                                                                                        December 13 2011


                                           DA 10-0354

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2011 MT 310N



CHERYL UPSHAW,

              Petitioner, Appellee and Cross-Appellant,

         v.

THOMAS AYER,

              Respondent, Appellant and Cross-Appellee.



APPEAL FROM:           District Court of the Eighteenth Judicial District,
                       In and For the County of Gallatin, Cause No. DR 05-300B
                       Honorable Mike Salvagni, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Christopher J. Gillette, The Law Office of Christopher J. Gillette, PC,
                       Bozeman, Montana

                For Appellee:

                       Cheryl Upshaw, self-represented, Manhattan, Montana



                                                     Submitted on Briefs: November 9, 2011

                                                               Decided: December 13, 2011




Filed:

                       __________________________________________
                                         Clerk
Justice Michael E Wheat 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     In this dissolution action, Thomas Ayer (“Tom”) appeals an Order of the Eighteenth

Judicial District Court, Gallatin County, awarding the marital home to Cheryl Upshaw

(“Cheryl”), Tom’s putative spouse, in lieu of maintenance. Cheryl cross-appeals the denial

of her motion for attorneys’ fees. We affirm.

¶3     Tom and Cheryl met in December of 2002 and began a relationship. Cheryl

petitioned for dissolution in July of 2005, believing the parties were married. Tom and

Cheryl briefly reconciled, but the relationship was not to last.

¶4     Beyond the facts stated above, what transpired from December 2002 through the

dissolution proceeding is still largely in dispute, despite the parties’ assertions to the

contrary. In any event, neither Tom nor Cheryl challenges the factual findings of the District

Court. We briefly discuss those facts below.

¶5     It appears that shortly after meeting, Tom and Cheryl moved in together. Together

they built a log home in Clarkston, Montana (the “Clarkston property”), which was held in

joint tenancy with the right of survivorship. The District Court found that both Tom and

Cheryl contributed significantly to building and maintaining the home.



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¶6     Tom and Cheryl were never officially married. However, at various times during the

course of this case, each has claimed they were married, and each has denied they were

married. A religious ceremony held in Mexico in 2004 was presented by both parties as a

wedding, and alternately, by Tom, as an “adoption” ceremony at which Tom adopted Cheryl

as his sister. The District Court found the parties were never married under any legal theory,

but that Cheryl was a putative spouse under § 40-1-404, MCA.

¶7     The District Court found that the only significant marital asset was the Clarkston

property. Because each party contributed significantly to the Clarkston property, the District

Court found “the parties are entitled to share equally in the division of the value of the

Clarkston property.” The District Court also found that Cheryl was “entitled to spousal

maintenance based upon her limited resources, her health, her lack of sufficient property to

support herself and her inability to be self supporting.” The District Court then found that

“[a]lthough Tom may not have the financial ability to pay spousal maintenance from his

gross earnings, the distribution to Cheryl of the value of Tom’s share of the Clarkston

property will be commensurate with spousal maintenance of $600.00 per month for 40

months.” The Clarkston property was awarded solely to Cheryl “in lieu of requiring Tom to

pay spousal maintenance[.]”

¶8     The only issue Tom appeals is whether the District Court abused its discretion when it

awarded the Clarkston property to Cheryl in lieu of maintenance. The only issue Cheryl

cross-appeals is whether the District Court abused its discretion when it denied her motion

for attorneys’ fees.
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¶9     We review the distribution of the marital estate, and the valuation of the distribution,

for an abuse of discretion. Bock v. Smith, 2005 MT 40, ¶ 14, 326 Mont. 123, 107 P.3d 488.

Similarly, we review the denial of attorneys’ fees for an abuse of discretion. Jones v. City of

Billings, 279 Mont. 341, 344-45, 927 P.2d 9, 11 (1996). A district court abuses its discretion

when it acts arbitrarily without employment of conscientious judgment, or exceeds the

bounds of reason resulting in substantial injustice. Kelly v. Thompson, 2009 MT 392, ¶ 13,

353 Mont. 361, 220 P.3d 627.

                                 The Clarkston Property

¶10    A district court has broad discretion in valuing and distributing the marital estate, and

must do so in a manner equitable to each party under the circumstances. In re Marriage of

Bartsch, 2007 MT 136, ¶ 9, 337 Mont. 386, 162 P.3d 72. Equitable distribution does not

mean equal distribution. In re Marriage of Fitzmorris, 229 Mont. 96, 99, 745 P.2d 353, 354

(1987).

¶11    Property can be awarded in lieu of maintenance. In re Marriage of Rolf, 2003 MT

194, ¶ 22, 316 Mont. 517, 75 P.3d 770; In re Marriage of Williams, 2009 MT 282, ¶ 23, 352

Mont. 198, 217 P.3d 67. The district court must clearly state its intent to award the property

in lieu of maintenance and make necessary findings to support an award of maintenance.

Rolf, ¶ 22; Williams, ¶ 23. Sections 40-4-202 and -203, MCA, the statutes regarding

distribution of property and maintenance, “must be considered together.” Rolf, ¶ 25. There

is a “clear preference for awarding property first.” Rolf, ¶ 25.

¶12    This issue is one of judicial discretion and there clearly was not an abuse of
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discretion. The District Court clearly stated its intent to award the Clarkston property in lieu

of maintenance, considered both §§ 40-4-202 and -203, MCA, and made the required

findings to support an award of maintenance.

                                      Attorneys’ Fees

¶13    Section 40-4-110, MCA, governing costs and attorneys’ fees in dissolution

proceedings, provides:

       (1) The court from time to time, after considering the financial resources of
       both parties, may order a party to pay a reasonable amount for the cost to the
       other party of maintaining or defending any proceeding under chapters 1 and 4
       and for professional fees, including sums for legal and professional services
       rendered and costs incurred prior to the commencement of the proceeding or
       after entry of judgment. The court may order that the amount be paid directly
       to the professional, who may enforce the order in the professional's name.
       (2) The purpose of this section is to ensure that both parties have timely and
       equitable access to marital financial resources for costs incurred before,
       during, and after a proceeding under chapters 1 and 4.

¶14    Attorneys’ fees incurred while seeking an order of protection from one’s spouse may

be awarded if the fees are determined to be “necessary articles” under § 40-2-210, MCA.

Missoula YWCA v. Bard, 1999 MT 177, ¶ 24, 295 Mont. 260, 983 P.2d 933.

¶15    This issue is one of judicial discretion and there clearly was not an abuse of

discretion. The District Court considered § 40-4-110, MCA, when determining Cheryl’s

request for attorneys’ fees. Further, the District Court was within its discretion when it

determined Cheryl was not entitled to attorneys’ fees under Missoula YWCA in this

dissolution proceeding.

                                         Conclusion


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

Internal Operating Rules, which provides for noncitable memorandum opinions. The

District Court did not abuse its discretion.

¶17    Affirmed.

                                                   /S/ MICHAEL E WHEAT



We Concur:


/S/ JAMES C. NELSON
/S/ BETH BAKER
/S/ BRIAN MORRIS
/S/ JIM RICE




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