No. 92-087 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

IN RE THE MARRIAGE OF ,- a 

NORMAN JOSEPH ROCK, 

Petitioner and Respondent, 

and 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Jack L. Green, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Dennis E. Lind, Datsoupoulos, MacDonald 

& Lind, Missoula, Montana 

For Respondent: 

Raymond P. Tipp, Tipp, Frizzell & Buley, 

Missoula, Montana 

Filed: 

Submitted on Briefs: January 21, 1993 

Decided: April 5, 1993 
Justice William E. Hunt, Sr., delivered the opinion of the Court. 

Appellant Sharon D. Rock appeals from the findings of fact, 

conclusions of law, and decree of dissolution entered by the 

District Court of the Fourth Judicial District, Missoula County. 

At issue is the District Court's determination that a promissory 

note from respondent Norman Joseph Rock (Joe) to Sharon is null and 

unenforceable. Sharon also appeals from the District Court's 

division of the marital estate. We reverse. 

We phrase the issues to be considered as follows: 

1. Did the District Court err in determining that the 

promissory note was a nullity? 

2. Was the District Court's division of the marital estate 

clearly erroneous? 

The parties were married on December 26, 1980, in Missoula. 

No children were born during the marriage. Joe and Sharon had both 

been married previously. At the date of dissolution Joe was 62 

years old and Sharon was 50 years old. 

I. 

Did the District Court err in determining that the promissory 

note was a nullity? 

Upon reviewing a lower court's conclusions of law this Court 

will simply determine whether the lower court's interpretation of 

the law was correct. We are not bound by the trial court's 

conclusion and remain free to reach our own. Schaub v. Vita Rich 

Dairy (1989), 236 Mont. 389, 391, 770 P.2d 522, 523. 
~t issue is a promissory note for $59,000 from Joe to Sharon 

acknowledging that he owed her for the loan she obtained for him 

from the Ronan State Bank. The loan from the bank was secured by 

Sharon's home. The purpose of the loan was to refinance existing 

debts, such as a loan at the McKenzie Bank in North Dakota, and the 

lien on Joe's tractor and trailer at the Lewiston, Idaho bank. 

According to Joe's statements in the District Court transcript, 

both of these debts were his. Martin Olsson, loan officer at Ronan 

State Bank, stated that the bank had several previous loans of 

Joe's that were outstanding. These loans were for Joe's trucking 

company. The bank declined to give Joe another loan because of 

poor prior payment performance and inadequate collateral. Olsson 

stated that the use of Sharon's house as collateral was the primary 

reason for the bank approving the $59,000 loan. 

Joe admitted in court that he signed the promissory note to 

Sharon upon her request. He acknowledged that both Sharon and he 

were responsible for the bank loan. 

Joe now claims that the promissory note between Sharon and him 

is unenforceable as a negotiable instrument. He argues that it was 

signed in blank with no attached exhibit, and therefore, was 

incomplete, that there was no "sum certain," and that there was no 

consideration. We hold the lower court's interpretation of the law 

as to the validity of the promissory note was incorrect. Even 

though the note is not a valid negotiable instrument, it should be 

enforced by implying a contract at law to prevent Joe from being 

"unjustly enriched" as a result of his use of the $59,000 loan and 

3 
subsequent refusal to acknowledge the debt. Ragland v. Sheehan 

(Mont. 1993), 50 St. Rep. 83. 

Joe would not have had access to the $59,000 loan if Sharon 

had not pledged her house as collateral. Sharon would not have 

done so without the understanding that Joe would continue to be 

obligated to the bank for the loan. 

Joe claims that when he signed the promissory note he did not 

intend to consent to any obligation, but lack of consent is 

irrelevant to an implied contract: "An implied contract does not 

arise from the consent of the parties--it springs from the 

principle of natural justice and equity, based on the doctrine of 

unjust enrichment. Rasland, 50 St. Rep. 83 (citing St. James 

Community Hospital v. Dept. of Social and Rehabilitation Services 

(1979), 182 Mont. 80, 595 P.2d 379). 

We hold that the promissory note at issue is enforceable as an 

implied contract at law. The District Court erred in determining 

that the promissory note was a nullity. 

We reverse on this issue. 

11. 

Was the District Court's division of the marital estate 

clearly erroneous? 

In the past, district court decisions concerning the division 

of the marital estate have been reviewed by this Court under an 

abuse of discretion standard. This Court's standard of review in 

these cases has been recently clarified. The factual findings of 

the district court relating to the division of marital property 
will be reviewed using the clearly erroneous standard. In re 

Marriage of Sacry (1992), 253 Mont. 378, 833 P.2d 1035; Rule 52(a), 

M.R.Civ.P. Concerning this Court's review of conclusions of law 

made by a lower court "[wle are not bound by the lower court's 

conclusions and remain free to reach our own." Schaub, 770 P.2d at 

523. 

The courts are obligated to fashion a distribution which is 

equitable to each party under the circumstances. In re Marriage of 

Jones (1987), 229 Mont. 128, 745 P.2d 350; 5 40-4-202, MCA. 

Working in equity, the courts must seek a fair distribution of the 

marital property using reasonable judgment and relying on common 

sense. Reaching this equitable distribution will at times require 

the court to engage in discretionary action which cannot be 

accurately categorized as either a finding of fact or a conclusion 

of law. These discretionary judgments made by the trial court are 

presumed to be correct and will not be disturbed on appeal absent 

an abuse of discretion by the lower court. Meridian Minerals Co. 

v. Nicor Minerals, Inc. (1987), 228 Mont. 274, 742 P.2d 456. 

Sharon's main contention on appeal is that the District Court 

was clearly erroneous in finding that her home was a marital asset 

which should be sold with the balance of the proceeds to be divided 

equally with Joe. Sharon contends that it was inequitable to award 

Joe one-half the balance of the proceeds from the sale when she 

owned the home free and clear early in the marriage. We agree. 

Section 40-4-202, MCA, provides that a district court shall: 
[Elquitably 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 the husband or wife or both. 

While the home may be considered part of the marital estate, 

the District Court's equal division of the home in this instance is 

inequitable. Section 40-4-202, MCA, requires equity, not equality. 

In re Marriage of Fitzmorris (1987), 229 Mont. 96, 745 P.2d 353. 

This equitable division of property must take into consideration 

the financial condition of each party at the time of marriage. In 

re Marriage of Summerfelt (1984), 212 Mont. 332, 688 P.2d 8. This 

Court recently stated that it was error for a district court to 

fail to credit a spouse with the value of a marital asset brought 

into the marriage. The District Court found that Sharon had 

$23,000 in equity in the home and had purchased her former 

husband's one-half interest in the home for $23,000. Joe did not 

contribute in any way to the value of the home at the time of the 

marriage. 

Joe may be entitled to a portion of the appreciation in value 

of the home pursuant to § 40-4-202, MCA, provided that his 

contributions during the marriage contributed to the appreciation 

in value of the home. 

The testimony at trial was that Joe contributed $99,000 over 

a six-year period to the maintenance of the household. On appeal 

Joe refers to this $99,000 as "extra money" he gave to Sharon 

Isbeyond the family's expenses and repairs . . . . However, a 

careful review of the record indicates that this was Joe's total 
financial contribution during the time period and was not in 

addition to other funds contributed to maintain the household. 

Upon remand, the District Court shall consider the 

contributions of both parties to the maintenance and improvement of 

the home. The court shall consider to what extent this maintenance 

and any improvements may have contributed to the appreciation of 

value of the home. 

The District Court also found that the failure to make 

payments on the mortgage debt caused a dissipation of the marital 

asset in the amount of $10,606. The loan obligation at the Ronan 

State Bank was a joint obligation, and any amount of dissipation of 

the marital asset must be attributed equally to both parties. 

Many of the findings of fact in this matter are contradictory, 

are not supported by the evidence, and are not relevant to issues 

of this case. We will not address those. 

Reversed and remanded to the District Court for further 

proceedings consistent with this opinion. 

We concur: