No. 02-372
IN THE SUPREME COURT OF THE STATE OF MONTANA
2003 MT 336N
IN RE THE MARRIAGE OF DEAN B. COPP,
Petitioner and Appellant,
and
MARCY L. COPP,
Respondent and Respondent.
APPEAL FROM: District Court of the Seventh Judicial District, In and for the County of Dawson, DR 2001-023 The Honorable Richard A. Simonton, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Cynthia K. Thornton, Attorney at Law, Miles City, Montana
For Respondent:
Ronald S. Efta, Attorney at Law, Wibaux, Montana
Submitted on Briefs: February 13, 2003
Decided: December 9, 2003 Filed:
__________________________________________ Clerk Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent. It shall be filed as
a public document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.
¶2 As part of the Final Decree of Dissolution of Marriage, the Seventh Judicial District
Court issued an Order under which Dean Copp (Dean) was required to pay Marcy Copp
(Marcy) maintenance of $300 per month for twenty-four (24) months and $1,500 of Marcy’s
divorce-related attorney fees. Additionally, Dean, who was employed by Burlington
Northern Santa Fe Railroad, was ordered to share equally with Marcy any future FELA
claim paid as a result of injuries Dean received while married to Marcy. Dean appeals. We
affirm.
ISSUES
¶3 The issues presented by Dean on appeal are:
1. Were the District Court’s Finding of Fact No. 10 and Conclusion of Law No. 10 clearly erroneous?
2. Did the District Court abuse its discretion in awarding Marcy 50% of Dean’s FELA claim?
3. Did the District Court err in awarding maintenance to Marcy?
4. Did the District Court err in awarding attorney fees to Marcy?
2 FACTUAL BACKGROUND
¶4 Dean and Marcy were married in October 1989, in Sheridan, Wyoming. During the
course of their eleven-year marriage, the couple had four children. Dean began working for
Burlington Northern Santa Fe Railroad (BNSF) in February 1998. He suffered a work-
related lower back injury in April 2000 and underwent spinal surgery in May 2001. Dean
was unable to work from late February 2001 to February 2002. During this time, he received
disability benefits from the railroad. In early July 2001, Dean filed for divorce.
¶5 The District Court held a non-jury trial in April 2002 to determine the division of
property and debts, responsibility for health insurance, the amount of child support to be paid
to Marcy, the amount of maintenance, if necessary, to be paid to Marcy, and whether Dean
must pay any or all of Marcy’s attorney’s fees. Child custody issues were not addressed
because they had been resolved previously.
¶6 During the trial, Dean was questioned about the prospect of filing a FELA claim
against the railroad as a result of his injury. Dean testified that he had not filed a claim
against BNSF. He stated that he had not heard anything from the railroad representative
about a FELA claim and believed that any claim he had would be valueless. He stated he
would not retain an attorney to represent him in any FELA claim he may have against the
railroad. Lastly, he agreed that if he ever filed and subsequently settled a FELA claim with
the railroad, he would be willing to “direct a portion of that” settlement to Marcy as a marital
asset.
¶7 The District Court found that, “[Dean] may have a FELA claim pending which he
3 could pursue with the railroad, and he testified that he has no objection to [Marcy] receiving
one half of any amount received from the claim if there is a recovery.” Order, Finding of
Fact No. 10. The court then concluded, “[a]s agreed to by [Dean], [Marcy] should be kept
advised as to the status of any claim against Burlington Northern Santa Fe Railway and any
such claim should be divided equally between [Dean] and [Marcy] with [Dean] authorizing
BNSF to issue a separate check to [Marcy] for her share of any settlement, or if the matter
goes to trial, [Dean’s] attorney should equally divide any net recovery between the parties.”
Order, Conclusion of Law No. 10.
¶8 In addition to ruling that Dean must divide any future FELA claim equally with
Marcy, the court concluded that Dean must pay Marcy maintenance in the sum of $300 per
month for twenty-four months and pay $1,500 to Marcy’s attorney, representing
approximately one-half of her attorney’s fees.
STANDARD OF REVIEW
¶9 We review a district court’s division of marital property to determine whether the
findings of fact on which the court relied are clearly erroneous. Our review gives due regard
to the opportunity of the trial court to judge the credibility of the witnesses. See Koeppen
v. Bolich, 2003 MT 313, ¶ 26, ___ Mont. ___, ¶ 26, ___ P.3d ___, ¶ 26. Findings are clearly
erroneous if they are not supported by substantial evidence, the court misapprehends the
effect of the evidence, or this Court’s review of the record convinces it that a mistake has
been made. In re Marriage of Hedges, 2002 MT 204, ¶ 12, 311 Mont. 230, ¶ 12, 53 P.3d
1273, ¶ 12 (internal citations omitted).
4 ¶10 If the findings are not clearly erroneous, we will affirm the distribution of property
unless the court abused its discretion. To conclude that a district court abused its discretion
in a marital dissolution proceeding, we must determine that the district court acted
arbitrarily, without employment of conscientious judgment or exceeded the bounds of reason
resulting in substantial injustice. In re Marriage of Rolf, 2003 MT 194, ¶ 14, 316 Mont. 517,
¶ 14, 75 P.3d 770, ¶ 14 (internal citations omitted).
¶11 We review a district court’s interpretation of law de novo, to determine whether it is
correct. Rolf, ¶ 15.
DISCUSSION
¶12 Dean argues that the District Court’s Finding of Fact No. 10, and its related
Conclusion of Law No. 10, are clearly erroneous. Additionally, he maintains that the court
abused its discretion in awarding Marcy 50% of his unsettled FELA claim.
¶13 The District Court’s Finding of Fact No. 10 reflected the court’s opinion that Dean
had agreed to share equally with Marcy any prospective FELA recovery. Dean maintains
that his testimony during the trial, which included a statement that he had not filed a FELA
claim against BNSF, does not support the court’s finding that he agreed to share equally such
a claim. He argues that the proceeds of any FELA claim would include both pre-dissolution
damages, such as wages lost while married, and post-dissolution damages, such as future
medical bills and loss of future earnings. He also contends that any portion of his FELA
claim designated for pain and suffering and the loss of his established course of life would
be personal to him, and therefore not part of the marital estate.
5 ¶14 Marcy counters that disability benefits are a valid component of a marital estate and
that Dean has cited no authority that separates personal proceeds for pain and suffering,
future medical expenses and loss of way of life, from the other components of a disability
claim.
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No. 02-372
IN THE SUPREME COURT OF THE STATE OF MONTANA
2003 MT 336N
IN RE THE MARRIAGE OF DEAN B. COPP,
Petitioner and Appellant,
and
MARCY L. COPP,
Respondent and Respondent.
APPEAL FROM: District Court of the Seventh Judicial District, In and for the County of Dawson, DR 2001-023 The Honorable Richard A. Simonton, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Cynthia K. Thornton, Attorney at Law, Miles City, Montana
For Respondent:
Ronald S. Efta, Attorney at Law, Wibaux, Montana
Submitted on Briefs: February 13, 2003
Decided: December 9, 2003 Filed:
__________________________________________ Clerk Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent. It shall be filed as
a public document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.
¶2 As part of the Final Decree of Dissolution of Marriage, the Seventh Judicial District
Court issued an Order under which Dean Copp (Dean) was required to pay Marcy Copp
(Marcy) maintenance of $300 per month for twenty-four (24) months and $1,500 of Marcy’s
divorce-related attorney fees. Additionally, Dean, who was employed by Burlington
Northern Santa Fe Railroad, was ordered to share equally with Marcy any future FELA
claim paid as a result of injuries Dean received while married to Marcy. Dean appeals. We
affirm.
ISSUES
¶3 The issues presented by Dean on appeal are:
1. Were the District Court’s Finding of Fact No. 10 and Conclusion of Law No. 10 clearly erroneous?
2. Did the District Court abuse its discretion in awarding Marcy 50% of Dean’s FELA claim?
3. Did the District Court err in awarding maintenance to Marcy?
4. Did the District Court err in awarding attorney fees to Marcy?
2 FACTUAL BACKGROUND
¶4 Dean and Marcy were married in October 1989, in Sheridan, Wyoming. During the
course of their eleven-year marriage, the couple had four children. Dean began working for
Burlington Northern Santa Fe Railroad (BNSF) in February 1998. He suffered a work-
related lower back injury in April 2000 and underwent spinal surgery in May 2001. Dean
was unable to work from late February 2001 to February 2002. During this time, he received
disability benefits from the railroad. In early July 2001, Dean filed for divorce.
¶5 The District Court held a non-jury trial in April 2002 to determine the division of
property and debts, responsibility for health insurance, the amount of child support to be paid
to Marcy, the amount of maintenance, if necessary, to be paid to Marcy, and whether Dean
must pay any or all of Marcy’s attorney’s fees. Child custody issues were not addressed
because they had been resolved previously.
¶6 During the trial, Dean was questioned about the prospect of filing a FELA claim
against the railroad as a result of his injury. Dean testified that he had not filed a claim
against BNSF. He stated that he had not heard anything from the railroad representative
about a FELA claim and believed that any claim he had would be valueless. He stated he
would not retain an attorney to represent him in any FELA claim he may have against the
railroad. Lastly, he agreed that if he ever filed and subsequently settled a FELA claim with
the railroad, he would be willing to “direct a portion of that” settlement to Marcy as a marital
asset.
¶7 The District Court found that, “[Dean] may have a FELA claim pending which he
3 could pursue with the railroad, and he testified that he has no objection to [Marcy] receiving
one half of any amount received from the claim if there is a recovery.” Order, Finding of
Fact No. 10. The court then concluded, “[a]s agreed to by [Dean], [Marcy] should be kept
advised as to the status of any claim against Burlington Northern Santa Fe Railway and any
such claim should be divided equally between [Dean] and [Marcy] with [Dean] authorizing
BNSF to issue a separate check to [Marcy] for her share of any settlement, or if the matter
goes to trial, [Dean’s] attorney should equally divide any net recovery between the parties.”
Order, Conclusion of Law No. 10.
¶8 In addition to ruling that Dean must divide any future FELA claim equally with
Marcy, the court concluded that Dean must pay Marcy maintenance in the sum of $300 per
month for twenty-four months and pay $1,500 to Marcy’s attorney, representing
approximately one-half of her attorney’s fees.
STANDARD OF REVIEW
¶9 We review a district court’s division of marital property to determine whether the
findings of fact on which the court relied are clearly erroneous. Our review gives due regard
to the opportunity of the trial court to judge the credibility of the witnesses. See Koeppen
v. Bolich, 2003 MT 313, ¶ 26, ___ Mont. ___, ¶ 26, ___ P.3d ___, ¶ 26. Findings are clearly
erroneous if they are not supported by substantial evidence, the court misapprehends the
effect of the evidence, or this Court’s review of the record convinces it that a mistake has
been made. In re Marriage of Hedges, 2002 MT 204, ¶ 12, 311 Mont. 230, ¶ 12, 53 P.3d
1273, ¶ 12 (internal citations omitted).
4 ¶10 If the findings are not clearly erroneous, we will affirm the distribution of property
unless the court abused its discretion. To conclude that a district court abused its discretion
in a marital dissolution proceeding, we must determine that the district court acted
arbitrarily, without employment of conscientious judgment or exceeded the bounds of reason
resulting in substantial injustice. In re Marriage of Rolf, 2003 MT 194, ¶ 14, 316 Mont. 517,
¶ 14, 75 P.3d 770, ¶ 14 (internal citations omitted).
¶11 We review a district court’s interpretation of law de novo, to determine whether it is
correct. Rolf, ¶ 15.
DISCUSSION
¶12 Dean argues that the District Court’s Finding of Fact No. 10, and its related
Conclusion of Law No. 10, are clearly erroneous. Additionally, he maintains that the court
abused its discretion in awarding Marcy 50% of his unsettled FELA claim.
¶13 The District Court’s Finding of Fact No. 10 reflected the court’s opinion that Dean
had agreed to share equally with Marcy any prospective FELA recovery. Dean maintains
that his testimony during the trial, which included a statement that he had not filed a FELA
claim against BNSF, does not support the court’s finding that he agreed to share equally such
a claim. He argues that the proceeds of any FELA claim would include both pre-dissolution
damages, such as wages lost while married, and post-dissolution damages, such as future
medical bills and loss of future earnings. He also contends that any portion of his FELA
claim designated for pain and suffering and the loss of his established course of life would
be personal to him, and therefore not part of the marital estate.
5 ¶14 Marcy counters that disability benefits are a valid component of a marital estate and
that Dean has cited no authority that separates personal proceeds for pain and suffering,
future medical expenses and loss of way of life, from the other components of a disability
claim. Moreover, Marcy argues that it was obvious from other testimony that the District
Court was going to split their assets equally and that if Dean did not believe the FELA claim
should be divided equally, he had the opportunity to argue how the claim should be divided
but chose not to do so. She contends that such an argument should have been made to the
District Court and that it is too late to make that argument now.
¶15 In non-jury trials such as the one before us, the district court judge is charged with
listening to and weighing the evidence presented. The judge must determine the credibility
of each witness based upon their demeanor, temperament, attitude and candor, among other
things. For these reasons, this Court defers to the district court’s discretion in matters of
evidence weight and witness credibility. See Albrecht v. Albrecht, 2002 MT 227, ¶ 47, 311
Mont. 412, ¶ 47, 56 P.3d 339, ¶ 47; In re A.F., 2003 MT 254, ¶ 24, 317 Mont. 367, ¶ 24, 77
P.3d 266, ¶ 24. This is especially true when conflicting evidence is presented. Koeppen,
¶ 42.
6 ¶16 In the case at bar, the court presided over two hearings, a pre-trial conference, and
a non-jury trial. In addition, evidence of the value of the parties’ assets and liabilities, living
expenses and future earnings potential was presented. Frequently, Marcy’s and Dean’s
testimonies as to these values conflicted. Moreover, the underlying District Court record
contains a letter from BNSF to Dean’s attorney indicating that Dean had filed a FELA claim
against BNSF prior to the April 2002 trial, but that the claim had no determined value at that
time. This evidence conflicts with Dean’s testimony that he had not filed a claim, and that
any claim would have no value. The court was therefore presented with significant concerns
about Dean’s credibility. Furthermore, as indicated above, when there is conflicting
evidence, “it is within the province of the trier of fact to weigh the evidence and determine
the credibility of witnesses.” Koeppen, ¶ 42.
¶17 In the case before us, the District Court weighed the evidence presented, adjudged the
credibility of the witnesses, complied with the relevant “division of property” statute,
§ 40-4-202, MCA, and divided the parties’ assets, including Dean’s unrealized FELA award
and debts, as equally as possible. The court was not presented with any evidence regarding
the various components of a FELA award, nor did Dean say how he wanted any prospective
award divided.
¶18 We will not hold the District Court in error for failing to take into consideration
evidence not presented. If, as Dean argued at trial, the FELA claim is valueless, Marcy gets
nothing. If, on the other hand, the claim has value and Marcy is able to share in the entirety
of the claim, including components that may have been personal to Dean, this is not the fault
7 of the District Court. It simply awarded the proceeds of a questionable claim as it saw fit,
without any input from Dean.
¶19 We hold that the District Court’s finding of fact and conclusion of law are not
erroneous and that the District Court did not abuse its discretion in awarding 50% of Dean’s
potential FELA award to Marcy.
¶20 Dean also argues that the District Court erred in awarding Marcy maintenance and
attorney’s fees. He submits that the court failed to issue findings of fact specific to the
statutory provisions of § 40-4-203, MCA, which gives the court discretion to grant
maintenance if it finds that the spouse requesting maintenance:
(a) lacks sufficient property to provide for his reasonable needs; and (b) is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.
The court is also required to consider the following factors before awarding maintenance:
(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; (b) the time necessary to acquire sufficient 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.
Section 40-4-203, MCA.
¶21 As we have held before, it is not necessary that a district court make specific findings
of fact regarding each factor listed in § 40-4-203, MCA, so long as this Court can determine
8 that the trial judge considered each factor. In re Marriage of Childers, 216 Mont. 125, 127,
700 P.2d 594, 596. Our review of the record reveals that the District Court analyzed the
financial positions of the parties and recognized that, after equitable distribution of the marital
assets and liabilities, both parties suffered an almost identical negative net worth. The court
had previously entered a Final Parenting Plan and was therefore aware that the four children
were in the primary custody of Marcy. There was sufficient evidence regarding Marcy’s part
time employment and her limited earning potential. Likewise, there was sufficient evidence
regarding Dean’s physical injury and his prognosis as well as his future earning potential
upon being released from medical treatment. We conclude that the court carefully considered
the necessary factors and that its failure to issue individual and specific findings of fact does
not constitute error or an abuse of discretion.
¶22 Lastly, we also conclude that the court’s award of approximately one-half of Marcy’s
attorney’s fees was not erroneous. Section 40-4-110, MCA, provides that: “ [t]he court from
time to time, after considering the financial resources of both parties, may order a party to pay
a reasonable amount for the cost to the other party of maintaining or defending any
proceeding . . . and for professional fees, including sums for legal and professional services
rendered and costs incurred prior to the commencement of the proceeding or after entry of
judgment.” The court was mindful that Marcy, being the custodial parent of the parties’ four
children, had a lower income and greater expenses than Dean. Under these circumstances,
it was neither unreasonable nor erroneous for the court to order Dean to pay $1,500 toward
Marcy’s attorney’s fees. See In re Marriage of Skinner (1989), 240 Mont. 299, 307, 783 P.2d
9 1350, 1355.
CONCLUSION
¶23 For the foregoing reasons, we affirm the District Court.
/S/ PATRICIA COTTER
We Concur:
/S/ KARLA M. GRAY /S/ JIM REGNIER /S/ W. WILLIAM LEAPHART /S/ JIM RICE