                                                                                          November 13 2012


                                            DA 11-0608

                 IN THE SUPREME COURT OF THE STATE OF MONTANA
                                           2012 MT 256N



IN RE THE MARRIAGE OF
TERESA STUBER BURKE,

               Petitioner and Appellee,

         and

DANIEL BRIAN BURKE,

               Respondent and Appellant.



APPEAL FROM:            District Court of the Fourth Judicial District,
                        In and For the County of Missoula, Cause No. DR 07-463
                        Honorable Robert L. Deschamps, III, Presiding Judge


COUNSEL OF RECORD:

                 For Appellant:

                        Patrick G. Sandefur, Attorney at Law; Missoula, Montana

                 For Appellee:

                        Gail H. Goheen, Attorney at Law; Hamilton, Montana



                                                  Submitted on Briefs: October 24, 2012

                                                              Decided: November 13, 2012


Filed:

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

¶1     Pursuant to Section I, Paragraph 3(d), 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     Daniel Brian Burke (Daniel) appeals from the Findings of Fact, Conclusions of Law and

Order entered by the District Court on June 2, 2011, dissolving the marriage between him and

Teresa Stuber Burke (Teresa), and from the District Court’s Amended Order entered on June 15,

2011, which noted an error in the Findings of Fact and Conclusions of Law and clarified the

earlier order. The parties were married approximately 19 years beginning in 1988, and have two

children.

¶3     Prior to their marriage, the parties entered a premarital agreement which addressed

property issues and listed the parties’ separate assets and their values. Daniel owned net assets

valued at approximately $36,000 and Teresa owned net assets valued at approximately $8,000.

The District Court found that, in May 2010, the marital estate held assets valued at $689,276 and

liabilities of $450,451, for a net value of $238,825. The court distributed Daniel’s life

insurance, Teresa’s Putnam Account, and both parties’ retirement accounts to the respective

party as titled, which the court found would give each party a roughly equal value of these assets.

Of the remaining $133,334, the court determined that Daniel was entitled to $27,400 pursuant to

the terms of the premarital agreement, leaving a balance of $105,934. Of this amount, one-half,

or $52,947, was distributed to each party. $18,200 of Teresa’s share was distributed to Teresa in

vehicles and personal property, and the remaining $34,767 of her share was ordered to be paid to



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Teresa by Daniel, who would retain most of the marital assets, including the parties’ business

interests.

¶4      Daniel challenges the distribution of the marital estate, arguing the District Court gave

him insufficient property pursuant to the premarital agreement. There is no challenge to the

Parenting Plan adopted by the District Court. Daniel argues the District Court failed to enforce

the premarital agreement, erroneously interpreted the agreement, and improperly divided

property subject to the agreement, asserting that “[t]he plain language of the premarital

agreement fully supports Dan’s argument that his claimed separate property should be excluded

from the district court’s consideration in its apportionment of the marital estate.” He also takes

issue with the District Court’s finding that Teresa made substantial contributions to the property

subject to the premarital agreement, particularly, the businesses he started up with assets he

owned prior to the marriage.

¶5      We review a district court’s findings of fact in dissolution proceedings to determine

whether they are clearly erroneous. In re Marriage of Crilly, 2009 MT 187, ¶ 9, 351 Mont. 71,

209 P.3d 249. A finding is clearly erroneous if it is not supported by substantial evidence, the

district court misapprehended the effect of the evidence, or our review of the record convinces us

the district court made a mistake. Crilly, ¶ 9. Absent clearly erroneous findings, we will affirm a

district court’s division of property and maintenance award unless we identify an abuse of

discretion. Crilly, ¶ 9. “A district court abuses its discretion if it acts arbitrarily without

conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice.”

Crilly, ¶ 9.

¶6      The premarital agreement provided an interpretational challenge for the parties and the

District Court, leading to an extensive on-the-record discussion among them which eventually

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led to an in-court oral stipulation or agreement concerning the application of the agreement

which would govern the case. In its Findings of Fact, the District Court described it as follows:

“The parties agreed at pp. 91-96 of the trial transcript that, under § 40-4-202, MCA, despite the

premarital agreement, Dan must show a lack of statutory equitable contribution by Teresa to

prevail on his separate property argument.” Teresa did not challenge Daniel’s valuations of the

investments or business entities which he claimed were his separate property, but asserted that

she had contributed to their value. The District Court agreed that Teresa had contributed to these

assets.

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

Internal Operating Rules, which provides for noncitable memorandum opinions. The District

Court’s findings of fact, including those regarding Teresa’s contributions, are supported by

substantial evidence and the legal issues are controlled by settled Montana law, which the

District Court correctly interpreted. The District Court properly found that the parties had

entered an in-court stipulation which governed the application of the premarital agreement. A

party is bound by his or her judicial stipulations or admissions. In re Marriage of Caras, 2012

MT 25, ¶ 28, 364 Mont. 32, 270 P.3d 48. Further, an abuse of discretion by the District Court in

the distribution of the marital estate has not been established.

¶8        Affirmed.

                                                      /S/ JIM RICE


We concur:


/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ PATRICIA COTTER

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/S/ MICHAEL E WHEAT




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