No. 86-041 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

IN RE THE MARRIAGE 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, 

The Honorable Diane G. Barz, Judge presiding. 

COUNSEL OF RECORD: 

For ~etitioner/Respondent: 

Wright, Tolliver and Guthals; 

Kenneth D. Tolliver, 

Billings, Montana 

For Respondent/Appellant: 

Radovich Law Firm; Eric K. Hendricks 

Billings, Montana 

Submitted on Briefs: April 4, 1986 

Decided: July 17, 1986 

Jlii 1 ', 790g 

Filed: 

Clerk 
Mr. 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 

apportioning the property and assets of 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 the District Court. In 1970, the parties were 

legally divorced in the State of Minnesota. In the two years 

following their divorce, the parties occasionally resided 

together on an irregular basis, until early 1973, when Dennis 

asked Margaret to move 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 

and wife. In November, 1973, Dennis and Margaret purchased 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 total purchase 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 sum 
of $28,000.00. The parties executed the mortgage as "Dennis 

P. Hurley and Margaret E. Hurley, Husband and Wife." 

For the years 1978-1981, Dennis prepared the family 

income taxes which 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 that would 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 

savings account. 

In 1982, Dennis obtained employment in Billings, 

Montana. The parties and their son resided in Billings until 

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 

savings accounts while 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 

relationship as "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 that he 

would be living in Las Vegas. 

At that time, Margaret withdrew $31,000.00 from the 

savings account leaving a balance of $13,994.00. She did not 

remove any funds from the joint checking account, in which 

there was a balance of $22,605.00. At this time, Margaret 

also had access to a savings account in her own name, with a 

balance of $15,000.00 which sum was the accumulation of gifts 

received from her family, her childhood savings, and a small 

inheritance from her 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, Dennis moved 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 is presently 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 a 
receptionist 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 the period of April 

1973, up to the time of separation, the parties accumulated 

the following assets: 

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 shares Financial Corp. of America 120.00 

6 shares Pfazier 120.00 

162 shares Amfac 4,050.00 

3 shares N.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: 

Liabilities at time of trial 

Mortgage of Arkansas 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 purchase price. 

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 

1981 Mercury 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 she had also expended a portion of the savings 

for living expenses for herself and the parties' minor child, 

leaving a balance of $15,208.00 in savings and $1,424.66 in 

checking account funds. 

The District Court also found that Dennis had custody of 

the following assets: 

Funds from joint savings account $ 13,994.00 

Funds from joint checking account 22,605.59 

1974 Chrysler 500.00 

IRA 10,000.00 

Stocks-totaling 4,330.00 

Arkansas duplex 50,000.00 

TOTAL $101,429.59 

Accordingly, the District Court allocated the assets and 

liabilities in the marital estate as follows: 

Assets 

Wife's cash account balance 

Savings drawn by husband 

Checking drawn by husband 

1981 Mercury Lynx 

1974 Chrysler 

I RA 

Furniture 

Arkansas Duplex 

Stocks 

Billings house 

Value Wife Husband 

TOTAL ASSETS $181,972.59 $90,543.00 $91,429.59 

Liabilities 

Billings home mortgage 

Arkansas duplex 

TOTAL LIABILITIES 

Net Worth and Allocation $119,972.59 $46,543.00 $73,429.59 
In 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 the decree 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 net marital estate." 

The District Court also noted that Dennis failed to 

account accurately for the marital assets he 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 

rental of one-half of the duplex in Arkansas. 

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 the United States. 

Dennis raises five issues for our review: 

1. Whether the District Court erred in determining 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 the basis for the determination of 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 the District Court erred, in exercise of its 

discretion, by acting arbitarily and without employment of 

conscientious judgment and by exceeding the bounds 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 

marriage was based on Montana or Iowa law because the parties 

were Iowa residents when the common law marriage was 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 of both 

Montana and Iowa. 

In Montana, 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 the marriage 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 elements necessary 

to establish a common law marriage are: 1. an intent and 

agreement praesenti to be married by both parties, 

2. continuous cohabitation by 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. The woman, 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. 257 N.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 evidence of the agreement to be married 

in praesenti is more than adequate and Dennis1 denial thereof 

is not controlling. Margaret testified on cross-examination 

as follows: 
Q. You stated earlier that there was an agreement 

to live as man and wife. Can you explain when 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 our home as husband 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 to move 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 District Court'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 findings of fact is whether they are sufficiently 

comprehensive and pertinent to the issues to provide a basis 

for decision, and whether they are supported by 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 findings of fact and conclusions of law 

are comprehensive and pertinent to the issues presented. 
Further, they are all supported by sufficient evidence in the 

record. 

Dennis' third contention is that the District Court 

erred by failing to indicate the basis for the determination 

of the values of 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 

valuation method should be the replacement cost of each item. 

In Montana, in distributing marital property pursuant to 

a dissolution and adopting proposed values or setting its own 

values, the District Court is free in its discretion to adopt 

the recommendation of a party or a layman. In Re Marriage 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, 655 P.2d 509, 511. But it is also true that when faced 

with widely conflicting valuations, the District Court is 

required to give reasons for selecting one value over the 

others. Wolfe, 202 Mont. 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 error was harmless, the method employed by the 

District Court being more sound than the method suggested by 

Dennis. 

Dennis next contends that the District Court erred in 

selecting the time valuation of the marital estate. In the 

instant case, the District Court valued Dennis' estate as of 
the 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 

allocation of 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), 668 P.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; In Re Marriage of Creon (1981), 195 Mont. 254, 275, 635 

P.2d 1308, 1309. 

It is well settled that a proper disposition of marital 

property in a dissolution proceeding requires a finding of 

the net worth of the parties. In Re Marrige of Hamilton 

(1980), 186 Mont. 282, 285, 607 P.2d 102, 103; In Re Marriage 

of Vivian (1978), 178 Mont. 341, 344, 583 P.2d 1072, 1074; In 

Re Marriage of Kramer (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 the 
parties 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 partiesv minor son for whom 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 that he dissipated his cash in ways 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 net worth. It made no substantive difference whether 

the District Court considered Dennis' dissipation of 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 District Court did not 

abuse its discretion by selecting separate valuation dates 

for the estates of the respective parties. 

With regard to the apportionment of assets to the 

respective parties, Dennis contends it was error for the 
District Court to award Margaret additional assets to cover 

the expenses she intends to incur in sending the parties' 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 in high school and an honor 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, 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 esuitable to award her approximately - - 65% of the net- marital estate.. . . (~m~hasis 

added. ) 

Section 40-4-202(2), MCA states: 

In a proceeding, the court may protect and promote 

the best interests of the children by setting aside 

a portion of the jointly and separately held 

sestates of 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 been placed 

in a "separate fund or trust" as provided by S 40-4-202(2), 

MCA . 

Second, § 40-4-202(2), MCA,permits the District Court 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 the marital 

estate using as one of the factors in its decision the 

college education of the parties' son. In Montana, a parents 

obligation for support ends at the age of majority, unless 

there has been some voluntary agreement that support by one 
or 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 obligation on Dennis to support their son 

beyond majority. This cannot be done. Thus, we remand this 

case for the District Court to apportion the parties' assets 

without regard to the expenses Margaret will incur in sending 

the parties' son to college. The District Court, however, 

may consider Margaret'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. The District Court may, of course, grant 

Margaret a larger share of the marital property upon the need 

for her retraining and his superior earning capacity. 

Dennis' final contention is that the District Court 

erred in awarding Margaret the parties' Individual Retirement 

Account for failure to consider the tax consequences. 

Dennis, however, failed to present this issue to the District 

Court and advances it here with no citation of authority to 

establish an immediate tax liability. In Re Marriage of Beck 

(Mont. 1981), 631 P.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 

consistent with this opinion. 
We Concur: dd7- 

Chief Justice