                                                                                          April 16 2013


                                            DA 12-0419

                   IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2013 MT 104N



IN RE THE MARRIAGE OF
JULIA FENWICK,

               Petitioner and Appellee,

         and

DAVID FENWICK,

               Respondent and Appellant.



APPEAL FROM:            District Court of the Second Judicial District,
                        In and For the County of Silver Bow, Cause No. DR 09-98
                        Honorable Kurt Krueger, Presiding Judge


COUNSEL OF RECORD:

                 For Appellant:

                        David Fenwick (self-represented), Butte, Montana

                 For Appellee:

                        Palmer A. Hoovestal, Hoovestal Law Firm, Helena, Montana


                                                    Submitted on Briefs: March 27, 2013
                                                               Decided: April 16, 2013




Filed:

                        __________________________________________
                                          Clerk
Chief Justice Mike McGrath 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     The parties were married in 1986 and have three children, who are emancipated.

David appeals from the District Court’s decree of dissolution and property division entered

June 6, 2012. We affirm.

¶3     David contends that the District Court erred by not including property in a family trust

in the marital estate, by failing to equitably distribute the marital assets, and by failing to

require Julia to provide a final declaration of disclosure.

¶4     The parties established the Fenwick and Sons Family Trust to provide an inheritance

for their children, with Julia and her mother as co-trustees. The Trust assets include several

parcels of real property as well as some cash contributed by Julia’s grandmother and

personal property. Julia retains a life estate in one of the houses. David contends that the

Trust is revocable and that therefore the assets should be attributed to Julia in the property

division. There is substantial evidence in the testimonial record that the Trust is independent

and irrevocable. The Trust’s current terms were negotiated by David and his attorney, with

Julia’s attorney. Changes in the Trust documents were implemented during the course of

this proceeding to address David’s concerns about these same issues. The District Court



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determined that the Trust is a valid and independent trust and ordered that the Trust assets

“shall remain within the family trust” subject to its terms and conditions.

¶5     The issue of whether trust assets are marital property depends upon the circumstances

of the trust, including whether it is revocable, whether it is for the present or future benefit of

the beneficiaries, and whether the intent to create the trust is clearly ascertainable. In re the

Marriage of Malquist, 227 Mont. 413, 415, 739 P.2d 482, 484 (1987). In a proceeding for

dissolution of marriage the District Court is in the best position to hear the evidence, weigh

the testimony, and exercise discretion on the issue of the disposition of a trust. In re

Marriage of Epperson, 2005 MT 46, ¶ 23, 326 Mont. 142, 107 P.3d 1268. The District

Court did not abuse its discretion by refusing to attribute the Trust’s assets to Julia.

¶6     David also contends that the District Court erred in the division of the parties’ marital

property. Pursuant to § 40-4-202, MCA, a district court has broad discretion to distribute

marital property equitably according to the circumstances. This Court will affirm a district

court’s decision dividing marital property unless the findings are clearly erroneous or there

has been an abuse of discretion. In re Marriage of Gerhart, 2003 MT 292, ¶¶ 15-16, 318

Mont. 94, 78 P.3d 1219.

¶7     The District Court listed each parcel of real property included in the marital estate,

found that there were no mortgages on any of them, and awarded all of the parcels except

one to David. The District Court awarded each party the personal property and household

items then in their possession and made each party responsible for the marital debts then in




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each party’s name. This included a $600,000 deficiency judgment against Julia arising from

property in Idaho, and back tax obligations on the one piece of real property awarded to her.

¶8     David has not demonstrated that the District Court’s findings were clearly erroneous,

nor has he demonstrated that the District Court abused its discretion in dividing the marital

property.

¶9     David contends that Julia did not make a full financial disclosure during the

dissolution proceedings and that the District Court erred by proceeding without such a

disclosure. The District Court specifically concluded that the parties had fully disclosed their

assets, income, and expenses, and that they had waived any further disclosures pursuant to

§ 40-4-253, MCA. That statute requires each party to serve a final declaration of income,

expenses, and assets prior to trial. There is no provision for waiving the disclosures required

by that statute. The District Court’s conclusion that the parties had waived further financial

disclosures must be read in the context of the fact that the District Court also concluded that

both parties had made full disclosures.

¶10    David does not contend that he requested any further disclosures from Julia and does

not describe any disclosures that she failed to make. Therefore, we conclude that David

cannot now on appeal contend that the District Court erred in not requiring further

disclosures that he did not request below.

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

Internal Operating Rules, which provides for memorandum opinions. The District Court’s




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factual findings are supported by substantial evidence and there was clearly not an abuse of

discretion.

¶12    Affirmed.

                                                 /S/ MIKE McGRATH


We concur:

/S/ BETH BAKER
/S/ PATRICIA COTTER
/S/ LAURIE McKINNON
/S/ JIM RICE




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