NO. 92-608 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

IN RE THE MARRIAGE OF 

ROBERT A. HULLENS, 

Petitioner and Appellant, 

and 

GRETCHEN J . ,M??LLENS, 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Thomas M. McKittrick, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Joan E. Cook, Miller & Cook, Great Falls, Montana 

For Respondent: 

Leo Graybill, Jr., Graybill, Ostrem & Crotty, 

Great Falls, Montana 

Filed: 

Submitted on Briefs: July 1, 1993 

Decided: July 28, 1993 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

Robert A. Mullens appeals from an amended decree of 

dissolution of the District Court fnrthe Eighth Judicial District, 

Cascade County, which granted Gretchen J. Hullens money in lieu of 

her share of the marital estate. We affirm. 

There are three issues on appeal: 

1. Was the monetary award that the District Court granted to 

Gretchen a property settlement or maintenance? 

2. Was there substantial credible evidence to support the 

District Court" division of the marital estate? 

3. Did the District Court erroneously consider Robert's 

misconduct when it divided the parties' marital estate? 

On September 25, 1985, Robert and Gretchen Mullens were 

married in Great Falls, Montana. The couple lived in a house in 

Great Falls that Robert had purchased in 1982. Robert filed for 

dissolution on August 18, 1989. A trial was begun on September 12, 

1991, and was resumed on February 18, 1992. On the afternoon of 

September 12, 1991, Robert was deposed. His deposition was filed 

with the court on April 15, 1992. On August 14, 1992, the District 

Court entered its findings of fact, conclusions of law, and order 

in the dissolution action. 

In its findings, the court found that the family house in 

Great Falls belonged to Robert and was not marital property. The 

court determined that at the time of the parties' separation, the 

marital estate was worth $14,670.30, plus the parties1 cars and 
other personal property. The court found the parties had divided 

the personal property prior to the dissolution decree and that 

Gretchen had received a majority of the furnishings and household 

goods. 

In its findings, the District Court also noted that Robert 

admitted in his deposition that he failed to pay taxes on earned 

income for years; that he knowingly filed false financial 

statements in the past; and that he was a self-admitted liar. The 

court found that Robert was evasive about what property he owned 

and the values of such property. The court determined that it was 

necessary "to protect [Gretchen] from [Robert's] on-going 

fraudulent activities and deceptive trickery." 

The court ordered an equitable distribution of the remaining 

marital estate. The court awarded Robert his personal tools, all 

three of the parties' bank accounts, all of the parties' 

automobiles except one, and a silver dipper. Gretchen was awarded 

a Dodge Omni, a camper, the microwave oven and stand, and a 

monetary award in lieu of her share of the marital estate. The 

court ordered Robert to pay Gretchen $3000 within two months of the 

decree and $500 a month for two years. 

On August 17, 1992, Gretchen filed a motion to amend the 

August 14, 1992, judgment and requested the court to grant her a 

lien on the house in Great Falls to secure Robert's payment of the 

monetary award. On September 29, 1992, the court issued its 

amended order and granted Gretchen's request. 
I 

Was the monetary award that the District Court granted to 

Gretchen a property settlement or maintenance? 

On appeal, Robert contends that the District Court's order was 

unclear whether the monetary award to Gretchen was a property 

settlement or an award of maintenance. 

Based on our review of the record, we conclude that the 

monetary award to Gretchen was a property settlement and not a 

maintenance award. The District Court made several references to 

a property division throughout the amended decree and no reference 

to maintenance. Moreover, the court's findings reflect that the 

court considered the statutory criteria set forth in 5 40-4-202, 

MCA, the statute pertaining to the division of property: and that 

the court did not consider the factors required by 5 40-4-203, MCA, 

the statute pertaining to maintenance. 

I I 

Was there substantial credible evidence to support the 

District Court's division of the marital estate? 

On appeal, Robert contends that the District Court's property 

division was not supported by substantial credible evidence. He 

asserts that when the District Court divided the marital estate it 

did not properly consider the statutory criteria set forth in 

5 40-4-202(1), MCA. Robert claims that the final property division 

was inequitable and that it should be reversed. 
The distribution of the marital estate is governed by 

5 40-4-202, MCA. The statute vests the district court with broad 

discretion to equitably apportion the marital estate. In reh4am'age 

ofCollett (1981), 190 Mont. 500, 621 P.2d 1093. 

The standard of review employed by this Court in marital 

property division cases is whether the district court's findings of 

fact are clearly erroneous. In re Mam'age of McLean and Fleury (Mont. 

1993), 849 P.2d 1012, 50 St. Rep. 35. When there is substantial 

credible evidence to support the court ' s findings and judgment, 

this Court will not alter the lower court's decision unless there 

is an abuse of discretion. In re Mam'age of ScofJield (Mont. 1993), 852 

P.2d 664, 50 St. Rep. 560. 

Before dividing the marital estate, the District Court heard 

the parties' testimony and properly considered the statutory 

criteria found in 5 40-4-202(1), MCA. The court made appropriate 

findings concerning the parties* earning capacities, the amount and 

sources of Robert's and Gretchen's incomes, the vocational skills 

of the parties, and the opportunity of each party to acquire assets 

and income in the future. The court determined that Robert was 

evasive about what property he owned, the values of such property, 

and his ability to earn future income. Accordingly, the court 

granted Robert all of the bank accounts, which were worth 

$14,670.30, and the five vehicles. The court awarded Gretchen a 

monetary award instead of her share of the marital estate. 
We conclude that the District Court did not abuse its 

discretion when it equitably apportioned the parties' property in 

this case. The court considered the statutory criteria governing 

a marital property division, made appropriate findings, and based 

its property division on substantial credible evidence in the 

record. 

111 

Did the District Court erroneously consider Robert's 

misconduct when it divided the partiest marital estate? 

Robert asserts that the District Court erroneously based the 

property division on evidence of his "marital misconduct.'' Robert 

first contends that the court should not have considered evidence 

of his misconduct because such evidence was based on his deposition 

which was not admitted into evidence. Robert then relies on Collett 

to support his contention that property is to be apportioned 

without regard to marital misconduct. 

Contrary to Robert's first contention, his deposition was 

filed on April 15, 1992, and therefore, the District Court was free 

to consider the admissions contained in it. Regarding Robert's 

second assertion, he is correct that property is to be divided 

without regard to marital misconduct. Section 40-4-202(1), MCA. 

However, there is no indication that in this case the court's 

decision was based on Robert's conduct. 

The record reveals that the District Court relied on findings 

of Robert's involvement in fraudulent activities, not to punish 
Robert and to deny him an equitable share of the marital estate, 

but rather to protect Gretchen's interest in the property 

settlement. To insure Robert's compliance with the court decree, 

the court ordered Robert to make payments to Gretchen through the 

clerk of court. Furthermore, the court granted Gretchen a judgment 

lien on Robert's life estate interest in the Great Falls house to 

insure that Robert would complete all payments. 

Unlike the court in Cdelt, the District Court in this case did 

not impose a penalty or take property away from Robert because of 

his conduct. Unlike the lower court in Collett, which reduced the 

husband's share of the marital estate because of his prior 

misconduct, the District Court in this case granted Robert an 

equitable share of the marital estate and only considered Robert's 

misconduct when considering what measures were necessary to assure 

that Gretchen would receive the share awarded to her. We find no 

abuse of discretion. 

The judgment of the District Court is affirmed. 

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

1988 Internal Operating Rules, this 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 Montana Law Week, State Reporter and West Publishing Company. 
We concur: 
July 28, 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

Jom E. Cook 

MILLER & COOK 

600 Central Plaza, Suite 300 

Great Falls, MT 59401 

Leo Graybill, Jr. 

GRAYBILL, OSTREM & CROTTY 

#18 6th St. N. Suite 200 

Great Falls, MT 59401 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA