No




                                                               No. 97-073




                          IN THE SUPREME COURT OF THE STATE OF MONTANA




                                                            1998 MT 223N




                                                  IN RE THE MARRIAGE OF

                                                         JO ANN SPOLAR,

                                                    Petitioner and Respondent,

                                                                     and

                                                       EUGENE E. SPOLAR,

                                                    Respondent and Appellant.




                           APPEAL FROM: District Court of the Second Judicial District,

                                              In and for the County of Silver Bow,

                                    The Honorable James E. Purcell, Judge presiding.




                                                    COUNSEL OF RECORD:

                                                             For Appellant:

                                 Milton Datsopoulos; Datsopoulos, MacDonald & Lind,


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                                                           Missoula, Montana




                                                            For Respondent:

                            Bernard J. "Ben" Everett; Knight, Dahood, McLean & Everett,

                                                          Anaconda, Montana




                                              Submitted on Briefs: August 6, 1998

                                                    Decided: September 3, 1998

                                                                    Filed:

                                    __________________________________________

                                                                    Clerk

Justice Karla M. Gray 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 Eugene E. Spolar (Eugene) appeals from the judgment entered by the Second
Judicial District Court, Silver Bow County, on its Findings of Fact, Conclusions of
Law and Order distributing the marital estate of himself and his former spouse Jo
Ann Spolar (Jo Ann). We affirm.

                                                                 ISSUES

¶3 1. Did the District Court err in distributing the marital estate?

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¶4 2. Did the District Court err in proceeding with a trial on the merits when Eugene
was unable to attend due to his incarceration?

                                                          BACKGROUND

¶5 Eugene and Jo Ann were married in 1957 in Butte, Montana. The District Court
dissolved the marriage in 1987. The parties agreed not to divide the marital estate at
that time and the court reserved all issues regarding their real and personal
property. On May 16, 1995, Jo Ann moved for distribution of the marital estate.

¶6 Eugene and Jo Ann had no assets of any value at the time of their marriage, but
had accumulated a substantial estate during the 30-year marriage. In 1996, the net
value of the marital estate was $1,166,023, including joint liabilities of $92,808. The
assets were accumulated through the joint efforts of both parties, primarily through
the management and operation of a series of business enterprises, including a
modular home manufacturing facility known as Summit Valley Industries.

¶7 At all times relevant to these proceedings, Jo Ann has continued to manage the
business affairs of Summit Valley Industries. From the time the parties separated in
1987 until 1993, Eugene ran a small ranching operation. In 1993, however, Eugene
was convicted of trafficking in illegal drugs and sentenced to a 48-month term in a
federal prison in Safford, Arizona. He was serving that sentence when the present
case came to trial.

¶8 In addition to his incarceration, Eugene's criminal activities also resulted in the
forfeiture of a certain tract of real estate located on Alder Creek, near the Wise River
in Beaverhead County, Montana (hereinafter, the Alder Creek property). This tract
had been part of the marital estate prior to its forfeiture. The market value of the
property was $90,000.

¶9 At the time of these proceedings, Jo Ann was 53 years old, employed in the
management and bookkeeping of Summit Valley Industries, and in generally good
health. She did not complete high school. Jo Ann contributed to Social Security on
her own behalf beginning in 1994.

¶10 Eugene was 57 years old at the time of trial and unemployed due to his
incarceration. His opportunities for acquiring income in the future are limited by an

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arthritic condition which prevents him from pursuing his vocation in carpentry, and
he is not trained in any other profession. Eugene contributed to Social Security until
his arrest in 1993.

                                                            DISCUSSION

¶11 1. Did the District Court err in distributing the marital estate?

¶12 We review a district court's findings related to the division of marital property to
determine if they are clearly erroneous. In re Marriage of Baer, 1998 MT 29, ¶ 29,
954 P.2d 1125, ¶ 29, 55 St.Rep. 104, ¶ 29; In re Marriage of Ortiz (1997), 282 Mont.
500, 503, 938 P.2d 1308, 1310. If the findings are not clearly erroneous, we will not
disturb the court's distribution of property absent an abuse of discretion. Marriage of
Baer, ¶ 29; Marriage of Ortiz, 282 Mont. at 503, 938 P.2d at 1310.

¶13 Eugene contests the distribution of the marital estate on the grounds that the
District Court failed to divide the estate equally despite the fact that neither party
entered the marriage with any assets of particular value and all of the marital assets
were procured through the joint effort of both parties over the course of a 30-year
marriage. Eugene contends that since he and Jo Ann contributed equally to the
accumulation of the property, the estate should be distributed equally between them.
We disagree.

¶14 The guidelines for the equitable apportionment of a marital estate, set forth in
§ 40-4-202, MCA, require a district court to

                                      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; custodial provisions; whether the
                                      apportionment is in lieu of or in addition to maintenance; and the
                                      opportunity of each for future acquisition of capital assets and
                                      income. The court shall also consider the contribution or
                                      dissipation of value of the respective estates and the contribution
                                      of a spouse as a homemaker or to the family unit. In dividing
                                      property acquired prior to the marriage; property acquired by gift,
                                      bequest, devise, or descent; property acquired in exchange for


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                                      property acquired before the marriage or in exchange for property
                                      acquired by gift, bequest, devise, or descent; the increased value
                                      of property acquired prior to marriage; and property acquired by a
                                      spouse after a decree of legal separation, 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.

The statute vests the court with broad discretion to apportion the marital estate in a
manner which is equitable to each party under the circumstances. In re Marriage of
Maedje (1994), 263 Mont. 262, 265, 868 P.2d 580, 582-83. Moreover, an equitable
distribution does not require a 50/50 apportionment of the marital assets. In re
Marriage of McNellis (1994), 267 Mont. 492, 501, 885 P.2d 412, 418. Equity, not
equality, guides a court's discretion in dividing a marital estate. In re Marriage of
Garner (1989), 239 Mont. 485, 488, 781 P.2d 1125, 1127.

¶15 The record reflects that, in distributing Eugene and Jo Ann's marital estate, the
District Court initially divided the gross estate evenly between them. It adjusted that
division, however, to reflect the fact that the marital debts in the amount of $92,808
were being assumed by Jo Ann in her personal capacity and that marital assets
worth $90,000 had been eliminated from the marital estate via forfeiture due to
Eugene's criminal activities. Substantial credible evidence supports these findings,
and we conclude that the District Court did not abuse its discretion in adjusting its
initial distribution to reflect these circumstances.

¶16 Eugene also argues that the District Court erred in concluding as a matter of law
that Jo Ann possessed a reduced expectation of Social Security benefits upon
retirement, because federal law provides benefits to a divorced spouse at a level
commensurate with the contribution record of the ex-spouse if the divorced spouse
would otherwise not be eligible to receive benefits in her own right. We need not
address the merits of this argument, as our review of the record indicates that no


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adjustments were made to the distribution of the marital assets based on the District
Court's conclusion of law on this matter. The only deductions or additions made to
the respective shares of the parties were based on the marital debt assumed by Jo
Ann and the market value of the Alder Creek property forfeited to the federal
government. Because the District Court's conclusion on this issue had no bearing on
its distribution, any error was harmless and does not constitute grounds for reversal
on appeal. See Ducham v. Tuma (1994), 265 Mont. 436, 440, 877 P.2d 1002, 1005.

¶17 Eugene also argues that the District Court abused its discretion in awarding Jo
Ann a greater portion of the marital estate based on the loss of the Alder Creek
property from the marital estate, because § 40-4-202(1), MCA, requires the District
Court to distribute the assets of the estate "without regard to marital misconduct."
In addition, he contends that, even if the court properly considered his role in the
forfeiture of this property, it erred in not considering Jo Ann's misconduct as well.

¶18 These arguments are not persuasive. Although § 40-4-202(1), MCA, prohibits
consideration of marital misconduct in equitably apportioning marital property, it
expressly requires the court to consider the "dissipation of value" of marital assets.
Ample evidence supports the District Court's findings that Jo Ann played no active
role in Eugene's illegal activities and that the forfeiture of the Alder Creek property
was Eugene's sole responsibility. Because the elimination of this asset from the
marital estate was a direct result of Eugene's criminal activities, we conclude that the
District Court did not abuse its discretion in allocating the full amount of this loss to
Eugene.

¶19 2. Did the District Court err in proceeding with a trial on the merits when
Eugene was unable to attend due to his incarceration?

¶20 The original trial date for these proceedings was July 25, 1995. On that day,
Eugene moved to continue the trial. He stated that, due to his cooperation in
providing information on other drug traffickers, he had been placed in protective
custody inside the federal penitentiary in Arizona and was not available to effectively
assist his counsel in preparing for trial. The District Court granted Eugene's motion
over Jo Ann's objection and rescheduled the trial for October 16, 1995. Eugene did
not request a continuance of the rescheduled trial.

¶21 The record reflects that Eugene was deposed from prison during the week prior


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to trial and that his deposition testimony was admitted into evidence at the trial. Rule
32(a)(3)(C), M.R.Civ.P., expressly provides for the admission of deposition testimony
into evidence when a witness, including a party, is unable to testify in person due to
imprisonment. Thus, Eugene's absence from the trial was largely accommodated by
the introduction of his deposition testimony.

¶22 Eugene's specific contention is that his incarceration rendered him unable to
effectively assist his counsel and forced him to stipulate to property values that might
otherwise have been contested. For these reasons, according to Eugene, the District
Court should have postponed the trial until a time when he was available to
participate more effectively.

¶23 We decline to address this argument, however, because there is no indication in
the record that Eugene requested a continuation of the October 16, 1995 trial date.
We will not put a district court in error for a procedure in which the party asserting
error acquiesced and participated, or to which the party made no objection. In re
Marriage of Smith (1990), 242 Mont. 495, 501, 791 P.2d 1373, 1377. Nor does Eugene
cite to any authority for his apparent theory that the District Court's failure to
continue the rescheduled trial date sua sponte constitutes reversible error. We
conclude that the District Court did not err in proceeding when Eugene was unable
to attend.

¶24 Affirmed.

/S/ KARLA M. GRAY

We concur:

/S/ J. A. TURNAGE

/S/ WILLIAM E. HUNT, SR.

/S/ JIM REGNIER

/S/ W. WILLIAM LEAPHART




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