DA 10-0595 IN THE SUPREME COURT OF THE STATE OF MONTANA 2011 MT 122N

IN RE THE MARRIAGE OF: MARY HELEN LUCY, Petitioner and Appellee, and DANIEL R. LUCY, Respondent and Appellant.

APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DR 09-542C Honorable Stewart E. St adler, Presiding Judge

COUNSEL OF RECORD: For Appellant: Peter F. Carroll, Attorney at Law, Kalispell, Montana For Appellee: C. Mark Hash, Hash, O’Brien, Biby & Murray, PLLP, Kalispell, Montana

Submitted on Briefs: May 3, 2011 Decided: June 1, 2011

Filed:

__________________________________________ Clerk June 1 20112 Justice Jim Rice delivered th e Opinion of the Court. ¶1 P ursuant to Section I, Para graph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and sha ll not be cited and does not serve as precedent. Its case title, cause numbe r, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 D aniel Lucy (Daniel) appeals from the Fi ndings of Fact, Conc lusions of Law and Order entered by the District Court on Octo ber 29, 2010, dissolvin g the marriage between him and Mary Helen Lucy (Helen). He cha llenges the District Court’s determinations regarding distribution of the marital esta te and his eligibility for maintenance. ¶3 D aniel and Helen were married in July 1999 and separated in August 2009. The District Court found that the parties were in their 50s and that there were no children born as issue of the marriage. He len sold a home she had inherited prior to the marriage and another inherited property. From these proceeds, $230,378 was used, along with borrowed funds, to finance the purchase of th e parties’ home in Whitefish for $285,000. The parties made improvements to the property and sold it in 2007 for $875,000, using some of these proceeds to pu rchase their present marital home in Columbia Falls for $378,000. The balance was us ed to improve the property, purchase artwork, gold and furniture, and to supplement Daniel’s real es tate business expenses. In distributing the marital estate, the District C ourt found that the $230,378 us ed by the parties to purchase

the Whitefish residence was from Helen’s se parate premarital funds and was clearly3 traceable. The court allowed this amount to be retained by Helen prio r to distribution of the remaining estate. ¶4 T he court found that Helen was in good health and em ployed as a receptionist.

The court found that Daniel was in fair hea lth and, though currently unemployed, “has the ability to be self-supporting through appropr iate employment” and, therefore, was not entitled to an award of maintenance. The court permitted Helen to reside in the marital home pending its sale and, as reasonable rental for her occupancy, required her to

“maintain the home in show condition” and be responsible for all expenses of the home, including taxes and insurance. ¶5 D aniel challenges the District Court’s rest oration of Helen’s premarital funds used to purchase the parties’ home, arguing that th e court failed to credit him for contributions from his own premarital property. Daniel argues that the District Court’s finding that he had the ability to support himself is clearly erroneous, and that the court erred by failing to credit him for a portion of the rental valu e of the house during the time Helen resides there pending sale. ¶6 W e review a district court’s findings of fact in dissolution proceedings to determine whether they are clearly erroneous. In re Marriage of Crilly , 2009 MT 187, ¶ 9, 351 Mont. 71, 209 P.3d 249. A finding is clearly e rroneous if it is not supported by substantial evidence, the distri ct court misapprehended the effe ct of the evidence, or our

review of the record co nvinces us the district court made a mistake. Crilly , ¶ 9. Absent clearly erroneous findings, we will affirm a district cour t’s division of property and4 maintenance award unless we identify an abuse of discretion. Crilly , ¶ 9. “A district

court abuses its discretion if it acts arbitrar ily without conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice.” Crilly , ¶ 9. ¶7 W e have determined to deci de this case pursuant to Se ction I, Paragraph 3(d) of our Internal Operating Rules, which provides for noncitable memorandum opinions. The traceability of the parties’ premarital fund s and their respectiv e abilities to support themselves were questions of fact and th e District Court’s findings are supported by

substantial evidence. Furthe r, the court did not abuse its discretion in the equitable

distribution of the marital estate. ¶8 A ffirmed.

/S/ JIM RICE

We concur:

/S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ JAMES C. NELSON /S/ BETH BAKER