                                                                                              08/09/2016


                                             DA 15-0803
                                                                                          Case Number: DA 15-0803

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                            2016 MT 191N



IN RE THE MARRIAGE OF:

MAUREEN SPENCE,

                Respondent and Appellee,

         and

TODD SPENCE,

                Petitioner and Appellant.


APPEAL FROM:            District Court of the Second Judicial District,
                        In and For the County of Butte/Silver Bow, Cause No. DR 15-40
                        Honorable Kurt Krueger, Presiding Judge


COUNSEL OF RECORD:

                 For Appellant:

                        Todd Spence, self-represented, Missoula, Montana

                 For Appellee:

                        Maureen Campbell, self-represented, Florence, Montana



                                                     Submitted on Briefs: July 27, 2016

                                                                Decided: August 9, 2016


Filed:

                        __________________________________________
                                          Clerk
Justice Beth Baker 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      Todd Spence appeals the Final Decree of Dissolution of his marriage with

Maureen Spence, raising a single issue for consideration: whether the Second Judicial

District Court erred by assigning to Todd responsibility for repaying $4,691 to the Social

Security Administration for benefit checks issued in error to Maureen. We affirm.

¶3     Todd and Maureen were married in December 2010 and separated in March 2013.

They filed a joint petition for dissolution of the marriage in February 2015. The petition

represented that there were no debts of the marriage. According to the District Court’s

findings of fact, when the parties appeared for the May 2015 hearing on their petition

their testimony made clear that they did not agree on the allocation of debt between them.

The Court continued the hearing and referred Todd and Maureen to the court’s settlement

master, but they did not resolve the disagreement.

¶4     In the meantime, Maureen moved the District Court for a scheduling conference,

representing that Todd spent nearly $5,000 of her SSI disability money that she was

unaware he was receiving. She told the court that the Social Security Administration was

making her pay the money back but that she never even knew that it was being paid
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because she had been incarcerated during the entire time. The District Court held another

hearing on November 4, 2015, and took testimony from Maureen. Todd was not present.

¶5    Maureen submitted exhibits at the hearing establishing that the Social Security

Administration overpaid Maureen’s monthly disability payments from January 2014

through December 2014, during which time Maureen was incarcerated for conviction of a

crime. The Administration sent two letters in January 2015 to Maureen. The first, sent to

the Missoula address identified in the dissolution petition as Todd’s address, notified

Maureen of the overpayment. The second, sent to Maureen at her Butte address, advised

her that she would not be paid benefits beginning in November 2014 due to her

incarceration. Maureen applied for waiver of the collection of the overpayment, but the

Administration denied her request because it determined that Maureen failed to report

that she was incarcerated and that she knew or should have known that the payments

were incorrect, but she accepted the payments anyway.

¶6    The District Court found that Maureen believed her payments had ceased and that

Todd had received the checks, endorsed them, and used them to his own benefit. The

court therefore ordered that Todd would be responsible for repaying the full overpayment

to the Social Security Administration.

¶7    Todd argues that Maureen was notified of a reduction in her benefits in May 2013

and that there was no way of knowing that the amounts received were in error. He also

argues that the funds went to her for pre-paid phone cards, were deposited to her account

when she entered pre-release in Butte, and were used to pay her criminal fines. The
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problem with Todd’s argument is that he is making it for the first time to this Court on

appeal. Todd attaches several documents to his opening brief that were not presented to

the District Court. He did not come to court on the date scheduled for the hearing or ask

the court in advance to continue the hearing to a new date. And, although he refers in his

brief to things he said during the May 2015 hearing, he has not provided a transcript of

that hearing.

¶8     District courts have “broad discretion in apportioning a marital estate.” In re

Marriage of Crowley, 2014 MT 42, ¶ 26, 374 Mont. 48, 318 P.3d 1031. “Absent clearly

erroneous findings, we will affirm a district court’s division of property unless the court

abused its discretion.” In re Marriage of Richards, 2014 MT 213, ¶ 13, 376 Mont. 188,

330 P.3d 1193 (citing Crowley, ¶ 26). As the party appealing from the final decree, Todd

carries the burden of persuasion to demonstrate to this Court that the District Court

clearly erred in its factual determinations or otherwise abused its discretion in deciding

how to allocate responsibility for the Social Security repayments. It is Todd’s duty to

provide this Court “with a record sufficient to enable it to rule upon the issues raised.”

M. R. App. P. 8(2). “‘[T]he burden of showing error by reference to matters of record is

upon the appellant.’” Huffine v. Boylan, 239 Mont. 515, 517, 782 P.2d 77, 78 (1989)

(quoting Yetter v. Kennedy, 175 Mont. 1, 7, 571 P.2d 1152, 1156 (1977)).

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

our Internal Operating Rules, which provides for memorandum opinions. Because Todd


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did not present any evidence to the District Court or a record to this Court that shows any

error or abuse of discretion, the District Court is affirmed.



                                                   /S/ BETH BAKER


We concur:

/S/ PATRICIA COTTER
/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ JIM RICE




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