In Re the Marriage of Caprice

585 P.2d 641, 178 Mont. 455, 1978 Mont. LEXIS 643
CourtMontana Supreme Court
DecidedOctober 11, 1978
Docket14008
StatusPublished
Cited by10 cases

This text of 585 P.2d 641 (In Re the Marriage of Caprice) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re the Marriage of Caprice, 585 P.2d 641, 178 Mont. 455, 1978 Mont. LEXIS 643 (Mo. 1978).

Opinion

MR. JUSTICE SHEEHY

delivered the opinion of the Court.

Appellant, Anthony J. Caprice, appeals from a property division and support judgment entered by the District Court, Eighteenth Judicial District, Gallatin County, without a jury, on July 11, 1977. Appellant filed his petition for dissolution of marriage on November 19, 1976. Respondent, Dorothy S. Caprice, answered and cross-petitioned for custody of their minor child and for child support, maintenance and attorney’s fees.

Two hearings were held in this matter, one on February 8, 1977, which resulted in the dissolution of the marriage and reserved for later disposition the issues of custody, support, maintenance, visita *457 tion and determination of property rights. The second hearing was held on June 22, 1977, following which the District Court issued its findings of fact and conclusions of law and judgment. The District Court gave custody of the minor child to respondent and neither this nor the granting of the dissolution is contested in this appeal. However, the District Court’s division of the marital property is disputed and is the subject of this appeal, as is the court’s award of $450 child support and maintenance.

Appellant and respondent were married in 1961. They have one child, Anthony, Jr., age 14. During most of their marriage, the parties resided in the State of Maryland, where they owned a home and other real estate. In 1976, they moved to Bozeman, Montana, where appellant still resides. At the time of the property division, appellant was 50 years old and respondent was 56 years old.

Prior to the marriage, respondent was employed as a fashion merchandising manager in large east coast fashion department stores. She has a college degree and has done work on a post graduate level in executive management. She also has training in interior design. Respondent has not worked however, since 1962 other than to wash the linen from her husband’s beauty salon in Maryland. Respondent has claimed that illness is preventing her now from working although she admitted at trial she could work. At the time of the marriage, respondent owned an automobile and occupied a fully furnished six room apartment in which the couple moved after their marriage. Respondent’s automobile was later traded in on an automobile which in turn was traded for one of the vehicles involved in the property settlement.

Until the move to Montana, appellant’s principal occupation was part owner and operator of Caprice and George, Inc., a woman’s beauty salon in Chevy Chase, Maryland. He started that enterprise about the time of his marriage to respondent. His gross earnings in recent years except when incapacitated by illness, had been approximately $20,000-$22,00£) annually. Although- no longer actively involved in the business, appellant stills owns a 50 percent interest in the enterprise. Appellant is currently employed *458 as a realtor in Bozeman, Montana and for the period January 1977 to June 1977 had grossed approximately $7,400 with expenses of $6,900 (including $2,000 of legal fees for litigation in which appellant was involved). During the marriage, the parties were able to acquire a home and a tree farm in Maryland.

In August 1975, appellant suffered a nervous breakdown brought about by financial, business and marital problems and was voluntarily hospitalized for a short period of time. Prior to his hospitalization, appellant gave to respondent his power of attorney.Appellant revoked it November 1975, while on a trip to New York following his release from hospitalization. During the effective period of the power of attorney, the sale of the tree farm was initiated by respondent. Additionally, respondent began and continued to manage the funds of the family, paying bills, handling travel expenses, etc.

The sale of the tree farm was consummated by respondent in December 1975. A sum of $68,823.77 was realized from that sale. All this money, except $30,000 was deposited by respondent in a checking and savings account with the First National Bank of Kensington, Maryland. Appellant was not a signer on this account. A sum of $20,000 of the $30,000 not deposited in that bank account was used by respondent to purchase a U.S. savings bond in her name and that of her son. Respondent claims this was for the child’s education. Appellant claims it was to serve as a “tax shelter”. The remaining $10,000 cash, respondent claims to have spent in repayment of loans taken from friends for living expenses during one of appellant’s prolonged absences from home and for other living expenses. Evidence was introduced at trial however, showing that checks were also written during this period to cover the same “living expenses”.

After appellant’s release from the hospital, and his return from New York, he did not go back to work at Caprice and George, Inc. Instead, the family including appellant, continued living solely from the proceeds of the sale of the tree farm until their house was sold in June 1976.

*459 In December 1975, the entire family vacationed in Florida for several weeks, paying for expenses from the proceeds of the sale of the tree farm. During the period June to August 1976, the family took two trips to Montana for which respondent withdrew $ 15,000 of the funds on deposit in the First National Bank of Kensington. Some of this amount was also apparently used for living expenses and repayment of loans, according to respondent, and $5,000 of it was given upon his demand to appellant.

In June 1976, respondent completed the sale of the home in Maryland with appellant’s consent. A sum of $57,664.09 was realized from the sale. Of this amount, $5,000 was put into a joint checking account at Garret National Bank in Maryland and used for the benefit of both parties. The balance was deposited by respondent in the First National Bank of Kensington account. A certificate of deposit for the minor child in the amount of $ 10,000 was puchased with monies from this account and an additional $2,000 was withdrawn to be used on the first trip to Montana made by the family.

On August 17, 1976, $20,000 was withdrawn from the FNB of Kensington and deposited in the First National Bank of Bozeman, so the parties might purchase a home in Bozeman. On August 25, 1976, $2,000 was withdrawn from the FNB of Kensington by respondent in order to purchase a mink coat. The checking account in the FNB of Kensington was closed out by respondent in the sum of $8,318.12 on October 27, 1976. On November 17, 1976, the date of the filing of the dissolution petition by appellant, respondent closed out the savings account in the FNB of Kensington in the amount of $24,628.22. Respondent’s accounting for these latter two amounts, totalling almost $33,000 is vague. The only explanation was that there were withdrawals for “living expenses” for the period from November 1976 to the date of trial in June 1977. Respondent claimed at trial that those funds are now dissipated. Respondent also indicated in her testimony that she had removed the funds to keep them from appellant and in order to support herself *460 and her son, and appellant may have taken part of the monies from her motel room. Appellant denies the latter claim.

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Bluebook (online)
585 P.2d 641, 178 Mont. 455, 1978 Mont. LEXIS 643, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-caprice-mont-1978.