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No. 00-305 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

2001 MT 20N 

In Re the MARRIAGE OF JACQUELINE R. MITCHELL, 

Petitioner and Appellant,

v.

JOHN S. MITCHELL,

Respondent and Cross-Appellant.

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark,

The Honorable Thomas C. Honzel, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Philip J. O'Connell, Attorney at Law, Missoula, Montana

For Respondent:

David N. Hull, Attorney at Law, Helena, Montana

Submitted on Briefs: December 14, 2000 

Decided: February 15, 2001 

Filed:

__________________________________________

Clerk

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Justice Terry N. Trieweiler 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 The petitioner, Jacqueline L. Mitchell filed a petition for dissolution of her marriage to 

the respondent, John S. Mitchell ("Stephen"), in the District Court for the First Judicial 

District in Lewis and Clark County. Following a non-jury trial, the District Court divided 

the couple's property by a decree of dissolution based on its findings of fact and 

conclusions of law. Both parties appeal from the District Court's property distribution. We 

affirm the judgment of the District Court.

¶3 Both parties present several issues on appeal. We restate these issues as follows:

¶4 (1) Did the District Court err in its distribution of the marital property?

¶5 (2) Did the District Court err when it declined to award Stephen's pension to Jackie 

after Stephen failed to disclose the pension during discovery?

¶6 (3) Did the District Court err by refusing to vacate the hearing despite Jackie's failure to 

comply with the District Court's pretrial orders?

¶7 (4) Did the District Court err when it decided not to hold Jackie and/or her counsel in 

contempt for violating the pre-trial order?

¶8 (5) Did the District Court err when it denied Stephen's motion for sanctions against 

Jackie for violating the temporary restraining order when she sold the Subaru station 

wagon?

FACTUAL BACKGROUND 

¶9 Jackie and Stephen Mitchell were married on June 8, 1990. At that time, Jackie was 

employed by the State of Montana as an administrative assistant in the Department of 

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Health and Environmental Science. Jackie earned a pension from this job, which 

amounted to $4,500. Jackie did not own any property or automobiles except for a few 

home furnishings and personal property. She owed approximately $500 for medical bills 

which the couple paid while applying for a home loan after they married. 

¶10 Since 1971, Stephen was employed by the firm, Ch2M Hill, as a hydrologist and 

engineering manager and continued to work there during his marriage to Jackie. Upon 

retirement, Stephen will receive a pension of approximately $700 a month. According to 

Stephen, he earned this pension in the 1970's. Later, the company converted its pension 

plan to stock options and other benefits for the employees. He used these stock options 

after leaving Ch2M Hill in 1994 to start his own company, Clear Creek Hydrology. In 

1996, Clear Creek Hydrology was incorporated. In October, 1998, Stephen held 85% of 

the stock in the company, Jackie held 10% and the remaining five percent was owned by a 

third party. Rick Townsend, a public accountant, testified that the business was worth a 

negative $2,195, at the time of trial.

¶11 Prior to the couple's marriage, Stephen owned two homes - one in Montana City, 

Montana, and the other located in Boise, Idaho. After he married Jackie, he sold them and 

used the $40,000 equity from the two sales for a down payment on the marital home in 

Townsend, Montana. The couple paid $143,000 for the property in 1992. The house and 

property combined are now worth $325,000. However, the property is encumbered by two 

mortgages in the combined amount of $315,000. Stephen also owned several vehicles and 

trailers prior to marriage that he traded in to acquire the marital vehicles. The marital 

vehicles are a Subaru Legacy station wagon, Dodge Ram pick-up truck, GMC Jimmy, two 

Yamaha Big Wheels, a Honda Fat Cat, a Holiday Rambler fifth wheel, a Nu-Wa 

Hitchhiker fifth wheel, two utility trailers and a Farmall tractor. The Hitchhiker fifth wheel 

is encumbered by a debt which the District Court found to be in the amount of $20,000. 

Stephen and Jackie also own four Pomerarian dogs which are worth $4,000.

¶12 After Stephen created Clear Creek Hydrology, Jackie worked for the company as a 

bookkeeper and receptionist. She made approximately $12.00 an hour while working at 

Clear Creek Hydrology. Jackie also attended classes during this period. 

¶13 Jackie left Stephen in October of 1998. She moved out of the Townsend property 

while he was on a hunting trip. Jackie took their bed, kitchen appliances, dishes, a Sony 

television, a Compaq computer, their four Pomeranian dogs, a sleeping bag, backpack, the 

Subaru station wagon and her personal possessions. Before she left, she wrote two checks 

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to herself from the corporate account in the total amount of $10,000 which she claims was 

owed her for wages. Prior to leaving, Jackie also transferred $14,000 from the business 

account to the couple's joint checking account. It is unclear who ultimately received that 

money or whether Stephen directed her to make the transfer. She moved to Boise, Idaho 

where she presently resides. 

DISCUSSION 

ISSUE ONE

¶14 Did the District Court err in its distribution of the marital property?

¶15 Both parties assert that the District Court distributed the property inequitably. 

However, they disagree on how the District Court erred. Jackie contends that the Court 

incorrectly valued certain items, and that she received an inequitable distribution. Stephen, 

contends that the Subaru station wagon belongs to him. He also asserts that the marital 

debt was not allocated in the final decree of Dissolution, the Court did not consider the 

contributions by Stephen to the marital estate and the District Court erred by including 

corporate assets as part of the marital estate. 

¶16 This Court reviews a district court's division of marital property to determine whether 

the court's factual findings are clearly erroneous. See In re Marriage of Robinson (1994), 

269 Mont. 293, 297, 888 P.2d 895, 897. A court's findings are clearly erroneous if they are 

not supported by substantial evidence. If they are not clearly erroneous, we will affirm the 

distribution unless the district court abused its discretion.

¶17 Pursuant to §40-4-202, MCA, the district court has broad discretion to distribute the 

marital estate in a manner which is equitable to each party according to the circumstances 

of each case. This statute sets forth the guidelines for distribution of property as part of a 

marriage distribution and provides that:

(1) In a proceeding for dissolution of a marriage . . . the court, without regard to 

marital misconduct, shall, and in a proceeding for legal separation may, 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 the husband or wife or both . . . . 

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Section 40-4-202, MCA. 

¶18 Although the district court is bound to make an equitable distribution of the marital 

estate, the distribution does not have to be equal. The district court explained that it "has 

not attempted to value the household furnishings and other items of personal property," 

because the testimony surrounding these items was not helpful. The District Court, 

however, did evaluate the other personal property in order to make the marital distribution. 

¶19 Jackie asserts that the final distribution is unfair, because she received only 30% of the 

marital estate. The District Court awarded Jackie the proceeds of the sale of the 1996 

Subaru station wagon, her State of Montana Retirement Account, the personal property 

and household furnishings in her possession, the Sony Television and the four Pomeranian 

dogs. According to Jackie, the total value of these items is $23,500. (However, she has not 

placed a value on her personal possessions, household furnishings and the Sony television 

that she took with her when she left the Townsend property). According to Jackie, 

Stephen's share of the marital estate is worth $52,705. 

¶20 Stephen received the Townsend property, the couple's stock in Clear Creek 

Hydrology, Inc., the 1996 Dodge pickup, the 1987 GMC Jimmy, two 1987 Yamaha Big 

Wheels, the 1987 Honda Fat Cat, the 1993 Nu-Wa Hitchhiker fifth wheel, two utility 

trailers, the 1960 Farmall tractor, the proceeds from the sale of the 1991 Holiday Rambler 

fifth wheel, and the items of household furnishings and personal property in his 

possession. The Court also directed Stephen to pay for the two loans encumbering the 

Townsend property as well as the loan secured by the 1993 Nu-Wa fifth wheel. 

¶21 The record shows that Stephen started Clear Creek Hydrology with his own money. 

Without his skills and experience, the company would not function. Furthermore, Stephen 

provided the down payment for the Townsend property and has been paying the mortgage 

and maintaining it since Jackie moved from the property. According to the record, Jackie 

took over $10,000 from the company account even though she knew that there were 

insufficient funds in the corporate accounts. After reviewing the record and the District 

Court findings, we conclude that the district court did not abuse its discretion by its 

distribution of the marital estate to Jackie.

¶22 Stephen also contends that the District Court erred in its marital distribution. His first 

complaint relates to the allocation of the debt. The district court awarded Stephen both the 

Townsend Property and the Nu-Wa 5th Wheel, as well as the debt on those two items. We 

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are unclear why Stephen asserts that no debt allocation was made because it is evidenced 

in both the Findings of Fact and Conclusions of law as well as in the Decree of 

Dissolution. Accordingly, we find no error by the District Court in its allocation of debt. 

¶23 Next, Stephen contends that the District Court did not factor the amount that Stephen 

continued to pay toward the loan secured by the Townsend property after the couple 

separated. However, by distributing both the property and the mortgage debt to Stephen, 

these payments were appropriately accounted for. Therefore, we conclude that the District 

Court did not err by omitting any reference to the mortgage payments made by Stephen 

after the separation.

¶24 Finally, Stephen asserts that the District Court improperly distributed corporate assets 

as part of the marital estate, contrary to statutory requirements. When Jackie left Stephen, 

she took a Compaq computer and a Sony television set. Both assets were purchased with 

corporate funds. However, the District Court ordered Jackie to return only the Compaq 

computer within 30 days of the decree, stating that "[i]t was purchased by the business and 

was being used in the business." 

¶25 Jackie admitted in her trial testimony that the Sony television was bought with the 

corporate credit card. Therefore, Stephen contends that as a corporate asset, the television 

set can not be distributed as part of the marital estate. 

¶26 The general rule is that a district court cannot distribute corporate property where the 

corporation is not a party to the marital dissolution. In re Marriage of Reich (1986), 222 

Mont. 192, 720 P.2d 286. However, this Court has approved the transfer of corporate 

property under facts specific to each case. In Reich, we approved the district court's 

distribution of a corporate vehicle to the wife. Again, in In Re Marriage of Westland

(1993), 257 Mont. 169, 848 P.2d 492, we affirmed the District Court's apportionment of 

corporate ranch properties as part of the marital property distribution because a significant 

portion of the land belonged to the parties. Westland, 257 Mont. at 171, 848 P.2d at 494.

¶27 Here, the District Court held that "[a]lthough it was acquired by Clear Creek 

Hydrology, the parties were using it for their personal enjoyment. Furthermore, the value 

of the TV is probably not very great and since the parties had several other TVS, the Court 

most likely would have awarded her one of them." We do not find any abuse of discretion 

by the district court when it allowed Jackie to keep the television already in her possession 

rather than exchange it for another television owned by the couple. 

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¶28 Accordingly, after reviewing the record, we conclude that the District Court did not 

abuse its discretion when it distributed the marital estate. 

ISSUE TWO

¶29 Did the District Court err when it declined to award Stephen's pension to Jackie after 

Stephen failed to disclose the pension during discovery?

¶30 Jackie contends that Stephen failed to disclose his pension during discovery and 

therefore, according to §40-4-253, the undisclosed item should be awarded to Jackie. 

Section 40-4-253, MCA, provides that 

(1) (a) Each party shall serve on the other party a final declaration of disclosure and 

a current income and expense declaration, executed under penalty of perjury . . . . 

The failure of a party to disclose an asset or liability on the final declaration of 

disclosure is presumed to be grounds for the court, without taking into account the 

equitable division of the marital estate, to award the undisclosed asset to the 

opposing party . . . . 

Section 40-4-253, MCA. The transcripts reveal that Stephen did not disclose the pension 

that he earned while working at Ch2M Hill during discovery. 

Q. Do you recall being asked the question, I'll quote, "List any pension, profit share, 

or retirement plan or account listed in your name." Do you recall seeing that 

question?

A. Now that you bring it up, yes, sir.

Q. Yes. Do you recall that your response was, "I do not have any pension, profit 

sharing, or retirement plan other than to continue to work until I die."

A. Yes, sir. 

Q. And that wasn't true at the time you said it, was it?

A. No, sir.

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. . . 

Q. (By Mr. O'Connell) Did you identify [the pension] in your financial disclosure 

filed with the Court last week?

A. No, sir.

Q. Even though you have a right to a pension that will pay 700 something a month 

at age 65.

A. Sir, that was so long ago, that when I got that, that I flat forgot about that. That 

was done in the 1970's. 

¶31 The district court held that "[a]lthough most, if not all of the pension was earned prior 

to the marriage, Stephen was aware he had it and he failed to disclose it as required by 

statute." However, the district court determined that under the circumstances of the case, it 

would not be appropriate to divest Stephen of his interest in the property. 

¶32 Section 40-4-253, MCA, does not require the district court to distribute the 

undisclosed asset to the other spouse automatically but merely creates a presumption for 

doing so. In making its determination, the District Court acknowledged that Stephen failed 

to disclose the pension but weighed his omission against the other facts in the case. The 

record shows that the pension was earned during the seventies and was not part of the 

marital estate. In addition, each party failed to completely disclose his or her financial 

assets to the other spouse. Therefore, we conclude that the district court did not abuse its 

discretion when it denied Jackie's motion. 

ISSUE THREE 

¶33 Did the District Court err by refusing to vacate the hearing despite Jackie's failure to 

comply with the District Court's pretrial orders?

¶34 Stephen contends that the District Court should have vacated the hearing because 

Jackie did not turn in her financial disclosures until the morning of the trial. We review 

this discretionary act to determine whether the district court abused its discretion. In re 

Marriage of Davis 1999 MT 218, 295 Mont. 546, 986 P.2d 408.

¶35 Jackie failed to comply with the pre-trial orders which required that each party 

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exchange financial disclosures within a sufficient amount of time prior to trial. Since 

Stephen did not receive his copy of Jackie's financial disclosures until the morning of the 

trial, he claims that he was unable to properly prepare for the hearing.

¶36 In reaction to Jackie's failure to comply with the pre-trial order, the Court did not 

allow Jackie to call any witnesses other than herself and Stephen. Therefore, she was 

unable to refute the testimony of Stephen's accountant, Rick Townsend who testified to 

the value of the company. Furthermore, the court adopted nearly all of Stephen's Findings 

of fact. We do not find that Stephen was harmed by Jackie's failure to turn over her 

financial disclosures. Any delay caused by postponing the hearing would have been 

unnecessary and unwise for the resolution of this matter. Therefore, we conclude that the 

District Court did not abuse its discretion when it decided to proceed with the hearing. 

ISSUE FOUR 

¶37 Did the District Court err when it decided not to hold Jackie and/or her counsel in 

contempt for violating the pre-trial order?

¶38 Stephen appeals the District Court decision to not hold Jackie in contempt of court for 

failing to comply with the pre-trial order. She did not turn in a list of witnesses, proposed 

findings or her financial disclosures until the morning of the hearing. According to the pretrial order, any failure to do so is a contempt of court.

¶39 A district court has the responsibility to enforce its own orders. See In re Marriage of 

Boyer (1995), 274 Mont. 282, 289, 908 P.2d 665, 669. Contempt of court is a 

discretionary tool of the court for enforcing compliance with its decisions. See in re 

Marriage of Jacobson (1987), 228 Mont. 458, 464, 743 P.2d 1025, 1028. Therefore, 

"where a district court has found that there is no such need to enforce compliance with its 

order or that the actions of a party to not present a challenge to its dignity and authority, 

we will not reverse its decision absent a blatant abuse of discretion." In re Marriage of 

Baer, 1998 MT 29 ¶45, 287 Mont. 322 ¶45, 954 P.2d 1125 ¶45. 

¶40 The District Court held that "Stephen's motion to hold Jackie in contempt and to 

assess sanctions against her should be denied . . . . Jackie did not file her financial 

disclosure or her proposed findings of fact and conclusions of law until the day of trial in 

violation of the statute and the Court's Scheduling Order. That, however, was probably 

more the fault of her attorney than of Jackie." Based on our review of the record and our 

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discussion of the previous issue, we conclude that the District Court did not blatantly 

abuse its discretion when it decided to not hold Jackie in contempt. 

ISSUE FIVE 

¶41 Whether the District Court erred in not imposing sanctions for Jackie's sale of the 

Subaru station wagon in violation of the temporary restraining order?

¶42 The District Court denied Stephen's motion that it impose sanctions against Jackie for 

selling the Subaru station wagon despite the temporary restraining order prohibiting either 

party from selling marital assets. Jackie took the Subaru with her when she left the 

Townsend property and sold it a few months prior to the dissolution hearing. 

¶43 The District Court concluded that "[w]hile the Court certainly does not condone this 

action, sanctions are not appropriate. The primary reason for not imposing sanctions is that 

it appears Stephen also violated the restraining order by selling the Holiday Rambler fifth 

wheeler."

¶44 We, conclude that the District Court did not abuse its discretion when it denied 

Stephen's motion for sanctions.

¶45 We affirm the judgment of the District Court. 

/S/ TERRY N. TRIEWEILER

We Concur:

/S/ KARLA M. GRAY

/S/ W. WILLIAM LEAPHART

/S/ JAMES C. NELSON

/S/ JIM REGNIER

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