No. 91-276 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

IN RE THE MARRIAGE OF 

JOHN J. DRISCOLL, 111, 

Joint Petitioner, Respondent 

and Cross-Appellant, 

and 

CHRISTINA M. POWELL-DRISCOLL, 

Joint Petitioner, Appellant 

and Cross-Respondent. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Larry W. Moran, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Peter S. Lineberger; Lineberger & Walsh, P.C., 

Bozeman, Montana 

For Respondent: 

Brenda Riley Cole and Bonnie Swandal; Swandal & 

Douglass Law Firm, Livingston, Montana 

Submitted on Briefs: August 29, 1991 

Decided: September 24, 1391 

Filed: 
Justice John Conway Harrison delivered the Opinion of the Court 

John J. Driscoll, I11 and Christina M. Powell-Driscoll, as 

joint petitioners, commenced dissolution of their marriage in the 

Eighteenth Judicial District, Gallatin County, Montana. The 

District Court entered its decree on November 26, 1990 and both 

parties appeal. We affirm in part and modify in part. 

The parties present a number of arguments to support their 

theories and positions. We address only the most significant 

issue: 

Did the District Court err by decreeing that the sum of 

$22,500, plus interest, awarded to the husband and to be paid by 

the wife was not dischargeable in bankruptcy? 

John and Christina were married in Coeur d' Alene, Idaho on 

February 28, 1976. Two children were born to the parties during 

their fourteen-year marriage. Throughout the course of the 

marriage, the parties acquired various residential and business 

properties. The most significant assets include a day care 

business, a retail camera shop and the family residence. The 

properties were financed by gifts, loans, fire insurance proceeds, 

advancements on life insurance, cash from stock liquidation, wages, 

and rental property proceeds. Throughout the marriage the parties 

jointly contributed time and effort to the maintenance of the 

properties and businesses. They cooperated in operating the 

businesses and often worked together in the ventures in various 

capacities. After nearly fourteen years of marriage, the couple 

2 
began to experience marital difficulties and in 1989, the wife 

filed a motion requesting exclusive control of the camera business. 

The husband agreed to stop working at the camera business in 1989, 

and the dissolution proceeding took place on July 23, 1990. 

The District Court entered the decree on November 26, 1990 

which addressed child custody, visitation, child support, medical 

coverage for the children, property valuation and distribution 

issues. Both parties appeal on various issues. 

On appeal, we will not overturn the district court's judgment 

distributing marital property unless the court has abused its 

discretion. Marriage of Dzivi (Mont. 1991), 805 P.2d 567, 568, 48 

St.Rep. 140. We find that the District Court based its decision 

on substantial credible evidence. Except for the bankruptcy issue 

addressed later in this opinion, the District Court's holdings on 

all other matters including payment of equity, and visitation 

revisions will remain undisturbed. 

Prohibition of Discharcre of Indebtedness in Bankruptcv: 

The District Court stated in findings of fact #14 A) that: 

The amount due husband shall be dischargeable in 

bankruptcy, and shall be considered as personal 

obligation of wife regardless of the future financial 

condition of The Camera Shop. [Emphasis in original.] 

Such a statement, while meant to prevent the wife from 

obtaining an equitable division of the assets and then essentially 

retaining the entire marital estate via a bankruptcy proceeding, 

is nevertheless improper in the District Court's findings and 

decree. Here, the District Court awarded the wife sole ownership 

3 
of the couple's day care business and retail camera shop according 

to her wishes. The court awarded the husband the family home on 

which he assumed all debt. 

The record indicates continued reluctance on the part of the 

wife to compensate the husband for his interest in the camera shop. 

Further, there is evidence to show that the wife has threatened 

bankruptcy to discharge the payment obligation to the husband. 

She alone has the opportunity to sell or operate the businesses as 

she sees fit, but in obtaining the businesses, she must pay the 

husband for his interest. 

One of the marital assets addressed by the court was the 

camera shop which it distributed to the wife with a net fair value 

of $45,000. The court decreed that the husband was to receive 

$22,500 from the wife as his share of the camera shop, with 

interest of 10% per annum until paid. The court further decreed 

that this amount due the husband shall not be dischargeable in 

bankruptcy, and shall be a personal obligation of the wife. 

The United States Bankruptcy Code, 11 U.S.C. Section 523 

(a) (5), provides that: 

A discharge under section 727, 1141, 1228(a), 1228(b) or 

1328(b) of this title does not discharge an individual 

debtor Prom any debt . . . (5) to a spouse, former 

spouse, or child of the debtor, for alimony to, 

maintenance for, or support of such spouse or child, in 

connection with a separation agreement, divorce decree 

or other order of a court of record, determination made 

in accordance with State or territorial law by a 

governmental unit, or property settlement agreement, but 

not to the extent that . . . (B) such debt includes a 

liability designated as alimony, maintenance, or support, 

unless such liability is actually in the nature of 

alimony, maintenance, or support; . . . . 

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The District Court's decree prohibiting discharge of indebtedness 

in bankruptcy denying the wife's rights under the Bankruptcy Code 

is error. The District Court did not find and decree that the 

$22,500 awarded to the husband was for alimony, maintenance or 

support for the wife or the minor children. 

Accordingly, the final decree is reversed with regard to the 

inclusion of the statement prohibiting a discharge of indebtedness 

in a bankruptcy proceeding. 

The judgment, decree, findings of fact and conclusions of law 

of the District Court are modified by striking therefrom the 

provision that the $22,500 awarded to the husband and to be paid 

by the wife is not dischargeable in bankruptcy. The judgment, 

decree, findings of fact and conclusions of law are otherwise 

af f inned. 

We concur: / 

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September 24, 1991 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

Peter S. Lineberger 

LINEBERGER & WALSH, P.C. 

P.O. Box 6400 

Bozeman, MT 59715-6400 

Brenda Riley Cole and Bonnie Swandal 

SWANDAL & DOUGLASS 

206 East Callender 

Livingston, MT 59047 

ED SMITH 

COURT