                                                                                      December 22 2009




                                         DA 09-0040

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2009 MT 431



RONALD G. DESCHAMPS,

              Respondent and Appellant,

         v.

KIM W. DESCHAMPS,

              Petitioner and Appellee.


APPEAL FROM:          District Court of the Fourth Judicial District,
                      In and For the County of Missoula, Cause No. DR 06-463
                      Honorable Douglas G. Harkin, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Michael Sol and Terry L. Wolfe; Sol & Wolfe Law Firm, PLLP;
                      Missoula, Montana

               For Appellee:

                      Patrick G. Sandefur; Law Office of Patrick G. Sandefur;
                      Missoula, Montana



                                                   Submitted on Briefs: November 12, 2009

                                                              Decided: December 22, 2009


Filed:

                      __________________________________________
                                        Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Appellant Ronald G. Deschamps appeals from the marital dissolution order of the

Fourth Judicial District Court, in which the District Court interpreted a prenuptial

agreement and distributed the marital estate. We affirm.

                                         ISSUES

¶2     1. Did the District Court err in interpreting the parties’ prenuptial agreement?

¶3     2. Did the District Court err by dividing Ronald’s pension benefits as part of the

marital estate?

                  FACTUAL AND PROCEDURAL BACKGROUND

¶4     Ronald and Kim Deschamps were married September 27, 1980, in Missoula

County, Montana. Ronald insisted on a prenuptial agreement, given his prior divorces

and the 18-year disparity in his and Kim’s ages. Before their marriage, Ronald and Kim

executed a prenuptial agreement, entitled “Antenuptial Agreement” (Agreement),

prepared by Ronald’s attorney. The Agreement provided, in pertinent part, that:

       2. Prospective husband is the legal owner of real property described in:
       Mountain Meadows #1, Lot 16. In the event there is a dissolution of this
       marriage the prospective husband is to receive the following: Mountain
       Meadows #1, Lot 16 and the family home and all buildings situated on said
       property.

       3. Prospective husband and prospective wife desire to retain all property
       that they presently own as separate property, after solemnization of their
       marriage.

¶5     When Ronald and Kim married, Mountain Meadows was a bare, unimproved

parcel containing a 1962 Nashua 12-foot by 60-foot trailer with a small add-on. The

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property also contained a small storage shed next to the trailer, a covered chicken house,

and a small pumphouse to draw water from the nearby Six-Mile Creek. Mountain

Meadows had no lawn, landscaping, trees, or other improvements, and was worth

approximately $19,230.

¶6     During their twenty-seven (27) year marriage, Ronald and Kim greatly improved

Mountain Meadows, and Kim herself made many of the improvements. Kim did most of

the raking, rock-picking, and dirt work to start a lawn around the home. She likewise

repainted the pumphouse and storage sheds, and painted the trim on the house. Kim

painted, wallpapered, and re-carpeted the interior of the home using her own money from

her job and from selling her skis. Kim contributed money to purchase new furniture over

the years, and put in flower beds and planted trees around the yard.

¶7     In 1984, Ronald and Kim borrowed $20,000, later repaid from joint funds, to build

a large, two-story barn that is heated, plumbed, and electrified. Kim hand-oiled the wood

inside the barn, and stained the exterior with the help of her father and her daughter from

a previous marriage, Gina. Ronald and Kim also built a 75-foot by 75-foot riding arena

between the house and the barn. Kim did the disking up of the land, and hand-picked the

rocks from the arena area before sand was hauled in and spread.

¶8     In 1989, the parties replaced the trailer home with a 60-foot by 24-foot modular

home. Kim, Ronald, and Kim’s father dug the footings for the new home’s foundation by

hand. Kim decorated and improved the interior of the home. Kim and Gina raised

Arabian horses during the 1980’s, and did almost all of the work required to maintain the

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property for the horses. In 1992, the parties re-fenced the property to accommodate

raising steers. Kim’s father helped take down the old fencing and install the new rolled-

wire fence, which he purchased. In 1994, Ronald and Kim put a new roof, windows, and

siding on the home. Kim’s father helped almost every day of that effort. They also built

a large covered deck on the home. Kim stained the house and the new deck.

¶9     While Ronald helped, Kim and Gina did most of the yard work. Kim spent

substantial time picking weeds, tending to the lawn and landscaping. In 2000, Kim re-

landscaped the back yard, installing additional fencing, a waterfall, a pond, rock work

and plants. In sum, Kim made substantial contributions to Mountain Meadows, both

financially and physically.

¶10    In July, 2006, Ronald and Kim separated, and filed the petition for dissolution

shortly thereafter. The District Court heard the case on March 26 and 27, 2008. After

hearing testimony from the parties and making specific findings of fact, the District Court

concluded that Kim’s equitable entitlement of the marital estate included half the

increased value of Mountain Meadows and a portion of Ronald’s retirement pension

benefits. The District Court filed its Findings of Fact, Conclusions of Law, and Decree of

Dissolution on September 26, 2008, and a subsequent Order of Correction on September

30, 2008. After the District Court denied his subsequent Motion to Alter or Amend the

judgment, Ronald filed this appeal.




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                              STANDARD OF REVIEW

¶11     Section 40-4-202, MCA (2007), governs the distribution of a marital estate. The

statute vests a district court with broad discretion to apportion the marital estate in a

manner equitable to each party under the circumstances. In re Marriage of Bartsch, 2007

MT 136, ¶ 9, 337 Mont. 386, 162 P.3d 72 (citing In re Marriage of Swanson, 2004 MT

124, ¶ 12, 321 Mont. 250, 90 P.3d 418). We review a district court’s division of marital

property to determine whether the court’s findings of fact are clearly erroneous and

whether its conclusions of law are correct. Monroe v. Marsden, 2009 MT 137, ¶ 20, 350

Mont. 327, 207 P.3d 320 (citing In re Estate of Bradshaw, 2001 MT 92, ¶ 11, 305 Mont.

178, 24 P.3d 211). We review the evidence in the light most favorable to the prevailing

party, acknowledging that the credibility and weight to be assigned to the witnesses are

properly for the district court to determine. Monroe, ¶ 20 (citing In re Guardianship of

Mowrer, 1999 MT 73, ¶ 36, 294 Mont. 35, 979 P.2d 156). The court’s findings are

clearly erroneous if they are not supported by substantial evidence, if the court

misapprehended the effect of the evidence, or if a review of the record convinces us that

the court made a mistake. In re Marriage of Harris, 2006 MT 63, ¶ 16, 331 Mont. 368,

132 P.3d 502 (citing In re Marriage of Payer, 2005 MT 89, ¶ 9, 326 Mont. 459, 110 P.3d

460).

¶12     “Absent clearly erroneous findings, we will affirm a district court’s division of

property and award of maintenance unless we identify an abuse of discretion.” In re

Marriage of Crilly, 2005 MT 311, ¶ 10, 329 Mont. 479, 124 P.3d 1151 (citing Payer,

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¶ 9). The district court will have abused its discretion if it acted arbitrarily without

conscientious judgment, or exceeded the bounds of reason, resulting in substantial

injustice. Crilly, ¶ 10 (citing In re Marriage of Kotecki, 2000 MT 254, ¶ 9, 301 Mont.

460, 10 P.3d 828).

                                      DISCUSSION

¶13    1. Did the District Court err in interpreting the parties’ prenuptial agreement?

¶14    The District Court interpreted the prenuptial Agreement as only governing the

parties’ respective property at the time of the Agreement, and that the Agreement was

silent as to future improvements, contributions, or appreciation. As such, the District

Court awarded Ronald the property, but ordered him to pay Kim half of Mountain

Meadow’s increased value based upon her physical and financial contributions to the land

and the home. On appeal, Ronald argues that this interpretation of the Agreement and the

distribution to Kim are abuses of the District Court’s discretion. Ronald contends that the

Agreement clearly expressed the intent of the parties, that Ronald would receive all

property upon dissolution of the marriage, regardless of Kim’s contributions.

¶15    Montana law requires that “[a] contract must receive such an interpretation as will

make it lawful, operative, definite, reasonable, and capable of being carried into effect if

it can be done without violating the intention of the parties.” Section 28-3-201, MCA.

When the parties reduce the contract to writing, the district court should ascertain the

intention of the parties from the writing alone, if possible. Section 28-3-303, MCA;

SVKV, L.L.C. v. Harding, 2006 MT 297, ¶ 43, 334 Mont. 395, 148 P.3d 584 (citing

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Wurl v. Polson Sch. Dist. No. 23, 2006 MT 8, ¶ 16, 330 Mont. 282, 127 P.3d 436). In

doing so, “[t]he whole of a contract is to be taken together so as to give effect to every

part if reasonably practicable, each clause helping to interpret the other.” Section 28-3-

202, MCA. The language of the contract shall govern its interpretation, provided that the

language is clear and explicit, and does not involve an absurdity. Section 28-3-401,

MCA. Finally, the district court must determine the mutual intention of the parties at the

time of contracting, § 28-3-301, MCA, and any uncertainties are resolved most strongly

against the party who caused the uncertainty. Section 28-3-206, MCA.

¶16   The District Court found that the Agreement was “silent with respect to increases

in value of the pre-marital property,” and therefore “all such increases are subject to

equitable distribution pursuant to Section 40-4-202, MCA.” The record, particularly the

Agreement itself, substantially supports the District Court’s conclusion that the

Agreement did not provide for distribution of the increased value of the property. The

third operative clause of the agreement expressly provides that the “[p]rospective

husband and prospective wife desire to retain all property that they presently own as

separate property, after solemnization of their marriage.” (Emphasis added.) This clause

is an expression of the parties’ intentions. The clause supports and informs the preceding

clause, that Ronald owned Mountain Meadows and the buildings upon the land prior to

the marriage, and would keep that property and those buildings upon dissolution of the

marriage. Nothing in the Agreement provides that the increase in value of Mountain

Meadows stemming from Kim’s substantial physical and financial efforts over the

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27-year marriage is to be distributed to Ronald upon dissolution of the marriage. Such an

interpretation would result in an absurdity, and be unconscionable, because of the failure

of the Agreement to fully apprise Kim of this intention, and because of the effect such a

construction would have on the expectations of the parties during their marriage. Kim

testified on both direct and cross-examination that she understood the Agreement to mean

that, upon dissolution, each party would receive the property they owned at the time of

the marriage. Substantial credible evidence supports the District Court’s findings and

interpretation of the contract. Finally, Ronald and his attorney drafted the Agreement

and, thus, any uncertainties are construed against Ronald.

¶17    Because the Agreement did not provide for the distribution of the increased value

of Mountain Meadows, the District Court properly distributed the increased value

equitably between the parties, pursuant to § 40-4-202, MCA. This statute vests district

courts with broad discretion to apportion the marital estate equitably to each party under

the circumstances, regardless of title to the property. Bartsch, ¶ 9 (citations omitted);

§ 40-4-202(1), MCA.      We have construed § 40-4-202, MCA, “to mean that assets

belonging to a spouse prior to marriage, or acquired by gift during the marriage, are not a

part of the marital estate unless the non-acquiring spouse contributed to the preservation,

maintenance, or increase in value of that property.”         Bartsch, ¶ 21 (quoting In re

Marriage of Rolf, 2000 MT 361, ¶ 46, 303 Mont. 349, 16 P.3d 345). As such, the District

Court awarded half of the increased value of Mountain Meadows to compensate Kim for

the considerable physical and financial efforts she made to the property over the 27-year

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marriage. Her efforts were a substantial contribution to the increase in the value of the

property. There is substantial credible evidence in the record to support the District

Court’s interpretation of the contract, and marital property distribution award. Ronald’s

arguments as to contract ambiguity and property law are accordingly without merit.

¶18 2. Did the District Court err by dividing Ronald’s pension benefits as part of the
marital estate?

¶19    Ronald makes a brief argument that the District Court erred in dividing his

pension benefits, because he will be left with insufficient income to meet his ongoing

medical and living expenses. In awarding Kim a portion of Ronald’s pension benefits,

the District Court noted that “Kim is entitled, and Ron has not presented evidence or

argument in opposition to Kim’s request in this regard, to a share of Ron’s employer

retirement benefits earned during the marriage utilizing the Rolfe formula.” Rolfe v.

Rolfe, 234 Mont. 294, 766 P.2d 223 (1988). In light of Ron’s failure to present evidence

or argument in opposition to Kim’s request, we cannot second guess the District Court’s

determination to distribute a portion of his retirement pension benefits to her. “It is well

established in this state that retirement benefits are a part of the marital estate,” Rolfe, 234

Mont. at 296, 766 P.2d at 225 (citation omitted), and district courts are given “substantial

discretion” to devise an equitable distribution. Rolfe, 234 Mont. at 300, 766 P.2d at 227

(citation omitted). As such, the District Court did not abuse its discretion by awarding

Kim an equitable portion of Ronald’s retirement pension benefits.




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                                   CONCLUSION

¶20   For the foregoing reasons, we affirm the District Court.


                                               /S/ JIM RICE


We concur:


/S/ MIKE McGRATH
/S/ JAMES C. NELSON
/S/ PATRICIA O. COTTER
/S/ W. WILLIAM LEAPHART




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