sufficient property to provide for her reasonable needs and is unable to support herself through appropriate employment. See Zander, 864 P.2d at 1231.

In this case, the District Court found that Garnet’s monthly living expenses totaled $1,458.00, which included a rent expense of $460.00. The District Court also found that Garnet earned an average take-home pay of approximately $916.00 per month (although Garnet testified the amount was $960.00), thereby leaving a deficit of $542.00 per month. The court then proceeded to impose a $400.00 per month child support obligation, which reduced the deficit to $142.00 per month, and imposed a maintenance obligation of $900.00 per month, which gave Garnet a surplusage of $758.00 per month. In addition, the District Court awarded Garnet the family home, which has no debt obligation, but did not deduct the $460.00 per month rent expense from Garnet’s budgeted monthly living expenses. When this amount is calculated, Garnet had a surplus of $1,218.00 per month under the District Court’s findings.

In addition, Garnet works only ten months out of the year and voluntarily does not seek employment the other two months out of the year. Apparently, the District Court did not consider Garnet’s ability to support herself through appropriate employment when considering the award of maintenance.

Again, it is clear that the District Court considered Arlyn’s post-separation inheritance by granting Garnet the excessive award of maintenance. In fact, the District Court found that Garnet “need[s] a substantial share of her husband’s assets so she can live comfortably.” We hold that these findings are clearly erroneous. We reverse and remand the issue of maintenance for review, in light of our holding regarding the division of the marital estate and for application of the statutory criteria.

IV — TRUST FOR MINOR CHILD’S COLLEGE EDUCATION

Finally, the District Court erred in setting up a trust fund for the minor child’s college education.

The District Court found that it had “the power to supplement the child support for the college education of the parties’ minor child by setting aside a portion of Respondent’s estate in a trust for the child’s college education.” Montana law allows the establishment of a trust for the support of a child who is a minor, dependent, or incompetent. Section 40-4-202(2), MCA. However, there is no provision for creating a trust for a child after that child reaches majority, unless the child is dependent or incompetent. In re the Marriage of Alt (1985), 218 Mont. 327, 335, 708 P.2d 258, 262. The District Court may not create a trust to support a non-dependent, competent child after the parent’s obligation of support has ended. Alt, 708 P.2d at 262. Therefore, we hold that the District Court abused its discretion and violated Montana law in imposing the trust obligation at issue.

We reverse and remand for further proceedings and for the entry of new findings of fact, conclusions of law and judgment consistent with this opinion.

JUSTICES HUNT and TRIEWEILER concur.

JUSTICE GRAY

dissenting.

I must respectfully dissent from the Court’s opinion on issue one, relating to the enforceability of the parties’ settlement agreement.

It is my view that the settlement agreement reached by Garnet and Arlyn Simms is enforceable insofar as it relates to the marital property and maintenance. The Court approaches this settlement agreement as though it were a separation agreement under § 40-4-201, MCA, between parties to a marital dissolution. If I shared that view, I would agree that the agreement did not meet the requirement of § 40-4-201, MCA, that it be in writing and, therefore, would conclude that it was not enforceable.

I see this agreement differently, however. This was an agreement which resulted from a settlement conference scheduled and presided over by the District Court. As a result of that conference, the parties agreed to a specific distribution of the marital assets, including a substantial cash payment toward equalizing the property distribution and in lieu of maintenance. The contents of the settlement agreement were recited on the record. The parties were then sworn and advised by the court that the agreement would be binding on them, testified that they had full knowledge of the value of all the assets and liabilities of the marriage, and agreed to the recited terms as a full and final settlement. The agreement should be enforced.

The Court suggests that the only enforceable “settlement agreement” in a marital action is one which meets the requirements of § 40-4-201, MCA. In my view, the statute does not support such an interpretation. The statute merely provides that parties to a marital separation or dissolution action may enter into a written separation agreement which, insofar at it relates to property distribution and is not unconscionable, will be binding on the court. The statute does not state that no other kind of settlement agreement is enforceable in a marital action; nor is such a conclusion sound public policy.

Faced with an ever-increasing caseload and limited resources, the district courts of Montana undertake a variety of appropriate methods to control litigation, expedite cases, and clear their dockets. One of the most productive of such methods is the increasing use by the courts of various settlement procedures in all manner of civil cases, including settlement conferences presided over by district judges. Settlement conferences can achieve mutually acceptable results for the parties at a significantly decreased financial cost and in much less time than proceeding through costly, time-consuming and emotionally draining trials. Correspondingly, settlement conferences can clear the courts’ dockets for those cases which ultimately must proceed to trial.

The sheer number of marital dissolution cases in the district courts of Montana makes those cases particularly appropriate for the use of settlement conferences. Too, the emotional nature of the disputes between the parties can sometimes be put into a more objective framework during a judicially conducted settlement conference. I believe the district courts should be recognized and applauded for their efforts in conducting settlement conferences and encouraged to keep up the good work.

The Court’s result here does just the opposite. It essentially tells the district courts not to bother with settlement conferences in marital cases unless they also put the parties to the extra time, expense and aggravation of preparing written documents. The Court apparently does not find a specific agreement, reached as a result of a court-conducted settlement conference, recited on the record, and accepted by both parties in sworn testimony a suitable substitute for a written separation agreement under § 40-4-201, MCA. I disagree.

Nor am I persuaded that Hayes has any applicability here. The facts and the record before us in Hayes differed significantly from the present case. In Hayes, the court encouraged the parties to attempt to reach settlement. At the end of lengthy negotiations, the parties reported to the court that they believed settlement had been reached and the purported terms of the settlement were recited into the record. The terms were murky, at very best, containing such statements as “We can’t vouch for that to be sure but we believe that’s a fairly accurate representation;” the terms also indicate a clear lack of knowledge about such an important element of the marital assets as the parties’ separate retirement entitlements. As a result, the court properly required the parties to submit the agreement in written form but no written agreement was ever submitted. Notwithstanding the absence of the written agreement, the court proceeded to enter findings, conclusions and a decree. The husband appealed.

The Court states here that in Hayes we held that a settlement agreement not reduced to writing is not enforceable. I disagree with that interpretation. The question in Hayes, as the Court correctly states, was whether the district court erred in determining that both parties had agreed to a property settlement and in basing its findings and conclusions on that agreement. While we noted that no written separation agreement was submitted, we did not hold that no other type of settlement agreement was enforceable. We recognized that a settlement agreement “of necessity needs to be specific to avoid the type of controversy presented here.” Hayes, 846 P.2d at 273. As noted above, the Hayes agreement was totally lacking in such specificity. The murkiness and lack of specific agreement about specific property is what prompted our decision in Hayes that the parties had not reached an agreement on which the court could act, not the absence of a written agreement.

The agreement recited into the record here and agreed to as a full and final settlement by both parties in sworn testimony is very different from that in Hayes. Here, the property and maintenance-related terms of the settlement agreement were as follows: that Garnet would receive the money market account with Montana Bank, the 1986 Buick equity, the personal property in her possession, the public employees retirement fund, the IRA Pioneer mutual fund, the Bate-man Eicher money market fund, the Ford Motor Company shares and the Phillip Morris Company shares. In addition, Garnet was to receive, “in equalization of property and in lieu of any maintenance,” $62,500 in cash, to be paid within sixty days. All of this represented a “full and final settlement of any and all property which [Garnet] may have a claim on, including any property ... [Arlyn] may have inherited....”

Here, the terms of the agreement were clear and there was no order from the cotut to reduce them to writing. Indeed, given the clarity of the agreement’s terms, such an order was unnecessary. The agreement, together with the parties’ testimony regarding their knowledge of all marital assets and their acceptance of the terms, provided a sufficient basis for the court to accept and enforce the agreement. This Court should do the same.

Because it is my view that the settlement agreement is enforceable, I would not reach issues two and three. I do, however, concur in the Court’s rationale and result on those issues. I also concur in the Court’s opinion on issue four.

JUSTICE HARRISON joins in the foregoing dissent of JUSTICE GRAY.

JUSTICE WEBER

concurs and dissents as follows:

I concur in the majority opinion with regard to Issue I — Is the oral marital settlement agreement entered into between the parties enforceable, and Issue IV — Did the District Court err in establishing a trust for the minor child’s college education? I dissent from Issues II and III.

II — PROPERTY DISTRIBUTION

In reviewing the property distribution as well as the award of maintenance, I find it important to consider the District Court’s findings and conclusions which are summarized as follows in pertinent part:

At the time of hearing Garnet was 52 years old and Arlyn was 55. Both are in good physical health. Garnet is a high school graduate with one year of business school and she completed a word processing class in 1986-87. She currently is employed ten months out of the year as a secretary for the Arlee School District where she earns $9.30 an hour. She has been a homemaker for 33 years. She anticipates minimal inheritance from her parents. Arlyn is a high school graduate who has spent the majority of his life as an operator of heavy equipment and has two years of college. He operates a small cattle ranch at the family home in Arlee. Since the death of his parents he has quit his employment as a heavy equipment operator and spends most of his time at rodeos and doing as he pleases. His total known inheritance is approximately $624,917. It may be greater with additional payments to be received from his father’s ranch. In finding of fact IX, the District Court set forth in detail all of the assets accumulated by both parties during their marriage. Included in this are the following with regard to inheritance on the part of Arlyn:

Inheritance from respondent’s (Arlyn’s) $178,500 mother as of December 1989
Certificates of deposit fromrespondent’s 78,124 grandmother as of December 1989
Known inheritance from father’s estate 368,293
Balance owed on contract due from value unknown sale of father’s land to Simontons & Murdocks
As a result the District Court gave the total approximate value of Arlyn’s assets at $785,805.

The court determined Garnet’s monthly living expenses to be $1458. As pointed out in the majority opinion, no deduction was made for the $460 rent figure included in that total. In finding of fact XI the District Court found that Garnet has accumulated only $7291 in her retirement pension fund and that she will need a substantial share of Arlyn’s assets to live comfortably as she gets older; she has little saved for her retirement because of the thirty-plus years she spent working as a homemaker for her husband and five children. She has had to deplete her savings account, money market account and stocks to provide for her basic daily needs. Arlyn has retained the marital home and surrounding acreage as his residence. Garnet has no real property and must pay rent. The District Court found that Garnet “lacks sufficient property to provide for her reasonable needs, and she is unable to support herself through appropriate employment.” As to Arlyn, the court found that he could afford to retire because of “the approximate $624,917 plus inheritance money he has received” and because his needs are much less than his total assets and he is capable of providing Garnet with a greater proportion of marital property and maintenance.

In finding of fact XII the court found that after thirty-three years of marriage, raising five children and providing for her husband’s needs, Garnet’s contributions as a homemaker were extensive indeed and that her contributions exceeded the call of duty when she put up with an enormous amount of mental and physical abuse from Arlyn. She maintained the household, cared for the children and was the family’s provider for domestic chores. Since the marital home was a working livestock ranch, she was required to nurse sick calves, vaccinate cattle and help pull calves. She is a hard-working woman who took responsibilities seriously and everything she did served to facilitate the maintenance of the family and the property. Arlyn was a hard-working man who provided for the needs of his family and ran a small marital cattle operation and did the chores and worked on the machinery and kept the ranch going. His non-monetary contributions are less than Garnet’s because he did not provide for the care of the children as did she, nor did he do as much around the family home. However, Arlyn’s efforts and money received from his family did provide a very good standard of living for his family.

In finding of fact XIII the court concluded that Garnet should be awarded the family home in Arlee worth $100,000 and that Arlyn should receive all of his assets accumulated during the course of the marriage currently in his possession less only the family home. This would then give assets to Garnet of $123,056 and assets to Arlyn of $685,805.

In finding of fact XIV, the District Court found that Garnet’s net available resources totaled $11,000 per year. As to Arlyn, the court assumed that if he received a rate of 8-10 percent interest on his assets, his annual income would be approximately $40,000. From the tables the District Court computed a monthly support obligation of $154 per month for Garnet and $560 for Arlyn. The court then concluded that an appropriate child support payment of $400 per month was not unreasonable and that it was fair and equitable to require Arlyn to pay $400 per month for Kat/s support. There is no appeal from this determination.

In finding of fact XV, the court pointed out that with Garnet’s net available resources of $916 per month, she lacks sufficient property to provide for her reasonable needs and is unable to support herself through appropriate employment. The court further determined that if a cash settlement is not awarded, she should receive a maintenance award in the amount of $900 per month. The maintenance amount would provide her with $10,800 per year which added to her wages of $11,000 would provide her with $21,800 per year which would provide for her reasonable needs. The court further pointed out that after thirty-three years of marriage she is entitled to maintenance because of the long duration of the marriage and being 52 years of age, although she is not elderly, she is at an age where it is difficult to begin training for a better paying job.

While the majority opinion refers to § 40-4-202, MCA, it concludes it is clear that the District Court failed to give appropriate consideration to the statutory factors when it awarded Garnet the entire value ofthe major marital asset (the family home) simply because of Arlyn’s receipt of a substantial post-separation inheritance. The majority states:

Here, the District Court’s award of the entire value of the marital home to Garnet without credit to Arlyn was clearly an abuse of discretion. We hold that the District Court erred in failing to award Arlyn any credit for or portion of the family home merely on the basis of his receipt of the post-separation inheritance, and we reverse and remand for further consideration of the property distribution in this case.

I disagree with the majority’s conclusion and holding. I conclude that the majority has failed to consider all of the appropriate code provisions and instead has focused on one portion only of the code. Following are the pertinent provisions of § 40-4-202, MCA:

Division of property. (1) In a proceeding for dissolution of a 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; property acquired in exchange for property acquired before the marriage or in exchange for 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.

The essence of the conclusions and holding of the majority is that the District Court improperly awarded the $100,000 home to Garnet because of Arlyn’s receipt of a substantial post-separation inheritance; that the court erred in failing to award Arlyn any credit in the family home merely because of his receipt of such post-separation inheritance; and as a result, the District Court’s award of the entire $100,000 value of the marital home to Garnet was an abuse of discretion. I disagree with those conclusions and holdings. In contrast, I believe that the above quoted § 40-4-202(1), MCA, requires that the court consider all properties, including post-separation inheritances.

The first several sentences of subsection (1) of § 40-4-202, MCA, require the District Court to “equitably apportion” between the parties the property belonging to Garnet and Arlyn or either of them, however and whenever acquired, and whether title is in one or both. Clearly that portion of the statute affords no basis to suggest that property acquired by post-separation inheritance is not to be equitably apportioned between the parties.

In a similar manner, the subsequent portions of § 40-4-202(1), MCA, in this case require the District Court to consider the contributions of Garnet to the marriage. Note those contributions are not limited to some form of monetary contribution. The contributions are required by statute to include the nonmonetary contributions of Garnet; the extent to which such contributions have facilitated the maintenance of the property — note this is not even stated in the statute to be limited to monetary contributions but can include other types of contributions — and, finally, the court must consider whether or not the property division to Garnet served as an alternative to maintenance arrangements. The majority has apparently concluded that it was totally inappropriate to consider the substantial post-separation inheritance received by Arlyn. I do not find that the statute contains any basis for such a conclusion.

As above set forth, the statute requires consideration of contributions of Garnet “to the marriage” which is not limited to monetary contributions. In a similar manner, the statute expressly says that the district court shall consider the nonmonetary contributions of Garnet. Last, the court must consider whether the property division serves as an alternative to some part of the maintenance arrangements. The majority has disregarded all of the statutory provisions and focused on one aspect only — the separation of the parties which has led the majority to conclude there is no right to share on the part of Garnet to inheritance received after the separation of Garnet and Arlyn. I can only reemphasize that the opening provisions of § 40-4-202, MCA, require the District Court to equitably apportion the property and assets “however and whenever acquired.” I find no basis for the narrow holding on the part of the majority.

Under the statutory requirement that the District Court is to consider the contributions to the marriage on the part of Garnet, including her nonmonetary contributions, it is important to consider the extensive findings of fact by the District Court which state that Garnet has devoted 33 years of marriage to the raising of five children and providing for Arlyn’s needs, and that her contributions exceeded the call of duty. The District Court further pointed out that Garnet has accumulated very little in her retirement pension fund and emphasized the limited nature of her education and her limited capacity to retrain at her age.

The District Court concluded that it was reasonable to award the family home worth $100,000 to Garnet (keeping in mind that the ranch awarded to Arlyn also has a family home). Following the same findings of fact, the court concluded that it was reasonable to award Garnet a maintenance award of $900 per month — pointing out that the maintenance would provide $10,800 per year which added to her wages of $11,000 would provide her with $21,800 and which would provide for her reasonable needs. I suggest the making of the foregoing conclusions with regard to the family home are clearly within the discretion granted to the District Court under the express provisions of § 40-4-202(1), MCA. I conclude there was substantial evidence to support the District Court’s division of property and in particular the award of the $100,000 family home to Garnet. I would affirm on this issue.

III — AWARD OF MAINTENANCE

In the discussion of the maintenance award of $900 per month to Garnet, the majority states:

Again, it is clear that the District Court considered Arlyn’s post-separation inheritance by granting Garnet the excessive award of maintenance. In fact, the District Court found that Garnet “need[s] a substantial share of her husband’s assets so she can live comfortably.” We hold that these findings are clearly erroneous. We reverse and remand the issue of maintenance for review, in light of our holding regarding the division of the marital estate and for application of the statutory criteria.

The essence of the foregoing holding is that the District Court erroneously considered the post-separation inheritance in making an award of maintenance. I do not agree with that holding.

Section 40-4-203, MCA, provides in pertinent part:

Maintenance. (1) In a proceeding for dissolution of marriage ... the court may grant a maintenance order for either spouse only if it finds that the spouse seeking maintenance:
(a) lacks sufficient property to provide for his reasonable needs; and
(b) is unable to support himself through appropriate employment ...
(2) The maintenance order shall be in such amounts and for such periods of time as the court deems just... and after considering all relevant facts including:
(a) the financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
(b) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
(c) the standard of living established during the marriage;
(d) the duration of the marriage;
(e) the age and the physical and emotional condition of the spouse seeking maintenance; and
(f) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.

The majority suggests that it was improper to consider Arlyn’s post-separation inheritance. Under the maintenance statute the court was required to consider all relevant facts with regard to maintenance including the financial resources of the party seeking maintenance in addition to the marital property apportioned to her and her ability to meet her needs independently, including the extent to which the provision for the child is included; the time necessary to acquire education and training; the standard of living established during the marriage which is significant because of Garnet’s barren mode of life style during the separation; the duration of the marriage which was over 33 years; the age of Garnet; and the ability of Arlyn to meet his needs while meeting those of Garnet — which seems clearly to require consideration of the post-separation inheritance.

As a result of the foregoing findings and conclusions by the District Court, I disagree with the majority conclusion that it was clearly erroneous to find that Garnet needed a substantial share of her husband’s assets to live comfortably. The record contains substantial evidence to support the conclusion that Garnet needed maintenance when compared to the ability of Arlyn to meet his needs. I would also point out that paragraph (c) of § 40-4-202(1), MCA, requires the District Court to consider whether the property division serves as an alternative to maintenance — and in this case the property division of the home obviously did not constitute an alternative to maintenance with the exception that it eliminated the necessity of the $460 per month rent.

I do agree that it is important to remand for reconsideration because no deduction was made for the monthly rental expense of $460. However, that is only one of the many facts which properly should be considered on remand, including the extensive findings of fact to which reference has previously been made. As an example, I would emphasize that the $1458 expenses allocated to Garnet were found by the District Court to be based on a “bare and frugal lifestyle” which she has lived since the date of separation. Under the statute, Garnet is entitled to sufficient property to provide for her “reasonable” needs.

I would therefore remand on the issue of the maintenance award, but I disagree with the apparent majority holding that in that remand, the District Court is not allowed to consider inherited property or post-separation inherited property. On remand I would require that the District Court consider all of the elements of § 40-4-203, MCA, which are pertinent to this case, including the facts as previously found by the District Court.

CHIEF JUSTICE TURNAGE concurs in the foregoing concurrence and dissent.