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No. 84-300

IN THE SUPREME COURT OF THE STATE OF MONTANA
1984

IN RE THE MARRIAGE OF SYBILLA V. KEEPERS,
Petitioner and Respondent, and DALE KEEPERS, Respondent and Appellant.

APPEAL FROM:

District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable Diane G. Barz, Judge presiding.

COUNSEL OF RECORD: For Appellant: Moses Law Firm; Bruce E. Becker, Billings, Montana For Respondent : James J. Sinclair, Billings, llontana

Submitted on Briefs: Decided:

September 27, 1984 November 16, 1984

AOV ~iled:

1 6 1984

Mr. Justice John C. Court.

Sheehy delivered the Opinion of the

Dale E . Keepers appeals from the April 17, 1984 judgment

of

the Yel-lowstone County District Court dissolving his

marriage to Sybilla V. Keepers and dividing their property. We affirm. Sybilla and Dale were married on August 23, 1980, in Billings, Montana. There is no issue from this union

although Sybilla had two children from a previous marriage who resided with the couple. the parties separated and marriage. After three years of marriage, soon sought to dissolve their

Cn April 12, 1984, the District Court entered
On April 17, 1984,

Findings of Fact and Conclusions of Law. iudgment was entered. thereon.

Dale was employed during the marriage and currently earns net income of $1,175.00 per month. Sybilla was In

employed during the marriage and earns $805.41 per month.

addition, she receives $450.00 per month for the support of her two minor children from a previous marriage. The personal property belonging to the parties h a s been divided and is not at issue on appeal. awarded. At the time of the marriage Dale owned real estate located at 2028 George Street in Bill-ings, worth No maintenance was

approximately $65,000.00, that was subject to a S24,366.00 purchase money mortgage at the time of the hearing. The

property was later encumbered by an additional $13,518.00 debt which was incurred by the parties during marriage. Part of the $13,518.00 loan was used for a downpayment on the purchase of the Larimer home in which the parties

resided during marriage.

The District Court ordered that

this home be sol-dl the mortgage retired a.nd the proceeds divided equally between the parties. An additional $1,500.00

of the $13,518.00 which was secured by the George Street home was used to pay delinquent payments on Sybjlla's Willona

Drive home before that home was sold. Sybilla entered the marriage to Dale with some equity in a home on Willona Drive which she derived from a previous divorce settlement. After the mortgage arrearage was paid Sybilla

the home was sold and Sybilla netted $9,000.00.

secured a judgment from her former husband for delinquent child support. She received a cash payment of $4,167.13 and payments of $653.88 during her

then received 17 monthly

marriage to Dale, a total of $15,283.09. Sybilla had a $3,592.56 unsatisfied judgment against her that was entered before marriage and paid during the

marriage. The money received by Sybilla along with the wages of both parties were commingled and spent for family purposes during the course of the marriage. Dale rented his separate

property on George Street and used the proceeds to make payments on the mortgages. The District Court ordered the George Street property sold, the mortgages paid off, an6 the remaining proceeds divided between the parties. Dale is to receive $3,592.56

more than Sybilla from the sale to compensate for Sybilla's premarital debt. Dale appeals from the property division.

Dale raises five points of error but they can all be reduced to one issue. Did the District Court err in applying section 40-2-202, MCA, when dividing the marital estate between the parties?

Dale objects to the judgment of the District Court tha.t. awards Sybilla one-half of the equity in his property

acquired prior to marriage minus $3,592.56.

The division of

property in a marital dissolution case is governed by section 40-4-202, MCA. "Section 40-4-202. Division of property.

( 1 ) In a proceeding for dissolution of a marriage, legal separation, or division of property following a decree of dissolution of marriage or legal separation by a court which lacked personal jurisdiction over the absent spouse or lacked jurisdiction to divide the property, the court, without regard to marital. misconduct, shall., and in a proceeding for legal separation may, final ly equitably apportion between - parties the the and or both, roperty - assets belonging to either - Rowever - whenever acquired anrwhether - title and the thereto - - - - - - the husband. - - -or is in the name of or wife both. In making apportionment, the court shall consider the duration of the marriage and prior marriage of either party; antenuptial agreement of the parties; the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties; custodial- provisions; whether the apportionment is in lieu of or in addition to maintenance; and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution or dissipation of value of the respective estates and the contribution of a spouse as a homemaker or to the family unit. 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 increased value of property acquired prior to marriage; and property acquired by a spouse after a decree of legal separation, the court shall consider those contributions of the other spouse to the marriage, including:

"(a)

the nonmonetary contribution of a homemaker;

" (b) the extent t-o which such contributions have facilitated the maintenance of this property; and

" Ic)
as an All

whether or not the property division serves alternative to maintenance arrangements." whenever acquired by the

property, however and

parties, becomes part of the ma.rita1 estate and is subject to

apportionment by

the court under

section 40-4-202.

The

latter part of this section speaks specifically to property acquired prior to marriage, property acquired by gift,

bequest, devise, etc. This Court has recognjzed that when inherited property or property acquired by one party prior to marriage is

subject to division in a dissolution proceeding, the lower court must consider the origin of the property. Herron v.

Herron (1980), 186 Mont. 397, 608 P.2d 97; Metcalf v. Metcalf (1979), 183 Mont. 256, 598 P.2d 1140; Vivian v. Vivian

(1978), 178 Mont. 341, 533 P.2d 1074.

The property acquired

before marriage is still a marital asset subject to division. There is no definite rule as to how the trial court is to consider the asset. facts. Each case has to be decided on its own

Vivian, supra.

It is well settled in Montana that the District Court has far-reaching discretion in resolving property divisions and its judgment will not be altered unless a clear abuse of discretion is shown. Kruse v. Kruse (1978), 179 Mont. 79,

84, 586 P.2d 294, 297; Cook v. Cook (1972), 159 Font. 98, 495 P.2d 591. Findings of fact will not be set aside on appeal F.ule 52 (a), M.R.Civ.P. It is

unless clearly erroneous.

against this backdrop of established law in Montana that we view Dale's appeal. Dale argues that the child support judgment and current child support payments received by the wife should qo to the benefit of the children. At any rate they were put into the

marital pot and spent like the parties' wages were spent. Dale contributed
to

the as

marital opposed

pot. to

He

contributed in wages

$64,688.06

in wages

$33,305.20

contributed by Sybilla to the marital pot over the course of

the marriage.

The support of SybillaEs children came from Dale did not adopt these children. The

the marital pot.

money Sybilla received from her ex-husband for back child support was commingled with during the marriage. funds earned by both parties

Dale argues the child support payments Whether acquired

should not be considered as prior acquired property. these payments are technically property is not the point. hefore the court to be considered prior

These payments are not property divided but are evidence

of

contributions of the other spouse, Sybilla.

The evidence We

shows at least some of these funds were spent by Dale.

conclude the District Court did not err in considering these payments when dividing Dale's prior acquired property

pursuant to section 40-2-202, MCA. Dale also argues that the District Court erred in

finding that both parties brought the same net equities into the marriage. $13,518.00 The District Court expressly found that the on appellant's real estate was

encumbrance

incurred by the parties during the marriage. the court deducted $13,518.00 from the

Nonetheless, appellant

equity

brought into the marriage. support as pre-marital

Even counting the back child

equity, Dale clearly brought more

property to the marriage than Sybilla. The importance of this finding is relevant but not Dale argues that in a marriage of short

determinative.

duration the parties should be pl-aced in the position they would have been in as if no marriage had occurred. See Tn

the Matter of Marriage of Card (1982), 60 0re.App. 1.17, 652 P.2d 866. Duration of marriage is a factor to be considered There is no set rule that

in section 40-4-202(l), MCA.

parties to a brief merriage be restored to premarital status.

Property

need

not

be

divided

equally

only

equitably

in

accordance with the factors set forth in section 40-2-202,

With

respect

to

property

acquired

before

marriage,

section 40-2-202(1) states the court shall consider those contributions - - other spouse - - marriage including: of the to the

" (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."
The wording of the statute does not make the three factors listed above exclusive. "a.1~0,"or "in addition to." The word "including" The statute must be construed

to mean that the court shall also consider other relevant contributions of the spouse in making an apportionment. The District Court also took into consideration the monetary contributions of each of the parties, the extent to which the contributions have facilitated the maintenance of the property and the acquisition of other property acquired
as a result of a sale or exchange of premarital property,

together with the abilities of each of the parties to acquire future assets or income from employment. The property

divided serves as an alternative to maintenance. Reasonable minds could differ on what would be the most equitable distribution of the partiesf property. That the

case may be decided differently is not the inquiry on appeal, the question is whether the fact determination of the court below is clearly erroneous. Rule 52 (a), M.R.Civ.P.

Even with the erroneous finding of fact pointed out by appella.nt, we do not find that the District Court clearly abused its discretion.

Affirmed.

We. Concur:

Justices



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