In re the Marriage of Sell

630 P.2d 222, 193 Mont. 88, 1981 Mont. LEXIS 775
CourtMontana Supreme Court
DecidedJune 18, 1981
DocketNo. 81-42
StatusPublished
Cited by11 cases

This text of 630 P.2d 222 (In re the Marriage of Sell) 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 Sell, 630 P.2d 222, 193 Mont. 88, 1981 Mont. LEXIS 775 (Mo. 1981).

Opinion

MR. JUSTICE HARRISON

delivered the opinion of the Court.

The Flathead County District Court entered a decree of dissolution following a petition by husband, Larry K. Sell, and a trial without a jury. Carol Jean Sell, respondent and appellant, appeals from provision of that decree relating to the distribution of marital assets.

The parties were married from July 20, 1971, until the dissolution of the marriage on May 9, 1980. They had one child who was eight years old at the time of the dissolution. From 1971 to 1980 there were several separations of unknown duration, but the final separation occurred in July 1979.

Petitioner-respondent is employed by the Anaconda Copper Company with take-home wages of about $1,200 a month. The wife was working as a motel maid at the time of the dissolution and has had experience working as a licensed practical nurse.

[90]*90The major marital asset is a home purchased by the parties in December 1976, after they had been separated for several months. At the time of purchase, the appellant contributed $1,000 to the downpayment, and the husband contributed $850. The wife’s contribution was from a sale of her former home.

The parties lived in the home from December 1976 until July 1980. When they moved into the home it was unfinished. For three years they made substantial improvements to the home, most of the work being done by the husband. The materials used to make the improvements came to approximately $5,500. Petitioner testified that he devoted at least 1,500 hours in labor to make the improvements. In addition, he was assisted by his father who did not get any compensation for his work. There is sharp disagreement over the extent to which the appellant assisted in the improvements. She testified that she had worked about one-half as much as her husband, while he claims she helped very little. The parties eventually planned to sell the house and purchase a bigger piece of property.

Due to the improvements plus a general inflation in property values in the area, the property increased in value from the original purchase price of $28,000 to a value set by the trial judge at $55,000. This price was agreed upon by both parties. The net value of the marital estate, determined by subtracting the value of other debts from the estate, is $21,000.

The marital property subject to distribution by the District Court consists of the following: the family home, $55,000; proceeds from the sale of a 1976 Vega, $1,500; and, a Ventura camper, $1,500. The total assets therefore were valued at $58,000. Debts of the marital estate, owing on the house and other debts consolidated into home refinancing, were $34,000, leaving $24,000 in net assets.

Two issues are before this Court: (1) Does this Court have jurisdiction over the appeal; and (2) did the District Court abuse its discretion in apportioning the marital property of the parties?

The first issue stems from the District Court’s order entered on September 12, 1980. The order modified the findings of fact [91]*91and conclusions of law more than fifteen days after submission of appellant’s post-trial motions. By exceeding the time period mandated by Rule 59, M.R.Civ.P., the District Court divested itself of jurisdiction to determine the motion, and its order was a nullity. Marvel Brute Steel Building, Inc. v. Bass (1980), 189 Mont. 480, 616 P.2d 380, 37 St.Rep. 1670. The original notice of appeal from the second decree, based on that order, was untimely under Rule 5, M.R.Civ.P., and we have no jurisdiction as to the second decree. See Price v. Zunchich (1980), 188 Mont. 230, 612, P.2d 1296, 37 St.Rep. 1058.

Appellant argues that this defect is cured by the appellant having lodged an appeal to the first decree. We agree. The notice of appeal to the first decree was filed long after its entry. However, the clerk of court inadvertently failed to file and serve the notice of entry of judgment of the first decree. Since there was no date to begin the time for notice of the appeal to be filed, the notice was not untimely. The time to appeal, therefore, did not expire, and Rule 5, M.R.App.Civ.P., was not violated. This Court can assume jurisdiction over the appeal. Haywood v. Sedillo (1975), 167 Mont. 101, 535 P.2d 1014.

The first and second decrees did not vary substantially, and the reasons for the appeal were identical. Respondent is not prejudiced by a surprising shift in the substantive nature of the appeal.

We now turn our attention to the main issue on appeal, whether there was an abuse of discretion by the District Court in apportioning the marital assets.

Appellant recognizes that the District Courts have broad discretion under Montana law in distributing marital property but argues that this discretion is not unbounded. She argues that under section 40-4-202, MCA, the District Court cannot act arbitrarily and must consider all criteria under the statute so that there will be a just, equitable and reasonable distribution. This Court has a limited scope of appellate review and will not intervene except when the District Court has departed substantially from the norms of equity. In re Marriage of Herron (1980), 186 Mont. 396, 608 [92]*92P.2d 97, 37 St.Rep. 387; In re Marriage of Jacobson (1979), 183 Mont. 517, 600 P.2d 1183, 36 St.Rep. 1773. Appellant here alleges that the District Court departed substantially from the norms of equity and asks that this Court intervene.

In In re Marriage of Berthiaume (1977), 173 Mont. 421, 567 P.2d 1388, relying on Porter v. Porter (1970), 155 Mont. 451, 473 P.2d 538, we set the standard of review on appeal in cases involving claims that the District Court abused its discretion. These reasonable and understandable guidelines were followed by the District Court. There is nothing “arbitrary” in the District Court’s determination, and we find no error.

There was no question concerning the distribution of the bulk of personal property of the parties nor with the custody of the child. The only question concerns the house. The values of the house, the car and the camper were agreed to by stipulation. Appellant takes no issue with the value of the car or the camper, and for all intents and purposes is satisfied with the grant to her of the balance of her downpayment on the house. The District Court’s division of the house, the remaining asset, on other than a 50-50 basis is claimed as error by appellant.

This Court in In re Marriage of Aanenson (1979), 183 Mont. 229, 598 P.2d 1120, 36 St.Rep. 1525 noted:

“Although the District Court may equally divide the marital assets, such a distribution is not mandated by section 40-4-202, MCA. See Kuntz v. Kuntz (1979), 181 Mont. 237, 593 P.2d 41, 36 St.Rep. 662. Section 40-4-202 is flexible and it vests a good deal of discretion in the District Court. In re Marriage of Jorgensen (1979), 180 Mont.

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Bluebook (online)
630 P.2d 222, 193 Mont. 88, 1981 Mont. LEXIS 775, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-sell-mont-1981.