NO. 96-218 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

IN RE MARRIAGE OF 

REBECCA LYNN HOFFMAN, 

Petitioner and Respondent, 

and 

WILLIAM ALLEN HOFFMAN, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Fifth Judicial District, 

In and for the County of Beaverhead, 

The Honorable Frank M. Davis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Jack H. Morris; Jardine, Morris & Hoffman; 

Whitehall, Montana 

For Respondent: 

John Warren; Davis, Warren & Hritsco; 

Dillon, Montana 

Filed: 

Submitted on Briefs: August 29, 1996 

~~~id~d: December 10, 1996 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 

1995 Internal operating Rules, the following decision shall not be 

cited as precedent and shall be published by its filing as a public 

document with the Clerk of the Supreme Court and by a report of its 

result to State Reporter Publishing Company and West Publishing 

Company. 

The respondent, Rebecca Lynn Hoffman ("Becky") , filed a 

petition for dissolution of her marriage to the appellant, William 

Allen Hoffman ("Bill"), in the District Court for the Fifth 

Judicial District in Beaverhead County. After a hearing, the 

District Court entered its decree of dissolution, and concluded 

that the following were marital assets subject to an equitable 

division between the parties: (1) the log house in which the 

parties resided during their marriage ("the Hof £man Home") ; and 

(2) Bill's expectation for future acquisition of the one acre of 

real property on which the Hoffman Home is located ("the Hoffman 

Home Site"). On that basis, the District Court divided the 

agreed-upon value of the real property equally, and ordered Bill to 

pay Becky in the amount of $47,750 for her interest. Bill appeals 

the judgment of the District Court. We reverse the District 

Court's judgment as it relates to property division, and remand for 

entry of judgment consistent with this opinion. 

The issue on appeal is whether the District Court was correct 

when it concluded that the Hoffman Home and Bill's expectation that 
he will, in the future, acquire the Hoffman Home Site were marital 

assets subject to equitable division between the parties. 

FACTUAL BACKGROUND 

Frances Forgy is the record owner of a seventeen-acre parcel 

of land in Madison County. In 1977 she gave Bill, her nephew, 

permission to construct a log house on one acre of her property. 

At that time, Bill began construction of the foundation, and 

continued to build the house during the next six years. However, 

the seventeen-acre parcel has never been subdivided and no part has 

been transferred to Bill. 

In 1983, Forgy and Bill agreed that the real property taxes 

for the land would continue to be assessed to Forgy, and that the 

improvement taxes for the log house would be assessed to Bill. 

Bill and Becky were married in 1984, and moved into the log 

house in the fall of 1986. During the course of their marriage, 

they completed construction of the house, and made a number of 

improvements to it. They also paid insurance premiums and 

improvement taxes for the house; however, they did not pay rent to 

Forgy, and there has never been a written agreement with regard to 

their possession of the house. There is a considerable amount of 

evidence that Forgy plans to devise her property to Bill; 

nonetheless, she has not yet transferred title to her property. 

In 1995, Becky filed a petition for dissolution of her 

marriage to Bill. In its decree of dissolution, the District Court 

concluded that Bill's expectation that he would be devised the 

Hoffman Homesite and the Hoffman Home were marital assets subject 
to equitable division between the parties. On that basis, the 

District Court concluded that equitable division of the parties' 

marital estate would require that Bill pay Becky $47,750 for her 

interest in the estate, plus her share of the personal property 

included in the estate. 

DISCUSSION 

Was the District Court correct when it concluded that the 

Hoffman Home and Bill's expectation that he will, in the future, 

acquire the Hoffman Home Site were marital assets subject to 

equitable division between the parties? 

When we review a district court's conclusions of law, the 

standard of review is whether those conclusions are correct. Inre 

MarriageofHamilton (1992), 254 Mont. 31, 35, 835 P.2d 702, 704 

On appeal, Bill contends that the Hoffman Home and his 

expectation that he will inherit the Hoffman Home Site are not 

marital assets. Specifically, Bill asserts that, because Forgy is 

the legal owner of both the Hoffman Home Site and the Hoffman Home, 

the District Court incorrectly included their respective values 

when it calculated and equitably divided the parties' marital 

estate. 

Section 40-4-202, MCA, governs the equitable division of 

marital property and states, in relevant part, that: 

(1) In a proceeding for dissolution of a marriage . . . the court . . . shall . . . finally equitably apportion 

between the parties the property and assets belonqinq to 

either or both, however and whenever acquired and whether 

the title thereto is in the name of the husband or wife 

or both . . . . 
(Emphasis added.) Thus, 5 40-4-202 (I), MCA, clearly limits the 

marital estate subject to equitable division to the property and 

assets belonging to either spouse or both, and titled in at least 

one of their names. It does not confer any authority upon a 

district court to include in the marital estate property or assets 

owned by a third party. 

THE HOFFMAN HOME SITE 

It is undisputed that Forgy is, and has been at all times 

pertinent to this litigation, the record owner of the real property 

upon which the Hoffman Home is located. She has never conveyed her 

real property to Bill or Becky, and they do not have a legitimate 

claim that they own the property. When the District Court 

equitably dividedthe Hoffmans' marital estate, it was, for reasons 

that follow in this opinion, required to consider the possibility 

that, upon Forgy's death, Bill might inherit the Hoffman Home Site. 

However, we conclude that when the District Court evaluated and 

equitably divided the Hoffmans' marital estate, it erred when it 

included property that is owned by Forgy, a third party. 

THE HOFFMAN HOME 

The Hoffman Home cannot be separated from the land upon which 

it is located, and we conclude that, pursuant to 5 70-15-101, 

-102, and -103, MCA, it is a fixture attached to Forgy's real 

property. 

When we determine whether a particular object is a fixture, we 

examine: (1) the character of the structure; (2) the manner in 
which it is annexed to the realty; and, of the most significance, 

(3) the intent of the parties. Grindev. Tindall (1977), 172 Mont. 199, 

201-02, 562 P.2d 818, 820. While the first two factors indicate 

that the Hoffman Home is a fixture, the intent of the parties is 

the controlling factor in our analysis. In this case, neither Bill 

nor Becky has claimed that they own the log house. In fact, Bill's 

testimony with regard to his intent establishes that Forgy is the 

owner of the property and the log house: 

Q: Now, back in 1977, when you started construction on . . . the Hoffman home . . . what arrangements did you 

make for constructing the home on the site you did? 

A: I discussed it with my aunt, and basically she had no 

desire to sell the ground. But she told me I could 

proceed with it [building the log house1 if I would pay 

the taxes on the improvements in lieu of rent. 

Q: . . . [Ylou've got a $71,500 home on the land. 

A: Or [Forgyl does. I have never felt I owned either 

the home or the land that it sets on. 

Q: If that was your feeling, why would you put all that 

money into the land? 

A: Because I have a place to live rent free as long as 

I want it. 

Furthermore, with regard to fixtures, 5 70-18-101, MCA, 

provides : 

When a person affixes his property to the land of 

another, without an agreement permitting him to remove 

it, the thing affixed . . . belongs to the owner of the 

land unless he chooses to require the former to remove 

it. 

The record contains no evidence of any agreement which would allow 

Bill or Becky to remove the Hoffman Home from Forgy's real 

property. 
We conclude that the Hoffman Home and Bill's expectation that 

he will, in the future, acquire the Hoffman Home Site were not 

marital assets subject to equitable division. We hold, therefore, 

that the District Court erred when it included property owned by 

Forgy when it evaluated and equitably divided the Hoffmans' marital 

estate. 

However, the District Court found, based on substantial 

evidence, that Forgy intends to devise the property to Bill. We 

have previously held that: 

Under section 40-4-202, MCA, the District Court must 

consider future acquisition of assets. The husband's 

expectation of a sizeable inheritance is therefore a 

valid consideration in the equitable distribution of the 

marital property. 

MarriageofGoodmundson (l982), 201 Mont. 535, 540, 655 P.2d 509, 512. 

Accordingly, when the District Court distributes the Hoffmans' 

marital estate, it is required to consider Bill's substantiated 

expectation of a sizeable inheritance, which includes the Hoffman 

Home Site and Hof fman Home. It may also make a disproportionate 

distribution of the net marital estate based on that expectation. 

However, the distribution cannot exceed the net value of the 

marital estate which, in this case, after excluding the marital 

home and homesite, is $19,775. 

The judgment of the District Court is reversed, and the case 

is remanded for entry of judgment consistent with this opinion. 
We concur: 

Justices 
Justice James C. Nelson specially concurs. 

I agree with our statement of the law applicable to the 

homesite and to the home given the undisputed evidence that Forgy 

is the record owner of the real property on which the home was 

constructed and that the home was constructed in the absence of any 

severance agreement. The law cited in the opinion pertaining to 

fixtures makes the home part of the real property owned by Forgy 

and, clearly, the court may not distribute to either Becky or Bill 

property owned by a third person who is not a party to the 

dissolution proceedings. See § 40-4-202 (1) , MCA; In re Marriage of 

Martin (1994), 265 Mont. 95, 102, 874 P.2d 1219, 1224 (citing In re 

Marriage of Reich (1986), 222 Mont. 192, 720 P.2d 286; ~uxbaum v. 

Buxbaum (1984), 214 Mont. 1, 692 P.2d 411). 

I do, however, feel constrained to make the following 

observations. On appeal, citing various case and statutory 

authorities, Bill argues that the trial court committed reversible 

error by including in the marital estate and awarding to Becky a 

portion of the value of property not belonging to either she or 

Bill--i.e. the homesite and the home. Bill argues the language of 

5 40-4-202(1), MCA; failure to comply with the statute of frauds, 

§ 70-20-101, MCA; and failure to prove adverse possession by reason 

of permissive occupation and failure to comply with § 70-19-404, 

MCA and § 70-19-411, MCA. Bill also. argues on appeal that the 

court committed clear error by including fixtures attached to 

Forgyis real property in the marital estate, citing §S 70-15-101 

and 103, MCA, and various case authorities. 

9 
At trial each party submitted proposed findings of fact and 

conclusions of law to the court. No briefs were filed by either 

party. I note that there is not one citation in Bill's proposed 

findings and conclusions (or in Becky1 s, for that matter) to any of 

the cases or to any of the statutes he now relies on. In fact, the 

entire District Court record is devoid of any case or statutory 

authority either in favor of or in opposition to what the court 

did. . Moreover, except in a reference so oblique as to defy 

denominating it as "legal analysis, " Bill did not articulate any of 

the arguments he now makes to this Court. His entire "legal 

argument" is set forth in his proposed conclusion of law number 32 

In its entirety, that conclusion of law states: 

32. The Court concludes that the log house attached 

to Francis Forgyls property that was built by Bill prior 

to the marriage cannot be properly be [sic] considered 

part of the marital estate. Even though Bill testified 

that he had hoped that someday he would acquire the 

property from Forgy either through inheritance or 

conveyance neither event has transpired. There was no 

evidence presented to the Court other then the parties' 

own testimony as to what Francis Forgy's intentions were, 

if any, in regard to her ever transferring the property 

to either party. Becky has confused occupation with 

ownership. Even though the parties were allowed to live 

in the log house attached to Forgy's property for over 

eleven years rent free the parties have no right to the 

log house and real property beyond those conveyed by mere 

occupancy. Given the applicable law of real property the 

Court can do nothing else. 

However, based upon the representations made by Bill 

to Becky concerning his hope of one day acquiring the log 

house from Forgy and based upon Becky's reliance on those 

representations the Court feels that it would be fair and 

equitable for Bill to pay to Becky half of $17,500 that 

represents the parties' contribution toward improvement 

of the log house during the course of the marriage. 

Therefore, the Court concludes that Becky is entitled to 

receive from Bill half the value of that contribution. 

Furthermore, in moving to amend the trial court's findings and 
conclusions with regard to the home, Bill's entire legal argument 

consisted of the following: " [Plursuant to Section 40-4-202(1), 

MCA, the Court can only apportion between the parties assets or 

property belonging to or titled in name [sic] of the husband or 

wife or both." No brief was filed; no other argument was made; 

there was no citation to case authority. 

In my view, the legal arguments and theories Bill now advances 

on appeal were not raised with sufficient particularity in the 

trial court to give either the court or opposing counsel fair 

notice of what Bill's contentions were. This sort of practice 

places this Court in the position of having to find the trial court 

in error on matters of law when that court was not presented with 

the law that the party, on appeal, contends is dispositive. 

Secondly, Bill has changed his position on appeal from that 

which he took at trial. While he now contends that Becky has no 

ownership interest in the home, that was not in line with his 

testimony before the trial court. In point of fact, at trial Bill 

testified that Becky did have an interest in the marital home and 

that he would be willing to split with her "the value of the 

improvements contributed jointly during the marriage." Bill's 

proposed conclusion of law referenced above follows his testimony 

at trial. Again, Bill has blind-sided not only the trial court but 

opposing counsel as well. 

Although we are constrained to apply the correct law in this 

case, 'having now done so, I take no comfort in our decision given 

the record that was presented to the trial court. Accordingly, I 
specially concur. 

Justice Karla M. Gray concurs i