                                                                                                 02/28/2017


                                           DA 16-0467
                                                                                             Case Number: DA 16-0467

                   IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2017 MT 44N



IN RE THE MARRIAGE OF:

BONNIE STRUCK,

               Petitioner and Appellee,

         and

DARVIN STRUCK,

               Respondent and Appellant.



APPEAL FROM:            District Court of the Eleventh Judicial District,
                        In and For the County of Flathead, Cause No. DR-12-037(D)
                        Honorable David M. Ortley, Presiding Judge


COUNSEL OF RECORD:

                 For Appellant:

                        Peter F. Carroll, Attorney at Law, Kalispell, Montana

                 For Appellee:

                        Tiffany B. Lonnevik, Lonnevik Law Firm, P.C., Kalispell, Montana



                                                     Submitted on Briefs: February 8, 2017

                                                                 Decided: February 28, 2017


Filed:

                        __________________________________________
                                          Clerk
Chief Justice Mike McGrath 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     Darvin Struck appeals from the District Court’s Findings of Fact, Conclusions of

Law and Decree of Dissolution entered June 29, 2016. Darvin contends that the District

Court erred in distributing the marital estate between the parties. We affirm.

¶3     The parties were married in 1984 and separated in 2012. During the marriage the

parties engaged in several modest businesses. Bonnie worked in the businesses and kept

the family home. She received no salary or Social Security contribution for her work,

although she and Darvin agreed that she could take $700 per month for her personal

expenses. The District Court found that Bonnie contributed significant services and labor

to the parties’ income-producing businesses and to the marital estate.

¶4     Darvin acquired real property in the Kalispell area and farm property in the

Rudyard area by gift or inheritance from his family. The parties lived on part of the

Kalispell property and on another part Darvin raised hay that he sold. They received

CRP payments on the Rudyard property of $25,000 per year for a number of years.

Bonnie received a gift from her parents of a life insurance policy that will pay her when

the last of them dies. Her parents intend to pay the annual premium of approximately


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$6000 as long as they are able. The District Court allocated the $193,338 present value

of the policy to Bonnie, and declined Darvin’s request that the face value of the policy be

allocated to her. Citing nemo est haeres viventis, the District Court noted that the living

(Bonnie’s parents) have no heirs, and therefore the uncertainty of the ultimate payout on

the policy makes future payment only speculative.

¶5     The District Court issued detailed findings of fact and conclusions of law, dividing

the marital property between the parties pursuant to § 40-4-202. MCA. The District

Court divided the principal assets by allocating to Darvin the Flathead County property at

a value of $513,168 and Sanders County property at a value of $23,000. The District

Court allocated the Hill County property to Bonnie at a value of $442,400.

¶6     Darvin argues on appeal that the District Court’s property division was arbitrary

and “worked a substantial injustice,” primarily because the division included property

that Darvin had obtained through gift or inheritance from family members. We conclude

that the District Court properly applied § 40-4-202. MCA, to this property and did not act

arbitrarily or contrary to law. In re Marriage of Rintoul, 2014 MT 210, ¶¶ 9-11, 376

Mont. 167, 330 P.3d 1203.       Darvin also argues that several of the District Court’s

findings of fact are “clearly erroneous,” but the record shows that there was substantial

evidence to support those findings. Awarding Bonnie a share of the post-separation CRP

payments was within the discretion of the District Court.

¶7     Finally, Darvin argues that the District Court abused its discretion in admitting

testimony from Bonnie’s expert concerning property values. The District Court found

that the only competent evidence of the value of the Flathead property was provided by

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Bonnie’s expert. The record shows that the expert was properly qualified and that the

District Court did not abuse its discretion in admitting and considering the testimony.

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

our Internal Operating Rules, which provides for memorandum opinions. In the opinion

of the Court, the District Court did not abuse its discretion and the case presents a

question controlled by settled law or by the clear application of applicable standards of

review.

¶9     Affirmed.


                                                 /S/ MIKE McGRATH



We Concur:

/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ DIRK M. SANDEFUR
/S/ JAMES JEREMIAH SHEA




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