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                                                              No. 99-672

                   IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                           2000 MT 386N

                                               IN RE THE MARRIAGE OF

                                               ANDREW LYNN POLSON,

                                                     Petitioner/Respondent,

                                                                    and

                                                 MARCIA ANN POLSON,

                                                     Respondent/Appellant.

                    APPEAL FROM: District Court of the Fourth Judicial District,

                                           In and for the County of Missoula,

                                  The Honorable C. B. McNeil, Judge presiding.

                                                  COUNSEL OF RECORD:

                                                           For Appellant:

Lon J. Dale, Milodragovich, Dale, Steinbrenner & Binney, Missoula, Montana; Paulette
                            Ferguson, Missoula, Montana

                                                          For Respondent:

     Christopher A. Widenhofer, Raymond P. Tipp, Tipp & Buley, Missoula, Montana

                                         Submitted on Briefs: August 24, 2000
                                            Decided: December 28, 2000

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                                                                    Filed:

                              __________________________________________

                                                                    Clerk

Justice William E. Hunt, Sr., 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 but 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 On August 21, 1999, the Fourth Judicial District Court, Missoula County, entered its
findings of fact, conclusions of law, and decree of dissolution in regards to the marriage of
Andrew Lynn Polson (Andrew) and Marcia Ann Polson (Marcia). Marcia appeals from
this decision and Andrew cross appeals. We affirm.

¶3 The issues on appeal can be restated as follows:

        1. Did the District Court correctly find that the parties did not own any real property?

        2. Did the District Court correctly exclude Marcia's various exhibits?

        3. Did the District Court correctly distribute the marital estate?

        4. Did the District Court correctly award Marcia the items of personal property that
        Andrew failed to disclose?

                                               FACTUAL BACKGROUND

¶4 On April 1, 1998, Andrew petitioned for a dissolution of his marriage to Marcia.
Andrew and Marcia were married on May 9, 1975, in Coeur d'Alene, Idaho. Both admit
that their marriage is irretrievably broken. Andrew is now 62 years old and in good health.
Marcia is 56 years old and in good health. No children have been born of this marriage.



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¶5 Both parties are employed. Andrew is self-employed as an excavator and carpenter. In
1998, he earned a taxable income of $15,000, but he would like to retire. His social
security will be approximately $650 per month. Andrew's vocational skills and
employability indicate that he is capable of earning similar income in the future. He has no
monthly expenses. Andrew has a limited opportunity to acquire future assets. Marcia is
employed as a clerk at a law firm in Missoula. In 1998, she earned $19,633. Marcia's
vocational skills and work history indicate that she is capable of earning similar income in
the future. Her monthly expenses total $877.67. Marcia's opportunity to acquire assets in
the future is moderate.

¶6 The parties only debt is owed upon construction equipment. The District Court
distributed this equipment and its debt to Andrew. He is solely responsible for this debt.
Marcia is only responsible for debt incurred in her own name.

¶7 The District Court found that the parties did not own any real property. However,
Andrew did own a home at one time. He transferred it to his sister, Jean Dumont, in 1986,
in exchange for debts he owed her. Marcia alleges that he transferred this home to deprive
her of her interest in it. The parties continued to live in the house after the transfer. They
had entered into a rental agreement with and paid rent to Andrew's sister.

¶8 In 1998, Andrew's sister filed a complaint in Justice Court to evict Marcia from the
property. Marcia settled the eviction case by signing a mutual release. In doing so, she
released all claims that she may have against Andrew's sister, including claims relating to
any alleged fraudulent transfer of the house. Marcia agreed not to challenge Andrew's
sister's title to the house.

¶9 The District Court found that Andrew did not disclose several items of personal
property in his preliminary disclosure or at trial. The items where awarded to Marcia
pursuant to § 40-4-253, MCA.

                                                            DISCUSSION

¶10 Marcia makes six arguments that the District Court erred. First, Marcia argues that the
District Court erred in not entering any findings or conclusions concerning the alleged
constructive trust of the house the parties lived in. Second, Marcia argues the District
Court erred in refusing to accept "Respondent's Exhibit B," a financial statement, into
evidence. Third, Marcia argues the District Court erred in failing to enter any findings or


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conclusions concerning a constructive trust of real property in Granite County. Fourth,
Marcia argues the District Court erred in not allowing "Respondent's Exhibit J," a
correspondence, into evidence. Fifth, Marcia argues the District Court erred in not
allowing "Respondent's Exhibit K," concerning a water rights claim, into evidence. Sixth,
Marcia argues the District Court erred in its division of the marital estate.

¶11 Andrew both refutes Marcia's arguments and asserts a cross-appeal. Andrew argues
that the District Court correctly excluded the house the parties lived in from the marital
estate. He points out that Marcia signed a release to any claim she might have in this
property. Andrew argues that the District Court properly excluded Marcia's Exhibits B, J,
and K at trial. He argues that Marcia has alleged no facts, nor made any assertions that
show an abuse of discretion by the District Court. However, Andrew fails to address
Marcia's arguments that the Granite County property, belonging to his son, and Lot 6 of
the Kuney Addition, belonging to his sister, should be considered as part of the marital
estate. He also fails to argue that the District Court's division of the marital estate was
correct.

¶12 In his cross-appeal, Andrew argues the District Court erred in awarding Marcia
personal property that he failed to disclose. He asserts that he failed to disclose the items
of personal property because they do not belong to him. Andrew claims this property
belongs to his son.

¶13 It is well settled that a district court's decision is presumed to be correct. Matter of M.J.
W., 1998 MT 142, ¶ 18, 289 Mont. 232, ¶ 18, 961 P.2d 105, ¶ 18. The appealing party
shoulders the burden of establishing that the District Court erred. We hold that both parties
have failed to carry this burden.

                                                                 ISSUE 1

¶14 Did the District Court correctly find that the parties did not own any real
property?

¶15 In matters relating to the division of marital property, we review a district court's
findings of fact to determine whether they are clearly erroneous. Kovarik v. Kovarik, 1998
MT 33, ¶ 20, 287 Mont. 350, ¶ 20, 954 P.2d 1147, ¶ 20. We utilize a three-step analysis in
determining if a district court's findings of fact are clearly erroneous. First we determine
whether the findings are supported by substantial evidence. Kovarik, ¶ 20. If the findings


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are supported by substantial evidence, we next determine whether the district court has
misapprehended the evidence. Kovarik, ¶ 20. If both of these prongs are satisfied, we may
still determine that a finding is clearly erroneous if, after a review of the record, we have a
definite and firm conviction that a mistake has been committed. Kovarik, ¶ 20.

¶16 Marcia argues that three parcels of real property should be subject to a constructive
trust and are part of the marital estate. She claims that the house the parties rented from
Andrew's sister, property located in Granite County purchased in 1994 by Andrew for his
son, and a parcel of real property transferred from Andrew to his sister prior to his
marriage to Marcia are all part of the marital estate. Marcia bases her argument on her
allegation that Andrew has a history of putting property into other peoples' names to
deprive others of their interest.

¶17 She points out that the house they rented was once owned by her and Andrew. That
Andrew sold it to his sister shortly after being released from jail. Marcia alleges that he
sold the house for less than market value and has claimed ownership of the house on credit
applications. She argues that Andrew conveyed the house for the sole purpose of depleting
the marital estate to protect his interest in the event of a dissolution.

¶18 Marcia, however, signed a release agreement with Andrew's sister. This agreement
released any claim Marcia might have in the house. Further, her argument amounts to little
more than allegations that Andrew acts like he owns the property belonging to his son and
sister. The District Court was in a better position to weigh the evidence. When evidence is
subject to varying interpretations, it is within the providence of the fact finder to decide
which interpretation to believe. The District Court's decision to not include this property is
supported by substantial evidence and is not clearly erroneous.

¶19 Marcia has failed to establish that the District Court's finding of fact No. 14, that the
parties have no really property, is clearly erroneous. The District Court is affirmed on this
issue.

                                                                 ISSUE 2

¶20 Did the District Court correctly exclude Marcia's various exhibits?

¶21 We review a district court's decision on the admissibility of evidence for an abuse of
discretion. State v. Castle, 1999 MT 141, ¶ 11, 295 Mont. 1, ¶ 11, 982 P.2d 1035, ¶ 11.


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The requirement of authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a finding that the thing in
question is what the proponent claims. Rule 901, M.R.Evid.

¶22 The District Court ruled that Marcia failed to lay adequate foundation for the
admittance of her proposed Exhibit B, a financial statement. Marcia attempted to introduce
this proposed exhibit through Andrew's testimony at trial. However, Andrew was not sure
if the signature on Exhibit B was his. Further, when Marcia's counsel inquired whether
Andrew provided the information contained in proposed Exhibit B to the bank, he replied
"I'm not sure that I told the bank anything." In order to use a witness to authenticate a
proposed illustration, the witness must testify that the illustration is what it is claimed to
be. Rule 901(b)(1), M.R.Evid. We agree that Marcia failed to provided an adequate
foundation.

¶23 The District Court also refused to accept Marcia's proposed Exhibit J and Exhibit K
into evidence. Evidence is relevant if it has any tendency to make the existence of any fact
that is of consequence to the determination of the action more or less probable than it
would be without the evidence. Rule 401, M.R.Evid. Irrelevant evidence is inadmissible.
Rule 402, M.R.Evid. These two proposed exhibits appear to be offered to show that
Andrew acted like he owned property belonging to his sister and son. In light of the
record, this evidence was irrelevant.

¶24 Marcia has failed to establish that the District Court abused its discretion. The District
Court is affirmed on this issue.

                                                                 ISSUE 3

¶25 Did the District Court correctly distribute the marital estate?

¶26 The marital estate is to be equitably not equally apportioned. Section 40-4-202, MCA.
In matters relating to the division of marital property, we review a district court's findings
of fact to determine whether they are clearly erroneous. Kovarik, ¶ 20. We utilize a three-
step analysis in determining if a district court's findings of fact are clearly erroneous. First
we determine whether the findings are supported by substantial evidence. Kovarik, ¶ 20. If
the findings are supported by substantial evidence, we next determine whether the district
court has misapprehended the evidence. Kovarik, ¶ 20. If both of these prongs are
satisfied, we may still determine that a finding is clearly erroneous if, after a review of the


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record, we have a definite and firm conviction that a mistake has been committed.
Kovarik, ¶ 20.

¶27 Marcia argues that the District Court's division of the marital estate is in err because
the District Court failed to adequately consider her nonmonetary contributions as a
homemaker and Andrew's disposal of marital assets. A review of the record established
that the findings are supported by substantial evidence. This evidence was not
misapprehended and we do not have a definite and firm conviction that a mistake has been
committed.

¶28 Marcia fails to establish the District Court erred in the division of the marital estate.
The District Court is affirmed on this issue.

                                                                 ISSUE 4

¶29 Did the District Court correctly award Marcia the items of personal property
that Andrew failed to disclose?

¶30 We review a district court's conclusion of law to determine if it is correct. In re
Marriage of Pfeifer, 1998 MT 228, ¶ 9, 291 Mont. 23, ¶ 9, 965 P.2d 895, ¶ 9. Failure of a
party to disclose assets in the final declaration of disclosure is presumed to be grounds for
a district court to award the undisclosed assets to the opposing party without consideration
to the equitable distribution of the marital estate. Section 40-4-253, MCA.

¶31 Marcia informed the District Court of assets Andrew failed to disclose. After hearing
arguments, the District Court awarded the undisclosed assets to Marcia. Andrew's mere
assertion that this property belongs to his son is unpersuasive. Andrew fails to meet his
burden of establishing the District Court erred. The District Court's determination under
this issue was correct.

¶32 The District Court is affirmed.

                                                /S/ WILLIAM E. HUNT, SR.

We Concur:Justice James C. Nelson dissents and concurs.

¶33 I dissent from our decision as to Issues 1 and 3 and concur as to our decision on Issues
2 and 4.
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¶34 Despite the fact that Marcia signed a release in favor of Andrew's sister, the record
contains substantial evidence which supports the conclusion that Andrew conveyed the
marital house to his sister in order to deplete the marital estate and in contemplation of the
divorce. While Andrew's sister may well be entitled to possession of the house, there is no
legal rationale cited by the majority which would have precluded the trial court from
including the value of the house in the marital estate. The failure of the court to even
address this matter and Marcia's arguments for imposition of a constructive trust is, in my
view, error.

¶35 I reach the same conclusion with respect to the Granite County property. It is not
apparent whether this property should be included or excluded from the marital estate
because the court failed to make any findings of fact and conclusions of law with regard to
this property.

¶36 I would reverse and remand for reconsideration and entry of findings of fact and
conclusions of law on these two matters. Accordingly, I dissent as to Issues 1 and 3. I
concur as to Issues 2 and 4.

                                                    /S/ JAMES C. NELSON

W. William Leaphart joins in the forgoing concurrence and dissent.

                                               /S/ W. WILLIAM LEAPHART

Justice Karla M. Gray dissents and concurs.

¶37 I concur in the Court's opinion on all matters except the portion of Issue 1 which
relates to the inclusion of the marital house in the marital estate. In that regard, I join
Justice Nelson's dissent.

                                                      /S/ KARLA M. GRAY




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