Preview:

No.

92-143

IN THE SUPREME COURT OF THE STATE OF MONTANA
1992

IN RE THE MARRIAGE OF: BEATRICE BECKER, Petitioner and Appellant, and RODERICK R. BECKER, Respondent and Respondent.

APPEAL FROM:

District Court of the Eighteenth Judicial District, In and for the County of Gallatin, The Honorable Mark P. Sullivan, Judge presiding

COUNSEL OF RECORD: For Appellant: Karl P. Seel, Attorney at Law, Bozeman, Montana For Respondent: Helene Orenstein, Attorney at Law, Bozeman, Mont

Submitted on Briefs: Decided: Filed:

August 20, 1992 November 23, 1992

Chief

Justice Beatrice

J.

A.

Turnage formerly the District

delivered Beatrice Court

the

Opinion

of

the

Court.

Klein, of

Becker for the

(wife), Eighteenth 19, 1991.

appeals Judicial

the

final District, the

judgment Gallatin

County,

entered

on November

We affirm

District The

Court's issues raised

decision. on appeal are as follows: in limiting the value and property testimony on of the marital of law

Was the District 1. remand to that associated real property?
2.

Court correct with determining of
marital

relating

Were the findings to child support and

fact

conclusions erroneous?

Was there a lack 3. which would warrant remand by the District Court? The parties in Cause No. 469, this 798 P.2d litigation to this In (Becker are Additional as follows. issues Court the did were not

of due process of this cause appeal were Marriage As the in

and fundamental fairness for further consideration before (1990), facts I, to repetition this appeal this Court

previously of Becker

89-585, 124

re the I).

244 Mont. to is be

original

applicable here can

outlined facts

Becker relevant

unnecessary. summarized Four District As to

presented err with the

to

us

in to

Becker three Court valued of

I. of

We held those

the

regard District

issues. a real to the

fourth, property at $42,550. for

we held appraisal

misinterpreted the the marital case

confusing property District Upon

and improperly that

We remanded further the

portion

Court

consideration. Court
2

remand,

District

revalued

the

marital

real

property valuation, estate

at the

the

time

of Court

dissolution. considered

In

arriving from

at

its

District Jerry District

testimony

two real

appraisers, the

Gossel Court

and Gary France. concluded the

Based upon this value of

testimony, the property

appropriate

at the time Court

of dissolution also refused

in June 1984 was $27,500. any testimony, of the marital The District upon in the or

The District consider personal Court

to entertain to the valuation

any evidence, property

pertaining

or computation as a matter of

of child law, that

support. its

concluded,

jurisdiction real to property consider

remand was limited 1984. entire real It is from

to the valuation the District

of the marital Court's refusal valuation

property property

division that wife

and the lowered appeals.
T

of the marital

I.

Was the District Court correct to that associated with determining property? The wife all issues contends the District

in limiting the value Court of marital with our

testimony on remand of the marital real have considered upon remand. to the

should

pertaining this Court.

to division conflicts

property

However,
District

contention The issue its Becker discretion I,

instructions "[d]id of the

we remanded reads, in valuation

the District marital &

Court

abuse

property?" our entire

798 P.2d at 128 (emphasis in Becker I addresses real

added). issue

Moreover, from In light not err the of in

analysis of valuation

this property. Court

standpoint our

of the marital the
3

instructions,

we hold

District

did

limiting value of

testimony the marital

to

that real

associated property. II.

with

redetermination

of

the

of

Was the District Court's child support and valuation The wife next and argues the record. relating amount of the valuation

adherence to the prior of marital property amount of of back marital the District of the child

determination erroneous? support assessed were erred personal not in

against supported its

her

property Court marital

by the

She claims to the value

conclusions and the I, to to we held the

property

child

support. these issues that in a different the decree District based context. Court upon grounds between of the District the for real had res to the

In Becker In responding no authority

we addressed the wife's the the

contention dissolution

modify that

judicata, modify parties Court. District child property. In long issues held

District

Court

had sufficient reached

property they I, did

settlement had circumvented 798 not P.2d err rather 798 P.2d issues doctrine at in

agreement the

because Becker Court support

authority In the wife's addition, husband

127-28. allowing than at his

we held a credit of the

payments I,

share

Becker addressing that the

128. before law of the this case Court, applies we have to those

previously of the

on subsequent

proceedings

and appeals.

When

this Court on appeal affirms in part the judgment of the District Court, and remands for reconsideration other parts of the appeal, those parts of the judgment which are affirmed become the law of the case and are binding 4

upon the proceedings

trial court on remand. Mountain been

and Water rendered in

the Co. by

parties (1989), this

in

subsequent 442, 446,

City of Missoula v. 771 P.2d 103, 105. Once issue upon a decision between the courts appeal. the has

236 Mont. Court

on a particular is binding in 218 Mont. a

same parties and the In re 635, holding had assets he the had valuation of child in issues for v. relief parties the 636. in

a case, and

that

decision be relitigated (1985),

cannot of

subsequent 433, 434-35, Implicit the District

Marriage

Gies

709 P.2d in our Court of the if

Becker

I,

798 P.2d to

at

128, modify

"that the

sufficient . . . to been paid assigned support. their existing, upon (1921), the law of the allow

grounds the

distribution have received

husband support

what

he would is

child to

payments" personal proceedings include may not

agreement property are

with and the

the

marital the to

amount broad of all

Whenever character a party

sufficiently

the make

determination continual Surety 99. Co.

application of N.Y. the

same grounds. 59 Mont. the case 1, 6,

American 195 P. to 99, the

Kartowitz of personal will error not

We hold

doctrine marital issues claims

applies

valuation support

of the and those

property

and computation

of child

be addressed. District Court's the District on revaluation Court's the with real our

The wife of the marital

also real

in the

property. placed a of gross

She contends value is of not

conclusion property at

which the

$27,500 in

time

dissolution 5

accord

discussion opinion In discretion property remanded estate 1984. property Court until the for and

in

Becker

I.

However, on remand. the value The District as to attempting dissolution property the more in

the

wife

misconstrues

our

first

instructions I, we held a

Becker in

District of

Court on

did the

not

abuse

its real was real in real

placing the year from

$37,000 upon

marital this issue the property for the the

1988. the

error Court the to

which

resulted appraiser's Specifically, at the

misinterpreting of the real

analysis in time the real of

value derive in

a value 1984, in

June

District from 1984

concluded 1988. property

had decreased Court than record. portion of in

value

As a result, was was not worth

District 1984

improperly 1988. Becker Becker I, I.

concluded We held this at I,

conclusion 128.

supported we remanded

by the this

798 P.2d Becker

Accordingly, at 128.

798 P.2d Our further consistent opinion particular another Nothing is

instructions consider with did not this dictate the

on

remand

were of Becker

for the I,

the marital

District real at

Court property

to

"valuation opinion." that the

798 P.2d Court the of doing

129-30. by

Our any held

District remand,

was bound Court real so.

methodology. hearing precluded without to the

Upon determine District

District the

the Court

value from

property. Where method trial a case to be court it is

remanded for

direction such discretion

or restriction an issue, whether 6 "it the

as to the is for record the

utilized to

determining in its

determine

before

sufficient be taken

for to Corp.

this

purpose

or whether record." 454,

additional Lovely 456,

evidence and

should v.

supplement (1976),

the

Laubach 612.

Burroughs

169 Mont.

548 P.2d 610,

Because the District was not involved to conduct Although reveals agreement question. substantial we will valuation Mont. the
395,

Court Judge who heard this proceedings, he felt

case on remand it necessary

in the previous rather

a hearing they used both

than base his different appraisers value

decisions methodology,

on the record. the record were property in in by

somewhat real estate

that

who testified of the Court real

as to

the

approximate

When the findings credible not disturb of property.
398, 807

of the District and there Court's

are supported

evidence the

is no abuse of discretion, findings concerning (1991), value the 247 of

District

In re the Marriage P.2d 192, 194. We hold

of Porter

the appraised credible

real

property

is

supported disputes

by substantial the

evidence. against

Finally, the real

the wife

amount of debt

owing

property

at the time of dissolution. that the debt against

The record the real

indicates property in

the parties

stipulated

June 1984, was $20,704. 3, admitted
District

Additionally, supports this

petitioner's stipulation. the real does

exhibit

number the

into

evidence, concluded

However, property not

Court

the debt against

in June the a

1984,

was $21,078.

The $374 discrepancy settlement In re

affect require of

conscionability remand (19861, for
223

of the property further Mont. proceedings. 343, 347,
725

and does not the Marriage

Hangas

P.2d 1205,
7

1208.

III. Was there a lack of due process and fundamental fairness would warrant remand of this cause for further consideration District Court? The a rehash guise reapply is devoid final of argument issues advanced by the wife is nothing Court. the wife the more Under attempts wife's that fairness. she has the brief she in We been long "there has been 881, which by the than the to

previously

addressed

by this

of due process arguments of any

and fundamental previously presented. to support

fairness,

Moreover, her

authority denied to the

contention

some way has been hold, afforded lifespan must be contrary all of an

due process wife's procedural

and fundamental that

contentions, safeguards stated this

applicable this end Carey litigation. to v.

throughout previously, matter 57, 61, it

As we have and (1987), in

litigation, Wallner

reached." 884. There The judgment

229 Mont.

744 P.2d

is is

no

error affirmed.

with

the

decision

of

the

District

Court.

Chief

Justic

8

We

concur:

November23, 1992 CERTIFICATE OF SERVICE I herebycertify that the following order was sentby United Statesmail, prepaid,to the following named: Karl P. See1 Attorney at Law 1705West College,Ste. A Bozeman, MT 59715 HeleneOrenstein Attorney at Law P.O. Box 1093 Bozeman, MT 59771-1093

ED SMITH CLERK OF THE SUPREMECOURT



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