No

No. 97-073

IN THE SUPREME COURT OF THE STATE OF MONTANA

1998 MT 223N

IN RE THE MARRIAGE OF

JO ANN SPOLAR,

Petitioner and Respondent,

and

EUGENE E. SPOLAR,

Respondent and Appellant.

 APPEAL FROM: District Court of the Second Judicial District,

In and for the County of Silver Bow,

The Honorable James E. Purcell, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Milton Datsopoulos; Datsopoulos, MacDonald & Lind,

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-073%20Opinion.htm (1 of 7)4/19/2007 11:37:21 AM
No

Missoula, Montana 

For Respondent: 

Bernard J. "Ben" Everett; Knight, Dahood, McLean & Everett,

Anaconda, Montana

Submitted on Briefs: August 6, 1998

Decided: September 3, 1998

Filed:

__________________________________________

Clerk

Justice Karla M. Gray delivered the Opinion of the Court.

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

Operating Rules, the following decision shall not be cited as precedent but shall be 

filed as a public document with the Clerk of the Supreme Court and shall be 

reported by case title, Supreme Court cause number, and result to the State Reporter 

Publishing Company and to West Group in the quarterly table of noncitable cases 

issued by this Court. 

¶2 Eugene E. Spolar (Eugene) appeals from the judgment entered by the Second 

Judicial District Court, Silver Bow County, on its Findings of Fact, Conclusions of 

Law and Order distributing the marital estate of himself and his former spouse Jo 

Ann Spolar (Jo Ann). We affirm.

ISSUES

¶3 1. Did the District Court err in distributing the marital estate?

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-073%20Opinion.htm (2 of 7)4/19/2007 11:37:21 AM
No

¶4 2. Did the District Court err in proceeding with a trial on the merits when Eugene 

was unable to attend due to his incarceration?

BACKGROUND

¶5 Eugene and Jo Ann were married in 1957 in Butte, Montana. The District Court 

dissolved the marriage in 1987. The parties agreed not to divide the marital estate at 

that time and the court reserved all issues regarding their real and personal 

property. On May 16, 1995, Jo Ann moved for distribution of the marital estate. 

¶6 Eugene and Jo Ann had no assets of any value at the time of their marriage, but 

had accumulated a substantial estate during the 30-year marriage. In 1996, the net 

value of the marital estate was $1,166,023, including joint liabilities of $92,808. The 

assets were accumulated through the joint efforts of both parties, primarily through 

the management and operation of a series of business enterprises, including a 

modular home manufacturing facility known as Summit Valley Industries.

¶7 At all times relevant to these proceedings, Jo Ann has continued to manage the 

business affairs of Summit Valley Industries. From the time the parties separated in 

1987 until 1993, Eugene ran a small ranching operation. In 1993, however, Eugene 

was convicted of trafficking in illegal drugs and sentenced to a 48-month term in a 

federal prison in Safford, Arizona. He was serving that sentence when the present 

case came to trial. 

¶8 In addition to his incarceration, Eugene's criminal activities also resulted in the 

forfeiture of a certain tract of real estate located on Alder Creek, near the Wise River 

in Beaverhead County, Montana (hereinafter, the Alder Creek property). This tract 

had been part of the marital estate prior to its forfeiture. The market value of the 

property was $90,000. 

¶9 At the time of these proceedings, Jo Ann was 53 years old, employed in the 

management and bookkeeping of Summit Valley Industries, and in generally good 

health. She did not complete high school. Jo Ann contributed to Social Security on 

her own behalf beginning in 1994.

¶10 Eugene was 57 years old at the time of trial and unemployed due to his 

incarceration. His opportunities for acquiring income in the future are limited by an 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-073%20Opinion.htm (3 of 7)4/19/2007 11:37:21 AM
No

arthritic condition which prevents him from pursuing his vocation in carpentry, and 

he is not trained in any other profession. Eugene contributed to Social Security until 

his arrest in 1993. 

DISCUSSION

¶11 1. Did the District Court err in distributing the marital estate?

¶12 We review a district court's findings related to the division of marital property to 

determine if they are clearly erroneous. In re Marriage of Baer, 1998 MT 29, ¶ 29, 

954 P.2d 1125, ¶ 29, 55 St.Rep. 104, ¶ 29; In re Marriage of Ortiz (1997), 282 Mont. 

500, 503, 938 P.2d 1308, 1310. If the findings are not clearly erroneous, we will not 

disturb the court's distribution of property absent an abuse of discretion. Marriage of 

Baer, ¶ 29; Marriage of Ortiz, 282 Mont. at 503, 938 P.2d at 1310. 

¶13 Eugene contests the distribution of the marital estate on the grounds that the 

District Court failed to divide the estate equally despite the fact that neither party 

entered the marriage with any assets of particular value and all of the marital assets 

were procured through the joint effort of both parties over the course of a 30-year 

marriage. Eugene contends that since he and Jo Ann contributed equally to the 

accumulation of the property, the estate should be distributed equally between them. 

We disagree.

¶14 The guidelines for the equitable apportionment of a marital estate, set forth in 

§ 40-4-202, MCA, require a district court to 

consider the duration of the marriage and prior marriage of either 

party; the age, health, station, occupation, amount and sources of 

income, vocational skills, employability, estate, liabilities, and 

needs of each of the parties; custodial provisions; whether the 

apportionment is in lieu of or in addition to maintenance; and the 

opportunity of each for future acquisition of capital assets and 

income. The court shall also consider the contribution or 

dissipation of value of the respective estates and the contribution 

of a spouse as a homemaker or to the family unit. In dividing 

property acquired prior to the marriage; property acquired by gift, 

bequest, devise, or descent; property acquired in exchange for 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-073%20Opinion.htm (4 of 7)4/19/2007 11:37:21 AM
No

property acquired before the marriage or in exchange for property 

acquired by gift, bequest, devise, or descent; the increased value 

of property acquired prior to marriage; and property acquired by a 

spouse after a decree of legal separation, the court shall consider 

those contributions of the other spouse to the marriage, including:

(a) the nonmonetary contribution of a homemaker;

(b) the extent to which such contributions have facilitated the 

maintenance of this property; and

(c) whether or not the property division serves as an alternative to 

maintenance arrangements.

The statute vests the court with broad discretion to apportion the marital estate in a 

manner which is equitable to each party under the circumstances. In re Marriage of 

Maedje (1994), 263 Mont. 262, 265, 868 P.2d 580, 582-83. Moreover, an equitable 

distribution does not require a 50/50 apportionment of the marital assets. In re 

Marriage of McNellis (1994), 267 Mont. 492, 501, 885 P.2d 412, 418. Equity, not 

equality, guides a court's discretion in dividing a marital estate. In re Marriage of 

Garner (1989), 239 Mont. 485, 488, 781 P.2d 1125, 1127. 

¶15 The record reflects that, in distributing Eugene and Jo Ann's marital estate, the 

District Court initially divided the gross estate evenly between them. It adjusted that 

division, however, to reflect the fact that the marital debts in the amount of $92,808 

were being assumed by Jo Ann in her personal capacity and that marital assets 

worth $90,000 had been eliminated from the marital estate via forfeiture due to 

Eugene's criminal activities. Substantial credible evidence supports these findings, 

and we conclude that the District Court did not abuse its discretion in adjusting its 

initial distribution to reflect these circumstances. 

¶16 Eugene also argues that the District Court erred in concluding as a matter of law 

that Jo Ann possessed a reduced expectation of Social Security benefits upon 

retirement, because federal law provides benefits to a divorced spouse at a level 

commensurate with the contribution record of the ex-spouse if the divorced spouse 

would otherwise not be eligible to receive benefits in her own right. We need not 

address the merits of this argument, as our review of the record indicates that no 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-073%20Opinion.htm (5 of 7)4/19/2007 11:37:21 AM
No

adjustments were made to the distribution of the marital assets based on the District 

Court's conclusion of law on this matter. The only deductions or additions made to 

the respective shares of the parties were based on the marital debt assumed by Jo 

Ann and the market value of the Alder Creek property forfeited to the federal 

government. Because the District Court's conclusion on this issue had no bearing on 

its distribution, any error was harmless and does not constitute grounds for reversal 

on appeal. See Ducham v. Tuma (1994), 265 Mont. 436, 440, 877 P.2d 1002, 1005. 

¶17 Eugene also argues that the District Court abused its discretion in awarding Jo 

Ann a greater portion of the marital estate based on the loss of the Alder Creek 

property from the marital estate, because § 40-4-202(1), MCA, requires the District 

Court to distribute the assets of the estate "without regard to marital misconduct." 

In addition, he contends that, even if the court properly considered his role in the 

forfeiture of this property, it erred in not considering Jo Ann's misconduct as well. 

¶18 These arguments are not persuasive. Although § 40-4-202(1), MCA, prohibits 

consideration of marital misconduct in equitably apportioning marital property, it 

expressly requires the court to consider the "dissipation of value" of marital assets. 

Ample evidence supports the District Court's findings that Jo Ann played no active 

role in Eugene's illegal activities and that the forfeiture of the Alder Creek property 

was Eugene's sole responsibility. Because the elimination of this asset from the 

marital estate was a direct result of Eugene's criminal activities, we conclude that the 

District Court did not abuse its discretion in allocating the full amount of this loss to 

Eugene. 

¶19 2. Did the District Court err in proceeding with a trial on the merits when 

Eugene was unable to attend due to his incarceration? 

¶20 The original trial date for these proceedings was July 25, 1995. On that day, 

Eugene moved to continue the trial. He stated that, due to his cooperation in 

providing information on other drug traffickers, he had been placed in protective 

custody inside the federal penitentiary in Arizona and was not available to effectively 

assist his counsel in preparing for trial. The District Court granted Eugene's motion 

over Jo Ann's objection and rescheduled the trial for October 16, 1995. Eugene did 

not request a continuance of the rescheduled trial. 

¶21 The record reflects that Eugene was deposed from prison during the week prior 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-073%20Opinion.htm (6 of 7)4/19/2007 11:37:21 AM
No

to trial and that his deposition testimony was admitted into evidence at the trial. Rule 

32(a)(3)(C), M.R.Civ.P., expressly provides for the admission of deposition testimony 

into evidence when a witness, including a party, is unable to testify in person due to 

imprisonment. Thus, Eugene's absence from the trial was largely accommodated by 

the introduction of his deposition testimony. 

¶22 Eugene's specific contention is that his incarceration rendered him unable to 

effectively assist his counsel and forced him to stipulate to property values that might 

otherwise have been contested. For these reasons, according to Eugene, the District 

Court should have postponed the trial until a time when he was available to 

participate more effectively. 

¶23 We decline to address this argument, however, because there is no indication in 

the record that Eugene requested a continuation of the October 16, 1995 trial date. 

We will not put a district court in error for a procedure in which the party asserting 

error acquiesced and participated, or to which the party made no objection. In re 

Marriage of Smith (1990), 242 Mont. 495, 501, 791 P.2d 1373, 1377. Nor does Eugene 

cite to any authority for his apparent theory that the District Court's failure to 

continue the rescheduled trial date sua sponte constitutes reversible error. We 

conclude that the District Court did not err in proceeding when Eugene was unable 

to attend.

¶24 Affirmed.

/S/ KARLA M. GRAY

We concur:

/S/ J. A. TURNAGE

/S/ WILLIAM E. HUNT, SR.

/S/ JIM REGNIER 

/S/ W. WILLIAM LEAPHART

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-073%20Opinion.htm (7 of 7)4/19/2007 11:37:21 AM