                                                                                                01/17/2017


                                           DA 16-0163
                                                                                            Case Number: DA 16-0163

                   IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2017 MT 9N



IN RE THE MARRIAGE OF:

WILLIAM BARTON KENNEY,

               Petitioner, Appellant
               and Cross-Appellee,

         and

CHARLOTTE M. KENNEY,

               Respondent, Appellee
               and Cross-Appellant.



APPEAL FROM:             District Court of the Thirteenth Judicial District,
                         In and For the County of Yellowstone, Cause No. DR 14-1010
                         Honorable Michael G. Moses, Presiding Judge


COUNSEL OF RECORD:

                 For Appellant:

                         William M. Gilbert, High Plains Law, PLLC, Billings, Montana

                 For Appellee:

                         Martha Joan Messex Casey, Hendrickson Law Firm, P.C.,
                         Billings, Montana



                                                     Submitted on Briefs: December 14, 2016

                                                                Decided: January 17, 2017


Filed:

                         __________________________________________
                                           Clerk
Justice Michael E Wheat 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     William Kenney and Charlotte Greni married in January 2006 after living together

and sharing expenses since 1999. William was 47 years old at the time of the marriage

and Charlotte was 50 years old. It was the third marriage for both and the couple has no

children together.

¶3     William is healthy, employed, and has a strong work history with established

retirement and pension accounts with at least two employers.             Additionally, to

supplement his income as a grain/flour miller with his current employer Grain Craft at

which he earned approximately $54,000 in 2014, William is a skillful day trader and built

an Ameritrade account containing approximately $118,000 at the time of the dissolution

hearing in September 2015. Additionally, William brought multiple vehicles, personal

items, and a Billings, Montana, house into the relationship.

¶4     Charlotte entered the relationship with personal belongings, furniture, a vehicle, a

retirement account from a former employer, and a full-time job. In 2009, Charlotte was

diagnosed with lumbar spine degenerative disc disease but continued to work full-time

until May 2012 when she had to reduce her working time. In October 2012, Charlotte


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underwent spinal surgery followed by a second surgery in October 2013. She is facing

future surgeries as well. In January 2014, the Social Security Administration determined

that Charlotte was fully disabled retroactive to May 2012. In 2014, she received $22,126

from Social Security Disability and earned $10,834 as a part-time child care assistant at

Human Resources Development Council.            She currently receives $914.00/month in

Social Security Disability benefits.

¶5     In October 2014, William filed a Petition for Dissolution of Marriage claiming the

marriage was irretrievably broken and advocating equitable division of marital property

but no awards of spousal support, maintenance, or attorney fees. Charlotte responded and

filed a counter petition for dissolution in which she agreed the marriage should be

dissolved but she sought spousal support or maintenance based upon her inability to

support herself through suitable employment. She further requested an award of her

attorney fees.

¶6     Following unsuccessful mediation in June 2015, a bench trial was held on

September 4, 2015. Both William and Charlotte testified and submitted exhibits. In

February 2016, the District Court issued its Findings of Fact, Conclusions of Law and

Decree of Dissolution. The court granted dissolution, valued the marital estate, and after

analyzing the parties’ individual financial situations equitably divided the Estate between

them. It granted Charlotte’s request for maintenance in the amount of $1,200/month for

10 years beginning in February 2016 and ordered the parties to bear their own attorney

fees and costs.

¶7     William filed a timely appeal.

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¶8     Section 40-4-202, MCA, governs the division of property in a marital dissolution

case. We have repeatedly held that § 40-4-202, MCA, vests district courts with broad

discretion when equitably distributing the marital estate. In re Marriage of Swanson,

2004 MT 124, ¶ 12, 321 Mont. 250, 90 P.3d 418. We review a district court’s findings of

fact in a dissolution proceeding for error and absent clearly erroneous findings or abuse

of discretion, we will affirm a district court’s division of property. Swanson, ¶ 12.

¶9     William claims on appeal that the District Court failed to calculate an accurate net

worth of the marital assets and that it erred in calculating and awarding maintenance to

Charlotte. Specifically, William asserts the District Court made no findings as to the

value of the parties’ retirement accounts. He alleges that evidence of the present value of

his 401(k) accounts with both former-employer Sysco and current-employer Grain Craft

were presented at trial and should have been included in the net worth of the marital

estate. He acknowledges that the balances of his defined benefit/pension plans with each

of these employers was not presented or determined at trial as their present values are

“unclear.” He maintains that, without such a value, it is impossible to determine the net

worth of the estate or the amount of the estate each party received.

¶10    Charlotte urges us to affirm the court’s equitable decision, alleging that William

failed to provide necessary information regarding the balances of his retirement and

pension accounts.

¶11    Section 40-4-202, MCA, expressly states that the “court . . . shall . . . equitably

apportion . . . property and assets” belonging to the parties. While the District Court did

not attribute express values to William’s various retirement accounts, the court

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nonetheless gave them adequate consideration and equitable distribution, keeping an

open record to oversee future distributions. It held that all premarital contributions—both

William’s and his employer’s—belonged to William and all post-marital contributions

were to be divided equally.

¶12    Additionally, in distributing the remaining assets in this case, the District Court

considered each of the multiple specific factors set forth in § 40-4-202(1), MCA,

including, but not limited to, age, health, station, and employability. It further carefully

reviewed Charlotte’s need for maintenance under § 40-4-203, MCA.                The court’s

findings are equitable, sufficient, supported by the evidence, and not clearly erroneous.

Nor do the court’s rulings constitute an abuse of discretion.

¶13    Lastly, the court’s inadvertent use of an incorrect account balance in its

calculations resulted in an inconsequential error and does not warrant reversal.

¶14    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’s findings of fact are not clearly erroneous and the court’s

ruling was not an abuse of discretion.

¶15    We decline to address Charlotte’s tax consequences issue on cross-appeal. We

further decline her request for attorney fees on appeal.

¶16    Affirmed.


                                                  /S/ MICHAEL E WHEAT




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We Concur:

/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ JIM RICE




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