                                           NO. 96-565

                IN THE SUPREME COURT OF THE STATE OF MONTANA

                                              1997


IN RE THE MARRIAGE OF

T E N ANN CIRIMELE,
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APPEAL FROM:          District Court of the First Judicial District,
                      In and for the County of Lewis & Clark,
                      The Honorable Jeffrey M. Sherlock, Judge presiding


COUNSEL OF RECORD:

               For Appellant:

                      Matthew J. Sisler, Attorney at Law, Missoula, Montana

               For Respondent:

                      Lawrence A. Murphy, Attorney at Law, Helena, Montana



                                                                      Submitted on Briefs: May 1, 1997

                                                                                              Decided:   May 2 7 , 199 7
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.



       Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1995 Internal

Operating Rules, the following 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 State Reporter Publishing Company and West Publishing Company.

       Teri Ann Cirimele (Teri) and David Grotsky (David) began living together in 1991

and married in 1992; they had no children together, but Ten's children from a previous

marriage lived with them. Teri and David's marital lifc was stormy and, while they lived

together, they contributed equally toward the house payments and maintenance on the family

home they bought in 1991. Ten and the children moved out in December of 1992, moved

back in January of 1994 and moved out permanently in April of 1994. David made all the

house payments while Teri was not living at the family home.

       Teri filed for dissolution of the marriage in February of 1995 and, at the time of the

hearing before the First Judicial District Court, Lewis and Clark County, the only remaining

dispute concerned the distribution of the family home. Ten requested 213s of the parties'

$26,900 equity in the home. The court determined that Ten was entitled to one-half of the

equity in the home during the periods of time she lived in the home and contributed to its

maintenance and that she lived in the home 37% of the time. Pursuant to a mathematical
         Finally, Ten urges that the District Court failed to make findings regarding expenses

she incurred while living apart from David and David's failure to assist her with those

expenses. She seems to suggest that David should pay a portion of these "debts." As noted

above, the sole issue before the District Court at the time of the hearing was the equitable

distribution of the family home. Teri's contention in this regard is not related to that issue

and, indeed, is directly at odds with Teri's proposed finding of fact in the District Court that

the parties had equitably divided their debt.

         In short, the District Court's findings, conclusions and equitable distribution of the

family home are without enror. Ten has not only failed to support the positions taken in this

appeal but has advanced positions totally inconsistent with those taken by her in the District

Court.

         Finally, David seeks sanctions under Rule 32, M.R.App.P., for being forced to defend

a frivolous appeal. Rule 32, M.R.App.P., provides that, if we are satisfied from the record

and the presentation of the appeal that the same was taken without substantial or reasonable

grounds, we may assess such "damages" as are deemed proper.

         We have been reluctant to award sanctions under the Rule unless the appeal before

us is totally without merit. Here, however, we conclude that the appeal is totally without

merit and totally frivolous and, moreover, that during the course thereof Teri's counsel filed

motions and took other actions totally unauthorized by the Montana Rules of Appellate

Procedure. Without regard to the impact of such practice on this Court's ability to properly
address an increasing caseload, it is clear that an opposing party should not be required to

shoulder the costs of defending such matters. We conclude, therefore, that David is entitled

to damages under Rule 32, M.R.App.P., in the form of reasonable attorney fees incurred in

defending this appeal and that those fees shall be assessed against Teri's counsel, personally.

We remand this case to the District Court for a determination of the amount of reasonable

attorney fees incurred by David in this appeal and entry of an order and judgment in that

amount against Teri's counsel.

       Affirmed and remanded for further proceedings consistent with this opinion.
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We concur:
