MISCHKE v MISCHKE
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92-128 NO. IN THE SUPREME COURT OF THE STATE OF MONTANA 1992 BONNIE L. MISCHKE, Plaintiff and Appellant, -vCALVIN L. MISCHKE, Defendant APPEAL FROM: and Respondent. District Court of the Twentieth Judicial District, In and for the County of Lake, The Honorable C. B. McNeil, Judge presiding. COUNSEL OF RECORD: For Appellant: James C. Kalispell, For Bartlett, Montana Hash, O'Brien & Bartlett, Respondent: R. M. Kehew, Kalispell, Montana Submitted on Briefs: Decided: Filed: 'Clerk October February 29, 1992 2, 1993 Fred 3. Weber delivered Justice This is an appeal an order distributing Twentieth Judicial the issues 3. Hoffman Whether District Whether awarding erred of the We affirm. as follows: by including Mrs. erred in determining Mr. Court and Mrs. correctly that gifts Mischke. determined the net estate. the 52% of the Court from estate. were made to both of the marital 4. our review in the marital the L. Mischke, Montana. Court Court Court. by the District for District "inheritance" Albert assets the of the Bonnie Lake County, Whether the District 2. from assets District, Whether Mischke's by the Petitioner, marital We have restated 1. the Opinion District Court estate marital abused its discretion to Mr. Mischke by and 48% to Mrs. Mischke. Bonnie and Calvin 27, 1971 in Wolf for the Wolf for her father, after the Point, Point Hoffman, doing lost Hoffman and Mr. Nonetheless, his death Shortly Wolf Point gifts and Mrs. Mischke the worked at the Shortly farm labor. job elevator The relationship between Mr. throughout establishes Mischkes the that throughout and Mischkes' Mr. the Hoffman marriage in June of 1990. after for to record worked his farm. on March Mr. Mischke general was strained the were married time, Union Elevator on Mr. Hoffman's made substantial until At the Mr. Mischke marriage, marriage. (the Mischkes) Montana. Fanners' Albert began working Mischke Mischke they were married, the Mischkes to live 2 Mr. Hoffman bought in. They lived there a house in rent-free for eight years. built on three the Mischkes. property Mischkes Mr. their home for a larger 1979 After where received Hoffman the on the Albert to repay not his deeded labor. debt. In Hoffman Mr. 1987, Mr. been agreed price plus to They Periodically, double the Hoffman's interest in In homes February for improvements handled the all the The in to the 1990, their financial the of Lake. homes. purchase The had paid the on the home purchase price one-half interest. for loan The the purchase them--a to of Hoffmans. and allowed month conveyed total the payments one Hoffmans area The Mischkes one-half some of the this Flathead one-half Approximately 1990, part the year. Hoffman They new home but owned an undivided defaulted forgave to Point other Albert this Mischkes wife and Mrs. debts home to of the Mischkes. a large Wolf previous others. $60,000. to as payments of Flathead owned the Hoffmans for death in apply moved both and his pay Mr. for Shore the subsequently credit Hoffman located. for forgave helped Mischkes $10,000 $33,250. Mr. also to the materials Mischkes from for Hoffman and the Mischkes East Hoffman Mr. interest was home to later the rents renting was $46,500. born, new home was built property the Hoffman receive had this entire for 1986, to In home from the a home on the continued they Mr. September and rented This older rents were new home. later were an children before their Mr. one-half Mischkes. the Some Mischkes of Flathead this sold money home. affairs for 3 the Mrs. the Wolf was used Mischke parties. Point for rental home customarily She testified that the $59,555 September 1990 for She further Capital from of her traced separation She also her far Hoffman's it testified for to savings account to explain Mischke Mrs. until testified among various after could be date the funds were kept in an attempt of separate. to prove that for her alone and not as joint the Mischkes they could In addition have enjoyed and other and $150 in food The sole to health the for trial and child Mischkes. and life each month for issues property the value for items gifts. without and loans of Mr. described gifts Hoffman's telephone farm service the Mischkes. were calculation support. of the marital insurance, Mr. Mr. a standard afforded to the gifts the she used some Mischke funds in how her inheritance the inherited that what Mrs. to the homes, Mr. Hoffman made numerous other paid a was to be her that switching was received established beyond corporation this established debts. much evidence generosity. cash some of money was deposited Mrs. Mischke were intended above relating by and debts. in June of 1990, This reasons date presented Testimony living Hoffman. in an attempt gifts spent expenses to her separate to pay marital the was all transferred death and to show that Hoffman's that Mr. about from sale living which testimony account. bank accounts marital Hoffman's inheritance extensively the Union. Mr. checking she Fund and later a death benefit inheritance of that Credit Following from home improvements, Preservation received received testified at Whitefish joint cash estate, 4 The District including and distribution Court of determined the home and cash in Mrs. Mischke's assets valued account, at $91,683 $83,719. Mrs. separated through to Mr. minor the time of sold Gardner Mr. Mischke Mischke received assets marital assets other Auction includes children $175,402. and Mrs. Mischke Mischke the was Service a lump sum child with him. except for part-time valued the award Mischke piano at parties The award Missoula. support Mrs. living trial in after received as he has was unemployed at instruction. I. Whether the "inheritance" in Mrs. The record marital finances, she inheritance considered cash the to Mrs. Our 1992), Mischke's sale of inherited to Wolf still to separate at asset for the parties' with marital inheritance. total amount of time the and awarded the commingled her the that separate controlled that from homes. to were Mischke establishes review prior Mrs. intact of the Point funds determine cash inheritance that however, unable transferred the the be separate District a substantial of trial. Court sum of Mischke. apply 835 Mrs. should she keep effort record nature standard correctly to and although was the inheritance that little we are Nonetheless, the of 1991, made her order establishes, income, Consequently, the from by including estate. that in in January erred testified another received separation marital Mischke to money Court contends Mrs. one account other the Mischke property. from District P.2d of the 702, law. 704, In 49 questions re the St.Rep. 5 of Marriage 604, law of 606. is whether Hamilton An they (Mont. inheritance received during the marriage 202(1), MCA. We conclude marital estate could may be a marital We hold amount of that Mrs. that properly the under District Mischke's the include Section asset. facts of Mrs. Mischke's did not this Court inheritance in case the "inheritance." err the 40-4- by including marital the estate. II. Whether from the Albert District Court erred were made to both disputes the Hoffman Mrs. Mischke gifts were area home. She contends from gifts made to should not not presented made to be awarded testimony to inheritance could for her even alone, of both Mr. from 100% Court's of be traced and Mrs. of the gifted that the both Flathead Mr. to Mischke her. Flathead from Mr. Hoffmans the home resulted and that property transferred Mischke that the family father gifts Mischke. finding as gifts the that particularly her establish though and Mrs. District ownership alone determining Mr. individually, that her her home to her in She home and Hoffman intended title as joint tenants with from sale the to the the right Wolf Point survivorship. However, homes and separate. cash later sums from They were testified that accounts, the $59,555 exhausted prior to living was kept expenses intact. received the Mischke's Mrs. deposited although the in cash from inheritance joint was the accounts. of the separation and home improvements The record does 6 were commingled sale parties' of Mrs. in Wolf to not pay Mischke joint marital Point homes marital and that not kept all the support her contention was debts, inheritance that her inheritance can be accounted Our standard relating to of review the erroneous. clearly erroneous Interstate reasonable it more Letters Mr. and Mrs. as joint Hoffman's Mrs. or to both that Mr. the from marital claim Marriage of Such contributions he helped Dailey is not may not to Mr. construct to (1988), the have the been Mr. property, were Wolf Point 7 both did little District as gifts marriage the In 756 P.2d Mr. to re 1131, Mischke's establishes helped may objecting value. 242, record record partly intended While home, them the property's 235, both payments. Mischke where the Inc. resulted Mischke's here. great, be to to during 232 Mont. case written gifted the a may Asarco, however, estate, that The home Hoffman Property no contribution v. were the this 322- 1080. that of 320, and was conveyed from value from evidence Flathead testimony Mischke. can 1135. gifts the the not a conclusion: survivorship. and partly and Mrs. be excluded the of the support gifts property Mischke's enhance his is evidence Barrett rights gifts is to 1078, are evidence. 250 Mont. of 799 P.2d of substantial (1991), scintilla real ownership found spouse All that maintain Court a they A finding evidence discussing with Despite to Albert tenants Mr. DeSaye findings whether 704. as adequate 200, Mischke. establishes v. preponderance. 196, from at factual is by Substantial than a property supported accept than court's 835 P.Zd is 1287. of less marital Ass'n might I 245 Mont. (1990) it Credit 1285, consists from if mind somewhat of separately. a district Hamilton, Prod. 820 P.2d 23, for division clearly for that construct improvements to the Flathead of both and that his Mr. homes Hoffman from the We conclude there is the District individual also income in Mrs. Mischke that maintenance to payments during evidence finding the contributed combined substantial to the the marriage. record to failed to support to prove an gift. We hold that earnings parties' Court's contributed home, gifts that from the Mr. District Hoffman Court did not were made to both err Mr. in determining and Mrs. Mischke. III. Whether of the marital marital District District that Court must the amount received her net of fees To a copy showing Mischke did demonstrate trial, which Although be amount taxes) support Union, to that is the of the the in is net assets to amount have Mrs. account as of statements of in was December District 2, by her contends represents $43,319.54 Mischke record $45,667.02 cash found she figure the If the actually of pre-separation any bank amount of debts and paid. contention, of bank," estate, gross: the amount incorrect. marital This a savings provide the in net "cash total $47,999.00, less a balance not the the ($46,988.41 she claims this upon $34,995.43. inheritance attorney's evidence determined focuses be included correct of correctly argument She claims estate. inheritance Court estate. Mischke's Mrs. the the introduced from Whitefish April 23, into or other the account did not as Credit 1991. information of the Mrs. to date of state a 1991. Court 8 specifically factual finding bank," the relating to how it amount determined ($47,999.00) than the amount shown as of April to accept any valuation substantial evidence to Hammill (1987), Marriage of District Court represented of could decree or support received from sales Gardner Auction Mrs. to pay her for from her of testified $2,332.00 A trial value judge so long an property that that until the date sold through represented by the $13,000 should debts that $13,003.57 after be ordered she paid figure. the parties debts of money to (the "cash Mischke Court failed respect noted to inheritance amount of the loan) marital pay them. to arrive She at her in bank." her contention District with her $13,000.00 Mrs. support using She separated, in pre-separation for amount Mischke she used to pay $8,444.31 calculation The Mrs. some of which subtracted re the this she Mr. Mischke pre-separation total she borrowed instead is 403. that amount more is free In 732 P.2d determined in as there selected. 263, represented contends 50% of the that only "cash in Missoula. also inheritance, total the date of deposit from marital Service Mischke the 225 Mont. it is he wishes have reasonably that the 23, 1991. of property earned interest the determined to produce that that adequate financial the money was used in this "the marital evidence debt is introduced confusing, records manner. to The by the parties conflicting and incomplete." The decree date of provides separation is that not any indebtedness part of 9 the incurred marital estate. after the This includes that the both $13,000.00 parties Mrs. debts. remain Mischke substantiate $Z,OOO.OO remained A district statements not been 502, is on all provide financial Purdv, the establish but evidence to handwritten Court's did debt not her summaries to claims has 234 Mont. Mrs. and that Mischke she did discovery. introduced she of (1988), that assign copies support during sketchy; copies not Similar at trial testified as to to the of statements and oral or other credible Her claims. allocate to parties Mischke was provide support refusal Mrs. to over and where of Purdy as requested evidence determine testimony the proof slightly establishes for marital trial. to Marriage provides inadequate evidence record accounts marital amounts, other matters of of party's In re the The time also unpaid totalling required or 857. copies the one It for produced debts not creditors P.2d handled to at introduced. 764 but unpaid Mischke. responsible marital based from jointly two court debts by Mrs. testified that marital borrowed consisted of evidence testimony. part of We affirm the $13,000.00 the her District debt to the husband. We hold net assets that of the the District marital Court did not err in determining the estate. IV. Whether 52% of the The Mischke, the marital District including District Court estate Court the to Mr. awarded home, abused its Mischke 52% of stating 10 discretion and 48% to the that: marital by awarding Mrs. Mischke. estate to Mr. The Court has taken all factors into consideration and including the awards a larger share of the marital estate, Woods Bay family home, to the Respondent as a one time cash settlement in lieu of support, and Petitioner shall have no further child support obligation for the minor children of the parties. . . . In dividing distribution which circumstances. distribution action at times which cannot absent Danelson (Mont. discretion Under 1992), of Holston Montana law, 215, division (1983), the an equitable as a finding findings In estate not Marriage 597. be of Abuse of is manifested of the marital 205 Mont. of fact will re the 49 St.Rep. the marital a under party Obtaining categorized 833 P.2d fashion to engage in discretionary an abuse of discretion. in a dissolution I each Such discretionary inequitable the Marriage the court be accurately in apportioning substantially to 835 P.2d at 704. requires must courts property, equitable of law. disturbed similarly is Hamilton, or a conclusion 202 (1) marital estate. by a In re 470, 668 P.2d 1048. and inheritances are of marriage proceeding. gifts Section treated 40-4- MCA, provides . . . the court. . . shall . . . finally equitably apportion between the parties the property and assets belonging to either or both, however and whenever acquired and whether title thereto is in the name of the husband or wife or both . . . In dividing property acquired . . . by gift, bequest, devise or descent; property acquired 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. Section 40-4-202(l), MCA, is 11 a flexible statute vesting district courts In property. 765. with There discretion the Marriage of re is no set addition concerning the property for the court may take may protect and setting aside support of 92, of piano the two minor to provide for In dividing child is to Courts discretion in property, considerations interests of and the children held property King (1985), 216 unemployed except for and separately re District marital support Marriage home. children. of which was to of support that the awarding a larger share of the pay proceeds a sale of by for and which for any child that of the the marital Mischke she sale home, the to Mr. estate children. the conclude ordering Mrs. Considering facts not to Mr. to testified the a lump obligations estate of from be considered from did afford She further a larger support Court was not support Instead Mischke, she and could their awarded marital P.2d asset broad also that instruction Court District have of jointly testified District future to In 757 591. family child given best children. 40, 768. they the a portion 232 Mont. discretion account marital how an inherited children. promote their for the into Mischke part-time intended for 700 P.2d Mrs. support broad distributing Stewart, at division, support for concerning 757 P.2d to providing Mont. rule Stewart, be divided. In wide abuse Mischke District share the of this its case, relieved we discretion did the marital 12 not conclude Mischke. abuse estate its to in her by awarding and 48% to Mrs. Court of sum settlement of lieu all that the 52% of the We further discretion Mr. Mischke in in lieu of monthly We hold 52% of the that 1988 Internal support the payments. District Court estate marital Pursuant precedent child to Section Operating and shall with the Clerk West Publishing of to Mr. Mischke I, Paragraph Rules, this be published this Court not decision filing and by a report Company. We Concur: Justice 13 err in and 48% to 3(c), by its Affirmed. Chief did Montana shall distributing Mrs. Supreme not its Court be cited as a public of Mischke. result as document to the February 2, 1993 CERTIFICATE OF SERVICE I hereby certify that the following order was sent by United States mail, prepaid, to the following named: James C. Bartlett HASH, O BRIEN & BARTLETT P.O. Box 1178 Kalispell, MT 59903 R.M. KEHEW Attorney at Law P.O. Box 5427 Kalispell, MT 59903-5427 ED SMITH CLERK OF THE SUPREME COURT STATE OF MONTANA
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