DA 06-0710

IN THE SUPREME COURT OF THE STATE OF MONTANA

2007 MT 315N

IN RE THE MARRIAGE OF

REGINALD F. DALZELL,

 Defendant and Appellant,

 v.

STEPHANIE DUBRAVAC,

 Plaintiff and Appellee.

APPEAL FROM: District Court of the Eighteenth Judicial District,

In and For the County of Gallatin, Cause No. DR-2004-160

Honorable Mike Salvagni, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Derik Pomeroy, Attorney at Law, Bozeman, Montana

For Appellee:

Robin L. Weber, Weber Law Firm, Helena, Montana

Submitted on Briefs: August 15, 2007

 Decided: December 4, 2007

Filed:

__________________________________________

Clerk

December 4 2007
2

Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal 

Operating Rules, as amended in 2003, the following memorandum decision shall not be 

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme 

Court and its case title, Supreme Court cause number and disposition shall be included in 

this Court’s quarterly list of noncitable cases published in the Pacific Reporter and 

Montana Reports. 

¶2 Reginald Dalzell (Dalzell) and Stephanie Dubravac (Dubravac) married in 1988 

after several years of courtship and cohabitation. Prior to their marriage, they entered 

into a premarital agreement (Agreement). Upon dissolution, the Eighteenth Judicial 

District Court determined, among other things, that the Agreement was valid and 

enforceable and that it barred Dalzell from seeking maintenance or making any claims 

upon Dubravac’s property. Dalzell appeals. We affirm.

ISSUES

¶3 The followings issues were presented on appeal:

¶4 Did the District Court err when it determined that the premarital agreement barred 

either party from seeking maintenance?

¶5 Did the District Court err when it concluded the premarital agreement barred 

either party from claiming any assets of the other in the event of a divorce?

¶6 Did the District Court err when it upheld the premarital agreement but refused to 

award property to the husband listed in the agreement as his separate property?
3

¶7 Did the District Court err when it enforced the premarital agreement despite the 

evidence for the doctrine of laches?

¶8 Did the District Court err when it used child support as an offset for a debt 

between the parties for attorney fees?

FACTUAL AND PROCEDURAL BACKGROUND

¶9 Dalzell and Dubravac began dating in California in the early 1980s and moved in 

together in 1984. In January 1988 Dubravac became pregnant with their first child. In 

April 1988 the couple married. Their first son was born in October 1988 and their second 

son was born in October 1990. During this time, Dalzell was an optician and Dubravac 

was a physician.

¶10 At the time the couple decided to marry, Dubravac knew that Dalzell’s financial 

circumstances were in disarray. She knew that for several years he had failed to pay both 

his personal income taxes and employee taxes for his business. As a result of Dalzell’s 

financial situation, prior to their marriage the parties entered into a premarital agreement. 

Dalzell’s attorney drafted the Agreement, which was reviewed by Dubravac’s attorney. 

Both parties testified that the intention of the Agreement was to protect Dubravac and her 

assets from Dalzell’s IRS debt. Both parties signed the Agreement and initialed every 

page. Both attorneys signed the Agreement as well. Dalzell was advised of the 

consequences of the arrangement and that any change to the Agreement had to be in 

writing. Dubravac testified that she would not have married Dalzell without the benefit 

of the Agreement.
4

¶11 The couple moved from California to Bozeman in 1993. Dalzell worked as an 

optician for a period of time after moving but ultimately stopped working as an optician 

several years ago. He formed a band in 1998 which has taken up a great deal of his time. 

He reported that he also did bookkeeping work for the band and cleaned houses. He has 

not reported his income nor was Dubravac familiar with the amount of his earnings. He 

has not contributed to the family’s expenses. He traveled extensively with the band, 

leaving Dubravac to work full-time, maintain the household and care for their two sons, 

one of whom has autism with its accompanying special needs.

¶12 During the marriage, Dalzell engaged in multiple irresponsible fiscal practices 

which included forging Dubravac’s name to a car title and insurance check, writing 

numerous checks on his checking account without sufficient funds to cover them, 

borrowing $45,000 from Dubravac’s retirement account and defaulting on the loan, and 

failing to pay his 1992 and 1993 income taxes. However, in keeping with the terms of 

the Agreement, the couple never co-mingled their funds, incurred a joint debt, or filed a 

joint tax return. Until they separated, the couple lived in a home exclusively in 

Dubravac’s name and purchased with funds originating from one of her premarital assets. 

¶13 In April 2004 Dubravac filed her Petition for Dissolution, and asked the court to 

divide the property pursuant to the Agreement. Subsequently, the parties reached 

agreement vis-à-vis a parenting plan but they looked to the District Court for an order 

distributing their assets. Dalzell presented numerous arguments to the District Court in 

an effort to defeat the application of the Agreement. Specifically, he asserted that he 

should receive maintenance from Dubravac, who at the time of dissolution had 
5

considerable assets, because the Agreement did not address “in any form what happens if 

the parties divorce.” In other words, he argued, because the Agreement did not address 

spousal support, alimony, or maintenance, the Agreement was ambiguous and he was 

entitled to maintenance. Additionally, he argued that the Agreement did not address 

distribution of property in the event of a divorce and therefore he was entitled to property 

belonging to Dubravac. He maintained as well that after the parties moved to Bozeman, 

he decided to forego earning an income in order to become the primary caregiver to the 

children, which is the reason he accumulated no assets and became financially dependent 

upon Dubravac.

¶14 Dubravac countered Dalzell’s testimony concerning child care, maintaining that 

Dalzell spent his time with his band and pursuing other personal interests, and did not 

stay at home with the children as he claimed. She also testified that during the entire 

marriage, the parties lived by the terms of the Agreement by keeping all finances and 

financial decisions separate, and therefore maintained that the Agreement should be 

enforced.

¶15 In February 2006 the District Court concluded that the Agreement should be 

construed according to California law, as provided in the document, but that Montana law 

applied as to the validity and enforcement of the Agreement. In a comprehensive, wellreasoned thirty-two page order, the District Court concluded that Dalzell had failed to 

prove that the Agreement was invalid and/or unenforceable. The court noted that the 

Agreement was designed to keep the assets and property of the parties separate and that, 

though it did lack specific language addressing divorce, the Agreement nonetheless 
6

barred either party from seeking maintenance or from claiming any assets of the other 

party. The court relied on the following language from the Agreement:

All property of any kind, wherever situated, acquired by or belonging to 

each of the parties before their marriage or thereafter acquired by gift or 

inheritance, the earnings and profits thereon, and the earnings from the 

personal efforts of each party, including but not limited to the business or 

practice of either Husband as an optician, or Wife as a physician, and any 

Goodwill associated with each respective business or practice, shall be the 

separate property of each of the parties owning, acquiring or earning the 

same. 

Husband and Wife agree that there shall not be any community property 

created during their marriage, unless the intent to establish property as 

community is clearly set forth by the form of title to such property and in a 

written instrument executed by both of the parties. Husband and Wife 

further agree that each party relinquishes, disclaims and releases any and all 

right, claim or interest, actual, inchoate or contingent, in law and in equity, 

which he or she may acquire in the separate property of the other by 

reasons of the proposed marriage, including but not limited to: . . . (c) the 

right to a family allowance . . . .

Additionally, the court held that Dubravac was the prevailing party with respect to the 

question of enforceability of the Agreement, and under the Agreement was entitled to 

reasonable attorney’s fees. Finally, the order instructed the parties to participate in 

mediation in an attempt to resolve some of the outstanding issues relative to the 

impending dissolution.

¶16 In September 2006 the court issued its Findings of Fact, Conclusions of Law and 

Decree of Dissolution of Marriage. In the Dissolution Decree, the court held, among 

other things, that an automobile claimed by Dalzell was actually Dubravac’s property by 

virtue of a title transfer during the marriage. Additionally, the court noted that Dalzell 

owed Dubravac certain monies and that Dubravac owed Dalzell back child support. The 
7

District Court therefore offset these monies resulting in Dalzell owing Dubravac 

approximately $5,400. In most other respects, the court enforced the terms of the 

Agreement, precluding Dalzell’s attempts to recover maintenance and a portion of 

Dubravac’s assets. We conclude it is not necessary for the purposes of this disposition to 

further detail the court’s findings.

¶17 Dalzell appeals.

STANDARD OF REVIEW

¶18 We review a district court’s division of marital property and maintenance awards 

to determine whether the findings of fact upon which the division and award are based 

are clearly erroneous. A district court’s findings are clearly erroneous if they are not 

supported by substantial evidence, if the court misapprehended the effect of evidence, or 

if our review of the record convinces us that the court made a mistake. Absent clearly 

erroneous findings, this Court will affirm a district court’s division of property and award 

of maintenance unless we identify an abuse of discretion. In re Marriage of Payer, 2005 

MT 89, ¶ 9, 326 Mont. 459, ¶ 9, 110 P.3d 460, ¶ 9 (citations omitted).

DISCUSSION

¶19 We need not address Dalzell’s issues individually. Under the Uniform Premarital 

Agreement Act, §§ 40-2-601-610, MCA, Dalzell, as challenger, bore the burden of 

proving that the Agreement was invalid. The court analyzed the arguments presented by 

Dalzell seeking to invalidate the Agreement and rejected them with findings that are 

supported by the record and a correct interpretation of the applicable law. Likewise, the 

findings and conclusions of the court issued in connection with the Decree of Dissolution 
8

are also supported by the record and the law. We have determined to decide this case 

pursuant to Section 1, Paragraph 3(d) of our 1996 Internal Operating Rules, as amended 

in 2003, which provides for memorandum opinions. It is manifest on the record before 

us that the findings of fact are supported by substantial evidence, and the legal issues are 

clearly controlled by settled Montana law which the District Court correctly interpreted;

therefore, there was no abuse of discretion by the District Court.

¶20 We affirm the judgment of the District Court.

/S/ PATRICIA COTTER

We Concur:

/S/ KARLA M. GRAY

/S/ JIM RICE

/S/ BRIAN MORRIS

/S/ JOHN WARNER