No. 90-336 IN THE SUPREME COURT OF THE STATE OF MONTANA 1991

IN RE THE MARRIAGE OF RICHARD F. GALLAGHER, Petitioner and Respondent, and LOREE H. GALLAGHER, 

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Respondent and Appellant. CLERKOFSUPREMECOURT STATEOFMONTANA

APPEAL FROM: District Court of the Eighth Judicial District, In and for the County of Cascade, The Honorable ThomasMcKittrick, Judgepresiding.

COUNSEL OF RECORD: ForAppellant: Randy Winner, Flaherty & Winner Great Falls, Montana For Respondent: Warren C. Wenz, Marra, Wenz, Johnson & Hopkins Great Falls, Montana

Submitted on Briefs: December 20,b990 Filed: Decided: April 15, 1991Justice William 

### E. Hunt, Sr., delivered the opinion of the Court. The wife, Loree 

### H. Gallagher, appeals from the findings of fact, conclusions of law and decree of dissolution entered in the Eighth Judicial District Court, Cascade County. We affirm. We will discuss the following issues on appeal: 1. Did the District Court err in finding that the husband's partnership interest in his law practice was not a part of the marital estate? 2. 

### id the District Court err in refusing to deduct the husbandtssupport, maintenance and education obligations to his first wife and children from the husband's net worth at the time of the partiesgmarriage? 3. Did the District Court err in refusing to order the husband to pay thewife's attorney fees? Richard and Loree Gallagher weremarried in 1980. At the time of the marriage, Richard was 40 years old and Loree was 22. Richard had two children from a prior marriage. He owed substantial maintenance, child support and education obligations to his firstwife and children. No children were born during his eight years with Loree. At the inception of the partiestmarriage, Richard had been an attorney for 14years, 13 asamember of the law firmof Church, Harris, Johnson & Williams and eight as a partner in that firm. During the marriage, his income fluctuated but, on the whole, increased agreatdeal. Also during themarriage, the terms of the 2Church,~arris partnershipagreementweremodified toprovide that any partner who voluntarily withdrew from the firm would receive the fixed sum of $6,250. At the time of the marriage, Loree possessed an associate's degree in business from Concordia College in Portland. She had been employed as a legal secretary with Church, Harris, but was asked to leave that position when she married Richard. She then worked as a secretary at Norwest Bank. In 1985, she became selfemployed as a bookkeeper. Although her salary decreased in this endeavor, sherejected several offers of other employment,electing instead to retain the flexibility allowed by being her own boss. Excluding the value of the law partnership, Richard brought into the marriage assets with a net worth of $34,240. Loree brought no assets to themarriage aside fromher personal effects. During the marriage, the coupletsnet worth, excluding the value of the law practice, increased to $54,061, a gain of $19,821. A substantialportion of thegrowthwas attributableto increases in value of Richard's prior-acquired property. The District Court awarded assetswith a net value of $18,989 to Loree and the remaining marital assets--net value $35,072--to Richard. It valued Richard's partnership interest at $6,250, ruling that the value of the interest was controlled by the law firm's partnership agreement. It then refused to include that interest in the marital estate, finding that Loree had notfacilitated the maintenance of the law practice. The court did, however, award Loree maintenance of $500per month for 30months. Loree appeals, arguing first that the District Court erred in ruling that the $6,250 figure assigned in the Church, Harris partnership agreement as the amount each partner would receive if he or she leftthe firm establishedthevalue of Richard's interest in the law firm. She further argues that the District Court erred in refusing to allow her to conduct discovery delving behind the partnership agreement in order todetermine whether the $6,250 sum reflected the actual value of Richard's interest. We need not reach these issues, however,because the District Court also found that Richard's interest in the partnership was not a part of the marital estate. If this finding is not clearly erroneous, the value of the asset is irrelevant. Richard acquired his interest in the law firm prior to his marriage to Loree. When dividing property acquired by one spouse prior to the marriage, S 40-4-202(I), MCA, directs the District Courtto considertheother spouse's contributionsto themarriage, including: (a) the nonmonetary contribution of a homemaker; (b) the extent to which such contributions have facilitated themaintenance of this property; and (c) whether or not the property division serves as an alternative tomaintenance arrangements. If the contributions of the non-owning spouse have not facilitated themaintenance of property brought into the marriage 4by the other spouse, the district courtmay exclude that property from themarital estate. In re the ~arriage of Snyder, 220 Mont. 262, 265, 714 P.2d 556, 557-58 (1986); In re the Marriage of Jorgensen, 180 Mont. 294, 299, 590 P.2d 606, 609-10 (1979). In this case, the ~istrictCourt specifically considered Loreels nonmonetary contributions to the marriage, including her contribution as a homemaker, and found that shedid not facilitate the maintenance of the partnership asset. This finding is not clearly erroneous. Richard had been a partner in the firm for eight years prior to the marriage and had thus successfully established himself in the legalprofession before marrying Loree. The marriage of eight years was of relatively short duration and no children were born of themarriage. Furthermore, the property division did not serveas an alternative tomaintenance--the court awarded Loree maintenance of $500 per month for 30months. TheDistrictCourtdid not err in findingthatthepartnership interestwas Richard's soleproperty. The courtproperly excluded the asset from themarital estate. Loree next contends that the DistrictCourt erred in refusing to deduct from Richard's net worth at the time of their marriage his support,maintenance and education obligationstohis wife and children of his firstmarriage. Loree argues that if the District Courthad deducted Richard's obligationstohis former family,his net worth at the time of the marriage would have been in the negative and the increase in the partiest net worth during the 5marriage would have been substantially greater than the incPeaset found by the District Court. Under the factsof this case,Richard'smaintenance, education and child support obligations,do not implicate property rights. Therefore, the District Court did not abuse its discretion in refusing todeduct the obligations fromRichard's statementof net worth. Loreels final argument is that the District Court erred in failing to order Richard to pay her attorney fees. The district court in a dissolution action may order one spouse to pay the other spouse'sattorney fees. Section 40-4-110, MCA. We will not overturn the court's failure to award attorney fees absent a showing of an abuse of discretion. In re the Marriage of Anderson, 230 Mont. 89, 95, 748 P.2d 469, 472 (1988). In this case, the District Court refused to award attorney fees to Loree because she had failed to cooperate with Richard's attempts to informally provide information; she sought numerous continuances and extensions; and she was unwilling to accept the rulings of the court. Under the circumstances,the District Court did not abuse its discretion in refusing to award attorney fees. Affirmed.

We concur:

Chief Justice