                                            No. 00-853

                IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2002 MT 197


IN RE THE PETITION OF

A. CAROLINE FENZAU,

               Petitioner and Respondent,

         and

WILLIAM FENZAU,

               Respondent and Appellant.



APPEAL FROM:          District Court of the Eleventh Judicial District,
                      In and for the County of Flathead,
                      Honorable Ted O. Lympus, Judge Presiding


COUNSEL OF RECORD:

               For Appellant:

                      Patrick D. Sherlock, Sherlock & Nardi, Kalispell, Montana

               For Respondents:

                      George W. Best, Attorney at Law, Kalispell, Montana



                                                     Submitted on Briefs: August 30, 2001

                                                                 Decided: September 5, 2002

Filed:

                      __________________________________________
                                        Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1    A. Caroline Fenzau, Petitioner and Respondent (Caroline),

filed a petition for dissolution of marriage against William A.

Fenzau, Respondent and Appellant (William), on May 27, 1998.

William appeals the decree of dissolution entered by the District

Court of the Eleventh Judicial District, Flathead County.                            We

affirm in part and remand for further proceedings consistent with

this opinion.

¶2    William raises the following issues on appeal:
¶3    1.      Whether      the    District       Court    erred    by    allowing   and

considering evidence of physical and emotional abuse of Caroline by

William.

¶4    2.    Whether the District Court failed to equitably apportion

the marital estate.

¶5    3.      Whether     the    District       Court    erred    by    not   exercising

independent judgment when it adopted Caroline’s proposed findings

of fact and did not establish the marital estate’s net worth.

¶6    4.    Whether the District Court properly considered the issue

of attorney fees.
                      FACTUAL AND PROCEDURAL BACKGROUND

¶7    Caroline and William were married on March 12, 1993, in Reno,

Nevada.     No children were born of the marriage.

¶8    William was 60 years of age at the time of the dissolution, in

good health, and retired from Turner Construction Company, where he

had been a project manager for approximately thirteen years.                         At

the time of the dissolution, William was incarcerated in federal


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prison on a weapons charge arising out of his earlier conviction of

felony domestic violence upon Caroline.      Caroline was 53 years old,

in poor health, disabled, and receiving Social Security benefits of

approximately $770 per month due to a parasitic problem in her

stomach and a resulting clotting deficiency, conditions which

predate her marriage to William.        Although Caroline was receiving

disability payments at the time of marriage, the present state of

her disability is a direct result of physical abuse she sustained

during the marriage with William.
¶9    Caroline entered the marriage with approximately $24,500 in

cash; antiques worth $25,000; a doll collection worth $15,000; a

vehicle valued at $17,000; $10,000 in equipment; and $5,000 from

her mother’s estate.   William entered the marriage with $100,000 in

cash, which was an inheritance from his mother; an Employee Stock

Ownership Plan (ESOP) in the amount of approximately $11,321; a

401(K) plan valued at $51,000; a $588 per month pension once he

turns age 65; and a coin collection valued at approximately $500.

¶10   In 1995, William and Caroline purchased a bed and breakfast

business in Emigrant, Montana.      In order to purchase the bed and

breakfast, William liquidated his 401(K) and Caroline contributed

most of her premarital assets.     In 1997, the parties sold the bed

and breakfast, and purchased a house for approximately $222,000 in

Somers, Montana.   They then divided their excess funds into two

separate investment accounts, each placing $88,000 into separate

Linsco/Private   Ledger   (LPL)   stock   accounts.    At   the   time   of

dissolution, which followed losses in the stock market, William’s



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account was valued at $6,683 and Caroline’s account was valued at

$1,285.

¶11   The District Court found that Caroline “sustained over seven

years of abuse during the course of her relationship” with William.

 On one occasion, William cut Caroline’s wrist while trying to cut

the phone line when she was dialing 911.          Caroline also suffered

facial    bruises,   a   concussion,   and   broken   teeth.    In    another

incident, William knocked Caroline to the floor and stomped on her

lower back, crushing a disc in her back.         She was transported to a

hospital by ambulance, and hospitalized for seven days.              In 1994,

William pushed Caroline down an outside stairway, injuring her

right knee, which required orthoscopic surgery.           After the couple

moved to Somers in May 1997, William attacked Caroline one night

after she refused to have sex with him.        He tied her hands and feet

with a telephone cord, bent her over a desk, and raped her.

William then locked Caroline in a closet, keeping her there for

eighteen hours.
¶12   Caroline’s testimony recounted additional incidents of abuse

during the marriage, including over a half dozen concussions, the

loss of most of her teeth, being kicked in the stomach, being

sexually assaulted, and having a gun put to her head and threatened

 with her life.      During their marriage, William was incarcerated

for assault on numerous occasions.

¶13   William denied causing these injuries.          William asserted that

the injuries Caroline claims were either due to her disability or

caused by accidents or other natural causes.           He argues that none



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of the medical records indicate he caused any of these injuries to

her.     However, William does not deny being arrested for domestic

abuse nor his criminal record arising from charges related to his

abuse of Caroline.

¶14    Caroline has ongoing medical expenses as a result of her

injuries.      She takes several prescription medications for her

physical pain and emotional injuries.               The current cost of her

prescriptions is about $150 to $190 per month.               Caroline faces at

least $10,000 in future dental bills to repair the teeth that were

broken or knocked out.        She also faces probable surgery on her back

due to damaged discs.             Caroline will require physical therapy

throughout the course of her life at a cost of approximately $85

per week.      Additionally, Caroline faces an estimated $33,000 in

future    counseling      costs   to   address    the   mental   and   emotional

consequences of William’s actions.
¶15    Prior   to   the     dissolution       proceedings,   William     retained

attorney    Patrick    D.    Sherlock     (Sherlock)    to   represent    him   on

criminal charges of Partner Assault and Sexual Intercourse Without

Consent (6 counts), arising out of his attacks upon Caroline, as

well as other criminal charges.           Initially, Sherlock consulted with

District Court Judge Ted O. Lympus regarding William’s eligibility

for appointment of a public defender.                Judge Lympus determined

William was not entitled to a public defender, given the value of

his assets.     William then assigned one-half of his undivided half

interest in the parties’ home to Sherlock as security for the fees.

 Although Sherlock petitioned the District Court to approve his



                                          5
assignment and his fee, the Final Decree of Dissolution failed to

address Sherlock’s motion, simply holding that each party should

pay their own attorney fees.

¶16   In distributing the assets in the Final Decree of Dissolution,

the District Court awarded Caroline the following assets:           the

marital residence located in Somers, Montana; a 1992 Chevrolet

pickup; an inoperable 1980 Datsun automobile; a 1995 sixteen-foot

trailer;    recreational   equipment;   and   miscellaneous   household

furnishings, heirlooms, art, jewelry, silver, crystal, and china.

Additionally, Caroline was awarded William’s Turner Corporation

ESOP.   The assets awarded to Caroline were valued at $263,571.

Caroline was assigned the debts incurred by her subsequent to the

parties’ separation, as well as all debt related to her medical

expenses.
¶17   The District Court awarded William his Turner Corporation

pension plan and personal effects, subject to any debt he had

incurred subsequent to the parties’ separation.
                           STANDARD OF REVIEW

¶18   In a dissolution proceeding, this Court reviews a district

court’s findings of fact to determine whether the district court

clearly erred.    The clearly erroneous standard involves a three-

part test: (1) this Court will review the record to see if the

findings are supported by substantial evidence; (2) if the findings

are supported by substantial evidence, this Court determines if the

trial court has misapprehended the effect of the evidence; and (3)

if substantial evidence exists and the effect of the evidence has



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not been misapprehended, this Court may still find that a finding

is clearly erroneous when, although there is evidence to support

it, a review of the record leaves this Court with the definite and

firm conviction that a mistake has been committed.                  Pfeifer v.

Pfeifer (1997), 282 Mont. 461, 467, 938 P.2d 684, 688.              We review a

trial   court’s   conclusions    of   law   to    determine   whether    those

conclusions are correct.    In re Marriage of Harper, 1999 MT 321, ¶

17, 297 Mont. 290, ¶ 17, 994 P.2d 1, ¶ 17.
                                DISCUSSION

¶19   Did the District Court err by allowing testimony and evidence

in relation to the physical and emotional abuse of Caroline by

William?

¶20   William moved to strike allegations of his abuse of Caroline

from her pleadings and to exclude evidence of such abuse in the

dissolution   proceeding.       The   District     Court   denied    William’s

motions.    On appeal, William asserts the District Court erred in

admitting   and   considering    evidence    of    the   abuse,   citing   the

prohibition against consideration of marital misconduct set forth

in § 40-4-202, MCA, and this Court’s affirmation of that principle

in our decisions.

¶21   The District Court made extensive findings about the physical

and emotional abuse inflicted upon Caroline by William, including

the facts referenced earlier in this opinion, as well as numerous

other instances.      Although not raised as an issue on appeal,

William’s briefing also offers the contention that the findings of

abuse are not supported by the evidence.             However, the District



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Court’s findings were clearly supported by substantial evidence.

The Court found that “the present state of [Caroline’s] disability

is a direct result of her marriage to [William].”                          The District

Court also noted the following findings about Caroline among the

reasons it gave for the distribution of the marital estate:

      She is left with a damaged and disabled body solely as a
      result of Respondent’s abuse;

      She faces certain future physical, emotional and mental
      pain with a lifetime of medical needs, again solely as a
      result of such abuse inflicted upon her by Respondent.
¶22   The        District     Court   forthrightly             concluded      that    its

distribution of property was “[b]ased upon the evidence clearly

showing the extent of the abuse, both physical and emotional,

inflicted        upon   Petitioner    by        Respondent,      [and]     Petitioner’s

resultant and continuing need for medical treatment.”

¶23   Section 40-4-202, MCA, provides that the trial court shall

equitably apportion marital property between the parties “without

regard      to    marital     misconduct.”           We   have     thus       held   that

“[a]pportionment        of    a   marital       estate    is    based    on    equitable

principles and whether parties are at ‘fault’ should not affect the

court’s division of assets.”           In re Marriage of Griffith (1993),

260 Mont. 124, 141, 860 P.2d 78, 89.

¶24   In Collette v. Collette (1981), 190 Mont. 500, 621 P.2d 1093,

the District Court required the husband to make all future payments

on the family home in “partial recompense” for his failure to

provide the wife with an accounting of her share of proceeds from a

sale of property.           This Court reversed, finding that the District

Court’s actions were “akin to an assessment of punitive damages,”


                                            8
and a violation of § 40-4-202, MCA, which “expressly provides that

the court is not to consider any marital misconduct in disposing of

the marital assets.”        190 Mont. at 504, 621 P.2d at 1095.                  The

Court reached a similar result in In Re Marriage of Griffith,

supra.

¶25   In In re Marriage of Bultman (1987), 228 Mont. 136, 740 P.2d

1145, the wife asserted that the District Court impermissibly

relied upon marital misconduct in its division of the marital

estate.     The wife cited the District Court’s reference to her

placement of the husband in the State Hospital at Galen, that the

husband had not been permitted to return to the family home, and he

had no access to the parties’ assets.                   However, in analyzing the

division of the estate, this Court found that the District Court

had made those findings to explain its decision to order the sale

of the family home and to equally divide the proceeds between the

parties, not to punish the wife.             Bultman, 228 Mont. at 138, 740

P.2d at 1147.        Similarly, we have held that the District Court’s

reference   to   a    substantial   loss         in    restaurant   sales    under   a

spouse’s management did not interject fault into the dissolution,

but   simply     aided    the   court       in        considering   and     equitably

distributing the marital estate.            In the Marriage of Hanni, 2000 MT

59, 299 Mont. 20, 997 P.2d 760.
¶26   In this case, the District Court considered Caroline’s medical

and financial needs resulting from William’s abuse during the

marriage when apportioning the marital estate.                 William argues this

violates § 40-4-202, MCA, which prohibits the consideration of



                                        9
marital misconduct in dividing the marital estate.       However, a

distinction exists between awarding a larger portion of the marital

estate in order to penalize marital misconduct, and, on the other

hand, considering the medical and financial consequences of marital

abuse in the allocation of the marital estate.   Although this Court

has not had occasion to address this distinction previously, other

states with similar statutory prohibitions on the consideration of

marital misconduct have done so.

¶27   In Burt v. Burt (Minn. 1986), 386 N.W.2d 797, the trial court

had found that the wife’s earning capacity had been impaired as the

result of physical abuse inflicted by the husband during the

marriage, and awarded her maintenance therefor.     Burt, 386 N.W.2d

at 799.   The Minnesota Supreme Court affirmed, determining that

“[t]he statutory prohibition against considering marital misconduct

does not foreclose a judge from considering the financial needs

resulting from a chronic health problem that in turn was caused by

physical abuse during the marriage.”     386 N.W.2d at 800.
¶28   In In re Marriage of Severino (Ill. 1998), 698 N.E.2d 193, the

court considered the emotional state of the petitioner resulting

from physical abuse during the marriage in awarding maintenance to

the petitioner.   “Noting that this . . . ‘fragile’ condition of

petitioner was apparently caused by the abuse from respondent does

not mean that the trial court considered the conduct of respondent

in an effort to punish him.”          Severino, 698 N.E.2d at 195.

Likewise, in Wheeler v. Upton-Wheeler (Nev. 1997), 946 P.2d 200,

the Nevada Supreme Court determined that the economic consequences



                                 10
of spousal abuse can be considered in the division of property and

assets.   “If spousal abuse . . . of one party has had an adverse

economic impact on the other party, it may be considered by the

district court in determining . . . [the] division of . . .

property.”      Wheeler, 946 P.2d at 203.

¶29   The Court finds these holdings to be well founded.          Likewise,

this Court holds that the statutory prohibition against considering

marital misconduct does not foreclose the district court from

considering the medical and financial needs of a spouse which

result from the other spouse’s physical, mental, or emotional abuse

during the marriage.        Consideration of the economic effects of

abuse, such as medical expenses and a person’s ability to work and

earn an income, is not an interjection of fault or an assignment of

blame   which    is   contemplated   by   the   statutory   prohibition   of

judicial consideration of marital misconduct.               If the economic

impact of abuse is excluded from consideration in making a division

of the marital estate, a truly equitable apportionment cannot

result.
¶30   We hold that the admission and consideration of evidence of

the consequences of marital abuse, and the findings made by the

District Court herein, were proper and aided the District Court in

fashioning an equitable distribution of the marital estate.           These

findings did not interject fault or marital misconduct into the

dissolution, but allowed the District Court to give consideration

to the very real effects of William’s abuse of Caroline, and make




                                     11
provision for her ongoing needs.    The District Court did not err in

so doing.

¶31   Did the District Court fail to equitably apportion the marital

estate?

¶32   Section 40-4-202, MCA, governs the distribution of property in

a marriage dissolution, and lists the factors the district court

must consider in making an equitable distribution.       The statute

provides in 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 husband or wife or both.       In making the
      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 need 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.

Section 40-4-202, MCA.

¶33   William argues the District Court did not divide the marital

estate equitably, because Caroline received substantially more of

the marital estate than he received.    Further, William argues that

the District Court failed to consider his contributions to the

marital estate.

¶34   In dividing the assets, the District Court determined that the

majority of both parties’ premarital assets were invested into the

marital estate.     Additionally, the District Court found that

William was in good health, would be employable following his

release from prison, and had the ability to earn income and acquire


                                   12
assets.    On the other hand, the District Court found that Caroline

was in poor health, disabled, physically unable to acquire gainful

employment, and did not have the ability to earn adequate income or

assets to provide for her needs.               In addition to not being able to

earn income, the District Court found that Caroline has                    inevitable

expenses arising from William’s abuse.                 As set forth above, the

District Court extensively documented Caroline’s medical needs and

expenses.

¶35   The District Court awarded Caroline marital assets in lieu of

maintenance, in accordance with §§ 40-4-202 and 40-4-203, MCA.                     The

District Court reasoned that “in lieu of spousal maintenance to

which she is clearly entitled, . . . but payment of which by

[William] cannot be relied upon, . . . it is fair and equitable to

distribute the bulk of the tangible marital assets to [Caroline].”

 Given the fact that William was incarcerated at the time of the

dissolution hearing and not working, his ability to make regular

maintenance     payments    was   recognizably             difficult.      Thus,   the

District Court made the reasonable choice of awarding Caroline a

larger portion of the marital estate, rather than providing her

with maintenance.
¶36   The District Court’s findings in this case reflect that Judge

Lympus    considered,     among    other        things,     the    duration   of   the

marriage; the parties’ assets; their health, occupation, amount and

sources    of   income;    the    needs        of   each    of    the   parties;   the

opportunity of each for future acquisition of capital assets and

income; and apportionment of property to Caroline in lieu of



                                          13
maintenance, all of which are consistent with § 40-4-202, MCA.

Accordingly, we hold that the District Court did not err in

apportioning the marital estate.

¶37   Did the District Court err by not exercising independent

judgment when it did not establish the marital estate’s net worth

and adopted Caroline’s proposed findings of fact?

¶38   First, William argues the District Court failed to exercise

independent judgment when it failed to establish the marital

estate’s net worth.    In support of his argument, William cites In

re the Marriage of Gochanour, 2000 MT 156, 300 Mont. 155, 4 P.3d

643, and In re the Marriage of Smith (1994), 264 Mont. 306, 871

P.2d 884.     In those cases, we held that without a finding of the

marital estate’s net worth, this Court cannot determine if the

property was equitably divided.    Gochanour, ¶ 42; Smith, 264 Mont.

at 310-11, 871 P.2d at 887.

¶39   In In re Marriage of Harkin, 2000 MT 105, ¶ 31, 299 Mont. 298,

¶ 31, 999 P.2d 969, ¶ 31, we concluded that the District Court did

not abuse its discretion by not making a specific finding of fact

regarding the total assets and liabilities of the marital estate,

holding “a net valuation by the district court . . . is not always

mandatory.”    Harkin, ¶ 31 (quoting In re Marriage of Walls (1996),

278 Mont. 413, 417, 925 P.2d 483, 485).    In determining whether a

finding of net worth is necessary, we have stated that “the test is

whether the findings as a whole are sufficient to determine the net

worth and to decide whether the distribution was equitable.”

Harkin, ¶ 31; Walls, 278 Mont. at 417, 925 P.2d at 485; In re



                                  14
Marriage of Stephenson (1989), 237 Mont. 157, 160, 772 P.2d 846,

848.

¶40    In this case, the District Court made findings of fact as to

the value of Caroline’s and William’s significant assets and debts.

 Although the District Court did not make a specific finding of the

estate’s net worth, the findings of fact taken as a whole are

sufficient to determine whether the property distribution was

equitable.    Harkin, ¶ 31; Walls, 278 Mont. at 417, 925 P.2d at 485;

Stephenson, 237 Mont. at 160, 772 P.2d at 848.            Accordingly, we

hold the District Court did not err in failing to determine the net

worth of the marital estate.
¶41    Second, William argues the District Court failed to exercise

independent    judgment   by   adopting   most   of   Caroline’s   proposed

findings of fact.    William claims the District Court did not give

individual treatment to the issues presented by the parties.             We

disagree.

¶42    We have held that “the District Court can adopt a party’s

proposed findings of fact and conclusions of law if they are

sufficiently comprehensive and pertinent to the issues to provide a

basis for a decision and are supported by the evidence.”           In Re the

Marriage of Ereth (1998), 232 Mont. 492, 495, 757 P.2d 1312, 1314.

 Contrary to William’s argument, the record indicates that the

District Court did not simply “rubber-stamp” Caroline’s findings of

fact and adopt her findings as its own.               The District Court

properly considered the evidence, the credibility of the witnesses,

and exercised independent judgment in issuing its findings and



                                    15
conclusions.        Accordingly, we hold the District Court did not err

in making its findings of fact and conclusions of law.

¶43   Did the District Court properly consider attorney fees?

¶44   William argues that the District Court “side-stepped” the

attorney fee issue by simply ordering each party to pay their own

attorney fees and costs.           He contends that attorney fees in this

case for both his criminal defense and his representation in this

dissolution    proceeding are “necessities of life” under § 40-4-121,

MCA, which are properly payable from the marital estate.                  William

further asserts that the District Court judge verbally indicated

that attorney fees would be awarded.

¶45   After being disqualified for appointment of a public defender,

William retained Sherlock to represent him on the criminal charges.

 On November 5, 1998, William executed an assignment of one-half of

his undivided half interest in the home jointly owned by him and

Caroline to Sherlock as security for Sherlock’s fees.                    However,

because of the pending dissolution proceeding, a restraining order

was   in    effect     restricting       the   parties   from   encumbering    or

transferring any property, whether jointly or separately held,

“without either the consent of the other party or an order of the

court,     except    in   the    usual    course   of    business   or   for   the

necessities of life.”           Section 40-4-121, MCA.       After William and

Caroline failed to reach an agreement on a method for securing

William’s legal representation, William moved for a lift of the

stay, indicating in his motion that he had been charged with

several felony counts and did not have funds to hire legal counsel.



                                          16
 The District Court, on September 30, 1999, lifted the restraining

order “to the extent that [William] be allowed to encumber his

undivided half interest” in the parties’ home, which was owned

jointly.    The assignment of interest from William to Sherlock was

thereafter recorded on October 4, 1999.              Then, without explanation,

on February 3, 2000, the District Court vacated its September 30,

1999,     order    which    had    lifted      the   restraining   order,   thus

reinstating it.         However, William’s assignment of the one-half

interest in the home to Sherlock remained of record.               The District

Court failed to address either the assignment or the fees incurred

by William in defending himself against the criminal charges,

holding only that each party should bear his or her own attorney

fees related to the dissolution.
¶46   We affirm the District Court to the extent it addressed the

fee issue.        We find that the District Court’s holding that each

party would bear his or her own attorney fees related to the

dissolution proceeding was a proper exercise of its discretion

herein.

¶47   However, the validity and status of the assignment and the

issue of the fees related to William’s criminal representation were

left unresolved.         Therefore, we remand this matter for further

proceedings       to   address    these   issues.      The   District   Court   is

directed to determine the validity of William’s assignment of his

interest in the home, jointly owned by him and Caroline, to

Sherlock as security for Sherlock’s fees. Further, the District

Court shall determine whether William’s criminal defense fees are



                                          17
properly payable from the marital estate.     Finally, if the District

Court finds the criminal fees are payable from the marital estate,

it shall determine the amount of fees which shall constitute a

reasonable attorney fee for William’s criminal representation.

¶48   Accordingly, we affirm in part and remand to the District

Court for further proceedings consistent with this opinion.


                                            /S/ JIM RICE




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We concur:



/S/ JIM REGNIER
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART’
/S/ JAMES C. NELSON




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