No. 86-A99 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

IN RE THE MARRIAGE OF 

ALLAIRE PI. FITZMORRIS , 

Petitioner and Respondent, 

and 

JAMES P. FITZMORRIS, 

Respondent and Appel-lant . 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Thomas Olson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Gregory 0. Morgan argued, Bozeman, Montana 

For Respondent: 

Richard J. Andriolo argued, Bozeman, Montana 

Submitted: September 10, 1987 

~ecided: November 5, 1987 
r. Justice R. C. Mcnonough delivered the Cpinion of the 

Court. 

This case invclves a marriage dissolution. The issue on 

appeal is the distribution of the marital estate. 

The District Court of the Eighteenth Judicial District 

ordered the division of the parties' assets in its final 

decree dated June 24, 1986. The wife, Allaire W. Fitzmorris, 

received property valued at $5,875,695.60. The majority of 

her share came from stock acquired before the marriage which 

was excluded from the marital estate. The husband, James P. 

Fitzmorris, received property valued at $321,756.60. The 

majority of his share consisted of assets from the marital 

estate. We affirm. 

James presents three issues for review: 

(1) Did the lower court err by failing to grant a mistrial? 

(2) Is the lower court's division inequitable? 

(3) To what extent may the lower court rely on the source of 

marital assets to determine their distributj-on? We will 

consider each issue separately. 

-- ISSUE I: James requested a mistrial because Allaire 

attempted to testify on James' marital misconduct. The 

alleged misconduct concerned James' motivation for supporting 

the purchase of the parties' Belgrade ranch. According to 

Allaire, James encouraged the purchase to convert her stock 

to jointly held real property. James objected to the 

testimony, and the trial court sustained the objection. 

There is nothing in the record, to indicate that the trial. 

court considered the testimony in deciding the division. 

However, James contends that the mention of marital 

misconduct, like the mention of defendant' s liability 

insurance in a tort claim, should be grounds for a mistrial. 
We faced a similar contention in In re the Marriage of 

Vance (1983), 204 Mont. 267, 664 P.2d 907. In Vance we 

stated that the ~istrict Court did not abuse its discretion 

because it specifically refused to consider any allegations 

of marital misconduct. Vance, 664 P.2d at 912. In this 

case, the trial court refused to hear the testimony, and 

struck the testimony from the record. We find that the lower 

court refused to consider the alleged misconduct, and Vance 

controls. Thus, the lower court correctly denied James' 

mistrial motion. 

ISSUE 2: --- James contends that the division is 

inequitable on its face. He also contends that the division 

is inequitable because it (1) omits a debt on his office 

building, (2) excludes from the marital estate Allaire' s 

stock while including his stock, and (3) fails to recognize 

the irrevocable nature of gifts received during the marriage. 

We recently clarified the standard for reviewing a 

district court's division of marital property in In re the 

Marriage of Hall (Mont. 1987), 740 P.2d 684, 686, 44 St.Rep 

1321, 1323: 

We have concluded that in a property distribution 

review in marriage dissolution, this Court will 

reverse a district court only upon a showing that 

the district court has acted arbitrarily or has 

corrmitted a clear abuse of discretion, resulting in 

either instance in substantial injustice. 

In support of the ccntention that the District Court 

abused its discretion by ordering a division that is 

inequitable on its lace, James cites In re the Marriage of 

Brown (1978), 179 Mont. 417, 587 P.2d 361. In Brown, the 

District Court erred by failing to fairly value appellant's 

contribution to the parties' major asset, th.e family ranch. 

Curing the parties' fcurteen years of marriage in Brown, the 
ranch had appreciated 350 percent. The appreciation was the 

result of both parties' efforts, and the District Court's 

decision to give the appealing spouse only a small percent of 

the ranch's value was clearly inequitable. Brown, 587 P.22 

at 365. 

The facts of this case distinguish it from Brown. Here, 

nearly all the assets included in the marital estate 

originated from stock Allaire brought to the marriage. The 

District Court found that these assets lost value as a result 

of the business ventures of both parties. When "none of the 

value of the property is a product of contribution from the 

marital effort, the District Court can justifiably find that 

the non-acquiring spouse has no interest in the property." 

In re the Marriage of Herron (1980), 186 Mont. 396, 404, 608 

P.2d 97, 101. Clearly, none of the value of the property 

allocated to Allaire resulted from the efforts of James, and 

the District Court's decision is not inequitable on its face 

as a result of Brown. 

James also contends that the division is inequitable on 

its face because Montana law favors equal division of assets. 

This is a misstatement of the law. Equity, not equality, 

should guide the District Court's discretion in dividing the 

marital estate. Snell v. Snell (Mont. 1983), 668 P.2d 238, 

40 St.Rep 1359, 1361. 

James challenges the District Court's valuation of the 

office building he received as part of his share of the 

marital assets. According to james, the omission of the 

building's debt constitutes a mistake in the District Court's 

findings, and results in an inequity. It appears from the 

record that only $33,000 worth of stock secured an 

improvement loan on the building at the time of the District 

Court's valuation. We find no evidence that $53,000 in stock 

secured the debt as James contends. Thus, the District Court 
nay have overvalued the building by failing to deduct the 

$33,000 debt. But the District Court concluded that James 

should receive the building and its debt to house his 

business. Therefore, a mistake on the exact value of the 

building was "unnecessary to support the District Court's 

decision, and is harmless." In re the Marriage of Anderson 

(Mont. 1986), 717 P.2d 11, 14, 43 St.Rep. 541, 544. 

The parties held the major assets of the marriage in 

joint tenancy. Allaire's stock financed the purchase of 

these assets. James contends that the conversion of 

Allaire' s stock to joint tenancy property constitutes an 

irrevocable gift to him. On the basis of the irrevocable 

nature of the gifted property, according to James, the 

District Court should have divided the property equally. 

Even before the passage of the Uniform Marriage and 

Divorce Act, Montana recognized the rule that title does not 

control the distribution of marital assets. See Morse v. 

Morse (1977), 174 Mont. 541, 545, 571 P.2d 1147, 1149. 

Presently, 40-4-202, MCA, embodies the same rule by 

mandating that the court divide assets equitably "whether the 

title thereto is in the name of the husband or wife or both." 

Thus, the lower court properly refused to base its decision 

on the fact that the parties held the property as joint 

tenants. 

ISSUE 3: James argues that the District Court relied on 

source alone to determine that Allaire should receive the 

bulk of the marital estate. He also contends that the 

District Court ignored his contribution to the property's 

maintenance, and that the lower court treated the marriage 

like a business relati~nship in arriving at its distribution 

scheme. 

First, the source of the parties' assets was not the 

so1.e criteria for the lower court's division. If it were, 
James would r,ot have received the over $200,000 in Pioneer 

stock gifted to him by Allaire and her grandmother. 

Second, 5 40-4-202, MCA, requires the court to consider 

the contributions of the parties in dividing the property. 

The lower court in this case found that Allaire contributed 

far more to the parties' accumulation of assets than James. 

Under these circumstances, the lower court did not abuse its 

discretion by awardinc most of the assets to Allaire. 

Herron, 608 P.2d at 101.. 

Affirmed. 

We Concur: /J