                             NO.   96-218
           IN THE SUPREME COURT OF THE STATE OF MONTANA




IN RE MARRIAGE OF
REBECCA LYNN HOFFMAN,
           Petitioner and Respondent,
     and
WILLIAM ALLEN HOFFMAN,
           Respondent and Appellant.



APPEAL FROM:   District Court of the Fifth Judicial District,
               In and for the County of Beaverhead,
               The Honorable Frank M. Davis, Judge presiding.


COUNSEL OF RECORD:
           For Appellant:
               Jack H. Morris; Jardine, Morris      &   Hoffman;
               Whitehall, Montana
           For Respondent:
               John Warren; Davis, Warren    &   Hritsco;
               Dillon, Montana


                             Submitted on Briefs:       August 29, 1996
                                            ~ ~ ~ i d ~ d : 10, 1996
                                                    December
Filed:
Justice Terry N. Trieweiler 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.
     The respondent, Rebecca Lynn Hoffman              ,
                                               ("Becky")   filed a
petition for dissolution of her marriage to the appellant, William
Allen Hoffman   ("Bill"), in the District Court for the Fifth
Judicial District in Beaverhead County.     After a hearing, the
District Court entered its decree of dissolution, and concluded
that the following were marital assets subject to an equitable
division between the parties:    (1) the log house in which the
parties resided during their marriage ("the Hof £man Home"); and
(2) Bill's expectation for future acquisition of the one acre of

real property on which the Hoffman Home is located ("the Hoffman
Home Site").    On that basis, the District Court divided the
agreed-upon value of the real property equally, and ordered Bill to
pay Becky in the amount of $47,750 for her interest. Bill appeals
the judgment of the District Court.      We reverse the District
Court's judgment as it relates to property division, and remand for
entry of judgment consistent with this opinion.
     The issue on appeal is whether the District Court was correct
when it concluded that the Hoffman Home and Bill's expectation that
he will, in the future, acquire the Hoffman Home Site were marital
assets subject to equitable division between the parties.
                         FACTUAL BACKGROUND
     Frances Forgy is the record owner of a seventeen-acre parcel
of land in Madison County.      In 1977 she gave Bill, her nephew,
permission to construct a log house on one acre of her property.
At that time, Bill began construction of the foundation, and
continued to build the house during the next six years. However,
the seventeen-acre parcel has never been subdivided and no part has
been transferred to Bill.
     In 1983, Forgy and Bill agreed that the real property taxes
for the land would continue to be assessed to Forgy, and that the
improvement taxes for the log house would be assessed to Bill.
     Bill and Becky were married in 1984, and moved into the log
house in the fall of 1986.      During the course of their marriage,
they completed construction of the house, and made a number of
improvements to    it.   They also paid      insurance premiums     and
improvement taxes for the house; however, they did not pay rent to
Forgy, and there has never been a written agreement with regard to
their possession of the house. There is a considerable amount of
evidence   that   Forgy plans    to devise   her   property   to   Bill;
nonetheless, she has not yet transferred title to her property.
     In 1995, Becky filed a petition for dissolution of her
marriage to Bill. In its decree of dissolution, the District Court
concluded that Bill's expectation that he would be devised the
Hoffman Homesite and the Hoffman Home were marital assets subject
to equitable division between the parties.      On that basis, the
District Court concluded that equitable division of the parties'
marital estate would require that Bill pay Becky $47,750 for her
interest in the estate, plus her share of the personal property
included in the estate.
                             DISCUSSION
     Was the District Court correct when it concluded that the
Hoffman Home and Bill's expectation that he will, in the future,
acquire the Hoffman Home Site were marital assets subject to
equitable division between the parties?
     When we review a district court's conclusions of law, the
standard of review is whether those conclusions are correct.     Inre

MarriageofHamilton (1992), 254 Mont. 31, 35, 835 P.2d 702, 704

     On appeal, Bill contends that the Hoffman Home and his
expectation that he will inherit the Hoffman Home Site are not
marital assets. Specifically, Bill asserts that, because Forgy is
the legal owner of both the Hoffman Home Site and the Hoffman Home,
the District Court incorrectly included their respective values
when it calculated and equitably divided the parties' marital
estate.
     Section 40-4-202, MCA, governs the equitable division of
marital property and states, in relevant part, that:
     (1) In a proceeding for dissolution of a marriage . . .
     the court . . . shall . . . finally equitably apportion
     between the parties the property and assets belonqinq to
     either or both, however and whenever acquired and whether
     the title thereto is in the name of the husband or wife
     or both . . . .
(Emphasis added.)   Thus, 5 40-4-202(I), MCA, clearly limits the
marital estate subject to equitable division to the property and
assets belonging to either spouse or both, and titled in at least
one of their names.       It does not confer any authority upon a
district court to include in the marital estate property or assets
owned by a third party.
                       THE HOFFMAN HOME SITE
     It is undisputed that Forgy is, and has been at all times
pertinent to this litigation, the record owner of the real property
upon which the Hoffman Home is located. She has never conveyed her
real property to Bill or Becky, and they do not have a legitimate
claim that they own the property.         When the District Court
equitably dividedthe Hoffmans' marital estate, it was, for reasons
that follow in this opinion, required to consider the possibility

that, upon Forgy's death, Bill might inherit the Hoffman Home Site.
However, we conclude that when the District Court evaluated and
equitably divided the Hoffmans' marital estate, it erred when it
included property that is owned by Forgy, a third party.

                           THE HOFFMAN HOME
     The Hoffman Home cannot be separated from the land upon which
it is located, and we conclude that, pursuant to 5         70-15-101,
-102, and -103, MCA, it is a fixture attached to Forgy's real
property.
     When we determine whether a particular object is a fixture, we
examine:    (1) the character of the structure; (2) the manner in
which it is annexed to the realty; and, of the most significance,
( 3 ) the intent of the parties.   Grindev. Tindall (1977), 172 Mont. 199,

201-02, 562 P.2d 818, 820.      While the first two factors indicate
that the Hoffman Home is a fixture, the intent of the parties is
the controlling factor in our analysis. In this case, neither Bill
nor Becky has claimed that they own the log house. In fact, Bill's
testimony with regard to his intent establishes that Forgy is the
owner of the property and the log house:
     Q:    Now, back in 1977, when you started construction on
     .    . . the Hoffman home . . . what arrangements did you
     make for constructing the home on the site you did?
     A: I discussed it with my aunt, and basically she had no
     desire to sell the ground.    But she told me I could
     proceed with it [building the log house1 if I would pay
     the taxes on the improvements in lieu of rent.
     Q:      . . . [Ylou've got a $71,500 home on the land.
     A: Or [Forgyl does. I have never felt I owned either
     the home or the land that it sets on.
     Q: If that was your feeling, why would you put all that
     money into the land?
     A:  Because I have a place to live rent free as long as
     I want it.

     Furthermore, with      regard to fixtures, 5      70-18-101, MCA,
provides :
     When a person affixes his property to the land of
     another, without an agreement permitting him to remove
     it, the thing affixed . . . belongs to the owner of the
     land unless he chooses to require the former to remove
     it.
The record contains no evidence of any agreement which would allow
Bill or Becky to remove the Hoffman Home            from Forgy's real
property.
     We conclude that the Hoffman Home and Bill's expectation that
he will, in the future, acquire the Hoffman Home Site were not
marital assets subject to equitable division. We hold, therefore,
that the District Court erred when it included property owned by
Forgy when it evaluated and equitably divided the Hoffmans' marital
estate.
     However, the District Court found, based on substantial
evidence, that Forgy intends to devise the property to Bill.     We
have previously held that:
     Under section 40-4-202, MCA, the District Court must
     consider future acquisition of assets. The husband's
     expectation of a sizeable inheritance is therefore a
     valid consideration in the equitable distribution of the
     marital property.

MarriageofGoodmundson (l982), 201 Mont. 535, 540, 655 P.2d 509, 512.

     Accordingly, when the District Court distributes the Hoffmans'
marital estate, it is required to consider Bill's substantiated

expectation of a sizeable inheritance, which includes the Hoffman
Home Site and Hof fman Home.   It may also make a disproportionate
distribution of the net marital estate based on that expectation.
However, the distribution cannot exceed the net value of the
marital estate which, in this case, after excluding the marital
home and homesite, is $19,775.
     The judgment of the District Court is reversed, and the case
is remanded for entry of judgment consistent with this opinion.
W e concur:




     Justices
Justice James C. Nelson specially concurs.

       I agree with our statement of the law applicable to the
homesite and to the home given the undisputed evidence that Forgy
is the record owner of the real property on which the home was
constructed and that the home was constructed in the absence of any
severance agreement.      The law cited in the opinion pertaining to
fixtures makes the home part of the real property owned by Forgy
and, clearly, the court may not distribute to either Becky or Bill
property owned by a third person who is not a party to the
dissolution proceedings. See     §              ,
                                     40-4-202(1) MCA; In re Marriage of
Martin (1994), 265 Mont. 95, 102, 874 P.2d 1219, 1224 (citing In re
Marriage of Reich (1986), 222 Mont. 192, 720 P.2d 286; ~uxbaumv.
Buxbaum (1984), 214 Mont. 1, 692 P.2d 411).
       I   do, however, feel constrained to make         the   following
observations.       On appeal, citing various      case and statutory
authorities, Bill argues that the trial court committed reversible
error by including in the marital estate and awarding to Becky a
portion of the value of property not belonging to either she or
Bill--i.e. the homesite and the home. Bill argues the language of
5 40-4-202(1), MCA; failure to comply with the statute of frauds,

§   70-20-101, MCA; and failure to prove adverse possession by reason
of permissive occupation and failure to comply with        §   70-19-404,
MCA and    §   70-19-411, MCA.   Bill also. argues on appeal that the
court committed clear error by including fixtures attached to
Forgyis real property in the marital estate, citing § S 70-15-101
and 103, MCA, and various case authorities.
                                      9
    At trial each party submitted proposed findings of fact and
conclusions of law to the court.   No briefs were filed by either
party.   I note that there is not one citation in Bill's proposed

findings and conclusions (or in Becky1 for that matter) to any of
                                      s,
the cases or to any of the statutes he now relies on. In fact, the
entire District Court record is devoid of any case or statutory
authority either in favor of or in opposition to what the court
did. . Moreover, except in a reference so oblique as to defy
denominating it as "legal analysis," Bill did not articulate any of
the arguments he now makes to this Court.       His entire "legal
argument" is set forth in his proposed conclusion of law number 32
In its entirety, that conclusion of law states:
          32. The Court concludes that the log house attached
     to Francis Forgylsproperty that was built by Bill prior
     to the marriage cannot be properly be [sic] considered
     part of the marital estate. Even though Bill testified
     that he had hoped that someday he would acquire the
     property from Forgy either through inheritance or
     conveyance neither event has transpired. There was no
     evidence presented to the Court other then the parties'
     own testimony as to what Francis Forgy's intentions were,
     if any, in regard to her ever transferring the property
     to either party. Becky has confused occupation with
     ownership. Even though the parties were allowed to live
     in the log house attached to Forgy's property for over
     eleven years rent free the parties have no right to the
     log house and real property beyond those conveyed by mere
     occupancy. Given the applicable law of real property the
     Court can do nothing else.
          However, based upon the representations made by Bill
     to Becky concerning his hope of one day acquiring the log
     house from Forgy and based upon Becky's reliance on those
     representations the Court feels that it would be fair and
     equitable for Bill to pay to Becky half of $17,500 that
     represents the parties' contribution toward improvement
     of the log house during the course of the marriage.
     Therefore, the Court concludes that Becky is entitled to
     receive from Bill half the value of that contribution.
     Furthermore, in moving to amend the trial court's findings and
conclusions with regard to the home, Bill's entire legal argument
consisted of the following:     "   [Plursuant to Section 40-4-202(1),
MCA, the Court can only apportion between the parties assets or

property belonging to or titled in name [sic] of the husband or
wife or both."   No brief was filed; no other argument was made;
there was no citation to case authority.
     In my view, the legal arguments and theories Bill now advances
on appeal were not raised with sufficient particularity in the
trial court to give either the court or opposing counsel fair
notice of what Bill's contentions were.        This sort of practice
places this Court in the position of having to find the trial court
in error on matters of law when that court was not presented with
the law that the party, on appeal, contends is dispositive.
     Secondly, Bill has changed his position on appeal from that
which he took at trial.     While he now contends that Becky has no
ownership interest in the home, that was not in line with his
testimony before the trial court. In point of fact, at trial Bill
testified that Becky did have an interest in the marital home and
that he would be willing to split with her "the value of the
improvements contributed jointly during the marriage."         Bill's
proposed conclusion of law referenced above follows his testimony
at trial. Again, Bill has blind-sided not only the trial court but
opposing counsel as well.
     Although we are constrained to apply the correct law in this
case, 'having now done so, I take no comfort in our decision given
the record that was presented to the trial court. Accordingly, I
specially concur.




Justice Karla M. Gray concurs i
