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, 

APR 15 1994 

Respondent and Appellant. CLERK OF SUPREME COURT 

STATE OF MONTANA 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Thomas McKittrick, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

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, 1991 
Justice 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 

husbandts support, maintenance and education obligations to his 

first wife and children from the husband's net worth at the time 

of the partiesg marriage? 

3. Did the District Court err in refusing to order the 

husband to pay the wife's attorney fees? 

Richard and Loree Gallagher were married 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 first wife and children. No children were born during his 

eight years with Loree. 

At the inception of the partiest marriage, Richard had been 

an attorney for 14 years, 13 as a member of the law firm of Church, 

Harris, Johnson & Williams and eight as a partner in that firm. 

During the marriage, his income fluctuated but, on the whole, 

increased a great deal. Also during the marriage, the terms of the 

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Church, ~arris partnership agreement were modified to provide 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, she rejected 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 the marriage aside from her personal effects. 

During the marriage, the couplets net worth, excluding the value 

of the law practice, increased to $54,061, a gain of $19,821. A 

substantial portion of the growth was attributable to increases in 

value of Richard's prior-acquired property. 

The District Court awarded assets with 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 not 
facilitated the maintenance of the law practice. The court did, 

however, award Loree maintenance of $500 per month for 30 months. 

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 left the firm established the value 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 to determine 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 

Court to consider the other spouse's contributions to the marriage, 

including: 

(a) the nonmonetary contribution of a homemaker; 

(b) the extent to which such contributions have 

facilitated the maintenance of this property; and 

(c) whether or not the property division serves as an 

alternative to maintenance arrangements. 

If the contributions of the non-owning spouse have not 

facilitated the maintenance of property brought into the marriage 

4 
by the other spouse, the district court may exclude that property 

from the marital 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 ~istrict Court specifically considered 

Loreels nonmonetary contributions to the marriage, including her 

contribution as a homemaker, and found that she did 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 legal profession before marrying Loree. 

The marriage of eight years was of relatively short duration and 

no children were born of the marriage. Furthermore, the property 

division did not serve as an alternative to maintenance--the court 

awarded Loree maintenance of $500 per month for 30 months. 

The District Court did not err in finding that the partnership 

interest was Richard's sole property. The court properly excluded 

the asset from the marital estate. 

Loree next contends that the District Court erred in refusing 

to deduct from Richard's net worth at the time of their marriage 

his support, maintenance and education obligations to his wife and 

children of his first marriage. Loree argues that if the District 

Court had deducted Richard's obligations to his 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 

5 
marriage would have been substantially greater than the incPeaset 

found by the District Court. 

Under the facts of this case, Richard's maintenance, education 

and child support obligations, do not implicate property rights. 

Therefore, the District Court did not abuse its discretion in 

refusing to deduct the obligations from Richard's statement of 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's attorney 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