DA 09-0329

IN THE SUPREME COURT OF THE STATE OF MONTANA

2010 MT 66N

CYNTHIA WEDGE,

Plaintiff and Appellee,

v.

CARL MILLARD,

Defendant and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and For the County of Yellowstone, Cause No. DV 2008-0472

Honorable Susan P. Watters, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Jack E. Sands, Attorney at Law, Billings, Montana

For Appellee:

William J. O’Connor, II., O’Conner & O’Connor, P.C., Billings, Montana

Submitted on Briefs: March 10, 2010

Decided: March 30, 2010

Filed:

__________________________________________

Clerk

March 30 2010
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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 2006, 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 On March 27, 2008, Cynthia Wedge (Cynthia) filed a complaint in the Thirteenth

Judicial District Court requesting an equitable partition of a home and bobcat

construction equipment jointly owned by her and Appellant Carl Millard (Carl). In

connection with the partition action, Cynthia was granted a temporary order of protection

by the District Court against Carl on March 31, 2008. After a hearing, the District Court

made the temporary order permanent on April 18, 2008. On September 2, 2008, the

District Court granted a motion by Cynthia to compel discovery and ordered that

Cynthia’s request for attorney fees in connection with this motion would be heard at the

bench trial.

¶3 A bench trial was held on November 5, 2008. Cynthia and Carl presented

evidence and testified at trial. The District Court found that Cynthia had invested

$237,086.84 towards the construction of the home, while Carl contributed labor. Cynthia

brought this money into the relationship from personal savings, pension benefits and the

sale of a house in South Dakota. Cynthia acquired these assets before she met Carl in

Montana in 1999, and before they agreed to build a house together. After she and Carl
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were together, Cynthia borrowed money to complete the home construction and to pay

for a 2001 Dodge pickup. The parties also had purchased a bobcat, various attachments,

and a trailer to support a joint business venture called “One Eyed Bobcat.” Cynthia

wanted these items sold so that the proceeds could be used to pay down the bank loans.

Cynthia also claimed she was owed $16,680 to reimburse her for the value of a 1999

GMC pickup which she had traded in and used to purchase the 2001 Dodge pickup which

Carl had in his possession. Carl argued that he owned the house 50-50 with Cynthia

based on financial contributions and his labor. The District Court did not find his

testimony and evidence in this regard credible.

¶4 In its conclusions of law, the District Court found that Carl and Cynthia had

entered into two business relationships. One was a joint venture to purchase land and

build a house. The second was a corporation called “One Eyed Bobcat.” The assets of

the joint venture were the house and the land. The assets of the corporation were the

bobcat, its accessories, trailer, and the 2001 Dodge pickup. The District Court concluded

that the parties had an agreement whereby Cynthia would be able to recoup her initial

investment in the house, with any remaining profits to be divided between the parties.

Concluding that there was “no question” that Cynthia had paid for the land and

construction costs of the house, the District Court held that Cynthia was entitled to

recoup a total of $237,086.84 for the house. The District Court determined that Cynthia

was not entitled to reimbursement for the 2001 Dodge pickup. The District Court further

ordered that the bobcat, its attachments, and the trailer be sold and the proceeds be used

to pay down loans acquired by Cynthia. The District Court also ordered Cynthia’s
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attorney to submit an affidavit for attorney fees in connection with the motion to compel.

Following a hearing on attorney fees, the District Court awarded fees to Cynthia in the

amount of $3,027.50. Judgment was entered on March 27, 2009.

¶5 On June 2, 2009, the District Court granted a M. R. Civ. P. 70 motion filed by

Cynthia, directing the Clerk of Court to transfer the real property to Cynthia. Finally, on

August 26, 2009, the District Court granted Cynthia’s motion for attorney fees incurred

in connection with the Rule 70 motion.

¶6 Carl now appeals from the order of protection, the partition order awarding

Cynthia the proceeds from the sale of the house, bobcat, and other property, and the two

orders granting Cynthia attorney fees. We affirm.

¶7 The District Court’s decision to issue the permanent order of protection and its

decisions to grant an award of attorney fees are reviewed for an abuse of discretion. In re

Marriage of Lundstrom, 2007 MT 304, ¶ 12, 340 Mont. 83, 172 P.3d 588 (permanent

order of protection); JTL Group, Inc. v. New Outlook, LLP, 2010 MT 1, ¶ 31, 355 Mont.

1, 223 P.3d 912 (attorney fees). We review the findings in the District Court’s order

regarding the equitable partition under the clearly erroneous standard. Anderson v.

Woodward, 2009 MT 144, ¶ 12, 350 Mont. 343, 207 P.3d 329. The evidence is viewed

in a light most favorable to the prevailing party with deference given to the District

Court’s determinations regarding the credibility of the witnesses and the weight assigned

to their testimony. Anderson, ¶ 12.

¶8 We conclude that Carl has failed to demonstrate that the District Court’s findings

in support of the partition order were clearly erroneous. The District Court did not find
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Carl to be a credible witness, and gave greater weight to Cynthia’s testimony and

evidence. Viewing the evidence in a light most favorable to Cynthia as the prevailing

party, we conclude that Carl has not pointed to anything in the record which would

compel us to overturn the District Court’s credibility determinations, and the weight it

assigned to the evidence before it. Because the District Court’s ultimate decision

regarding the disposition of the property turned on the credibility of the parties and

weight of the evidence, we decline to disturb its decision.

¶9 Similarly, we see no abuse of discretion in the District Court’s orders regarding

the permanent order of protection, or the award of attorney fees.

¶10 We have determined to decide this case pursuant to Section 1, Paragraph 3(d) of

our 1996 Internal Operating Rules, as amended in 2006, which provides for

memorandum opinions. It is manifest on the record before us that the District Court did

not err in its orders when it partitioned the property, nor did it abuse its discretion when it

granted Cynthia a permanent order of protection and an award of attorney fees.

Affirmed.

/S/ PATRICIA O. COTTER

We concur:

/S/ MIKE McGRATH

/S/ W. WILLIAM LEAPHART

/S/ BRIAN MORRIS

/S/ JIM RICE