MARRIAGE OF SIMMS
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NO. 93-110 IN THE SUPREME COURT OF THE STATE OF MONTANA 1994 IN RE THE MARRIAGE OF ,- GARNET SIMMS, Petitioner and Respondent, yfip," 8 and APPEAL FROM: 1994 District Court of the Fourth Judicial District, In and for the County of Missoula, The Honorable Jack L. Green, Judge presiding. COUNSEL OF RECORD: For Appellant: Julio K. Montana Morales, Morales Law Office, Missoula, For Respondent: Neil M. Leitch, Missoula, Montana Submitted on Briefs: Decided: Filed: Clerk _..-.--.-- December 2, 1993 March 28, 1994 Justice James C. 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 2 filed. 13, The parties separated on June 6, 1989, and, on September 1989, Garnet filed an Amended Petition for Dissolution of Marriage. Arlyn subsequently requested that a conference be conducted and the presiding judge, settlement 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 3 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, February mistake, misrepresentation, and undue influence. On 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. constraints, Due to time 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. 4 Be 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. Section 40-4-201, We disagree. sort of marital settlement agreement (referred to in the statute and in this MCA, allows only one 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 5 visitation of their children. (2) - . . [T:lhe 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 including disposition of the various issues mentioned above, property distribution, debt distribution, maintenance, custody and support, nevertheless their agreement was never reduced to writing The fact that the parties may orally as required by the statute. agree to a certain disposition of the various matters usually covered by a written separation agreement does not negate the requirement contemplated that, by to be enforceable as a separation agreement 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 5 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 6 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 Haves, 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. Haves, 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 & separation agreement referred to in the statute is the written separation 7 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 visitation the property, issues maintenance, support, custody and 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) t 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 5 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 Haves, we also made it clear that parties are bound by the stipulations made by them, or by their counsel, in open court. McLean/Fleury In re the Marriage of (1993), 257 Mont. 55, 60, 849 P.2d 1012, 1015. In McLean/Fleurv, 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 8 The custody. parties agreement, however, issues others and parties, by custody. On to on the and court a separation determined merits. During certain matters claimed without court the into the wife record enter to stipulated the 84:9 response trial made open McLean/Fleurv, unable ultimately, a appeal, that in In after was notwithstanding were and, counsel, stipulation to were her showed with that trial, the regarding her counsel's or consent, the matters stipulated parties in knowledge that both those attendance. P.2d at 1015. to the wife's claim, we stated: Section 40-4-201(l), MCA, allows the parties to enter into agreements support, custody, regarding 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 (Mont. 1992), 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, While district in court regarding is our decision obvious visitation, holding of from separation addressing custody, we, the but, instant agreement custody, found no parties plain Maqer: statutory the we the district agreements at 1015. case, in the applicable In that matters what written 849 P.2d in court in is the support, hasten of § of custody, bound by matters, is Maqer, record. property the stipulations to reaffirm 40-4-201(2), the in MCA, and and support, parties' required to oral apply or the 785 P.2d at 200. counsel 9 discretion in-court nevertheless, not those of their language case, Arlyn's into to matters criteria. abuse recited the terms of the Those terms included ones and debt distribution, and Arlyn's inheritance. Garnet's counsel stipulated that the recited terms were correct, and both parties were then maintenance, 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 And you should understand that all this is stipulated. 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 marri.age 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 Haves regarding the necessity for written settlement agreements and the holding of McLean/Fleurv 10 regarding the binding effect of oral, on-record stipulations appear to conflict, in actuality, they do not. Reading together and harmonizing the requirements of § 40-4201, MCA, and our decisions in Miller, Maqer, McLean/Fleurv, and Haves, 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 11 the court not to be unconscionable and by their on-record oral stipulations matters of whether property visitation. The those agreements and stipulations concern division, district maintenance, court, however, custody, support and 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, district there remains the matter of how, if at all, the court stipulations and agreement. is to utilize agreements when the parties there extent no on-record written separation We conclude that in matters of property division and maintenance the parties' oral, on-record the is oral, possible, stipulations should, to 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. 12 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. order and consider whatever The district court must 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' stipulated agreements to writing. failure to reduce their Further, the District Court was, as stated above, required to dispose of all contested issues on the basis of the statutory criteria applicable to each, while, to the extent possible,. holding the parties to their on-record 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 13 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 marital estate is The distribution of the governed by 5 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 (1993), the circumstances. In re the Marriage of Zander _ 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. valued at $60,888.00. the family home, Arlyn was awarded personal property Arlyn received no credit for or portion of 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, 14 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 Cc) whether or not the property division serves as an alternative to maintenance arrangements. Section 40-4-202(l), 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 15 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 distrirzt 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 g 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 16 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. "need[s] live In fact, a substantial share of her husband's assets so she can comfortably." erroneous. review, the District Court found that Garnet We hold that these findings are clearly We reverse and remand the issue of maintenance for 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. 17 However, there is no provision P.2d support 258, obligation we hold Montana entry 262. of law the in consistent District has trust the competent Court the with and for a child of abused child its obligation for fact, may child is further not create after a the discretion at of and Chief Justice Justices 18 trust to parent's violated issue. law and for and judgment this opinion. Concur: or Therefore, Justice We that 218 Mont. 327, 335, proceedings conclusions after dependent m, 708 P.2d at 262. trust remand findings new Court ended. District imposing reverse of The support that We unless non-dependent, a a In re the Marriage of Alt (1985), incompetent. 708 creating majority, reaches child for the Justice Karla M. 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 § 40-4201, MCA, between parties to a marital dissolution. that view, If I shared I would agree that the agreement did not meet the requirement of li 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. conference, marital As a result of that the parties agreed to a specific distribution of the 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 19 in a marital action is one which meets the requirements agreement" 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 distribution court. and is which, not insofar at it relates to property unconscionable, will be binding on the 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 presided over by district judges. achieve mutually acceptable settlement Settlement results for the conferences conferences parties can 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 20 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, documents. agreement, expense and aggravation of preparing written The Court apparently does not find a specific 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 T Haves has any applicability here. h e facts and the record before us in Haves differed significantly from the present case. In Haves, 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 entitlements. assets as the parties' separate retirement As a result, the court properly required the parties to submit the agreement in written form but no written agreement 27 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 Haves we held that a settlement agreement not reduced to writing is not enforceable. with that correctly interpretation. states, was I disagree The question in Haves, as the Court 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." Haves, 846 P.2d at 273. As noted above, the Haves agreement was totally lacking in such specificity. The murkiness and lack of specific agreement about specific property is what prompted our decision in Haves 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 Haves. 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 22 mutual fund, the Bateman Either 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 . . . .I1 Here, the terms of the agreement were clear and there was no order from the court 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 enforceable, it is my view that the settlement agreement is 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 John Conway Harrison joins Justice Karla M. Gray. 23 Justice Fred I the J. concur Weber oral parties in concurs the marital majority settlement enforceable, establishing a dissent Issues from for the reviewing maintenance, I II and - the findings and pertinent it regard the to Issue into I--Is between District err in college education? I well the child's Court the III. PROPERTY property find follows: entered IV--Did minor as with agreement Issue trust dissents opinion and II In and DISTRIBUTION distribution important 55. the Both graduate time are with PrOCessing in the award District a an hour. She anticipates high school equipment as he of heavy small of his operator It from who may his currently for the of Court's ranch he spends total be the majority and has two has of known 24 time at additional In high finding of in months where 33 years. is life a as an college. He Since Arlee. as rodeos a heavy and doing approximately payments of word Arlyn his is a ten for was school District employment inheritance with ranch. of in Arlyn completed School home his his a employed years family quit most greater father's the is, parents. spent at and homemaker her follows old is a as she Arlee from has His and been parents and school has equipment cattle pleases. $624,917. received graduate years Garnet inheritance minimal She 52 health. She secretary summarized was business as $9.30 a Garnet 1986-87. earns death of in she the year year the are physical class of operates hearing good one out operator of which consider as part: At conclusions to as fact to IX, be the District both Court set parties following forth during with in detail their regard to all of marriage. inheritance Known of deposit grandmother inheritance on the a result Arlyn's assets The of As for fact only December father's substantial older; the in she out rent $178,500 1989 has of and needs. as The his Arlyn she has for her herself through pension has value the has of found that reasonable appropriate and a home Garnet "lacks employment." 25 As will as need gets of the for husband her her account, basic surrounding and is to a she must sufficient she accumulated savings for property finding because her and In has she homemaker marital and was comfortably provide needs, be total. that deplete real to deduction no Garnet to no expenses retirement as to that live her had stocks Garnet fund for living that to working retained Court provide unknown approximate opinion, in found assets spent and monthly included saved She account residence. District 78,124 368,293 total majority Court Arlyn's children. market the figure little years money in retirement thirty-plus five - value the Garnet's District her share gave the Arlyn: estate Court determined $460 XI of are by $785,805. pointed the $7291 District at court $1458. made the this - 1989 Balance owed on contract due from sale of father's land to Simontons & Murdocks As accumulated in part from as of from assets Included Inheritance from respondent's (Arlyn's) mother as of December Certificates respondent's the pay daily acreage rent. property unable Arlyn, to the to support court found that $624,917 needs he could plus are inheritance much providing afford less Garnet a retire money he his total than with to because has of "the received" assets greater proportion XII court and of and he approximate because is his of property marital capable and maintenance. In years finding of of marriage, husband's needs, extensive indeed duty she when abuse from children the a sick family for the the Garnet's did she, nor be awarded the contributions enormous took to the chores His he he and of not do money of fact family was home in the around from for his the court 26 to She is seriously the care the of family his and of who the provided marital machinery contributions for Since calves. small on the required man a of for chores. was pull were physical maintenance worked Arlee and the ran received XIII she her call hard-working a and provide living help for cared domestic ranch, facilitate much mental responsibilities and as for and non-monetary did of household, livestock family his the cattle who amount provider of standard the exceeded Arlyn did finding homemaker property. did efforts a her served going. good In the because Arlyn's very did as working woman thirty-three providing maintained a after and family's was that children an She found contributions calves, vaccinate and ranch with the needs operation up was she and that put hard-working everything five Garnet's and home the raising Arlyn. and marital nurse fact cattle and kept are less than the children home. family did as However, provide a family. concluded worth that $100,000 Garnet and that should 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 reguire Arlyn to pay $400 per month for Katy'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, 27 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 5 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 of the major marital asset (the family home) simply because of Arlyn's receipt of a substantial postseparation 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 bo-th, 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; the extent to which such contributions have . (b) facilitated the maintenance of this property; and 28 whether Cc) an alternative The essence the District because of in that the was of an 202(1), of In The first the however both. several Clearly that suggest that property not be to In MCA, in a equitably similar this contributions are not case of limited to the require some required contributions of Garnet; the of of such District home Court's to Garnet those conclusions above quoted consider all "equitably Garnet and § and 40-4- properties, Arlyn the District of extent of 29 the to of Court Note to between either in of or basis to inheritance is no parties. monetary statute 40-4-202, one affords portions marriage. form is post-separation between 5 or title by the maintenance and statute the the of apportion" whether subsequent by (1) the apportioned are facilitated acquired, acquired to any receipt marital subsection to contributions have of belonging portion Garnet his Arlyn the court to manner, award with that Court whenever Garnet inheritances. sentences property to that post-separation to of the disagree the home result, the of believe District and failing value that is substantial a I as $100,000 because as I the serves majority the in merely $100,000 of a erred discretion. the of and post-separation parties them, home requires require MCA, court contrast, MCA, including the entire abuse holdings. the holding awarded receipt inheritance: the and improperly family post-separation award conclusions Arlyn's inheritance; credit the Court of or not the property division maintenance arrangements. to § to 40-4-202(l), consider those contributions contribution. include which the such property--note the The nonmonetary contributions 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 Arlyn. the substantial post-separation inheritance received by 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 maintenance arrangements. some part of the 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 5 40-4-202, MCA, require the District Court to equitably apportion the property and assets "however and whenever acquired." part of the I find no basis for the narrow holding on 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 30 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(l), 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: Court Again, it is clear that the District post-separation inheritance by considered Arlyn's granting Garnet the excessive award of maintenance. In fact, the District Court found that Garnet "need[s] a 31 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; the time necessary to acquire sufficient (b) 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 32 fact I to which would found emphasize by the lifestyle" statute, for her I but I elements including property would of the Chief Justice dissent. 5 has to lived is expenses be since entitled been to As an to allocated based the made. example, Garnet on a "bare date of separation. sufficient and were frugal Under property to provide of maintenance needs. remand with or the apparent Court is post-separation that 40-4-203, as on the District require facts $1458 Court disagree the previously the therefore remand, I she "reasonable" inherited remand that Garnet would award, has District which the that reference the MCA, District which are issue majority not holding allowed inherited Court the to to in consider property. consider pertinent that all this of On the case, previously foun J.A.. Turnage concurs in the foregoing coyrence and 34
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