No. 88-162 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

IN RE THE MARRIAGE OF 

DALE H. MALQUIST, 

. . and Appellant, 

and ~AL~& -4- 

SANDY J. MALQUIST, 

and Respondent. 

f- . I 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Thomas Honzel, Judge presidinq. 

COUNSEL OF RECORD: 

For Appellant: 

Dale M. Malquist, pro se, Lincoln, Montana 

For Respondent : 

Dennis G. Loveless, Helena, Montana 

Submitted on Briefs: Sept. 23, 1988 

Decided: November 1, 1988 
Mr. Justice I,. C. Gulbrandson delivered the Opinion of the 

Court. 

Dale H. Malquist appeals from the findings of fact and 

conclusions of law entered by the District Court of the First 

Judicial District, Lewis and Clark County after remand by 

this Court, in In re the Marriage of Malquist (Mont. 1987), 

739 P.2d 482, 44 St.Rep. 1193, for further findings in this 

dissolution of marriage case. Upon remand, the District 

Court found that the family home and surrounding 20.1 acres 

were not part of a trust and thereafter awarded such property 

to Sandy J. Malquist. We affirm. 

Appellant raises the following issues upon appeal: 

1. Whether the District Court erred in finding that 

the house and surrounding acreage were not part of the 

irrevocable trust? 

2. Whether the District Court abused its discretian by 

making findings of fact and conclusions of law on issues not 

remanded for further findings? 

3. Whether the District Court abused its discretion h:.7 

making findings of fact and conclusions of law which 

substantially altered the Montana Supreme Court's judgment? 

On November 3, 1986, the District Court issued a decree 

dissolving the seventeen-year marriage of Dale and Sandy 

Malquist. The court awarded the family home and surrounding 

20.1 acres to Sandy. Dale filed an appeal on November 21, 

1986. He contended that the court could not award the 

disputed property to Sandy because it was held in trust for 

the benefit of the two Malquist children. In July of 1987, 

this Court remanded the case for further findings on the 
terms of the trust and for support of the distribution of 

trust fund propertv. 

To briefly summarize the facts, the trust fund which is 

the subject of this appeal was established by an irrevocable 

written trust agreement signed September 12, 1984. The trust 

agreement named Sandy as the settlor, Anne Rowlins and Daryl 

Malquist as trustees with the responsibility of administering 

the trust, and Dale and the two children as beneficiaries. 

The agreement expressly stated that the trust contained all 

property itemized on the Schedule A attached to the 

agreement. Sandy subsequently typed up and affixed Schedule 

A to the agreement in January of 1985. 

The attached schedule listed only a 1977 Chevrolet 

Blazer and a checking account; no mention was made of the 

family home and surrounding acreage. Respondent testified 

that she erroneously listed the home as part of the trust on 

the 1985 and 1986 fiduciary income tax return filed on behalf 

of the trust. She did not at any time list the underlying 

20.1 acres as part of the trust. Moreover, the Lewis and 

Clark County Treasurer's Office addressed its notice of taxes 

assessed on the property to Sandy, and not to the D & S 

Trust. A trust indenture signed by the parties on November 

25, 1983, indicated that Dale had deeded his interest in the 

property to Sandy. Sandy did not subsequently execute a 

written assignment of the property to the trust. 

Following the remand hearing on December 16, 1987, the 

District Court upheld the original award of the house and 

acreage to Sandy. The court found that the trust contained 

only the 1977 Chevrolet Blazer, a checking account, and 

Dale's 1984-85 electrical contractor's license. Although the 

license was not listed on Schedule A of the trust agreement, 
the license itself specifically named the D & S Trust as the 

owner. The court further found that Dale had orally 

disclaimed his interest in the trust during the remand 

hearing. 

The court also ruled on the motions filed by each party 

prior to the remand hearing. The court ordered Sandy to 

immediately turn over to the respondent any items of personal 

property listed in the motion which were still at her 

residence. However, the court denied respondent's motion 

that she be held in contempt should she fail to turn over - all 

listed items. Several of the items listed were either 

missing or had been sold prior to the divorce decree to 

provide support for herself and the two children while 

respondent was incarcerated. The court ord-ered Dale to 

reimburse petitioner for all monies expended on their 

children's health care, but denied petitioner's motion that 

Dale be held in contempt for violating the dissolution decree 

by failing to pay for medical insurance for the two children 

and for those medical expenses incurred by them. Judge 

Honzel reasoned that Dale had been generally unable to pay 

such expenses because he had faiLed to secure permanent work 

following his release from prison. 

This appeal followed. 

The first issue raised upon appeal questions the 

sufficiency of the evidence to support the District Court's 

determination that the house and surrounding twenty acres 

were not part of the trust. The party who asserts the 

existence of a trust has the burden of proving its existence 

and contents by "evidence which is unmistakable, clear, 

satisfactory and convincing." First Nat'l Bank of Twin 

Bridges v. Sant (1973), 161 Mont. 3?6, 386, 506 P.2d 835, 
841. The respondent, as the one asserting that the house and 

property were part of the trust, thus had the burden of 

proving that such property was placed in trust. 

A trust may be either a voluntary or involuntary trust. 

A voluntary trust in relation to real property may only be 

created by an instrument indicating with reasonable certainty 

the subject, purpose, and beneficiary of the trust and the 

trustor's intent to create the trust. Section 72-20-107, 

MCA, 5 72-24-102, MCA. 

In our case, an existing written trust agreement 

expressly stated that the 1977 Blazer and checking account 

were held in the voluntary trust. The court also correctly 

found that the 1984-85 contractor's license, which expressly 

listed on its face that the owner was the D & S Trust, 

constituted a written instrument sufficient to indicate that 

the parties intended it be held in trust. However, no such 

clear and convincing evidence exists to indicate that the 

house and acreage were part of a voluntary trust. Schedule A 

of the trust agreement fails to list the disputed property. 

Further, the trust indenture listed Sandy as the owner of the 

disputed property, and the county addressed its notice for 

taxes assessed on the property to Sandy. 

Respondent similarly failed to prove that the real 

property in dispute was part of an involuntary trust. An 

involuntary trust is one which arises by operation of law. 

Section 72-20-103, MCA. Two kinds of involuntary trusts 

exist by operation of law: Constructive and resulting. 

Constructive trusts arise because of fraud, mistake, undue 

influence, the violation of a trust, or other wrongful acts. 

Neither party expresses an intent to create a trust and the 

court does not presume any intent. The court simply "creates 
the trust to work an equitable result." Eckart v. Hubbard 

(1979), 184 Mont. 320, 326, 602 P.2d 988, 991. We need not 

engage in any further discussion of this type of involuntary 

trust, for the record is virtually silent as to any such 

fraudulent or wrongful acts which would justify the 

implication of a constructive trust. 

A resulting trust generally arises when: 

[Tlhe parties have used ambiguous 

language which the court construes as 

showing a trust intent, or where the 

parties have expressed no intent to 

create a trust by words, but have 

performed acts from which the court 

infers that a trust was intended. 

Eckart, 602 P.2d at 991. The trust agreement in this case, 

however, does not contain ambiguous language. It clearly 

states that the trust includes that property listed on 

Schedule A. Further, neither party acted in such a way as to 

indicate that the parties intended the house and surrounding 

acreage to be held in trust. Dale and Sandy signed a trust 

indenture deeding the property to Sandy, not to the trust. 

Sandy, and not the trust, paid the taxes assessed on the 

property. 

The property clearly was not held in a resulting trust, 

and the house affixed to the property likewise was not 

included in such a trust. A building permanently affixed to 

property generally is considered part of the realty and 

passes with it. See Hauf v. School Dist. No. 1 (1916), 52 

Mont. 395, 158 P. 315; see generally S5 7'0-15-101, -103, MCA 

(these sections define "real property" and "affix"). Sandy's 

unquestionable lawful ownership of the land therefore 

included ownership of the house affixed to it. We hold that 

her later inclusion of the house, but not the land, on 
fiduciary income tax returns filed on behalf of the trust was 

insufficient to overcome all the evidence demonstrating that 

the house and land were owned by Sandy and not by the trust. 

We will not reverse the District Court's decision 

unless it is clearly erroneous because it exceeds "the bounds 

of reason in view of all the ci.rcumstances," as it is 

unsupported by clear and convincing evidence. See, e.g, In 

re the Marriage of Buxbaum (Mont. 1984), 692 P.2d 411, 42 

St.Rep. 2243. In the instant case, sufficient credible 

evidence existed to support the District Court's 

determination that the house and land were not part of either 

a voluntary or involuntary trust. The District Court thus 

did not err in its findings on this issue. 

The second issue raised by appellant is without merit. 

Appellant contends that the District Court exceeded the scope 

of issues remanded for hearing when the court determined Dale 

gave up his interest in the trust. However, the Montana 

Supreme Court remanded this case for "findings to support the 

distribution of the trust fund and its assets." Marriage - of 

Malquist, 739 P.2d at 484. The District Court's finding that 

the appellant voluntarily gave up his interest in the trust 

supports the decision to then award the trust to respondent. 

The third issue raised by appellant is also without 

merit. Appellant contends that the District Court 

substantially altered this Court's prior judgment by failing 

to order respondent to turn over all the items of personal 

property listed in his motion. New evidence introduced at 

the remand hearing indicated that several of the items listed 

by appellant were sold prior to the divorce decree. 

Consequently, any inclusion of these items in the dissolution 

decree was improper, as a court only may equitably apportion 
those properties and assets belonging to the parties. See 

5 40-4-202, MCA. Additionally, this Court notes that the 

original dissolution decree did not specifically award 

appellant many of these items listed in his motion. The 

District Court thus did not abuse its discretion by ordering 

respondent to immediately turn over to the appellant those 

remaining personal items belonging to him. 

We affirm the judgment of the 

We concur: