Marriage of Pasquinzo

2018 MT 84N

• Court: Montana Supreme Court
• Decided: April 10, 2018
• Docket: 17-0357
• Status: Published

Opinion

04/10/2018

DA 17-0357 Case Number: DA 17-0357

IN THE SUPREME COURT OF THE STATE OF MONTANA 2018 MT 84N

IN RE THE MARRIAGE OF:

MERRI A. PASQUINZO,

Petitioner and Appellee,

v.

DOUGLAS P. PASQUINZO,

Respondent and Appellant.

APPEAL FROM: District Court of the Second Judicial District, In and For the County of Butte-Silver Bow, Cause No. DR-15-252 Honorable Kurt Krueger, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Douglas Pasquinzo, self-represented, Deer Lodge, Montana

For Appellee:

Bernard J. Everett, Everett Law, PLLC, Anaconda, Montana

Submitted on Briefs: February 14, 2018

Decided: April 10, 2018

Filed:

__________________________________________ Clerk Justice Dirk Sandefur delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2 Douglas Pasquinzo appeals the decree of dissolution of marriage with Merri A.

Pasquinzo. Douglas raises many issues, which we distill to: (1) whether the Second

Judicial District Court abused its discretion in dividing the marital estate, and (2) whether

the District Court abused its discretion in denying Douglas’s motion for rehearing. We

affirm.

¶3 Douglas and Merri were married in July 1991 in Butte-Silver Bow County. While

married, they acquired a twenty-plus-acre parcel of land in Jefferson County, and they

placed a 1982 Bundy trailer on the property. In October 2015, through counsel, Merri filed

the petition for dissolution, claiming the marriage irretrievably broken. There was one

adult child of the marriage. At the time when Merri filed her petition, Douglas was detained

in the Jefferson County Detention Center for a felony offense. He is currently incarcerated

for two counts of sexual assault1 in the Montana State Prison (MSP). Merri resides on the

property.

1 The District Court’s Decree and Merri’s response brief erroneously refer to the convicted offense as sexual intercourse without consent of a minor. 2 ¶4 In her petition for dissolution, Merri requested the bulk of the marital estate. She

stated that the property should be awarded to her, and that each party retain their personal

property. She further requested the award of the proceeds for the Contract for Deed sale

of an adjoining parcel from the property. Merri did not list any liabilities.

¶5 Appearing as a self-represented litigant, Douglas filed an answer and a

counter-petition requesting that all assets be split “50/50” and listing all the work, such as

clearing stumps and trees and improving the structures, that he put into the property over

the years. He stated that he bought the acreage “without Merri!” Douglas countered that

the 2015 Toyota truck was leased for Merri and that the proceeds should be split from the

sale of the 2011 Dodge truck at “Kelly Blue Book Value.”

¶6 The District Court set a scheduling conference in early October 2016 for which both

Merri’s counsel and Douglas were present. Douglas appeared via telephone. The court

issued an order scheduling a non-jury trial on November 18, 2016, and copies of this order

were served upon counsel and Douglas, care of MSP. On November 14, 2016, Douglas

filed a pleading titled “Dissolution of Marriage” in which he gave the history of his

acquisition of and work on the property and reiterated his requested distribution of the real

and tangible property. Douglas, however, was not present at the November bench trial.

The court issued its findings of fact, conclusions of law, and decree of dissolution of

marriage on November 18, 2016. This Court granted Douglas’s petition for an out-of-time

appeal on July 5, 2017.

3 ¶7 “District courts have broad discretion in apportioning a marital estate.” In re

Marriage of Richards, 2014 MT 213, ¶ 13, 376 Mont. 188, 330 P.3d 1193 (citing In re

Marriage of Crowley, 2014 MT 42, ¶ 26, 374 Mont. 48, 318 P.3d 1031). “When dividing

marital property, the trial court must reach an equitable distribution, not necessarily an

equal distribution.” Richards v. Trusler, 2015 MT 314, ¶ 11, 381 Mont. 357, 360 P.3d

1126 (citing In re Marriage of Kostelnik, 2015 MT 283, ¶ 18, 381 Mont. 182, 357 P.3d

912; In re Marriage of Walls, 278 Mont. 413, 416, 925 P.2d 483, 485 (1996)). This Court

will affirm a district court’s division of property, absent clearly erroneous findings, unless

the court abused its discretion. Richards, ¶ 13; Crowley, ¶ 26. “The standard of review for

discretionary trial court rulings is abuse of discretion.” In re Johnson, 2011 MT 255, ¶ 12,

362 Mont. 236, 262 P.3d 1105.

¶8 The District Court found that Merri has been a resident of Butte for more than ninety

days preceding the filing of her petition. The court concluded that the parties’ marriage is

irretrievably broken and that there is no prospect of reconciliation. The court stated that

Merri, age 68, has inadequate income and financial resources to support herself, while

Douglas, age 75, is incarcerated and currently has no personal living expenses. The court

awarded the property, valued at $85,000, to Merri based on the reasons that she resides

there and “she should not be required to move from the property.” Along with the property,

the court awarded Merri: (1) the proceeds of $550 per month for the next forty-eight months

from the sale of an adjoining parcel; (2) the plow truck and back hoe, valued at $10,000;

(3) the 2011 Dodge truck, valued at $30,000; (4) her personal property; and (5) remaining

4 household furniture and appliances. The court pointed out that no party provided evidence

of values for the items which were awarded to Douglas. The court awarded Douglas his

personal property, including an older International pickup truck, a twelve-foot flatbed

trailer, framed prints by Charles M. Russell, and various tools.

¶9 Douglas maintains that these proceedings exhibit “fraud.” Citing to Montana case

law, he contends that the court erred because it did not equitably divide the marital estate

under § 40-4-202, MCA, because Merri receives “everything.” In re Marriage of Crilly,

2005 MT 311, ¶ 10, 329 Mont. 479, 124 P.3d 1151. Douglas does not address directly why

he did not appear at the bench trial.

¶10 Merri responds that the District Court properly considered the factors under

§ 40-4-202, MCA. She points to the court’s consideration of “the age, health, station,

occupation, amount and sources of income, . . . and need of each of the parties . . . .”

Section 40-4-202(1), MCA. She argues that the court did not abuse its discretion. Crowley,

¶ 26. Merri frames the court’s decree as equitable and states that Douglas is unhappy with

the court’s decision, but he does not provide any evidence of errors in fact or law. Merri

refers to the procedural errors in this appeal because Douglas never served her a copy of

the notice of appeal or requested a transcript for review. M. R. App. P. 4(2)(a) and 8(3).

Merri reiterates that while Douglas believes he should have received more marital property,

he does not demonstrate any error by the court.

¶11 We recognize the difficulty in managing cases where information and evidence is

limited or constrained by a party who represents himself. In re Marriage of Stevens, 2011

5 MT 124, ¶ 3, 360 Mont. 494, 255 P.3d 154. Here, the record is sparse and further limited

by various inactions. There are no proposed findings of fact or conclusions of law by either

party. No appraisals or other expert testimony was given. Douglas maintains that he was

prevented from attending the bench trial, but does not explain what he means in this

statement. While apparent that Douglas did not attend the bench trial to present any

evidence, he does not have a record that he attempted to appear. From a review of the

court’s docket, a copy of the order setting the trial was sent to MSP on October 13, 2016.

From this docket, Douglas did not file a motion with the court to appear via telephone or

videoconference from MSP for either the scheduling hearing or non-jury trial.

¶12 We have upheld the latitude that district courts have in dividing marital properties.

“Trial courts, acting in equity, are granted far-reaching discretion to fashion ‘a fair

distribution of the marital property using reasonable judgment and relying on common

sense.’” Richards, ¶ 38 (citations omitted). While Douglas may assert that the District

Court has no subject matter jurisdiction, the court did pursuant to § 40-4-102(1)(a), MCA.

We have stated before that “parties to a dissolution of marriage have a duty to assist the

trial court in acquiring the information the court needs to determine an appropriate

distribution of marital property.” Crilly, ¶ 20. Douglas has only partially done so. He

filed a pleading captioned “Dissolution of Marriage” stating his version of the history of

acquiring the property, his work on the property, and requesting a “50/50” split. It is not

clear whether the court considered his pleading at the bench trial because there is no

6 transcript on appeal. The court received Douglas’s documents with monetary values for

various items after the trial, which was too late for the court to consider.

¶13 This places us in a bind as well. As an appellate court, we are bound by review of

the record before us. M. R. App. P. 6(1) and 8(1). Along with a sparse record, there is no

transcript of the non-jury trial, which Douglas, as an appellant, has a duty to provide.

M. R. App. P. 8(3) and 9(1). We do not agree with the District Court’s decree that “[t]he

property is equally divided as set forth in the foregoing Findings of Fact[].” (Emphasis

added.) However, based on what is before this Court and the totality of the circumstances,

we consider the division of property equitable. See Trusler, ¶ 31 (equitable does not mean

equal). We conclude that Douglas has not established that the court’s distribution of

property amounts to an abuse of discretion. Richards, ¶ 31; Crowley, ¶ 26.

¶14 Turning to the second issue of any error with the court’s denial of Douglas’s motion

for rehearing, Douglas is constrained again. Douglas has not met his burden of persuasion

that the court erred. Merri points out that Douglas has not identified any errors of law or

fact as needed either under M. R. Civ. P. 59 or 60. We have held previously that a post-

trial motion “may not be used to relitigate old matters, . . . raise arguments which could

have been raised prior to judgment, or give a litigant ‘a second bite at the apple.’” Johnson,

¶ 16 (citation omitted). Douglas sought to introduce the evidence which should have been

presented at the November 18, 2016 hearing. We conclude that the District Court did not

err or abuse its discretion in denying Douglas’s motion for rehearing.

7 ¶15 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our

Internal Operating Rules, which provides for memorandum opinions. Because Douglas

did not present any evidence to the District Court or a record to this Court that shows any

error or abuse of discretion, we affirm the District Court.

/S/ DIRK M. SANDEFUR

We concur:

/S/ MIKE McGRATH /S/ INGRID GUSTAFSON /S/ BETH BAKER /S/ JIM RICE