Marriage of McLain

• Court: Montana Supreme Court
• Decided: February 15, 1995
• Docket: 94-212
• Status: Published

Opinion

No. 94-212

IN THE SUPREME COURT OF THE STATE OF MONTANA 1995

IN RE THE MARRIAGE OF KAY McLAIN, Petitioner and Respondent, FE13 ? 4 19% and WALTER McLAIN, Respondent and Appellant.

APPEAL FROM: District Court of the Twelfth Judicial District, In and for the County of Hill, The Honorable John Warner, Judge presiding.

COUNSEL OF RECORD: For Appellant: Antonia P. Marra, Bell & Marra, Great Falls, Montana For Respondent: E. Lee LeVeque, Conklin, Nybo, LeVeque and Murphy, Great Falls, Montana

Submitted on Briefs: January 19, 1995 Decided: February 14, 1995 Filed: Chief Justice J. A. Turnage delivered the Opinion of the Court.

Walter McLain appeals from the property distribution entered

by the District Court for the Twelfth Judicial District, Hill

County, in this dissolution of marriage. We reverse and remand.

The issue, which has been conceded by Kay McLain, is whether the court erred in including in the marital estate assets which

were not marital property.

The assets at issue are a tractor and a computer. The parties

agreed these items were assets of their corporate car wash business

and were not marital assets subject to distribution. The court

ordered that the car wash business be "disposed of and any profit

or loss divided 50% to each of the parties." Nevertheless, the

court also distributed to Walter McLain the tractor and the

computer and included their value in his share of the marital

estate.

The tractor and the computer belonged to neither Walter nor

Kay and were not part of the marital estate subject to distribution

under § 40-4-202, MCA. This case is remanded to the District Court

for recalculation of an equitable division of the marital estate.

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court

1988 Internal Operating Rules, this decision shall not be cited as

precedent and shall be published by its filing as a public document

with the Clerk of the Supreme Court and by a report of its result

to the State Reporter and West Publishing Company.

Chief Justice