No. 95-131 INTHESUPREMECOURTOFTHESTATEOFMONTANA 1995

INRETHEMARRIAGEOF GERALDINE JOYLEWIS,

Petitioner, Respondent and Cross-Appellant, and WILLIAM ISAAC LEWIS,

Respondent andAppellant.

APPEAL FROM: District Court of the Eighth Judicial District,

In andfor the County of Cascade, TheHonorable Joel G.Roth, Judge presiding.

COUNSELOFRECORD:

For Appellant: Joan E. Cook; LawOffice of Joan E. Cook, Great Falls, Montana

For Respondent: Daniel L. Falcon; Matteucci, Falcon, Squires & Lester, Great Falls, Montana

YSubmitted onBriefs: October 19, 1995

Decided: November 21, 1995Justice Karla M.Gray delivered the Opinion of the Court.

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1995 Internal Operating Rules, this decision shall not becited as precedent andshall bepublished byits filing asapublic document with the Clerk of the Supreme Court andbyareport of its result to Montana LawWeek, State Reporter andWest Publishing Company. William Isaac Lewis (William) appeals from the December 30, 1994, Findings of Fact, Conclusions of LawandDecree ofthe Eighth Judicial District Court, Cascade County, dissolving his marriage to Geraldine Joy Lewis (Geraldine) and dividing the marital estate. Geraldine cross-appeals from the court's denial in that decree of her request for attorney's fees and from the court's subsequent order amending the decree. Wemodify the amended 1994decree and, thereafter, affirm. Weaddress the following issues onappeal: 1. Did the District Court err in adopting, nearly verbatim, Geraldine's Proposed Findings of Fact, Conclusions of Law and Decree? 2. Did the District Court abuse its discretion in distributing the marital estate? 3. Did the District Court abuse its discretion in denying Geraldine attorney's fees? 4. Did the District Court abuse its discretion bydeleting a finding of fact regarding Geraldine's medical andcounseling bills andmodifying the decree accordingly?

2William and Geraldine married onMay22, 1985. Nochildren

were born of the marriage. During the marriage, the parties operated a business in which they boarded horses (stables business). The property on which the stables business was operated, and where William and Geraldine lived, was owned by William prior to the parties' marriage andsubstantially improved during the marriage. Geraldine petitioned for dissolution of the marriage in June of 1994 and, onDecember 30, 1994, the District Court entered its Findings of Fact, Conclusion of Law and Decree. Thereafter, William timely filed aRule 59motion requesting that the District Court amend the 1994 Findings of Fact, Conclusions of Law and Decree. The District Court amended the decree by adjusting the distribution of the marital estate to correct the duplication of certain marital assets, deleting afinding regarding Geraldine's medical andcounseling bills andmodifying the decree accordingly. William appeals from the court's distribution of the marital estate. Geraldine cross-appeals the court's denial of her request for attorney's fees and costs andfrom the court's order amending the findings anddecree regarding her medical andcounseling bills. 1. Did the District Court err in adopting, nearly verbatim, Geraldine's Proposed Findings of Fact, Conclusions of LawandDecree? William argues onappeal that the District Court's adoption of Geraldine's Proposed Findings of Fact, Conclusions of Law and Decree resulted in aDecree which is not supported bythe evidence; hecontends, therefore, that the 1994decree must bevacated. We

3review the adequacy of findings of fact andconclusions of law to

determine whether they are sufficiently comprehensive andpertinent to the issues to provide abasis for adecision, andwhether they

are supported by substantial evidence. In re Marriage of Nikolaisen (1993), 257Mont. 1, 5, 847P.2d 287, 289 (citing In re Marriage of Hurley (1986), 222 Mont. 287, 296, 721 P.2d 1279, 1285).The District Court's findings regarding the marital assets, the credibility of each party's testimony and Geraldine's contributions to the marital estate were extensive. In distributing the marital estate, the court considered each party's current income and the sources of that income; Geraldine's education level and work history; the income from the stables business; Geraldine's contributions as a homemaker and her contributions to the maintenance of the stables business; andthe commingling ofthe parties' income. Thefindings are sufficiently comprehensive andpertinent in light of the factors enumerated in 540-4-202, MCA. In addition, they are supported bysubstantial evidence and, except asdiscussed below, William does not argue otherwise. Wewill not overturn the court's findings and conclusions simply because they were, in large measure, adopted from those Geraldine proposed. See In reMarriage of Popp (19831, 206Mont. 415, 423, 671 P.2d 24, 28. Rule 52(a), M.R.Civ.P., provides that

adistrict court may adopt any of aparty's proposed findings or conclusions solong asthey are supported bythe evidence and law

4of the case. Wehold, therefore, that the District Court did not

err in adopting, nearly verbatim, Geraldine's proposed findings and conclusions. 2. Did the District Court abuse its discretion in distributing the marital estate? Adistrict court hasbroad discretion in finally andequitably apportioning the property andassets of the marital estate between the parties. Section 40-4-202(l), MCA. Wereview the distribution of amarital estate to determine if the court's findings of fact

are clearly erroneous. In re Marriage of Smith (Mont. 1995), 891 P.2d 522, 525, 52St.Rep. 174, 175-76. If the findings anddecree

are supported bysubstantial credible evidence, wewill not alter the trial court's decision unless the court abused its discretion. Marriaqe of Smith, 891P.2d at 525. Premarital Assets William contends that the District Court abused its discretion by awarding Geraldine aportion of his premarital property and fifty percent of the entire value of the stables. Healso asserts

error in the court's finding that inadequate evidence existed to trace his premarital investment monies. Acourt's distribution of premarital assets is governed, in the first instance, by statutory criteria. In distributing such assets, the court is required to consider the contributions of the other spouse to the marriage--including nonmonetary contributions and the extent to which such contributions facilitated the maintenance of the property--and whether or not the property division serves asanalternative to maintenance. Section 40-4- 5202(l) (a)-(c), MCA.

Adistrict court must consider the origin of prior-acquired property in distributing that property. In re Marriage of White (1985), 218Mont. 343, 345, 708P.2d 267, 269 (citation omitted). Notwithstanding its origin, however, such property is subject to equitable apportionment between the parties, and equitable apportionment does not require that the parties be returned to their premarital status. Marriaae of White, 708P.2d at 269. Geraldine testified that shewasresponsible for the upkeep of the family home andthat she helped feed the animals and helped with other outside work. Shefurther testified that she assisted in the purchase of the stables prior to the parties' marriage. When William was unable to work at the stables because of an injury, Geraldine took sole responsibility for care ofthe stables. Additionally, Geraldine worked at Sperry's Market, apremarital asset of William's, often without pay. Thecourt determined that Geraldine madesubstantial contributions tothe value of all of the marital assets. Weconclude that substantial credible evidence supports the court's findings regarding the premarital property. William also contends that the District Court erred in finding that novalid means existed by which to separate the commingled funds of the parties. However, the record before us contains substantial credible evidence to support this finding. The record reflects that William and Geraldine maintained a joint account to which they both contributed. Deposits into this joint account included Geraldine's social security benefits, wages

6and inheritance money; William's social security benefits, wages

andincome from investments; andincome from the stables business. The parties did not make an effort during the marriage to keep their money separate. We conclude that substantial credible evidence supports the court's finding that the parties commingled their money and that no viable means existed to separate each party‘s money. The court's findings are not clearly erroneous andthe court properly considered the statutory factors set forth in 540-4- 202(l) (a)-(c), MCA. Wehold that William has not established an abuse ofdiscretion inthe distribution of his premarital property. Valuation of Marital Property Next, William contends that the District Court erred in failing to include certain property in Geraldine's share of the estate andin accepting "guessed" values of property invaluing the marital estate. He further contends that the court erred in listing certain assets more than once in distributing the marital estate.Whenvaluing marital assets, courts mayadopt any valuation which is supported bythe record. In reMarriage ofMaedje (1994), 263 Mont. 262, 267, 868 P.2d 580, 584 (citing In re Marriage of Luisi (1988), 232 Mont. 243, 756 P.2d 456). Here, William and Geraldine offered different values regarding various marital assets.Geraldine offered expert testimony regarding the value of various assets. Additionally, Geraldine hadattended auctions with

7William when certain assets were purchased. The court found that

William's testimony was inconsistent regarding what property constituted the marital estate andthevalue of such property. The court found that the values offered by Geraldine more accurately reflected the market values of the parties' assets. TheDistrict Court's findings regarding the valuation of the parties' marital assets are supported bysubstantial credible evidence andare not clearly erroneous. William correctly points out that, in the 1994 decree, the District Court listed the value of certain assets more than once. Geraldine does not dispute that the distribution of the marital estate should beadjusted to correct that mistake. However, since the District Court corrected this mistake inthe order amending the decree, this issue is moot. William also correctly points out that the court failed to distribute the Lincoln TownCar. However, the court did find that Geraldine wasusing this vehicle asher meansoftransportation and that William hadpossession of other vehicles. Additionally, the court recognized that Geraldine requested that the car beawarded to her. Accordingly, wemodify the decree to award the Lincoln TownCar to Geraldine. 

### Equalizing theMarital Estate The District Court awarded Geraldine marital property valued at $2,271 andawarded William property valued at $159,647.52. In addition, Geraldine wasawarded premarital andgift property valued at$165, while William wasawarded such property valued at$14,883.



### 8As aresult of the disparate distribution of property each party

received, the District Court ordered William to pay Geraldine $86,047.26 to equalize the marital estate. William contends that the District Court abused its discretion bydoing so. Thecourt considered the factors contained in §40-4-202, MCA, and found that Geraldine made substantial contributions to the maintenance of the marital estate. Weconclude that the court did not abuse its discretion in requiring William to pay Geraldine monetary compensation to equalize the share of the estate each party would receive. 3. Did the District Court abuse its discretion in denying Geraldine attorney's fees? Geraldine contends that the District Court abused its discretion in failing to award her attorney's fees and costs. Specifically, she argues that the District Court failed to make findings regarding, or provide its reasons for, the denial of her request for attorney's fees. Sheurges this Court to remand this issue to the District Court for further consideration. Wereview adistrict court's denial of aparty's request for attorney's fees in adissolution action to determine if the court abused its discretion. Section 40-4-110, MCA; In re Marriage of Gingerich (1994), 269 Mont. 161, 167-68, 887 P.2d 714, 718. We will not disturb the district court's findings in this regard if they are supported bysubstantial evidence. Marriase of Ginaerich, 881P.2d at 718. The District Court acknowledged Geraldine's request for attorney's fees and costs in its findings. The court found, 9however, that Geraldine would bereceiving asubstantial amount of

the marital estate via William's monetary payment to Geraldine to "equalize the marital estate." The court also found that Geraldine had paid aportion of her attorney's fees with acash advance from acredit card which William subsequently paid upon receiving the credit card bill. In short, it is clear that the court considered the financial resources of each party and concluded that each party should pay his and her own attorney's fees andcosts. Substantial credible evidence supports the court's findings in this regard andwehold that the District Court did not abuse its discretion in denying Geraldine's request for attorney's fees and costs. 4. Did the District Court abuse its discretion by deleting afinding of fact regarding Geraldine's medical and counseling bills and modifying the decree accordingly? At trial, Geraldine testified without objection regarding medical bills in the amount of $98.19 incurred during the marriage resulting from analleged assault byWilliam. Geraldine attempted to offer oral anddocumentary evidence regarding counseling bills resulting from alleged verbal abuse byWilliam, but the District Court sustained William's objection tothe evidence. Asaresult, there is no evidence in the record regarding the amount of Geraldine's counseling bills. The District Court found that "[Geraldine] had outstanding counseling bills of approximately $720

. . .andmedical bills of $98.19

. . .'I In the decree, the court ordered William to pay Geraldine $818.19 out of his share of the marital estate for her 10medical and counseling bills.

William filed a Rule 59, M.R.Civ.P., motion to amend the Findings of Fact, Conclusions of Law and Decree. Following consideration of the parties' briefs and oral arguments, the District Court amended the decree, asnoted above, byadjusting the distribution of the marital estate to correct for its previous duplication of the values of certain assets. The court also amended with regard to Geraldine's medical andcounseling bills by deleting the finding set forth above andthe portion of the decree which ordered William to pay Geraldine $818.19 for these bills. Geraldine contends that the court erred bydeleting reference to her medical and counseling bills and modifying the decree accordingly. Wereview adistrict court's grant or denial of aRule 59 motion to determine if the court abused its discretion. See Hickingbotham v. Duncan (Mont. 1995), 898 P.2d 1215, 1217, 52 St.Rep. 574, 576. Wewill not overturn amended findings unless they are clearly erroneous. Hickinsbotham, 898P.2d at 1217. Here, substantial evidence supports the original finding insofar asit addressed Geraldine's medical bills in the amount of $98.19. Thecourt did not have this part of the transcript before it when it amended the decree and assumed that, since Geraldine provided other parts of the transcript but not this portion, the evidence in support of the original finding did not exist. We conclude that the court abused its discretion in amending the findings to delete reference to the $98.19 in medical bills andby

11

### deleting paragraph four of the decree to the extent it ordered

William to paythat amount. Asstated above, however, there is noevidence of record to support any amount of counseling bills. William objected to Geraldine's attempt to testify about those bills andto related exhibits, andthe court sustained the objection. TheDistrict Court's finding insofar as it addressed Geraldine's counseling bills wasnot supported bysubstantial evidence andwasclearly

erroneous. Therefore, weconclude that thecourt didnotabuseits discretion indeleting reference inits findings tothecounseling bills anddeleting paragraph four of the decree to the extent it ordered William topayGeraldine $720for those bills. Wemodify the amended1994decree regarding theLincoln Town Carandthe medical bills and affirm 

### the amendeddecree in all other respects.