No. 86-041 INTHE SUPREME COURT OF THE STATE OF MONTANA 1986

INRE THEMARRIAGE OF MARGARET E. HURLEY,

DENNIS P. HURLEY,

APPEAL FROM: District Court of the Thirteenth Judicial District of the State of Montana in and for the County of Yellowstone, TheHonorable Diane G. Barz,Judgepresiding. COUNSELOF RECORD: For ~etitioner/Respondent: Wright, Tolliver and Guthals; Kenneth D. Tolliver, Billings,Montana

For Respondent/Appellant: RadovichLawFirm; Eric K. Hendricks Billings,Montana

Submittedon Briefs: April 4, 1986 Decided:July 17,1986 

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ClerkMr. Justice John C. Sheehy delivered the Opinion of the Court.

Appellant, Dennis P. Hurley, appeals from the judgment of the District Court, Thirteenth Judicial District, County of Yellowstone, dissolving the parties' marriage and apportioningthe property and assetsof their marital estate. Margaret and Dennis Hurley were formerly married in 1962. In 1968, the parties adopted a child,Kevin Hurley, who was 17 years old and a senior at Billings Central Catholic High School at the time of the dissolution proceedings in theDistrictCourt. In 1970,thepartieswere legally divorced in the State ofMinnesota. In the two years following their divorce, the parties occasionally resided togetheron an irregularbasis,until early 1973,when Dennis asked Margaret tomove to Corning, Iowa where he had secured employment the previous year. Margaret testified that she agreed to move to Iowa on the condition that they resume their marital relationship. Accordingly Margaret quit her job and sold her home in Minnesota to facilitate the move. After moving to Iowa, Margaret resumed wearing her wedding rings and the couple held themselves out as husband andwife. InNovember, 1973,Dennis andMargaretpurchased a home in Corning, Iowa. Margaret testified she contributed $12,500.00 toward the downpayment, that being the proceeds from the sale of her Minnesota home. Dennis produced two cancelled checks indicating that he contributed the sum of $2,500.00. The parties gave conflicting testimony regarding the totalpurchase price of the home,Margaret recalling the amount to be $42,500.00 and Dennis $40,500.00. The balance of the purchase price was financed by a mortgage in the sumof $28,000.00. The parties executed the mortgage as "Dennis P. Hurley andMargaret E. Hurley,Husband andWife." For the years 1978-1981, Dennis prepared the family income taxeswhich he filed as "married-filing joint return," naming Margaret as his wife with her occupation shown as "housewife.

### " Dennis denied that a common law marriage existed despite the fact that they held themselves out as married and despite the fact that he agreed he received

"services thatwould be comparable or equivalent" to a wife. Based on the above evidence, the District Court concluded that the parties entered a common law marriage in April, 1973.In 1981, the parties purchased a duplex in Eureka Springs, Arkansas, as an investment. The duplex was purchased under a contract for deed for the sum of $50,000.00, less a $20,000.00 downpayment. The record indicates the downpayment consisted of $14,000.00 in funds inherited by Dennis and $6,000.00 from the parties' joint savingsaccount. In 1982, Dennis obtained employment in Billings, Montana. Theparties and their sonresided in Billingsuntil April, 1984,when they separated. The record discloses, as the District Court found, that the parties held themselves out as husband and wife and maintained joint checking and savingsaccountswhile in Billings. During 1983, Dennis was employed by I.R.I. Research in Georgetown, Guyana. While employed by I.R.I. Research, in March of 1983, Dennis completed a form designating Margaret as his beneficiary for insurance purposes, indicating her relationshipas "wife."In April 1984, Dennis disappeared from the Billings

area. He later phoned Margaret from Las Vegas, Nevada, advising her that he had left a note with instructions in a post office box. The note instructed Margaret to take the funds from their joint checking and savings accounts to use to support herself and their son,and further advised thathe would be living in LasVegas. At that time, Margaret withdrew $31,000.00 from the savings account leaving abalance of $13,994.00. Shedid not

remove any funds from the joint checking account, in which there was a balance of $22,605.00. At this time, Margaret alsohad access to a savings account in her own name,with a balance of $15,000.00 which sumwas the accumulationofgifts received from her family,her childhood savings, and a small inheritance fromher father's estate. Dennis returned to Billings a few days after he had phoned Margaret from Las Vegas and withdrew the sums remaining in the joint checking and savings accounts, totalling approximately $36,000.00. In May, 1984, Dennismoved to Eureka Springs,Arkansas, and moved into one unit of the parties' duplex, where he presently resides. Dennis is a college graduate with a degree in accounting, and ispresently employed for the firm of George S. May as a management consultant. The record indicates that Dennis' present earnings are approximately $1,700.00 per month. The record, however, also indicates that he has had an earning capacity of up to $4,000.00 per month. In 1983 and 1984, Margaret attempted to establish a career in real estate in Billings, but earned only $2,300.00 in commissions. Thereafter, Margaret worked briefly as areceptionist from December, 1984, through February 1985,but has been unemployed since that time. Margaret, however, testified that she intends to attend a four-month paralegal training course in Denver, Colorado, to obtain marketable employment skills if she does not obtain suitable employment

soon.The District Court found that during theperiod ofApril 1973, up to the time of separation, the parties accumulated the followingassets: Assets at time of separation Joint checking account Joint saving account Wife's separate savings account 1981 Mercury Lynx 1974 Chrysler IRA Furniture Arkansas Duplex Stocks 3 sharesFinancialCorp. ofAmerica 120.00 6 shares Pfazier 120.00 162 sharesAmfac 4,050.00 3 sharesN.W. National 40.00 TOTAL $148,719.59 The District Court also found that the parties had accumulated the following liabilities at the time of trial: Liabilitiesat time of trial Mortgage ofArkansas Duplex $ 18,000.00 Mortgage of Billings House 40,000.00 TOTAL $ 62,000.00 Subsequent to the parties separation,Margaret purchased a home in Billings for $60,000.00. The "mortgage of Billings House" listed above represents the amount still owing on the $60,000 purchaseprice. At the time the parties separated in April, 1984, Margaret had custody of the following assets:Funds from joint savings account $ 31,000.00 Personal savings account 15,000.00 1981Mercury Lynx 3,500.00 Furniture 1,835.00 TOTAL $ 51,335.00 Of the $31,000.00 from the parties' joint savings account, Margaret used $16,500.00 of the savings as a downpayment on the Billings house. Further, Margaret testified that shehad also expended a portion of the savings for living expenses forherself and theparties' minor child, leaving a balance of $15,208.00 in savings and $1,424.66 in checking account funds. TheDistrict Court also found that Dennishad custody of the followingassets: Funds from joint savings account $ 13,994.00 Funds from joint checking account 22,605.59 1974Chrysler 500.00 IRA 10,000.00 Stocks-totaling 4,330.00 Arkansas duplex 50,000.00 TOTAL $101,429.59 Accordingly, the DistrictCourt allocated the assets and liabilities in the marital estate as follows: Assets

Wife's cash account balance Savingsdrawnby husband Checking drawnby husband 1981Mercury Lynx 1974Chrysler I

RA Furniture Arkansas Duplex Stocks Billings house Value Wife Husband

TOTALASSETS $181,972.59 $90,543.00 $91,429.59 Liabilities Billingshome mortgage Arkansas duplex TOTAL LIABILITIES Net Worth andAllocation $119,972.59 $46,543.00 $73,429.59In addition, the District Court awarded Margaret $31,439.18 to be paid in installments of $5,000.00, the first payment due 30 days after entry of thedecree and the balance in five equal annual installments commencing July 1, 1986, together with interest at 10% per annum from the date of trial. In awarding Margaret the cash sum, the District Court reasoned that: "In light of the husband's superior earning capacity, the wife's need for retraining in order to obtain suitable employment and the expense she will incur in educating the parties' son, the Court finds it equitable to award her approximately 65%of the netmarital estate." The District Court also noted that Dennis failed to accountaccurately for themarital assetshe controlled since the separation, and that he testified to purchasing assets not shown on his Rule 32 affidavit. Specifically, Dennis failed to report income of $325.00 per month he receives for rentalof one-half of the duplex inArkansas. The record also indicates that Dennis expended a large portion of the cash assets of the marriage. Of the $36,599.59 which he took from the parties joint checking and savings accounts, he retained only $15,350.00 at the time of trial. Dennis' only explanation at trial for the dissipation of funds was the expense of transporting a woman whom he purportedly married, and her three children from Guyana, South America to theUnited States. Dennis raises five issues for our review: 1. Whether the DistrictCourt erred indetermining that a common law marriage had been established commencing April 1, 1973; 2. Whether the District Court's adoption of Margaret's Proposed Findings of Fact and Conclusions of Law was error;3. Whether the District Court erred in failing to indicate thebasis for the determinationof the values of the marital estate when conflicitng evidence of values was presented; 4. Whether the District Court erred in selecting the time valuation of the marital estate;and 5. Whether theDistrictCourt erred, in exercise of its discretion, by acting arbitarily and without employment of conscientious judgment and by exceeding thebounds of reason in view of the circumstances. Dennis first contends that the District Court erred in failing to explain whether its finding of a common law marriagewasbased onMontana or Iowa law because the parties

were Iowa residents when the common law marriagewas entered. Dennis further contends that the evidence does not support the conclusions that the parties entered a common law marriage under Iowa law. Margaret, however, contends that there was a valid common law marriage under the laws ofboth Montana and Iowa. InMontana, in order for a common-law marriage to exist, the parties must be capable of consenting to the marriage; there must be a mutual and public assumption of the marriage relationship, cohabitation,and themarriage must take place immediately. In Re Sartain (Mont. 1984), 686 P.2d 909, 912, 41 St.Rep. 1691, 1694; In Re McClelland (1975), 168 Mont. 160, 164, 541 P.2d 780, 783. In Iowa the elementsnecessary to establish a common law marriage are: 1. an intent and agreement praesenti to be married by both parties, 2. continuous cohabitationby the parties, and 3. a public declaration that the parties are husband and wife. In Re Marriage of Winegard (Iowa 1979), 278 N.W.2d 505, 510.Clearly, the elements required to establish a common law marriage in Iowa and Montana are substantatively indentical. We, therefore, hold as to Dennis1 first contention, that it

was immaterial that the District Court did not state in its findings whether it found the existence of a common law marriage based on Montana or Iowa law. Because the parties were residents of Iowa, in April, 1973, however, when the alleged common law marriage was entered, we will look specifically to Iowa law to determine whether there was sufficient evidence in the record to support the District Court's conclusion that the parties entered a common law marriage. Specifically, Dennis argues that there is a lack of evidence of an agreement to be married in praesenti as required by Iowa law. In a separate opinion in In Re Marriage of Winegard (Iowa 1977), 257 N.W.2d 609,where the husband expressly denied the existence of an agreement to marry, the Supreme Court of Iowa stated: It is sufficent if the parties cohabitating intend present marriage, and it is immaterial how the intention is evidenced. Thewoman, indeed,may be entitled to marital rights if she intends present marriage, and the man does not, provided they cohabit and provided his conduct is such as to justify her in believing that he intends present marriage. 257N.W.2d at 616. In upholding the finding in Winegard of a common law marriage, the Iowa Supreme Court permitted both direct and circumstantial proof of an agreement to be married in praesenti. Here, the evidenceof the agreementtobe married in praesenti ismore than adequate and Dennis1denial thereof is not controlling. Margaret testified on cross-examination

as follows:Q. You stated earlier that there was an agreement to live asman andwife. Canyouexplainwhen that agreement was made? A. The agreement to live as man and wife, I was represented and introduced as his wife as soon as we started living together. But when I agreed to move to Corning,we moved as representing, I was again introduced as his wife. We purchased ourhome ashusband and wife. Q. Can you point to an exact moment where this agreement was made? At some point, there was a decision to become man and wife. Can you tell me what that moment was? A. At the moment when I agreed tomove to Corning. There being an abundance of evidence in the record establishing the other elements of an Iowa common law marriage, we hold the District Court did not err in finding the parties entered a common law marriage in April, 1973. Dennis next contends that the DistrictCourt's adoption of Margaret's Proposed Findings of Fact and Conclusions of Law was error. It is well settled that the District Court should not rely too heavily on findings and conclusions submitted by the winning party, and reliance is too heavy when the findings are used to the exclusion of a consideration of the facts and the exercise of the Judge's

own judgment. In Re Marriage of Hunter (1982), 196 Mont. 235, 245-46, 639 P.2d 489, 495. Our ultimate test for adequacy of findingsof fact iswhether they are sufficiently comprehensiveand pertinent to the issues to provide a basis for decision, and whether they are supportedby the evidence presented. In Re Marriage of Wolfe (1983), 202 Mont. 454, 457-58, 659 P.2d 259, 261; In Re Marriage of Jensen (Mont. 1981), 631 P.2d 700, 703, 38 St.Rep. 1109, 1113. The findings in this case, which were adopted almost verbatim from Margaret's proposed findings, do meet the above tests. The District Court's findingsof fact and conclusions of law

are comprehensive and pertinent to the issues presented.Further,they are all supportedby sufficient evidence in the record. Dennis' third contention is that the District Court erred by failing to indicate the basis for the determination of thevaluesof the marital estate when conflicting evidence of values was presented. Specifically,Dennis contends that the District Court erred 

### in valuing the parties' personal property. At trial, Margaret testified that the parties' personal property should be valued at $1,835.00. Margaret arrived at this amount by attaching a value to each item of personal property an amount equal to one-fourth of its purchase price. Dennis, however, testified that the proper valuationmethod should be the replacement costof each item. InMontana, in distributing marital propertypursuant to a dissolutionand adoptingproposedvalues or setting its own values,theDistrict Court is free in its discretion to adopt the recommendationof aparty or a layman. InReMarriage of Garst (Mont. 1983), 669 P.2d 1063, 1066-67, 40 St.Rep. 1526, 1529; In Re Marriage of Goodmundson (1982), 201 Mont. 535, 539, 655P.2d 509, 511. But it is also true thatwhen faced with widely conflicting valuations, the District Court is required to give reasons for selecting one value over the others. Wolfe, 202Mont. at 459, 659 P.2d at 262. Clearly, the District Court should have stated its reasons for adopting Margaret's valuation over Dennis'. We, however, hold that the errorwas harmless, themethod employed by the District Court being more sound than themethod suggestedby Dennis. Dennis next contends that the District Court erred in selecting the time valuation of themarital estate. In the instant case, the DistrictCourt valued Dennis' estate as ofthe date of separation and Margaret's estate as of the date of dissolution. Dennis maintains that the same valuation date should be applied to both parties and that it should be the date of separation. Margaret,however,contends that the valuation dates adopted allowed for an equitable analysis and allocationof the parties assets. The standard for reviewing the property division in a dissolution decree is well settled in Montana. The apportionment made by the District Court will not be disturbed on review unless there has been a clear abuse of discretion as manifested by a substantially inequitable division of the marital assets resulting in substantial injustice. In Re Marriage of Holston (Mont. 1983), 668P.2d 1048, 1050, 40 St.Rep. 1435, 1436-37; In Re Marriage of Schultz (1982), 199 Mont. 332, 338, 649 P.2d 1268, 1271; In Re Marriage of Brown (1978), 179 Mont. 417, 422, 587 P.2d 361, 364. Abuse of discretion is further indicated by a District Court's arbitrary action without employment of conscientious judgment or in excess of the bounds of reason resulting in substantial injustice. In Re Marriage of Martens (Mont. 1981), 637 P.2d 523, 525, 38 St.Rep. 2135, 2137; InRe Marriage of Creon (1981),195 Mont. 254, 275, 635 P.2d 1308, 1309. It iswell settled that a proper disposition ofmarital property in a dissolution proceeding requires a finding of the net worth of the parties. In Re Marrige of Hamilton

(1980),186Mont. 282, 285, 607P.2d 102, 103; InReMarriage ofVivian (1978), 178Mont. 341, 344,583 P.2d 1072, 1074; In Re Marriage ofKramer (1979),177 Mont. 61, 67,580 P.2d 439, 443. This Court has further recognized that selection of a single valuation date for determining the net worth of theparties can create an inequitable disposition. In Re Marriage of Wagner (Mont. 1984), 679 P.2d 753, 757, 41 St.Rep. 409,414. In the instant case the parties effected a partial and informal division of a portion of the marital estate at or about the time of separation. Specifically,they each took a substantial portion of cash and placed it in their separate accounts. Margaret applied her cash toward maintaining herself and the partiesvminor son forwhom Dennis provided no support or financial assistance during the separation. With regard to Dennis,however, it is sufficient to say that the record is clear thathe dissipated his cash inways which did not further the legitimate objectives of the marriage. The District Court relied on Dennis' dissipation of funds in reaching its conclusion that to equitably apportion the parties' marital estate separate valuation dates were necessary. Section 40-4-202(l), MCA, permits the District Court to consider "dissipation of value of the respective estates" by one or both of the parties in its apportionment of the marital estate. Here, the District Court considered Dennis' dissipation of assets in its determination of the parties networth. Itmade no substantive differencewhether theDistrictCourt considered Dennis' dissipationof funds in its determination of the net worth of the parties or in its actual apportionment of the marital estate because a finding of net worth is simply the first step in the apportionment process. We, therefore,hold that the DistrictCourt did not abuse its discretion by selecting separate valuation dates for the estates of the respectiveparties. With regard to the apportionment of assets to the respective parties, Dennis contends it was error for theDistrict Court to award Margaret additional assets to cover the expenses she intends to incur in sending theparties' son to college. In this regard, the District Court made the following findings of fact: 37. The evidence further shows that the parties' son is a senior inhigh school and anhonor student at Billings Central Catholic High School,and Boys State delegate and that he desires a college education. His last year at Central will cost $1,048.00 in tuition. 39.. 

# .. In light of the husband's superior earning capacity,thewife's need for retraining in order to obtain suitable employmentand the expense she will incur in educating the parties' son, the 

## -- - Court finds itesuitable to award her approximately -- 65% of the net-marital estate.. 

# .. (~m~hasis added.) Section 40-4-202(2),MCA states: In a proceeding, the courtmay protect and promote the best interestsof the childrenby setting aside a portion of the jointly and separately held sestatesof the parties in a separate fund or trust

for the support, maintenance, education, and general welfare of any minor, dependent, or incompetent children of the parties. (Emphasis added. Thus, in the instant case, the District Court erred in two respects. First, it was error to award a portion of the marital estate directly to Margaret for the education of the parties' son. Such an apportionment should have beenplaced in a "separate fund or trust" as provided by S 40-4-202(2), MCA

# . Second, § 40-4-202(2), MCA,permits the DistrictCourt to set aside a portion of the marital estate only for the education of a "minor" child. Here, the District Court apparently awarded Margaret a greater portion of themarital estate using as one of the factors in its decision the college educationof theparties' son. InMontana, a parents obligation for support ends at the age of majority, unless there has been some voluntary agreement that supportby oneor both parents will continue beyond majority. In Re Marriage of Bordner (Mont. 1986), 715 P.2d 436, 438, 43 St.Rep. 417, 419-20; In Re Marriage of Herrig (1982), 199 Mont. 174, 187, 648 P.2d 758, 765. The District Court's consideration of Margaret's educational expenses effectively placed an improper obligationon Dennis to support their son beyond majority. This cannotbe done. Thus, we remand this

case for the District Court to apportion theparties' assets without regard to the expensesMargaretwill incur in sending the parties' son to college. The District Court, however, may considerMargaret's expenses in raising and educating the parties' son from the time of separation until he reached majority as a significant contribution to the marital estate. In Re Marriage of Popp (Mont. 1983), 671 P.2d 24, 28, 40 St.Rep. 1747, 1751. TheDistrict Courtmay, of course, grant Margaret a larger share of themaritalproperty upon the need for her retraining and his superior earning capacity. Dennis' final contention is that the District Court erred in awarding Margaret theparties' Individual Retirement Account for failure to consider the tax consequences. Dennis, however, failed topresent this issue to theDistrict Court and advances it here with no citation of authority to establish an immediate tax liability. InRe Marriage ofBeck

(Mont. 1981), 631P.2d 282, 285, 38 St.Rep. 1054, 1058. We, therefore,will not discuss the issue further. We remand to the District Court for further proceedings consistentwith this opinion.We Concur: 

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Chief Justice