                                                                                                 June 23 2015


                                             DA 14-0725
                                                                                               Case Number: DA 14-0725

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                            2015 MT 174N



IN RE THE MARRIAGE OF:

DARCY A. LABEAU,

                Petitioner and Appellant,

         and

BENJAMIN LABEAU,

                Respondent and Appellee.


APPEAL FROM:            District Court of the Thirteenth Judicial District,
                        In and For the County of Yellowstone, Cause No. DR 13-638
                        Honorable Gregory R. Todd, Presiding Judge


COUNSEL OF RECORD:

                 For Appellant:

                        Kenneth D. Tolliver, Joshua P. Oie, Tolliver Law Firm, PC, Billings,
                        Montana

                 For Appellee:

                        Casey J. Heitz, Parker, Heitz & Cosgrove, PLLC, Billings, Montana



                                                     Submitted on Briefs: May 20, 2015
                                                                Decided: June 23, 2015


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     Darcy LaBeau appeals the Thirteenth Judicial District Court’s final decree

dissolving her marriage to Benjamin (Ben) LaBeau. Darcy and Ben married in 1998 in

Billings, Montana, and separated in April 2013. Darcy petitioned for dissolution in June

2013. Darcy and Ben have three children, who were all minors during the District Court

proceedings. Ben holds degrees in business finance and law, and he worked as an

attorney throughout the parties’ marriage. In 2000, Ben started a solo practice, LaBeau

Law Firm, which he continued to operate at the time of trial. Darcy holds degrees in

business marketing and human resources management. During the marriage, Darcy had

various part-time jobs and devoted much of her time as a homemaker and to raising the

children.

¶3     On August 15, 2014, the District Court entered its Findings of Fact, Conclusions

of Law, and Decree of Dissolution. Darcy appeals only the court’s distribution of marital

property and its decision not to award her maintenance.

¶4     Ben and Darcy agreed that Darcy should receive her interest in property inherited

from her parents, which Darcy shares with her two siblings. After awarding Darcy that

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property, the District Court divided the parties’ remaining net worth, which the court

valued at $404,496.      The court allocated $88,687 (21.9%) to Darcy and $315,809

(78.1%) to Ben. With Darcy’s inherited property included in the calculation, Darcy

received a net value of $4,035,354 (92.7%) and Ben received a net value of $315,809

(7.3%) of the marital estate.1 The court further concluded, “Given the amount and value

of assets apportioned to Darcy, resulting in a net worth to her of over $4,000,000, she is

not entitled to further maintenance.”

¶5     Darcy argues that the District Court’s decision not to award her spousal

maintenance was based on erroneous findings regarding the amount and sources of her

income, and that the District Court erred in its findings regarding temporary maintenance,

the value of Ben’s law practice, and the value of each party’s contributions to the

marriage. Darcy further argues that the District Court abused its discretion by awarding

cash that does not exist in the estate and by not allocating to Darcy the marital home or

the means to procure suitable housing.

¶6     In apportioning marital property, a district court must consider each factor listed in

§ 40-4-202, MCA, “and there must be competent evidence presented on the values of the

property.” In re Funk, 2012 MT 14, ¶ 7, 363 Mont. 352, 270 P.3d 39 (quoting Marriage

of Collett, 190 Mont. 500, 504, 621 P.2d 1093, 1095 (1981)). As long as a district court
1
  The District Court’s Findings of Fact, Conclusions of Law, and Decree of Dissolution uses
these numbers, which the court says are adopted from Ben’s assets and liability valuation and
distribution proposal. Ben’s proposal appears to assert a net worth of $4,401,970.05, of which he
receives $375,681.18 and Darcy receives $4,020,788.87. Ben’s proposed calculations award
Darcy a lower net value and Ben a higher net value than do the District Court’s calculations. On
appeal, Ben cites the numbers used by the District Court and does not dispute them.
Accordingly, we will not disturb the District Court’s valuations.
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complies with these requirements, it has “broad discretion to apportion the marital estate

in a manner equitable to each party under the circumstances.” Funk, ¶ 6. Absent clearly

erroneous findings of fact or an incorrect application of the law, “we will affirm a district

court’s division of marital property and award of maintenance unless we identify an

abuse of discretion.” Funk, ¶ 6.

The District Court’s findings regarding spousal maintenance

¶7     Under § 40-4-203(1), MCA, a district court may award maintenance “only if it

finds that the spouse seeking maintenance: (a) lacks sufficient property to provide for the

spouse’s reasonable needs; and (b) is unable to be self-supporting through appropriate

employment . . . .” The District Court declined to award Darcy spousal maintenance

because it determined that Darcy had the following potential sources of income:

anticipated profits from property inherited from her parents; her employment at Energy

Jobs Solutions; her interior design company; and $1,620 per month in child support, to

which the parties stipulated.      Darcy argues that deriving income from her inherited

property is unlikely and beyond her control, that the District Court erred in determining

the amount of her commission at Energy Jobs Solutions, and that the court erred in

finding that she would generate income from interior design work.

¶8     Darcy’s inheritance comprises a one-third interest in a house located on Camano

Island, Washington, and a one-third interest in the Mission Ranch, Inc. Darcy’s siblings,

Rob Stephens, Jr. (Robbie) and Zena Dell Dowe, own the remaining two-thirds of both

properties. The Mission Ranch, Inc. comprises 3,900 acres of deeded land, plus a 640-

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acre section that the Ranch leases through the Montana Department of Natural Resources

and Conservation.    Each sibling also has a one-third interest in the Mission Ranch

livestock, Farm Equipment LLC, and the Mission Ranch Lodge LLC. Additionally,

Darcy owns a one-half interest in S&L Farm Equipment LLC. Based on evidence

presented at trial, the District Court found that the Mission Ranch, Inc. and its associated

properties and business entities (collectively, “the Mission Ranch”) have a net value of

between $10 million and $13.5 million. Darcy owned three percent of the shares in the

Mission Ranch when she and Ben married, and she received an additional thirty percent

during the marriage. The court valued Darcy’s shares in the property at $3,946,667.

¶9     The District Court found that, though the Mission Ranch has never made a

distribution of income, the siblings expected a recently-hired, experienced ranch manager

to help the Mission Ranch gain profitability. The court further found that Darcy could

sell her shares to produce income. Darcy contends that unanimous director approval is

required for any sale, and that Darcy’s siblings, who are the two other directors, are

opposed to selling the Mission Ranch. However, record evidence shows that the siblings

have listed various portions of the ranch for sale in recent years. For example, in 2012,

Darcy, Robbie, and Zena listed the Mission Ranch for sale, excluding the Mission Ranch

Lodge, a fifteen-acre tract containing historic Fort Parker, and forty acres on Mission

Creek. The siblings’ asking price was $14 million. In April 2014, two months before

trial, Darcy agreed to remove the ranch from active listing. Also in 2014, the siblings

signed an agreement to sell a fifteen-acre tract of land containing historic Fort Parker for

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$150,000, or $10,000 per acre. Before that sale, the siblings sold forty acres of the ranch

to a previous ranch manager for $150,000. The Mission Ranch Lodge also was listed for

sale at least twice at $1.5 million. Robbie testified that he thinks the lodge would “sell

pretty quickly” at $900,000. The District Court’s finding that Darcy could sell portions

of the Mission Ranch to produce income was not clearly erroneous in light of this history.

The court was presented with substantial evidence to contradict Darcy’s statement that

her siblings were unwilling to sell.

¶10    Citing In re Marriage of Cole, 234 Mont. 352, 763 P.2d 39 (1988), Darcy argues

that her inherited property is income-consuming, not income-producing, and therefore

cannot fulfill her financial needs. At trial, however, the siblings testified to various ways

in which the Mission Ranch could make money, including livestock sales, leasing out

farm equipment, and renting rooms at the Mission Ranch Lodge. In addition, the District

Court noted that Darcy could sell some of her shares in the Mission Ranch to her siblings

and invest the proceeds to produce income.

¶11    In addition to Darcy’s assets in the Mission Ranch, the District Court determined

that Darcy could earn income through her corporate recruiting job at Energy Jobs

Solutions. The court stated that Darcy would make more than $30,000 in 2014 and that,

in the future, she could earn commissions equal to thirty-five or forty percent of the

salary of any placement she makes. Darcy argues that the District Court erred because

Darcy’s actual commission would be between seven and ten percent of a placement’s

salary, and she would not make more than $30,000 per year. Even with this factual error

                                          6
in the court’s findings, the record shows that Darcy agreed to Ben’s child support

calculations, which stated that Darcy earned $35,000 in wages, salary, and commissions.

Further, in calculating Darcy’s income, the court relied on her predicted annual salary,

not on her commission percentage. Accordingly, the District Court’s findings regarding

Darcy’s expected income were not clearly erroneous.

¶12   Finally, Darcy argues that she cannot generate income from her interior design

work. But Darcy stated in her answers to interrogatories that her income from her

interior design company, My Montana, would range between $200 and $700 per month.

Moreover, the District Court did not put a monetary value on Darcy’s ability to earn

income from My Montana and did not calculate future income potential from that

business. The court’s statement that Darcy could earn future income from My Montana

did not materially affect its determination regarding maintenance.

¶13   In sum, the District Court’s findings regarding the amounts and sources of Darcy’s

income were not clearly erroneous. The court did not abuse its discretion by declining to

award Darcy spousal maintenance.

The District Court’s findings regarding temporary maintenance

¶14   After the parties separated in April 2013, Ben moved into an apartment but

continued to pay the family household expenses until Darcy became employed. At that

time, he reduced his payments to $3,000 per month. The District Court found that Ben’s

payments to Darcy constituted temporary spousal maintenance and retroactively credited

Ben with $45,315. This figure represented the total in payments Ben made to Darcy

                                         7
between April 2013, and June 16, 2014, minus the parties’ stipulated monthly child

support. Darcy argues that the District Court erred by categorizing these payments as

“temporary maintenance.”

¶15   Darcy cites In re Marriage of Rudolf, 2007 MT 178, 338 Mont. 226, 164 P.3d 907,

to support her argument that a designation of temporary maintenance may be made

retroactive only to the date of a motion for a temporary family support order. In Rudolf,

we held that a district court cannot order retroactive payment of temporary maintenance

going back to three years before a petition for temporary maintenance is filed. Rudolf,

¶ 41. By contrast, the District Court credited Ben with the temporary support payments

he voluntarily made after the parties separated. Darcy acknowledged that these payments

constituted temporary maintenance in her April 11, 2014 Motion for Temporary Orders

and Brief in Support, when she requested that the court require Ben “to continue paying

temporary support/maintenance in the amount of $4,000.00 per month.” The District

Court did not err by categorizing the $45,315 Ben paid to Darcy as temporary spousal

maintenance.

¶16   Darcy further argues that the court’s award to Ben of the marital home means that

its designation of temporary maintenance directly conflicts with Internal Revenue Service

(IRS) guidelines for the treatment of maintenance awards. In its order denying Darcy’s

Motion to Alter or Amend Findings and Conclusions, the District Court noted, “Darcy

argues that she should be entitled to temporary maintenance and that the [c]ourt’s ruling

cannot trump [IRS] rules or regulations. The Court received no evidence regarding IRS

                                        8
regulations or rulings.” A motion to alter or amend a court’s judgment may not be used

to raise arguments that could have been raised prior to judgment. In re Johnson, 2011

MT 255, ¶ 15, 362 Mont. 236, 262 P.3d 1105. Because Darcy did not raise the IRS rules

prior to judgment, we will not consider that argument on appeal.

¶17   Finally, Darcy argues that the court erred by designating proceeds from the sale of

a vehicle as temporary maintenance. The court did not require a specific amount of

temporary maintenance, but credited Ben with voluntarily providing Darcy $45,315 in

payments.    The District Court’s characterization of the vehicle sale proceeds as

temporary maintenance was not error in the context of its ruling that Ben provided Darcy

with funds to support the family during the pendency of the case and until she obtained

employment and could support herself.

The District Court’s findings regarding the value of Ben’s law practice

¶18   The District Court valued Ben’s law practice at $10,000. In addition, the court

valued LaBeau Law Firm’s savings account at $27,000 and its checking account at

$1,000. Darcy argues that these findings are clearly erroneous because the court should

have valued the goodwill of LaBeau Law Firm and evidence showed that LaBeau Law

Firm’s checking account contains $5,000.

¶19   It is a district court’s job to weigh competing evidence. See In re Marriage of

Milesnick, 235 Mont. 88, 95, 765 P.2d 751, 755 (1988) (“Unless there is a clear

preponderance of the evidence against the District Court’s valuation, its findings, where

based on substantial though conflicting evidence, will not be disturbed on appeal.”). At

                                        9
trial, Ben testified that LaBeau Law Firm’s checking account had “probably . . . about”

$5,000. By contrast, Ben’s Preliminary and Final Asset and Liability Disclosure listed

the account as containing $1,000. Without contrary evidence from Darcy, and in light of

the marital estate’s net worth, the District Court did not commit clear error by using the

written value of the account, presented in Ben’s Preliminary and Final Asset and Liability

Disclosure, instead of Ben’s oral estimate of the account’s value at trial.

¶20    Given the District Court’s finding that LaBeau Law Firm has an annual net profit

of $125,000, Darcy maintains that the court was required to consider the business’s

goodwill. “A district court has far reaching discretionary powers to determine the value

of property in a dissolution action . . . . As long as the valuation is reasonable in light of

the evidence submitted, we will not disturb that finding on appeal.” Milesnick, 235 Mont.

at 94-95, 765 P.2d at 755. In In re Marriage of Stufft, 286 Mont. 239, 249, 950 P.2d

1373, 1379 (1997), we held that a district court did not err by relying on expert testimony

on the value of a law firm when the opposing party offered no evidence to contradict that

testimony. Darcy never provided a goodwill value for the firm. When asked about

LaBeau Law Firm’s goodwill at trial, Darcy’s attorney stated, “The value of the firm on

the market for [Ben’s] operation cannot adequately be related to what someone else

would pay for it.” In her reply brief, Darcy acknowledged that her arguments regarding

LaBeau Law Firm’s goodwill “could be better.” By contrast, Ben testified that the total

value of the firm was $10,000.




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¶21   Further, the cases Darcy cites do not support her position that the District Court

was required to value the firm’s goodwill. In Milesnick, we determined that a district

court did not abuse its discretion by considering a business’s goodwill when the parties

did not propose a goodwill value. Milesnick, 235 Mont. at 94-95, 765 P.2d at 755. We

did not hold that a district court is required to value goodwill when it has not been

presented with evidence of a goodwill value. Additionally, the District Court did not

assign a goodwill value to any of the businesses that it attributed to Darcy: Farm

Equipment LLC, S&L Farm Equipment LLC, My Montana Interior Design, and Mission

Ranch Beef Company. Without any evidence of goodwill value, the District Court did

not abuse its discretion by deciding not to assign such value to LaBeau Law Firm.

The Court’s valuation of the parties’ contributions to the marriage

¶22   Throughout the marriage, Ben performed uncompensated legal services to Darcy

and her family for the Mission Ranch. The District Court assigned a $144,000 value to

these services.   The court also found that Darcy contributed to the family as a

homemaker. Darcy disputes these findings, arguing that the court erroneously valued

Ben’s legal contributions to the Mission Ranch and did not place sufficient value on

Darcy’s contributions as a homemaker.

¶23   Ben did not specifically document time he spent on uncompensated legal services,

but he estimated that he spent at least 1,200 hours on various projects for the Mission

Ranch during the parties’ marriage. The District Court found that, during the time Ben

was providing legal services to the Mission Ranch, his hourly rate fluctuated between

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$120 and $200 per hour. The court multiplied Ben’s lowest hourly rate—$120 per

hour—by 1,200 hours to arrive at $144,000, representing the total value of Ben’s legal

contributions to the Mission Ranch. The court noted that this number represented a “very

conservative” estimate of the value of Ben’s time.

¶24     Darcy argues that the District Court erroneously relied on Ben’s estimate that he

spent 1,000 hours working on a legal issue involving a claim to ownership of the Mission

Ranch by Darcy’s stepfather, Doug Ensign. According to Darcy, the District Court

overstated the precariousness of the Mission Ranch and the impact of Ben’s work

because Ben “did not materially contribute” to the settlement agreement with Ensign.

¶25     While Darcy acknowledges Ben’s work, she argues that the court should have

relied on testimony from her father, also an attorney, that Ben spent far less than 1,000

hours on the dispute with Ensign. As we have stated, it is the role of the District Court to

weigh conflicting evidence, which includes testimony. There is sufficient evidence in the

record to support the court’s finding that Ben contributed significantly to the dispute with

Ensign. The District Court did not err by relying on Ben’s estimate that he spent 1,000

hours on that issue. Darcy does not contest the remaining 200 hours of Ben’s estimated

time.

¶26     Darcy also argues that the court did not adequately address her contributions as a

homemaker because the court provided an in-depth analysis of Ben’s contributions to the

Mission Ranch but addressed Darcy’s contributions in just one sentence. Darcy implies

that the court should have assigned a dollar value to Darcy’s contributions. The District

                                         12
Court stated that it considered all testimony of the parties and the factors set forth in

§ 40-4-202, MCA, and that “Darcy did contribute as a homemaker. Ben contributed

significantly to protecting the value of the Mission Ranch. For these reasons, the Court

finds that Ben’s asset and liability valuation and distribution proposal is fair and equitable

. . . .” The court then awarded Darcy more than ninety-two percent of the marital estate,

noting that the “net worth designation to each party, while not equal, is both fair and

equitable, given the parties’ duration of marriage and assignment of [a] majority of [the]

assets to Darcy.” Though Darcy argues that the parties are left to speculate as to how the

court evaluated Darcy’s contributions as a homemaker, the court’s findings and

conclusions make clear that the court considered the length of the parties’ marriage and

Darcy’s role as a homemaker during that time. The District Court’s findings regarding

Darcy’s contributions to the marriage were not clearly erroneous. The court did not

abuse its discretion in assigning Darcy 92.7% of the marital estate.

The District Court’s allocation of Ben’s contributions to the Mission Ranch

¶27    Darcy argues that the District Court abused its discretion because, in a spreadsheet

labeled “Exhibit 1” of its findings and conclusions, the court awarded Darcy $144,000 in

cash that does not exist in the estate. However, the court’s allocation of this value to

Darcy was merely an illustration of the court’s recognition that Ben contributed $144,000

to the value of Darcy’s assets in the Mission Ranch. It did not affect the distribution of

the net marital estate, which was $4,035,354 to Darcy and $315,809 to Ben.




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Accordingly, we agree with Ben that the $144,000 figure is an allocation of value, not an

award in cash.

The District Court’s decision not to allocate the marital home to Darcy

¶28     Darcy argues that the District Court abused its discretion by declining to award her

the marital home or to provide the means to procure housing.            Darcy’s arguments

regarding her inability to procure housing mirror her arguments regarding her sources of

income, addressed above. The court awarded Darcy over four million dollars in assets.

That amount is more than sufficient to procure suitable housing, even with the limitations

on liquidity of the assets. Because the District Court provided Darcy with the means to

procure housing, it did not abuse its discretion in declining to award Darcy the marital

home.

¶29     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 case presents a question controlled by the clear application of applicable

standards of review. The District Court did not abuse its discretion in dividing the

marital estate or in declining to award maintenance.        The Decree of Dissolution is

affirmed.

                                                  /S/ BETH BAKER

We concur:

/S/ MICHAEL E WHEAT
/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ JIM RICE
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