Nope, You Can't Back Out Now

This was a two year marriage. Husband and Wife signed a settlement agreement following a nine hour settlement conference. The agreement was filed. The District Court approved the agreement and incorporated it in the Final Decree. Husband appealed on two grounds: 1) the District Court finding that the agreement was not unconscionable; and 2) that the summons issued did not include the temporary restraining order required by Section 40-4-121(3) MCA.

The Supreme Court found that Husband had failed to challenge the findings before filing his appeal and indeed acquiesed in those findings. Husband's failure to object before the District Court to the approval of the agreement or the other findings in the decree were fatal to his claim on appeal.

The Decree expressly vacated any temporary restraining orders. So Husband's claim that the clerk failed to comply with the statute requiring the automatic economic restraining order on appeal was moot.

Affirmed.

Smith v. Barger, 2012 MT 225N

"Trigger" the Horse not listed. Equitable not equal. Judges get to decide credibility.

John and Dana lived together in Grass Range for 2 1/2 years, then broke up. They bought things during their cohabitation and co-mingled some, but not all of their money.

John sued Dana for return of property and for a TRO after she left. During a preliminary hearing, the trial court allowed Dana the use of the 2001 pickup and a horse trailer to assist her move to Billings and to allow her to work as a horse trainer.

Later, during the final hearing, the parties disputed the value of their joint account at the time of their breakup, the value of assets, and the condition of the pickup before Dana had use of it for the 6 months between the initial hearing and final hearing. John appealed claiming he got far less than Dana. Dana pointed out that there was a lot more money in their joint account one week before separation than John claimed (which remained with John) and that John had failed to list his horse "Trigger" as an asset.

The Montana Supreme Court affirmed in a noncite opinion. Citing Marriage of Harris, 2006 MT 63, the Court noted that "equitable" does not necessarily mean "equal". Citing Hood v. Hood, 2012 MT 158 at paragraph 42, the Court noted that trial judges are in the best position to decide the credibility of witnesses, decide what weight to give such testimony and to decide what is equitable under the circumstances -- and the the Supreme Court will not simply substitute its judgment for that of the trial judge.

Biological Father Gets Nothing

Shannon gave birth to a child two months after she married Travis. She had become pregnant when she was living with Justin, but had also dated Travis. She told them both that one of them was the father. Travis was in the Air Force, stationed in Italy. Justin was disabled and living with his parents. Shannon married Travis in October, 2005 and moved to Italy where the child was born. Travis later was stationed in Great Falls, where marital difficulties arose. Shannon contacted Justin during the separation. Travis obtained a temporary order granting him custody of this child and a subsequent child of the marriage. Shannon moved back in with Travis and they were attempting to reconcile when Justin moved to intervene. His motion was granted as was his motion for a paternity test, which proved he was the biological father. The trial court denied his motion for an interim parenting plan, finding that Justin had failed to maintain contact with the child for four years, that he suffered from a major depressive disorder, that Travis had in all respects stepped up to the plate as the child's father, and it was in the child's best interests that Justin's motion be denied. The trial court relied upon Paternity of Adam, 273 Mont. 351, 903 P.2d 207 (1995), a similar case.

Then Justin filed a Rule 59 motion, which the trial court granted, reversing its earlier order and granting Justin a parental interest. Travis and Shannon appealed. The Montana Supreme Court reversed. The Court noted there are just four grounds for granting a Rule 59 motion: 

"1) to correct manifest errors of law or fact upon which the judgment was based; 

2) to raise newly discovered or previously unavailable evidence; 

3) to prevent manifest injustice resulting from, among other things, serious misconduct of counsel; or 

4) to bring to the court’s attention an intervening change in controlling law."

The Supreme Court found none of the above were true. Indeed the Court found that the trial court apparently had just changed its mind, something that Rule 59 does not permit. The case was remanded for the trial court to reinstate its original ruling, which the trial court then did. 

This is the second appeal. The Supreme Court affirmed in a noncite opinion, because the trial court did exactly on remand what it was supposed to do. 

First Appeal:  In Re Marriage of Johnson, 2011 MT 255. 

Second Appeal: In Re Marriage of S.M.J. 2012 MT 202N.

Summary Joint Dissolution Set Aside: 6 Years Later

The summary dissolution statutes were established to make it easier for couples with little money to dissolve their marriage. There are bright line restrictions on couples who may use this procedure. Among those restrictions are that the parties cannot own real property, there can be no maintenance required of either spouse and the fmv of all assets, less the debts secured by those assets, must be less than $25,000. §40-4-130 M.C.A.

In this case, a couple filed a joint petition for summary dissolution in 2002. However, they owned real estate, they agreed that the wife would receive maintenance, and the net fmv of their assets exceeded $25,000. Perhaps they did not read the brochure published by the Attorney General.

After the decree had been amended four times by mutual consent, wife filed another motion to amend the decree in 2007. This time the husband hired a lawyer, who filed a motion to set aside the original decree and all amended decrees filed thereafter (except as to the status of the marriage). The trial court granted the motion, then conducted a contested trial in 2008. The court rendered an award which was significantly different from the original agreement that the parties had filed with their original petition. Husband appealed the lifetime maintenance award to his wife.

The Supreme Court affirmed by memorandum opinion.

§ 40-4-135 (2) M.C.A. specifically authorized the district court to set aside final decrees except as to the status of the marriage because at the time of the filing of the original petition the parties violated the bright line restrictions of §40-4-130. So there was no question that the trial court should set aside the decrees.

Given the number of individuals representing themselves in these matters, it is likely there are other fatally flawed decrees out there. It is noteworthy that the trial court considered the dramatically changed circumstances of the parties at the time of the 2008 trial (both had become disabled). So these people ended their marriage in 2002, but the ultimate economic distributions were based on circumstances 6 years later.

In Re Marriage of Webb, 2012 MT 2014N.

Time Rule Formula Best for Defined Benefit Plans

In Re Parenting of C.W. and S.W. 2012 MT 212

Pension plans may be valued one of two ways: 

  1) The present value method, or
  2) The time rule method. 

In dealing with a 401k, 403b or IRA or other "defined contribution" account, the trial court can simply allocate to each party a portion of the balance of the account as of the date of trial. The present value of the account can be obtained by simply looking at the account statement.

In dealing with many government pensions, union pensions, and other "defined benefit" plans, it can be difficult to determine the present value of the account unless the participant in the account is retired. There is no account per se in the name of the participant. The benefits are determined according to a formula typically using the years of service, average final compensation, age of the participant and so forth -- which may be a calculation to be made many years into the future. For an employee who is not yet retired, any valuation expert must make a number of assumptions about what the future holds to mathematically determine the present value of the plan.

In this case, Corey Wheeldon, the husband, was a Sheriff's Deputy. He was a participant in a defined benefit plan through the Sheriff's Department. His contributions to the account were vested, but the Sheriff's Department contributions were not vested. Here's the relevant quotation that you may insert in your next brief on this issue:

"The District Court found that part of Corey’s non-vested retirement account through the Sheriff’s Department is marital property. What benefits will come from that pension will be determined by a number of factors that cannot be known. If Corey quits the Sheriff’s Department before he becomes vested, then he will only be entitled to the amount that he personally contributed to the account. If he quits after he is vested but before he is qualified for retirement, then he will be entitled to his contributions and the employer contributions. If he stays with the Sheriff’s Department long enough to retire, then he will receive a monthly benefit payment for the rest of his life. The amount of that monthly benefit would be determined by his length of service, highest average salary for thirty-six consecutive months, and age when he retires. Sections 19-7-101 et seq., MCA. Using the present value method to value Corey’s retirement account would require that assumptions be made about all of these factors. Any assumption that does not prove true may considerably undervalue or overvalue the account. Thus, using the present value method would be pure conjecture and produce uncertain results, at best."  In Re Parenting of C.W. and S.W. 2012 MT 212, Paragraph 22 (emphasis supplied).

This approach is similar to the Supreme Court's approach to putting a value on the inevitable tax liability arising from distributions from a retirement account. The further into the future the taxable event will occur, the more uncertain the valuation of the liability will be, simply because the assumptions a tax expert must make to calculate the liability are conjectural:

"¶ 19 To apply a deduction of a “reasonable” tax rate to retirement accounts that may be liquidated at some time in the future frustrates the goal of achieving a fair and equitable disposition of the marital estate. We conclude that it is unreasonable to consider tax consequences in light of numerous unknown factors such as the value of the account at the time it is eventually liquidated; the tax laws in effect at the time it is eventually liquidated; and when the account will eventually be sold. Otherwise, such valuations are merely conjectural. Therefore, we conclude that the District Court abused its discretion when it deducted twenty-two percent from the value of the seven Smith Barney Accounts." In re Marriage of Haberkern, 2004 MT 29, 319 Mont. 393, 399, 85 P.3d 743, 747 (emphasis supplied).

"¶ 47 A district court must consider the tax implications of its decree if such consequences are concrete and immediate. Haberkern, ¶ 17. The adverse tax consequences to Julie of the ordered distribution of retirement assets are concrete and seem to be immediate. Yet, the findings of fact and conclusions of law entered by the District Court give no indication whether the court considered the tax consequences of this distribution. We remand to the District Court for further consideration of the tax implications, and the manner and timing of the distribution of the retirement account portion of the marital estate." In re Marriage of Thorner, 2008 MT 270, 345 Mont. 194, 207, 190 P.3d 1063, 1071 (emphasis supplied).

Pine Creek fire near Paradise Valley, Montana

This picture was taken from Interstate 90 near Livingston, Montana

Rape and Custody

Rape is in the news with the recent comments of U.S. Congressional Representative Todd Akin. Given the fact that biological fathers have constitutional level rights to parent their child, a rapist may legally assert claims to parenting time in the event his victim becomes pregnant and gives birth. Here is an article written by a rape victim recounting that experience.