11/19/2024
DA 23-0632 Case Number: DA 23-0632
IN THE SUPREME COURT OF THE STATE OF MONTANA
2024 MT 273
IN RE THE MARRIAGE OF:
DAVID RODMAN ASH,
Petitioner and Appellant,
and
BREE ELLIOT (f/k/a BRENDA MARIE ASH),
Respondent and Appellee.
APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DR-15-2002-556 Honorable Danni Coffman, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Matthew T. Cochenour, Cochenour Law Office, PLLC, Helena, Montana
P. Mars Scott, Attorney at Law, Missoula, Montana
For Appellee:
Penni L. Chisholm, Chisholm & Chisholm, P.C., Columbia Falls, Montana
Submitted on Briefs: August 21, 2024
Decided: November 19, 2024 Filed: ir,-6‘A•-if __________________________________________ Clerk Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 In September 2022, David Rodman Ash (Ash) petitioned to dissolve his marriage
with Bree Elliot (Elliot). On July 13, 2023, the Eleventh Judicial District Court, Flathead
County, issued its Findings of Fact, Conclusions of Law, and Decree of Dissolution,
dissolving the marriage and dividing the marital property. Ash moved to amend the decree,
arguing that the District Court had disregarded his labor contributions constructing a shared
home when the court distributed the marital assets, as well as his poor health and limited
prospects of future income. The District Court denied his motion to amend on October 2,
2023. Ash now appeals the District Court’s allocation of the marital assets. We reverse
and remand.
¶2 We restate the following issue on appeal:
Whether the District Court equitably apportioned the marital estate.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 Ash and Elliot married on July 1, 2015. They separated on June 15, 2022, and their
divorce was finalized on July 13, 2023. The seven-year union was the second marriage for
both, and each had two adult children from previous relationships. At the time of
dissolution, Ash was 65 years of age and Elliot was 62 years of age.
¶4 Elliot retired in 2015 from a career in the captive insurance market. She had a
premarital net worth of $3,616,000. Most of her assets were held in a personal trust, except
for her retirement accounts, vehicles, and the home she shared with Ash.
¶5 Ash is self-employed in the land management and property caretaking field. Ash
also has expertise in designing and building custom log homes and furniture. Since 1997, 2 Ash has lived on a five-acre property on Eastman Drive (Eastman Property). He saved
$16,386 for a down payment on the property and purchased it for $144,900 in 1998. He
raised two daughters as a single parent in the home and one daughter and her son still live
on the property.
¶6 Ash intended to live on the Eastman Property for the rest of his life. When Ash and
Elliot married, Elliot paid off the remaining $99,082 mortgage balance on the property.
Ash and Elliot then established the Ash Residence Trust. Under the governing terms, Ash
transferred his Eastman Property into the trust and Elliot would “substantially invest in
improvements” to the property. The trust agreement stipulated that each spouse owned a
50% interest in the property and that each “had provided and will continue to provide equal
contributions” to improving the Eastman property, either financially or through
nonmonetary contributions. While the trust agreement contemplated the rights of Ash or
Elliot should one survive the other, the trust did not contain any provisions for distribution
of property in the event of the dissolution of their marriage.
¶7 The couple then began constructing a 6,000 square foot house (the Lodge) on the
Eastman Property. Elliot and Ash cooperated on the designs of the Lodge. Ash oversaw
construction of the home, using his expertise as a contractor and log home designer. He
supervised or did much of the actual labor himself. Ash devoted more time to building the
Lodge, and less to his paying-customer base.
¶8 For the first three years of the marriage, Elliot continued to reside at her nearby
premarital property (Parker Lakes Property). Elliot moved into the Eastman Property in
3 2018 and sold the Parker Lakes Property in 2020. Ash testified he performed year-round
maintenance of the Parker Lakes Property for Elliot. In Winter 2019, the Parker Lakes
Property pipes froze and burst, causing flooding of the basement and other damage. Elliot
hired a restoration company to dry the basement, but Ash testified he performed the actual
repairs and necessary rehabilitation of the house with his employees and subcontractors.
The employees and subcontractors were paid, but Ash was not. Ash also prepared the
Parker Lakes Property for sale. Ash estimated his contributions to the Parker Lakes
Property amounted to $55,000-$57,000. When Elliot sold the property in 2020 for
$850,000, Ash received no compensation for his labor. Elliot reasoned that because she
had planned to provide for the rest of their lives, Ash need not worry about immediate
compensation. Elliot likewise encouraged Ash to begin receiving his Social Security at his
earliest eligible age, even though he would be receiving a reduced benefit.
¶9 By the time of dissolution, the Lodge was largely finished but not completed. The
remodel, in terms of hired labor and construction material, cost approximately $1,050,918.
The costs were paid from the Ash Resident Trust’s joint construction account largely
funded by Elliot.
¶10 Both parties have struggled with their health in recent years. Elliot has a history of
stroke. A lifetime of manual labor has taken its toll on Ash, who now has artificial knees
and ankles. Elliot no longer needs to work as she can live off her various investments and
retirement accounts. However, Ash believes he will need to work for the rest of his life.
4 ¶11 The parties stipulated to much of the distribution of the marital estate, including
premarital assets, personal property, and vehicles. Following a one-day bench trial on
June 8, 2023, the District Court issued its Findings of Fact, Conclusions of Law, and
Decree of Dissolution on July 13, 2023, awarding 80% of the value of the Eastman Property
to Elliot and 20% to Ash. The order provided Ash had 30 days to buy out Elliot’s interest
and, if he was unable to secure financing, Elliot then had the same opportunity to buy out
Ash’s interest. Ash moved to amend the decree, arguing the distribution of the Eastman
Propery was inequitable. The court denied this motion on October 2, 2023. Ash then
appealed to this Court.
STANDARD OF REVIEW
¶12 We review a district court’s division of marital property to determine whether the
court’s findings of fact are clearly erroneous. In re Marriage of Funk, 2012 MT 14, ¶ 6,
363 Mont. 352, 270 P.3d 39; In re Marriage of Tummarello, 2012 MT 18, ¶ 21, 363 Mont.
387, 270 P.3d 28. A finding of fact is clearly erroneous if it is not supported by substantial
evidence, the district court misapprehended the effect of the evidence, or our review of the
record convinces us that the district court made a mistake. In re Tummarello, ¶ 21 (citation
omitted). Absent clearly erroneous findings, we will affirm a trial court’s apportionment
of the marital estate unless we identify an abuse of discretion. In re Funk, ¶ 6; In re
Tummarello, ¶ 21; Richards v. Trusler, 2015 MT 314, ¶ 12, 381 Mont. 357, 360 P.3d 1126.
An abuse of discretion occurs if the court acted arbitrarily without employment of
5 conscientious judgment or exceeded the bounds of reason resulting in a substantial
injustice. In re Tummarello, ¶ 21 (quotation omitted).
DISCUSSION
¶13 Pursuant to § 40-4-202(1), MCA, a court’s findings of fact must allow for a
reviewing court to determine the reasonableness of the court’s apportionment without
having to speculate as to the appropriate net worth of the marital estate. In re Marriage of
Crowley, 2014 MT 42, ¶¶ 26, 32, 374 Mont. 48, 318 P.3d 1031 (citations omitted); In re
Funk, ¶ 34. “While § 40-4-202, MCA, does not require a strict, itemized accounting and
valuation of every marital asset and liability in every case, district courts must at least make
findings of fact that are sufficient as a whole to manifest an equitable distribution of the
marital estate.” In re Marriage of Elder and Mahlum, 2020 MT 91, ¶ 9, 399 Mont. 532,
462 P.3d 209 (citations omitted); see also In re Marriage of Richards, 2014 MT 213, ¶ 15,
376 Mont. 188, 330 P.3d 1193 (quoting In re Marriage of Lewton, 2012 MT 114, ¶ 15, 365
Mont. 152, 281 P.3d 181); Larson v. Larson, 200 Mont. 134, 139, 649 P.2d 1351, 1354
(1982) (“Item-by-item findings are not required in property division cases, but findings
nevertheless must be sufficiently adequate to ensure that this Court need not succumb to
speculation while assessing the conscientiousness or reasonableness of the District Court’s
judgment.” (citation omitted)). Relevant here, “[p]arties are bound by stipulations made
in open court.” In re Marriage of Jakkola, 267 Mont. 450, 453, 884 P.2d 783, 785 (1994)
(citation omitted). When “the court is able to apply the statutory [§ 44-4-202, MCA]
criteria, while, at the same time, holding the parties to their on-record stipulations and
6 agreements, it should do so.” In re Jakkola, 267 Mont. at 453, 884 P.2d at 785 (quotation
omitted).
¶14 Here, the record indicates that the parties had stipulated how to allocate much of the
marital estate, agreeing to the distribution of their personal property as well as most of the
premarital assets, including vehicles. Through these stipulations, Ash sought none of the
money Elliot held in her personal trust or retirement investments. Instead, he argues the
District Court erred by not calculating the full net worth of the marital estate. This finding
need not be “a specific finding of the marital estate’s net worth,” however the court must
provide sufficient evidence from which we can ascertain the reasonableness of the ultimate
apportionment. In re Crowley, ¶ 34. We conclude there was no error in the valuation of
the marital estate. This dispute primarily concerns the apportionment of the Eastman
Property, not the other assets distributed pursuant to the stipulation of the parties. The
District Court made a specific finding of the worth of this primary asset in dispute and from
that we can review the equitableness of the distribution of that asset.
¶15 “The distribution of marital property in a dissolution proceeding is governed by
§ 40-4-202, MCA, under which a trial court is vested with broad discretion to distribute
the marital property in a manner that is equitable to both parties.” Richards, ¶ 11 (citing
In re Marriage of Lee, 282 Mont. 410, 421, 938 P.2d 650, 657 (1997)). The factors
§ 40-4-202(1), MCA, mandates a district court to consider are:
the duration of the marriage and prior marriage of either party, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties, custodial provisions, whether the apportionment is in lieu of or in addition to
7 maintenance, and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution or dissipation of value of the respective estates and the contribution of a spouse as a homemaker or to the family unit. In dividing property acquired prior to the marriage, property acquired by gift, bequest, devise, or descent, property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise, or descent, the increased value of property acquired prior to marriage, and property acquired by a spouse after a decree of legal separation, the court shall consider the contributions of the other spouse to the marriage, including:
(a) the nonmonetary contributions of a homemaker; (b) the extent to which such contributions have facilitated the maintenance of the property; and (c) whether or not the property division serves as an alternative to maintenance arrangements.
After a court considers these factors, the statute further directs the district court to “finally
equitably apportion between the parties the property and assets belonging to either or both,
however and whenever acquired and whether the title to the property and assets is in the
name” of one spouse, the other, or both. Section 40-4-202(1), MCA. “Section 40-4-202,
MCA, vests the district court with broad discretion to equitably apportion the marital estate
in a manner equitable to each party according to the circumstances of each case.” In re
Marriage of George and Frank, 2022 MT 179, ¶ 35, 410 Mont. 73, 517 P.3d 188 (citing
In re Funk, ¶¶ 16, 19). When dividing marital property, the trial court must reach an
equitable distribution, not necessarily an equal distribution. Richards, ¶ 11 (citing In re
Marriage of Walls, 278 Mont. 413, 416, 925 P.2d 483, 485 (1996); In re Marriage of
Kostelnik, 2015 MT 283, ¶ 18, 381 Mont. 182, 357 P.3d 912).
¶16 In Richards, we reversed a district court’s apportionment which provided only 6%
to 10% of the marital estate to one spouse because the district court, despite appropriately
8 taking into account the spouse’s various nonmonetary contributions to the marriage,
“unduly minimized” those nonmonetary contributions. Richards, ¶ 31. There, the
apportionment granted by the district court did not provide the wife with “sufficient
property to provide for her reasonable needs.” Richards, ¶ 31. As in Richards, we have
“often considered the effect of the nonmonetary contributions” of a spouse to the marital
estate. In re Marriage of Davies, 266 Mont. 466, 474, 880 P.2d 1368, 1374 (1994). We
have affirmed an apportionment compensating a spouse for nonmonetary contributions to
the marital estate, agreeing with the district court that the evidence of the spouse’s
nonmonetary contributions painting and remodeling properties supported an
apportionment of half of the appreciation in value of marital property. In re Marriage of
Maedje, 263 Mont. 262, 268-69, 868 P.2d 580, 584 (1994). We have also affirmed an
apportionment to a spouse for years of nonmonetary contributions rendered to the family
ranch, finding that this uncompensated labor enabled the husband to pursue other
endeavors unencumbered by domestic responsibilities. In re Marriage of Glass, 215 Mont.
248, 257, 697 P.2d 96, 101-02 (1985). In Jacobson, we affirmed an apportionment of half
of the value of the marital estate as equitable considering the spouse’s nonmonetary
contributions in the form of domestic ranch labor. In re Marriage of Jacobson, 183 Mont.
517, 522, 600 P.2d 1183, 1186 (1979). In Tummarello, we affirmed an apportionment
based upon a spouse’s significant contributions to the marriage for “performing interior
and exterior projects” to maintain the premarital property of the other spouse. In re
Tummarello, ¶ 26. Likewise, this Court affirmed an apportionment of one half of the value
9 of property when it was “undisputed that a large portion of the increase in value was
directly attributable” to the nonmonetary, sweat equity contributions of the nonacquiring
spouse. In re Marriage of Clark, 2003 MT 168, ¶ 20, 316 Mont. 327, 71 P.3d 1228.
¶17 We have similarly reversed district courts for failing to equitably consider when one
spouse primarily made nonmonetary contributions to the accrued marital property. In
Larson, we reversed a district court excluding the nonmonetary contributions of a spouse
to the appreciation in value of the other spouse’s premarital property. Larson, 200 Mont.
at 141-42, 649 P.2d at 1354-55 (1982). And in Miller, we reversed for clear error a finding
that a spouse’s nonmonetary contributions were “negligible” when evidence showed she
had made significant nonmonetary contributions to the marital estate. In re Marriage of
Miller, 238 Mont 197, 200, 777 P.2d 319, 321-22 (1989).
¶18 Thus, our precedent has recognized the value of nonmonetary contributions in the
form of “domestic labor” when dividing the marital estate in a dissolution. This labor goes
not just to the property of the marital estate, but the “marriage” itself. In re Tummarello,
¶ 26 (citing §§ 40-4-202(1), -202(1)(b), MCA) (emphasis added in original). That such
labor proves difficult if not entirely intangible when quantifying for tax or record keeping
purposes—as is the case here with Ash’s inconsistent and often cash-based business
practices—does not negate the District Court’s obligation to consider these nonmonetary
contributions under § 40-4-202(1), MCA.
¶19 Here, our review of the record indicates the District Court abused its discretion by
diminishing the value of Ash’s nonmonetary contributions to the maintenance of the
10 martial assets in direct contradiction of several findings of fact regarding his nonmonetary
contributions to the marital estate. At the time of the dissolution, an appraiser valued the
Eastman Property at $1,450,000. The District Court determined Elliot’s investment in the
property totaled $1,150,000, comprised of her satisfaction of the outstanding mortgage
balance of $99,082 and the $1,050,918 she invested in construction costs to build the
Lodge. The District Court found the property was worth $400,000 at the time of the
marriage. Ash’s interest in the Eastman Property was valued at that amount plus $24,467
for his documented cash contributions towards construction costs, minus Elliot’s mortgage
pay-off—a final sum of $325,385. Meanwhile, photographic evidence and testimony at
trial from Ash, an employee, Ash’s daughter, and even Elliot herself established the various
responsibilities assumed by Ash during the construction of the Lodge. The labor performed
by Ash was no less “domestic” than the nonmonetary contributions we have recognized
were made by other spouses to the marriage and marital estate. The District Court
arbitrarily diminished the role Ash’s labor contributed to the value of both the Eastman
Property and Parker Lakes Property, citing Ash’s lack of recordkeeping. Using his skills
as a contractor to maintain the couple’s homes, Ash contributed significantly to the
marriage, as evidenced by the testimony and exhibits at trial; yet the dissolution decree
provides him with only 20% of the Eastman Property. Because Ash devoted more time to
work on the properties owned by the parties, he devoted less time to his businesses, which
might have afforded him a wider customer base or otherwise provided for his retirement.
By forgoing those individual business opportunities and instead focusing his time and
11 efforts on the Lodge, Ash conferred a benefit on the marital estate which the District Court
failed to appropriately measure in the marital distribution. While the terms of the Ash
Property Trust do not control the ultimate distribution of the property, the governing
document reveals both parties’ intentions to value each other’s contributions to the Lodge
more equally than the ultimate distribution decreed by the District Court. Without the very
real labor performed by Ash in building and designing the Lodge or supervising the
subcontractors, the Eastman Property would be worth much less than what the appraisal
reflects.
¶20 The District Court faulted Ash for his inability to keep records of his finances to
better support his claims for nonmonetary contributions. Not only do we disagree with
such a requirement, but the record also indicates that Ash relied on Elliot’s financial
literacy. She filed the couple’s joint tax returns during the marriage, taking advantage of
the cash-based nature of Ash’s work to limit her own financial exposure and to qualify the
couple for federally subsidized health insurance. As a sophisticated financier, Elliot was
able to capitalize on the informal nature of Ash’s records to her own benefit, too. Ash also
began withdrawing his Social Security benefit at his earliest eligibility at Elliot’s
encouragement. Ash made this decision in part to enable the couple to maximize the
benefit of Elliot’s various retirement accounts and minimize her tax or penalty exposure
for earlier withdrawal. This decision resulted in Ash receiving $639 per month in Social
Security. Had he waited until the age of 70, he would have been eligible to receive a benefit
of approximately $1,400 per month. Elliot did gift Ash a retirement account worth $6,500,
12 but the record is replete with evidence of Ash’s reliance on Elliot for financial stability and
guidance. Elliot relied on Ash’s experience and expertise in property maintenance and
construction for the preservation of her Parker Lakes Property and in building the Lodge,
yet the District Court failed to consider his nonmonetary contributions when dividing the
estate.
¶21 The District Court further abused its discretion by seeking to return the parties to
their premarital positions. In Finding of Fact 51, the District Court determined, “given the
short duration of the marriage,” the “fair and equitable” allocation of the Eastman Property
was to “award each party his or her financial investment/equity.” Likewise, Conclusion of
Law 11 states that the “division of the marital estate is fair and equitable as it seeks to
return the parties to approximately their premarital status.” However, “the court is not
bound to restore the parties to their premarital status.” In re Marriage of Shirilla, 225
Mont. 106, 109, 732 P.2d 397, 399 (1987) (citation omitted). There, as in the instant case,
one spouse brought significantly more assets to the marriage than the other and sought the
return of that value upon dissolution, but we rejected this argument because the law clearly
requires equitable apportionment and not a strict accounting of the parties’ relative
financial investments in the marriage. In re Shirilla, 225 Mont. at 109, 732 P.2d at 399.
Premarital status is not a factor under § 40-4-202(1), MCA, and while those factors “are
not limitations on the court’s obligation and authority to equitably apportion all assets and
property,” In re Funk, ¶ 19, the District Court here abused its discretion by ascribing more
13 value to the parties’ premarital economic stations than Ash’s nonmonetary contributions to
the estate.
CONCLUSION
¶22 The District Court abused its discretion by failing to consider Ash’s nonmonetary
contributions to the marriage in the form of maintenance and construction of the parties’
properties. We reverse the distribution of the marital assets and remand to the District
Court for further proceedings consistent with this opinion.
/S/ LAURIE McKINNON
We Concur:
/S/ MIKE McGRATH /S/ JAMES JEREMIAH SHEA /S/ BETH BAKER /S/ INGRID GUSTAFSON