No. 00-853 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

 

2002 MT 197 

IN RE THE PETITION OF 

A. CAROLINE FENZAU, 

Petitioner and Respondent, 

and 

WILLIAM FENZAU, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

Honorable Ted O. Lympus, Judge Presiding 

COUNSEL OF RECORD: 

For Appellant: 

Patrick D. Sherlock, Sherlock & Nardi, Kalispell, Montana 

For Respondents: 

George W. Best, Attorney at Law, Kalispell, Montana 

Submitted on Briefs: August 30, 2001 

 Decided: September 5, 2002 

Filed: 

__________________________________________ 

Clerk 
2 

Justice Jim Rice delivered the Opinion of the Court. 

¶1 A. Caroline Fenzau, Petitioner and Respondent (Caroline), 

filed a petition for dissolution of marriage against William A. 

Fenzau, Respondent and Appellant (William), on May 27, 1998. 

William appeals the decree of dissolution entered by the District 

Court of the Eleventh Judicial District, Flathead County. We 

affirm in part and remand for further proceedings consistent with 

this opinion. 

¶2 William raises the following issues on appeal: 

¶3 1. Whether the District Court erred by allowing and 

considering evidence of physical and emotional abuse of Caroline by 

William. 

¶4 2. Whether the District Court failed to equitably apportion 

the marital estate. 

¶5 3. Whether the District Court erred by not exercising 

independent judgment when it adopted Caroline’s proposed findings 

of fact and did not establish the marital estate’s net worth. 

¶6 4. Whether the District Court properly considered the issue 

of attorney fees. 

FACTUAL AND PROCEDURAL BACKGROUND

¶7 Caroline and William were married on March 12, 1993, in Reno, 

Nevada. No children were born of the marriage. 

¶8 William was 60 years of age at the time of the dissolution, in 

good health, and retired from Turner Construction Company, where he 

had been a project manager for approximately thirteen years. At 

the time of the dissolution, William was incarcerated in federal 
3 

prison on a weapons charge arising out of his earlier conviction of 

felony domestic violence upon Caroline. Caroline was 53 years old, 

in poor health, disabled, and receiving Social Security benefits of 

approximately $770 per month due to a parasitic problem in her 

stomach and a resulting clotting deficiency, conditions which 

predate her marriage to William. Although Caroline was receiving 

disability payments at the time of marriage, the present state of 

her disability is a direct result of physical abuse she sustained 

during the marriage with William. 

¶9 Caroline entered the marriage with approximately $24,500 in 

cash; antiques worth $25,000; a doll collection worth $15,000; a 

vehicle valued at $17,000; $10,000 in equipment; and $5,000 from 

her mother’s estate. William entered the marriage with $100,000 in 

cash, which was an inheritance from his mother; an Employee Stock 

Ownership Plan (ESOP) in the amount of approximately $11,321; a 

401(K) plan valued at $51,000; a $588 per month pension once he 

turns age 65; and a coin collection valued at approximately $500. 

¶10 In 1995, William and Caroline purchased a bed and breakfast 

business in Emigrant, Montana. In order to purchase the bed and 

breakfast, William liquidated his 401(K) and Caroline contributed 

most of her premarital assets. In 1997, the parties sold the bed 

and breakfast, and purchased a house for approximately $222,000 in 

Somers, Montana. They then divided their excess funds into two 

separate investment accounts, each placing $88,000 into separate 

Linsco/Private Ledger (LPL) stock accounts. At the time of 

dissolution, which followed losses in the stock market, William’s 
4 

account was valued at $6,683 and Caroline’s account was valued at 

$1,285. 

¶11 The District Court found that Caroline “sustained over seven 

years of abuse during the course of her relationship” with William. 

 On one occasion, William cut Caroline’s wrist while trying to cut 

the phone line when she was dialing 911. Caroline also suffered 

facial bruises, a concussion, and broken teeth. In another 

incident, William knocked Caroline to the floor and stomped on her 

lower back, crushing a disc in her back. She was transported to a 

hospital by ambulance, and hospitalized for seven days. In 1994, 

William pushed Caroline down an outside stairway, injuring her 

right knee, which required orthoscopic surgery. After the couple 

moved to Somers in May 1997, William attacked Caroline one night 

after she refused to have sex with him. He tied her hands and feet 

with a telephone cord, bent her over a desk, and raped her. 

William then locked Caroline in a closet, keeping her there for 

eighteen hours. 

¶12 Caroline’s testimony recounted additional incidents of abuse 

during the marriage, including over a half dozen concussions, the 

loss of most of her teeth, being kicked in the stomach, being 

sexually assaulted, and having a gun put to her head and threatened 

 with her life. During their marriage, William was incarcerated 

for assault on numerous occasions. 

¶13 William denied causing these injuries. William asserted that 

the injuries Caroline claims were either due to her disability or 

caused by accidents or other natural causes. He argues that none 
5 

of the medical records indicate he caused any of these injuries to 

her. However, William does not deny being arrested for domestic 

abuse nor his criminal record arising from charges related to his 

abuse of Caroline. 

¶14 Caroline has ongoing medical expenses as a result of her 

injuries. She takes several prescription medications for her 

physical pain and emotional injuries. The current cost of her 

prescriptions is about $150 to $190 per month. Caroline faces at 

least $10,000 in future dental bills to repair the teeth that were 

broken or knocked out. She also faces probable surgery on her back 

due to damaged discs. Caroline will require physical therapy 

throughout the course of her life at a cost of approximately $85 

per week. Additionally, Caroline faces an estimated $33,000 in 

future counseling costs to address the mental and emotional 

consequences of William’s actions. 

¶15 Prior to the dissolution proceedings, William retained 

attorney Patrick D. Sherlock (Sherlock) to represent him on 

criminal charges of Partner Assault and Sexual Intercourse Without 

Consent (6 counts), arising out of his attacks upon Caroline, as 

well as other criminal charges. Initially, Sherlock consulted with 

District Court Judge Ted O. Lympus regarding William’s eligibility 

for appointment of a public defender. Judge Lympus determined 

William was not entitled to a public defender, given the value of 

his assets. William then assigned one-half of his undivided half 

interest in the parties’ home to Sherlock as security for the fees. 

 Although Sherlock petitioned the District Court to approve his 
6 

assignment and his fee, the Final Decree of Dissolution failed to 

address Sherlock’s motion, simply holding that each party should 

pay their own attorney fees. 

¶16 In distributing the assets in the Final Decree of Dissolution, 

the District Court awarded Caroline the following assets: the 

marital residence located in Somers, Montana; a 1992 Chevrolet 

pickup; an inoperable 1980 Datsun automobile; a 1995 sixteen-foot 

trailer; recreational equipment; and miscellaneous household 

furnishings, heirlooms, art, jewelry, silver, crystal, and china. 

Additionally, Caroline was awarded William’s Turner Corporation 

ESOP. The assets awarded to Caroline were valued at $263,571. 

Caroline was assigned the debts incurred by her subsequent to the 

parties’ separation, as well as all debt related to her medical 

expenses. 

¶17 The District Court awarded William his Turner Corporation 

pension plan and personal effects, subject to any debt he had 

incurred subsequent to the parties’ separation. 

STANDARD OF REVIEW

¶18 In a dissolution proceeding, this Court reviews a district 

court’s findings of fact to determine whether the district court 

clearly erred. The clearly erroneous standard involves a threepart test: (1) this Court will review the record to see if the 

findings are supported by substantial evidence; (2) if the findings 

are supported by substantial evidence, this Court determines if the 

trial court has misapprehended the effect of the evidence; and (3) 

if substantial evidence exists and the effect of the evidence has 
7 

not been misapprehended, this Court may still find that a finding 

is clearly erroneous when, although there is evidence to support 

it, a review of the record leaves this Court with the definite and 

firm conviction that a mistake has been committed. Pfeifer v. 

Pfeifer (1997), 282 Mont. 461, 467, 938 P.2d 684, 688. We review a 

trial court’s conclusions of law to determine whether those 

conclusions are correct. In re Marriage of Harper, 1999 MT 321, ¶ 

17, 297 Mont. 290, ¶ 17, 994 P.2d 1, ¶ 17. 

DISCUSSION

¶19 Did the District Court err by allowing testimony and evidence 

in relation to the physical and emotional abuse of Caroline by 

William?

¶20 William moved to strike allegations of his abuse of Caroline 

from her pleadings and to exclude evidence of such abuse in the 

dissolution proceeding. The District Court denied William’s 

motions. On appeal, William asserts the District Court erred in 

admitting and considering evidence of the abuse, citing the 

prohibition against consideration of marital misconduct set forth 

in § 40-4-202, MCA, and this Court’s affirmation of that principle 

in our decisions. 

¶21 The District Court made extensive findings about the physical 

and emotional abuse inflicted upon Caroline by William, including 

the facts referenced earlier in this opinion, as well as numerous 

other instances. Although not raised as an issue on appeal, 

William’s briefing also offers the contention that the findings of 

abuse are not supported by the evidence. However, the District 
8 

Court’s findings were clearly supported by substantial evidence. 

The Court found that “the present state of [Caroline’s] disability 

is a direct result of her marriage to [William].” The District 

Court also noted the following findings about Caroline among the 

reasons it gave for the distribution of the marital estate: 

She is left with a damaged and disabled body solely as a 

result of Respondent’s abuse; 

She faces certain future physical, emotional and mental 

pain with a lifetime of medical needs, again solely as a 

result of such abuse inflicted upon her by Respondent. 

¶22 The District Court forthrightly concluded that its 

distribution of property was “[b]ased upon the evidence clearly 

showing the extent of the abuse, both physical and emotional, 

inflicted upon Petitioner by Respondent, [and] Petitioner’s 

resultant and continuing need for medical treatment.” 

¶23 Section 40-4-202, MCA, provides that the trial court shall 

equitably apportion marital property between the parties “without 

regard to marital misconduct.” We have thus held that 

“[a]pportionment of a marital estate is based on equitable 

principles and whether parties are at ‘fault’ should not affect the 

court’s division of assets.” In re Marriage of Griffith (1993), 

260 Mont. 124, 141, 860 P.2d 78, 89. 

¶24 In Collette v. Collette (1981), 190 Mont. 500, 621 P.2d 1093, 

the District Court required the husband to make all future payments 

on the family home in “partial recompense” for his failure to 

provide the wife with an accounting of her share of proceeds from a 

sale of property. This Court reversed, finding that the District 

Court’s actions were “akin to an assessment of punitive damages,” 
9 

and a violation of § 40-4-202, MCA, which “expressly provides that 

the court is not to consider any marital misconduct in disposing of 

the marital assets.” 190 Mont. at 504, 621 P.2d at 1095. The 

Court reached a similar result in In Re Marriage of Griffith, 

supra. 

¶25 In In re Marriage of Bultman (1987), 228 Mont. 136, 740 P.2d 

1145, the wife asserted that the District Court impermissibly 

relied upon marital misconduct in its division of the marital 

estate. The wife cited the District Court’s reference to her 

placement of the husband in the State Hospital at Galen, that the 

husband had not been permitted to return to the family home, and he 

had no access to the parties’ assets. However, in analyzing the 

division of the estate, this Court found that the District Court 

had made those findings to explain its decision to order the sale 

of the family home and to equally divide the proceeds between the 

parties, not to punish the wife. Bultman, 228 Mont. at 138, 740 

P.2d at 1147. Similarly, we have held that the District Court’s 

reference to a substantial loss in restaurant sales under a 

spouse’s management did not interject fault into the dissolution, 

but simply aided the court in considering and equitably 

distributing the marital estate. In the Marriage of Hanni, 2000 MT 

59, 299 Mont. 20, 997 P.2d 760. 

¶26 In this case, the District Court considered Caroline’s medical 

and financial needs resulting from William’s abuse during the 

marriage when apportioning the marital estate. William argues this 

violates § 40-4-202, MCA, which prohibits the consideration of 
10 

marital misconduct in dividing the marital estate. However, a 

distinction exists between awarding a larger portion of the marital 

estate in order to penalize marital misconduct, and, on the other 

hand, considering the medical and financial consequences of marital 

abuse in the allocation of the marital estate. Although this Court 

has not had occasion to address this distinction previously, other 

states with similar statutory prohibitions on the consideration of 

marital misconduct have done so. 

¶27 In Burt v. Burt (Minn. 1986), 386 N.W.2d 797, the trial court 

had found that the wife’s earning capacity had been impaired as the 

result of physical abuse inflicted by the husband during the 

marriage, and awarded her maintenance therefor. Burt, 386 N.W.2d 

at 799. The Minnesota Supreme Court affirmed, determining that 

“[t]he statutory prohibition against considering marital misconduct 

does not foreclose a judge from considering the financial needs 

resulting from a chronic health problem that in turn was caused by 

physical abuse during the marriage.” 386 N.W.2d at 800. 

¶28 In In re Marriage of Severino (Ill. 1998), 698 N.E.2d 193, the 

court considered the emotional state of the petitioner resulting 

from physical abuse during the marriage in awarding maintenance to 

the petitioner. “Noting that this . . . ‘fragile’ condition of 

petitioner was apparently caused by the abuse from respondent does 

not mean that the trial court considered the conduct of respondent 

in an effort to punish him.” Severino, 698 N.E.2d at 195. 

Likewise, in Wheeler v. Upton-Wheeler (Nev. 1997), 946 P.2d 200, 

the Nevada Supreme Court determined that the economic consequences 
11 

of spousal abuse can be considered in the division of property and 

assets. “If spousal abuse . . . of one party has had an adverse 

economic impact on the other party, it may be considered by the 

district court in determining . . . [the] division of . . . 

property.” Wheeler, 946 P.2d at 203. 

¶29 The Court finds these holdings to be well founded. Likewise, 

this Court holds that the statutory prohibition against considering 

marital misconduct does not foreclose the district court from 

considering the medical and financial needs of a spouse which 

result from the other spouse’s physical, mental, or emotional abuse 

during the marriage. Consideration of the economic effects of 

abuse, such as medical expenses and a person’s ability to work and 

earn an income, is not an interjection of fault or an assignment of 

blame which is contemplated by the statutory prohibition of 

judicial consideration of marital misconduct. If the economic 

impact of abuse is excluded from consideration in making a division 

of the marital estate, a truly equitable apportionment cannot 

result. 

¶30 We hold that the admission and consideration of evidence of 

the consequences of marital abuse, and the findings made by the 

District Court herein, were proper and aided the District Court in 

fashioning an equitable distribution of the marital estate. These 

findings did not interject fault or marital misconduct into the 

dissolution, but allowed the District Court to give consideration 

to the very real effects of William’s abuse of Caroline, and make 
12 

provision for her ongoing needs. The District Court did not err in 

so doing. 

¶31 Did the District Court fail to equitably apportion the marital 

estate?

¶32 Section 40-4-202, MCA, governs the distribution of property in 

a marriage dissolution, and lists the factors the district court 

must consider in making an equitable distribution. The statute 

provides in part: 

In a proceeding for dissolution of a marriage . . . the 

court, without regard to marital misconduct, shall . . . 

finally equitably apportion between the parties the 

property and assets belonging to either or both, however 

and whenever acquired and whether the title thereto is in 

the name of husband or wife or both. In making the 

apportionment, the court shall 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 need 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. 

Section 40-4-202, MCA. 

¶33 William argues the District Court did not divide the marital 

estate equitably, because Caroline received substantially more of 

the marital estate than he received. Further, William argues that 

the District Court failed to consider his contributions to the 

marital estate. 

¶34 In dividing the assets, the District Court determined that the 

majority of both parties’ premarital assets were invested into the 

marital estate. Additionally, the District Court found that 

William was in good health, would be employable following his 

release from prison, and had the ability to earn income and acquire 
13 

assets. On the other hand, the District Court found that Caroline 

was in poor health, disabled, physically unable to acquire gainful 

employment, and did not have the ability to earn adequate income or 

assets to provide for her needs. In addition to not being able to 

earn income, the District Court found that Caroline has inevitable 

expenses arising from William’s abuse. As set forth above, the 

District Court extensively documented Caroline’s medical needs and 

expenses. 

¶35 The District Court awarded Caroline marital assets in lieu of 

maintenance, in accordance with §§ 40-4-202 and 40-4-203, MCA. The 

District Court reasoned that “in lieu of spousal maintenance to 

which she is clearly entitled, . . . but payment of which by 

[William] cannot be relied upon, . . . it is fair and equitable to 

distribute the bulk of the tangible marital assets to [Caroline].” 

 Given the fact that William was incarcerated at the time of the 

dissolution hearing and not working, his ability to make regular 

maintenance payments was recognizably difficult. Thus, the 

District Court made the reasonable choice of awarding Caroline a 

larger portion of the marital estate, rather than providing her 

with maintenance. 

¶36 The District Court’s findings in this case reflect that Judge 

Lympus considered, among other things, the duration of the 

marriage; the parties’ assets; their health, occupation, amount and 

sources of income; the needs of each of the parties; the 

opportunity of each for future acquisition of capital assets and 

income; and apportionment of property to Caroline in lieu of 
14 

maintenance, all of which are consistent with § 40-4-202, MCA. 

Accordingly, we hold that the District Court did not err in 

apportioning the marital estate. 

¶37 Did the District Court err by not exercising independent 

judgment when it did not establish the marital estate’s net worth 

and adopted Caroline’s proposed findings of fact?

¶38 First, William argues the District Court failed to exercise 

independent judgment when it failed to establish the marital 

estate’s net worth. In support of his argument, William cites In 

re the Marriage of Gochanour, 2000 MT 156, 300 Mont. 155, 4 P.3d 

643, and In re the Marriage of Smith (1994), 264 Mont. 306, 871 

P.2d 884. In those cases, we held that without a finding of the 

marital estate’s net worth, this Court cannot determine if the 

property was equitably divided. Gochanour, ¶ 42; Smith, 264 Mont. 

at 310-11, 871 P.2d at 887. 

¶39 In In re Marriage of Harkin, 2000 MT 105, ¶ 31, 299 Mont. 298, 

¶ 31, 999 P.2d 969, ¶ 31, we concluded that the District Court did 

not abuse its discretion by not making a specific finding of fact 

regarding the total assets and liabilities of the marital estate, 

holding “a net valuation by the district court . . . is not always 

mandatory.” Harkin, ¶ 31 (quoting In re Marriage of Walls (1996), 

278 Mont. 413, 417, 925 P.2d 483, 485). In determining whether a 

finding of net worth is necessary, we have stated that “the test is 

whether the findings as a whole are sufficient to determine the net 

worth and to decide whether the distribution was equitable.” 

Harkin, ¶ 31; Walls, 278 Mont. at 417, 925 P.2d at 485; In re 
15 

Marriage of Stephenson (1989), 237 Mont. 157, 160, 772 P.2d 846, 

848. 

¶40 In this case, the District Court made findings of fact as to 

the value of Caroline’s and William’s significant assets and debts. 

 Although the District Court did not make a specific finding of the 

estate’s net worth, the findings of fact taken as a whole are 

sufficient to determine whether the property distribution was 

equitable. Harkin, ¶ 31; Walls, 278 Mont. at 417, 925 P.2d at 485; 

Stephenson, 237 Mont. at 160, 772 P.2d at 848. Accordingly, we 

hold the District Court did not err in failing to determine the net 

worth of the marital estate. 

¶41 Second, William argues the District Court failed to exercise 

independent judgment by adopting most of Caroline’s proposed 

findings of fact. William claims the District Court did not give 

individual treatment to the issues presented by the parties. We 

disagree. 

¶42 We have held that “the District Court can adopt a party’s 

proposed findings of fact and conclusions of law if they are 

sufficiently comprehensive and pertinent to the issues to provide a 

basis for a decision and are supported by the evidence.” In Re the 

Marriage of Ereth (1998), 232 Mont. 492, 495, 757 P.2d 1312, 1314. 

 Contrary to William’s argument, the record indicates that the 

District Court did not simply “rubber-stamp” Caroline’s findings of 

fact and adopt her findings as its own. The District Court 

properly considered the evidence, the credibility of the witnesses, 

and exercised independent judgment in issuing its findings and 
16 

conclusions. Accordingly, we hold the District Court did not err 

in making its findings of fact and conclusions of law. 

¶43 Did the District Court properly consider attorney fees?

¶44 William argues that the District Court “side-stepped” the 

attorney fee issue by simply ordering each party to pay their own 

attorney fees and costs. He contends that attorney fees in this 

case for both his criminal defense and his representation in this 

dissolution proceeding are “necessities of life” under § 40-4-121, 

MCA, which are properly payable from the marital estate. William 

further asserts that the District Court judge verbally indicated 

that attorney fees would be awarded. 

¶45 After being disqualified for appointment of a public defender, 

William retained Sherlock to represent him on the criminal charges. 

 On November 5, 1998, William executed an assignment of one-half of 

his undivided half interest in the home jointly owned by him and 

Caroline to Sherlock as security for Sherlock’s fees. However, 

because of the pending dissolution proceeding, a restraining order 

was in effect restricting the parties from encumbering or 

transferring any property, whether jointly or separately held, 

“without either the consent of the other party or an order of the 

court, except in the usual course of business or for the 

necessities of life.” Section 40-4-121, MCA. After William and 

Caroline failed to reach an agreement on a method for securing 

William’s legal representation, William moved for a lift of the 

stay, indicating in his motion that he had been charged with 

several felony counts and did not have funds to hire legal counsel. 
17 

 The District Court, on September 30, 1999, lifted the restraining 

order “to the extent that [William] be allowed to encumber his 

undivided half interest” in the parties’ home, which was owned 

jointly. The assignment of interest from William to Sherlock was 

thereafter recorded on October 4, 1999. Then, without explanation, 

on February 3, 2000, the District Court vacated its September 30, 

1999, order which had lifted the restraining order, thus 

reinstating it. However, William’s assignment of the one-half 

interest in the home to Sherlock remained of record. The District 

Court failed to address either the assignment or the fees incurred 

by William in defending himself against the criminal charges, 

holding only that each party should bear his or her own attorney 

fees related to the dissolution. 

¶46 We affirm the District Court to the extent it addressed the 

fee issue. We find that the District Court’s holding that each 

party would bear his or her own attorney fees related to the 

dissolution proceeding was a proper exercise of its discretion 

herein. 

¶47 However, the validity and status of the assignment and the 

issue of the fees related to William’s criminal representation were 

left unresolved. Therefore, we remand this matter for further 

proceedings to address these issues. The District Court is 

directed to determine the validity of William’s assignment of his 

interest in the home, jointly owned by him and Caroline, to 

Sherlock as security for Sherlock’s fees. Further, the District 

Court shall determine whether William’s criminal defense fees are 
18 

properly payable from the marital estate. Finally, if the District 

Court finds the criminal fees are payable from the marital estate, 

it shall determine the amount of fees which shall constitute a 

reasonable attorney fee for William’s criminal representation. 

¶48 Accordingly, we affirm in part and remand to the District 

Court for further proceedings consistent with this opinion. 

/S/ JIM RICE 
19 

We concur: 

/S/ JIM REGNIER 

/S/ PATRICIA COTTER 

/S/ W. WILLIAM LEAPHART’ 

/S/ JAMES C. NELSON