MARRIAGE OF METCALF v METCALF
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No. 14735 IN THE SUPREME COURT OF THE STATE OF MONTANA IN RE THE MARRIAGE OF SHARON KAY METCALF, Petitioner and Respondent, -vsRONALD RAY METCALF, Respondent and Appellant. Appeal from: District Court of the Thirteenth Judicial District, Honorable Nat Allen, Judge presiding. Counsel of Record: For Appellant: Lynaugh, Fitzgerald, Schoppert, Skaggs and Essman, Billings, Montana For Respondent: Berger, Anderson, Sinclair and Murphy, Billings, llontana Submitted on briefs: June 27, 1979 Decided: AUG Filed: W 22 G 1979 2 2 1979 Mr. Justice John Conway Harrison delivered the Opinion of the Court. This appeal arises out of a property settlement in a divorce action in Yellowstone County. Respondent wife and appellant husband were married in 1964 and have two children: Brett, age 11, and ~ a n i a , age 14. During the marriage, appellant was employed as a mechanic, salesman and carpet installer. Presently appellant works as a salesman for a wholesale plumbing corporation. In increasing his sales area income approximately six-fold, appellant has earned the following steadily rising incomes: $18,101 in 1975; $27,758 in 1976; and $38,666 in 1977. Appellant also projected his annual income for 1978 as $42,000. Respondent has a high school education and has held various jobs throughout the marriage: sales clerk, dental assistant, and receptionist. Shortly after appellant se- cured his present job, respondent quit her full-time enployment and has only worked occasionally since that time, selling vitamins to friends and relatives. During the course of the marriage, the parties acquired several assets: Value Obligation Family home Two lots Boat, trailer Dining room set Household property Car Motorcycle Guns Trampoline Horse and foal As of the fall of 1978, the total value of the marital estate was approximately $114,000 and was subject to approximately $55,000 worth of secured and $12,000 worth of unsecured debts. A~SO, during the marriage, a $5,000 inheritance was received by appellant and used by both parties in the various expenses of the marriage. Respondent filed a petition for dissolution on April 17, 1978, and the matter came for hearing on October 24, 1978. The District Court entered its findings of fact and conclusions of law on December 6, 1978. Among the findings and conclusions, the court found that the dissolution should be granted, that the custody of the two children should be granted to respondent, that appellant should pay $400 per month child support and maintain health and medical insurance for the children, and that appellant should pay $200 per month maintenance until the court should further order or petitioner should remarry. The court also ordered the appellant to pay respondent's attorney fees of $1,620. With regard to the distribution of property, the court found that respondent should receive the home, the dining room set, the household property, and the car, and that appellant should receive the two lots, the boat and trailer, the horse and foal, the motorcycle, the guns and the trampoline. The court further found that each party should be individually responsible for the obligations owing on the items received, except that appellant would be responsible for the second mortgage on the home. A judgment giving effect to the findings and conclusions was entered on December 12, 1978, and appellant filed a notice of appeal on January 11, 1979. Respondent there- after requested an allowance for attorney fees to defend the appeal. On April 19, 1979, the court granted respondent attorney fees in the amount of $2,000. appealed this award. Appellant also Three i s s u e s a r e r a i s e d on a p p e a l : 1. Whether t h e D i s t r i c t C o u r t abused i t s d i s c r e t i o n in f a i l i n g t o c o n s i d e r $ 1 2 , 0 0 0 worth o f u n s e c u r e d d e b t s i n a r r i v i n g a t a n e t worth of t h e m a r i t a l e s t a t e . 2. Whether t h e D i s t r i c t C o u r t e r r e d b e c a u s e i t d i d n o t make any f i n d i n g s a s t o a p p e l l a n t ' s i n h e r i t a n c e . 3. Whether t h e D i s t r i c t C o u r t awards o f a t t o r n e y f e e s w e r e r e a s o n a b l e and s u p p o r t e d by s u b s t a n t i a l e v i d e n c e . Before d i s c u s s i n g t h e f i r s t i s s u e , w e w i l l consider a preliminary matter. Respondent c o n t e n d s t h a t a p p e l l a n t h a s waived h i s r i g h t t o o b j e c t t o t h e D i s t r i c t C o u r t ' s f a i l u r e t o i n c l u d e e i t h e r t h e unsecured d e b t s o r a p p e l l a n t ' s i n h e r i t a n c e i n t h e d e t e r m i n a t i o n and d i s p o s i t i o n of t h e m a r i t a l estate. Respondent a r g u e s t h a t a p p e l l a n t s h o u l d have b r o u g h t t h e s e " o v e r s i g h t s " t o t h e a t t e n t i o n o f t h e c o u r t under R u l e s 4 6 and 5 2 ( b ) , M.R.Civ.P., by moving t o amend t h e f i n d i n g s and c o n c l u s i o n s o f t h e c o u r t . Since a p p e l l a n t f a i l e d t o f i l e a motion t o amend w i t h i n t e n d a y s o f t h e n o t i c e o f e n t r y of judgment, i t i s a r g u e d t h a t t h e r e i s a w a i v e r and t h a t t h e r e i s no r i g h t t o o b j e c t t o t h e s e m a t t e r s on a p p e a l . W disagree. e To b e g i n w i t h , t h e r e c o r d r e v e a l s t h a t t h e matters r a i s e d by a p p e l l a n t w e r e n o t " o v e r s i g h t s . " A p p e l l a n t informed t h e c o u r t i n h i s t r i a l memorandum t h a t r e s p o n d e n t ' s proposed f i n d i n g s o f f a c t w e r e n o t s u f f i c i e n t w i t h r e s p e c t t o t h e i n h e r i t a n c e o r t h e unsecured d e b t s . The c o u r t , however, c h o s e t o a d o p t t h e f i n d i n g s d e s p i t e t h e s e objections. Under t h e s e c i r c u m s t a n c e s , i t i s u n l i k e l y t h a t a motion t o amend would s e r v e any f u r t h e r purpose. s u c h a motion r e q u i r e d by t h e r u l e s . Nor i s A motion t o amend i s n o t , t h e r e f o r e , a p r e c o n d i t i o n t o t h i s a p p e a l , and t h e m a t t e r s r a i s e d by a p p e l l a n t may p r o p e r l y be c o n s i d e r e d by t h i s Court. S e c t i o n 1-3-223, MCA. A p p e l l a n t ' s p r i m a r y o b j e c t i o n on a p p e a l i s t h a t t h e t r i a l c o u r t e r r e d because it d i d n o t c o n s i d e r , i n a r r i v i n g a t t h e n e t w o r t h o f t h e p a r t i e s , $12,000 w o r t h o f u n s e c u r e d debts. A t t h e h e a r i n g on O c t o b e r 24, u n c o n t r a d i c t e d e v i d e n c e o f t h e f o l l o w i n g u n s e c u r e d d e b t s was i n t r o d u c e d : S e a r s & Roebuck Co. Bankers L i f e M r s . R. J . M e t c a l f D r . Greenlec 700.00 1,938.07 8,500.00 940.00 The t r i a l c o u r t , however, f a i l e d t o i n c l u d e t h e above u n s e c u r e d d e b t s i n d i s t r i b u t i n g t h e m a r i t a l e s t a t e when i t a d o p t e d r e s p o n d e n t ' s p r o p o s e d f i n d i n g s and c o n c l u s i o n s . It d i s t r i b u t e d t h e major a s s e t s of t h e m a r i t a l e s t a t e i n t h e f o l l o w i n g manner: T PETITIONER O Liabilities T RESPONDENT O Liabilities A s s e t s Home 65,000 Two l o t s Boat D i n i n g r m 2,400 Household 1 3 , 6 0 0 Car 3,000 Motorcycle Guns Trampoline Horse Assetsp 37,000 1,300 600 The D i s t r i c t C o u r t a l l o w e d r e s p o n d e n t a p p r o x i m a t e l y $84,000 a s s e t s and $38,900 l i a b i l i t i e s , o r a n e t w o r t h o f $45,100. I t a l l o w e d a p p e l l a n t $30,450 a s s e t s and $19,800 l i a b i l i t i e s , o r a n e t w o r t h o f $10,650. W e have p r e v i o u s l y h e l d t h a t t o have a p r o p e r d i s t r i b u - t i o n o f m a r i t a l a s s e t s , t h e t r i a l c o u r t must f i r s t d e t e r m i n e t h e n e t worth of t h e p a r t i e s a t t h e t i m e of t h e i r d i v o r c e . G r e n f e l l v. Grenfell (1979), - Mont . , 596 P.2d 205, 207, 36 S t - R e p . 1100, 1103; V i v i a n v . V i v i a n (19781, Mont. , 583 P.2d 1072, 1074, 35 St.Rep. 1359, 1361. a r r i v i n g a t n e t w o r t h , t h e t r i a l c o u r t must c o n s i d e r t h e a s s e t s [and] l i a b i l i t i e s . . . of each of t h e p a r t i e s In ". . . . . ." Section 40-4-202, MCA. The trial court has far-reaching discretion in resolving property divisions, and its judgment will not be altered unless a clear abuse of discretion is shown. In Re Marriage of Kramer (1978), Mont. I 580 P-2d 439, 442, 35 St.Rep. 700, 704; Zell v. Zell (1977), Mont. , 570 P.2d 33, 35, 34 St.Rep. 1070, 1074. In this case we believe the court abused its discretion. Before distributing the property, the court should have considered the $12,000 worth of unsecured debts in arriving at the net worth of the parties. Without this considera- tion, the property division was incomplete. Furthermore, the liability for the unsecured debts should have been considered because it could have greatly affected the burden of each party respecting his or her share of the estate. If, for example, appellant received the entire responsibility for the unsecured debts, his total liabilities would have exceeded his total assets and he would have experienced a total net deficit of $1,350. The assumption of the debt would have effectively reduced the 14 percent of the marital estate he actually received to nothing. This factor, if considered by the court, should have alerted it that the property distribution was inequitable. Likewise, if respon- dent assumed this debt, there may have been difficulty in meeting all the obligations she assumed. Accordingly, it is necessary to remand this case so that the unsecured debts may be considered in determining the net worth of the parties and that the assumption of debts may be viewed in the totality of the circumstances. These considerations should significantly affect the outcome of the property distribution. With respect to the second issue, appellant argues that the trial court was bound under a previous decision to make a specific finding regarding appellant's inheritance. V i v i a n , 583 P.2d a t 1 0 7 4 , 35 St.Rep. W e disagree. a t 1362. Contrary t o a p p e l l a n t ' s i n t e r p r e t a t i o n , Vivian r e q u i r e s only t h a t t h e c o u r t t a k e an i n h e r i t a n c e i n t o consideration i n d i v i d i n g t h e m a r i t a l e s t a t e , n o t t h a t it make a s p e c i f i c f i n d i n g r e g a r d i n g t h e i n h e r i t a n c e . ". . . . . . T h i s C o u r t , i n Morse v . Morse held t h a t an inheritance received during a marriage i s a m a r i t a l a s s e t . W e went on t o e x p l a i n t h a t t h i s h o l d i n g meant t h a t a n i n h e r i t a n c e had t o b e taken i n t o consideration i n dividing t h e a s s e t s . However, i n Morse, w e r e c o g n i z e d t h a t no d e f i n i t e r u l e c o u l d b e e s t a b l i s h e d a s t o how t h e t r i a l c o u r t was t o c o n s i d e r t h i s a s s e t . Each c a s e h a s t o b e d e c i d e d o n i t s f a c t s . " V i v i a n , 583 P . 2d a t 1074, 35 S t - R e p . a t 1362. Here, w e b e l i e v e t h a t t h e t r i a l c o u r t d i d c o n s i d e r appellant's inheritance, a t l e a s t a s best a s was possible given t h e circumstances. The c o u r t was f a c e d , however, w i t h t h e i m p o s s i b i l i t y of t r a c i n g t h e s e funds. Appellant testi- f i e d t h a t h i s i n h e r i t a n c e was consumed by t h e e x p e n s e s and a s s e t s of t h e marriage. S u p p o r t i n g t h i s t e s t i m o n y was t h e f a c t t h a t t h e i n h e r i t a n c e was r e c e i v e d i n 1973 when t h e income o f t h e p a r t i e s was below $10,000. predicament, Faced w i t h t h i s t h e c o u r t c o u l d d o n o t h i n g more. ". . . W e do n o t f e e l t h a t t h e t r i a l judge must become a n a p p r a i s e r , a n a c c o u n t a n t , a c o m p u t e r , and a n a l l - a r o u n d g e n i u s t o a p p r o p r i a t e l y dec i d e t h e f a c t s a s e s t a b l i s h e d by t h e documentat i o n given a t trial. It is the p a r t i e s ' d u t i e s t o a s s i s t the t r i a l court i n getting t h i s inform a t i o n s o a p r o p e r judgment i s made a s t o t h e i r marital assets." Downs v. Downs ( 1 9 7 9 ) , Mont. , 592 P.2d 938, 939, 36 St.Rep. 577, 579. A c c o r d i n g l y , w e f i n d t h a t t h e c o u r t d i d n o t err i n f a i l i n g t o make a s p e c i f i c f i n d i n g r e g a r d i n g t h e i n h e r i t a n c e . With r e s p e c t t o t h e i s s u e o f a t t o r n e y f e e s , s e c t i o n 404-110, MCA, v e s t s i n t h e D i s t r i c t C o u r t t h e d i s c r e t i o n t o award a r e a s o n a b l e amount f o r a t t o r n e y f e e s i n a d i s s o l u t i o n proceeding. In reviewing that discretion, we must determine whether there is substantial evidence to support the amount awarded. Allen v. Allen (1978), Mont. , 575 P.2d 74, 77, 35 St.Rep. 246, 249. Here the District Court awarded respondent attorney fees of $1,620 for the original proceeding and $2,000 for the appeal. Respondent demonstrated necessity. Whitman v. Whitman (1974), 164 Mont. 124, 132, 519 P.2d 966, 970. In view of the circumstances of this case, the record, and the documents and exhibits prepared by counsel, we believe the award of attorney fees for the original proceeding was supported by substantial evidence. However, the award of attorney fees for the appeal was excessive and unsupported by substantial evidence. The briefs were short, oral argu- ment was waived, and no novel issues were presented. Ac- cordingly, we vacate the award of attorney fees and remand to the District Court for a determination of these fees. This case is remanded to the District Court for further proceedings consistent with this opinion. We concur: 7A&$. w m Chief Justice CIA- e , Justices
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