file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-072%20Opinion.htm




                                                               No. 01-072

                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                            2001 MT 308N



                                                  IN RE THE MARRIAGE OF

                                                     ROBERT W. HOLLOW,

                                                      Petitioner and Appellant,

                                                                     and

                                                       CAROL C. HOLLOW,

                                                   Respondent and Respondent.

                             APPEAL FROM: District Court of the First Judicial District,

                                          In and for the County of Lewis and Clark,

                                      Honorable Thomas C. Honzel, Judge Presiding

                                                    COUNSEL OF RECORD:

                                                             For Appellant:

                                    Mark P. Yeshe, Attorney at Law, Helena, Montana

                                                            For Respondent:

                                  Robyn L. Weber, Weber Law Firm, Helena, Montana

                                             Submitted on Briefs: August 23, 2001
                                                Decided: December 31, 2001

                                                                   Filed:


file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-072%20Opinion.htm (1 of 8)3/27/2007 11:12:05 AM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-072%20Opinion.htm


                                    __________________________________________

                                                                    Clerk


Justice W. William Leaphart delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c) Montana Supreme Court 1996 Internal Operating
Rules, the following decision shall not be cited as precedent but shall be filed as a public
document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.

¶2 Robert W. Hollow (Bob) appeals from the findings of fact, conclusions of law and
decree of dissolution entered by the First Judicial District Court, Lewis and Clark County.
We affirm.

¶3 Bob raises the following issues on appeal:

¶4 1. Did the District Court err by assigning no value to the business owned by the couple?

¶5 2. Did the District Court err by awarding Respondent, Carol C. Hollow (Carol),
property brought into the marriage by Bob?

¶6 3. Did the District Court equitably distribute the marital estate?

                                FACTS AND PROCEDURAL BACKGROUND

¶7 Bob and Carol were married in 1976 and separated in 1999. They have one child, who
is of legal age. Bob has a bachelor of arts degree in secondary education and is currently
teaching at the Riverside Girls Correctional Facility in Boulder, Montana. Carol has a high
school education. At the time of the hearing, she was working at the family restaurant.

¶8 At the time of the marriage, Bob was working for Helena News, a magazine and
paperback book distributorship owned by his father. Helena News was incorporated and,
at the time of his marriage, Bob owned 180 of the 1000 shares of the business. In 1986,
Bob and Carol purchased the remaining shares from Bob's parents. They also purchased
the warehouse where the business was located. Carol worked at Helena News off and on

 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-072%20Opinion.htm (2 of 8)3/27/2007 11:12:05 AM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-072%20Opinion.htm


throughout the marriage. Bob continued to run Helena News until 1996, when it was sold
for $398,000. The sale did not include the property. After paying off various debts, little
was left of the proceeds. In 1997, Bob and Carol sold the property by contract for deed
(Bennett Contract). The monthly payments on the contract are $1,149.66.

¶9 Bob and Carol lived together prior to their marriage in a home owned by Bob. That
home was sold prior to the marriage and Bob used $2,500 from the sale as a down-
payment on the purchase of 11 acres in the Helena Valley. Bob built a 700 square foot
home on the property, and it became the family home. During the marriage, Bob and Carol
purchased an additional nine acres and made many improvements to the home. At the time
of the hearing, the property was valued at $227,500. There is a mobile home on the
property which is rented for $500 a month.

¶10 In November 1995, Bob and Carol purchased a small restaurant in downtown Helena
for $55,000. They renamed it "The Hollow" and opened it in December 1995. Initially,
Bob and Carol worked together at the restaurant, but Bob eventually left due to
disagreements over operation. The restaurant showed losses for 1996, 1997 and 1998. In
May 1998, Bob and Carol listed The Hollow for sale but received no offers. At the time of
the hearing, Carol was still operating the restaurant, but did not wish to continue. In their
proposed findings of fact, each party proposed that the other receive the restaurant.

¶11 The couple owned various other pieces of property and had various debts, which will
be discussed below as necessary.

¶12 Bob filed a petition for dissolution of marriage in July 1999. A hearing was held in
May 2000. The District Court issued its findings of fact and conclusions of law in
September 2000. This appeal followed.

                                                            DISCUSSION

¶13 Did the District Court err by assigning no value to The Hollow?

¶14 The determination of property valuation is a factual issue which is within the province
of the trial court to decide. When reviewing findings of fact, this Court is precluded from
substituting its judgment for that of the trier of fact, and cannot set aside the findings of a
court unless the findings are clearly erroneous. In re Marriage of Meeks (1996), 276 Mont.
237, 247-48, 915 P.2d 831, 837-38. The district court has the discretion to adopt any


 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-072%20Opinion.htm (3 of 8)3/27/2007 11:12:05 AM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-072%20Opinion.htm


reasonable valuation of property supported by the record. Siefke v. Siefke, 2000 MT 281,
¶ 20, 302 Mont. 167, ¶ 20, 13 P.3d 937, ¶ 20.

¶15 Bob argues that the District Court erred by allocating no value to The Hollow. Bob
argues that Carol agreed that The Hollow was worth $55,000 because she listed that figure
in her proposed Findings of Fact and Conclusions of Law. He relies on our decision in In
re Marriage of Simms (1994), 264 Mont. 317, 323, 871 P.2d 899, 903, for the proposition
that a district court should hold parties to their on-the-record stipulations.

¶16 In this case, there is clearly no stipulation by Carol as to the value of The Hollow.
Carol testified at trial that she always disagreed with Bob's value of $55,000 and that she
assigned The Hollow to him at that value in her proposed findings so that "he could either
sell it or operate it or whatever he wanted." Carol also testified at trial that she no longer
wanted to operate The Hollow and that the store was going deeper in debt each week.
Carol's testimony did not reflect that both of the parties agreed on the value of The Hollow.

¶17 Bob also argues that there was no other competent evidence presented to controvert
his value of $55,000. It is true that Carol did not give an opinion during trial on the value
of The Hollow, but there was other, substantial evidence that the court relied on. Both
parties testified that The Hollow lost money in 1996, 1997 and 1998. Carol offered
exhibits at trial outlining the restaurant's income and expenses. Bob testified that he
wanted to sell the business because "no matter how hard we worked, we couldn't make the
money we needed." Both parties testified that no offers were made on the restaurant when
it was listed for sale.

¶18 In its findings, the District Court stated that the only value of the restaurant would be
in its equipment, and there was no good information on the value of the equipment, but
"the Court doubts that the equipment is worth even close to [$55,000]." The court
ultimately included restaurant equipment on the list of property that Carol should receive
with a notation that the value was unknown.

¶19 We hold that the District Court's findings are not clearly erroneous and are supported
by the record.

¶20 Did the District Court err by awarding Carol property brought into the marriage by
Bob?



 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-072%20Opinion.htm (4 of 8)3/27/2007 11:12:05 AM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-072%20Opinion.htm


¶21 Bob argues that the District Court awarded two assets to Carol that he had significant
premarital interests in: the proceeds from the Bennett Contract and the family home. He
argues that Carol failed to establish that her efforts preserved these assets or caused their
appreciation as required by § 40-4-202(1), MCA, and that the District Court did not make
any findings that Carol's efforts had preserved these assets.

¶22Section 40-4-202(1), MCA, provides, in relevant part,

        In a proceeding for dissolution of a marriage, . . . the court, without regard to marital
        misconduct, shall, . . . finally equitably apportion between the parties the property
        and assets belonging to either or both, however and whenever acquired and whether
        the title thereto is in the name of the husband or wife or both. In making
        apportionment, the court shall consider the duration of the marriage and prior
        marriage of either party; the age, health, station, occupation, amount and sources of
        income, vocational skills, employability, estate, liabilities, and needs of each of the
        parties; . . . . In dividing property acquired prior to the marriage; . . . the court shall
        consider those contributions of the other spouse to the marriage, including:

        (a) the nonmonetary contribution of a homemaker;

        (b) the extent to which such contributions have facilitated the maintenance of this
        property; and

        (c) whether or not the property division serves as an alternative to maintenance
        arrangements.


¶23 The first piece of property that Bob argues he had a premarital interest in is the
Bennett Contract. Bob argues that he owned 18 percent of the stock in Helena News at the
time of the marriage. He concedes, however, that when the business was sold, all the
proceeds were expended. The District Court found that Bob and Carol purchased the
remaining stock in the business from Bob's parents in 1986. At that time, they also
purchased the warehouse, which was owned by Bob's parents and not by the corporation.
These findings are supported by substantial evidence. We conclude that Bob had no
premarital interest in the warehouse, and therefore no premarital interest from the sale of
the warehouse.

¶24 Next, Bob argues that he had a significant premarital interest in the family home. Bob

 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-072%20Opinion.htm (5 of 8)3/27/2007 11:12:05 AM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-072%20Opinion.htm


argues that he purchased the 11 acres and built the original small home on the property
before the marriage. The District Court found that Bob used $2,500 from the sale of his
previous home as a down-payment on the 11 acres and built a small home on the property
prior to the marriage. During the marriage, "Bob and Carol purchased an additional nine
acres adjacent to the Juniper Drive property. They also made a number of improvements
to the home." The home is now valued at $227,500, with a $1,200 per month mortgage
payment.

¶25 Premarital property is considered commingled with the marital estate when there is no
attempt during the marriage to segregate the property. In re Marriage of Stufft (1997), 286
Mont. 239, 246, 950 P.2d 1373, 1377. We conclude that Bob's investment of $2,500 and
his labor in building the small house prior to the marriage was commingled with marital
assets. The parties were married for over 20 years and made their home on this property
throughout their marriage. They added acreage and improved the home. There was no
attempt to keep this property separate.

¶26 We hold that the District Court did not err in not separating this property from the
marital estate.

¶27 Did the District Court equitably distribute the marital estate?

¶28 In assessing an equitable apportionment of the marital estate, this Court reviews a
district court's findings of fact to determine whether the findings are clearly erroneous. We
review the court's conclusions of law to determine whether they are correct. Harper v.
Harper, 1999 MT 321, ¶ 17, 297 Mont. 290, ¶ 17, 994 P.2d 1, ¶ 17. The courts, working in
equity, must seek a fair distribution of the marital property using reasonable judgment and
relying on common sense. Harper, ¶ 17. Obtaining this equitable distribution will at times
require the lower court to engage in discretionary action which cannot be accurately
categorized as either a finding of fact or a conclusion of law. These discretionary
judgments are presumed to be correct and will not be disturbed by this Court absent an
abuse of discretion by the lower court. Harper, ¶ 17.

¶29 Bob argues that the District Court abused its discretion in this case. He claims that
Carol was given 63 percent of the marital estate, while he received only 37 percent and
that this inequality of distribution "is exacerbated by the allocation of the income
producing assets."



 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-072%20Opinion.htm (6 of 8)3/27/2007 11:12:05 AM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-072%20Opinion.htm


¶30 Initially, we note that Bob's calculation of the shares he and Carol received of the
marital estate is inaccurate. Bob includes in the list of marital debts apportioned to him a
$5,500 debt to his mother. The District Court specifically found this was not a marital
debt. Bob does not argue that this finding is clearly erroneous, and we conclude that it is
supported by substantial evidence.

¶31 Additionally, Bob includes a value of $55,000 for The Hollow in his calculation of
Carol's share of the marital estate. We concluded above that the District Court's finding on
the value of The Hollow was not clearly erroneous.

¶32 After correcting these inaccuracies, the figures reveal that Bob received 42 percent of
the marital estate, while Carol received 58 percent. An equitable distribution does not
require a 50/50 distribution of the marital estate. In re Marriage of McNellis (1994), 267
Mont. 492, 501, 885 P.2d 412, 418. This distribution, standing alone, is not an abuse of
discretion.

¶33 Bob argues that the District Court's distribution was unbalanced in terms of income
flow. He argues that Carol received the family home, which includes $500 per month
rental income, the proceeds from the Bennett Contract, and The Hollow. Bob claims that
his proposed distribution was an equitable one and should have been adopted by the
District Court.

¶34 We hold that the distribution of the marital estate in this case was equitable, and the
District Court did not abuse its discretion. Bob has a college degree, is earning nearly
$32,000 per year, and has several retirement plans. Carol operates The Hollow, which has
never shown a profit. Even though the District Court gave no value to The Hollow, it
allocated the debt on the restaurant to Carol. The court's distribution was reasonable under
the circumstances of this case.

¶35 The District Court is affirmed.

                                               /S/ W. WILLIAM LEAPHART

                                                               We concur:

                                                     /S/ KARLA M. GRAY

                                                    /S/ JAMES C. NELSON
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-072%20Opinion.htm (7 of 8)3/27/2007 11:12:05 AM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-072%20Opinion.htm




                                                   /S/ PATRICIA COTTER

                                                            /S/ JIM RICE




file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-072%20Opinion.htm (8 of 8)3/27/2007 11:12:05 AM
