NO. 95-258 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

IN RE THE MARRIAGE OF 

MARTIN PAUL GRIFFIN, 

Petitioner, Respondent and 

Cross-Appellant, 

and J 1. '1 7 500 !,A ; 

NANCY LIEN GRIFFIN, ,.., 3, I 

.,. i . ~~!&& 

Respondent and Appellant. . ..:F ~'i:!i.:;ig,i,lE &URF 

&a A j k $32 P4CbijTiiW ~~ ~ 

APPEAL FROM: District Court of the Fifth Judicial District, 

In and for the County of Beaverhead, 

The Honorable Ed P. McLean, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Edmund P. Sedivy, Jr.; Morrow, Sedivy & Bennett, 

Bozeman, Montana 

For Respondent: 

John S. Warren; Schulz, Davis & Warren, Dillon, 

Montana 

Filed: 

Submitted on Briefs: December 21, 1995 

~~~id~d: January 17, 1996 
Justice W. William Leaphart delivered the Opinion of the Court. 

Nancy Lien Griffin appeals, and Martin Griffin cross-appeals, 

from the June 16, 1994, Findings of Fact, Conclusions of Law and 

Partial Judgment and the December 2, 1994, Order and Final Judgment 

of the Fifth Judicial District Court, Beaverhead County, regarding 

the distribution and valuation of the marital estate, a business 

owned by the parties, and child support. We affirm in part, 

reverse in part, and remand. 

We consider the following issues on appeal: 

1. Did the District Court err in making its determination of 

the option purchase price set for the parties' business? 

2. Did the District Court err in granting Nancy a new option 

to purchase the parties' business? 

3. Did the District Court err in not ordering Martin to 

return the vacation pay? 

4. Did the District Court err in its determination of back 

child support? 

5. Did the District Court err in allowing certain items of 

personal property to remain in Martin's possession? 

6. Did the District Court err in determining that Martin did 

not have to indemnify Nancy with regard to two claims asserted 

against the parties' business? 

7. Did the District Court err in requiring Martin to return 

the condemnation proceeds he received from the State of Montana to 

the parties' business? 

Martin Griffin (Martin) and Nancy Lien Griffin (Nancy) were 

married on February 4, 1978. Four children were born of the 

marriage. During their marriage, the parties established and 

operated the Madison Lumber Company (MLC). The parties' marriage 
was dissolved in 1991 and Martin and Nancy were granted joint 

custody of the children, with Nancy designated as the primary 

residential custodian. In the Decree, Martin was awarded MLC while 

Nancy was granted a 180-day option to purchase MLC. Both parties 

appealed from the District Court's determination. In re Marriage 

of Griffin (l993), 260 Mont. 124, 860 P.2d 78. This is the 

parties' second appeal arising out issues raised in their 

dissolution of marriage. In the first appeal, we remanded the case 

to the District Court for findings regarding the option contract to 

purchase MLC, a determination of child support due under the 

Uniform Child Support Guidelines, and valuation of certain items in 

the marital estate. Marriase of Griffin, 860 P.2d at 84-86. A 

complete discussion of the facts underlying this dispute is set 

forth in this Court's opinion in the first appeal, Marriaqe of 

Griffin, 860 P.2d at 80-84. 

Following the first appeal, on remand, Nancy filed a motion 

for summary judgment attempting to exercise her option to purchase 

MLC. The District Court denied her motion and set the matter for 

a hearing on April 26, 1994. After hearing testimony from a 

business appraiser, the District Court entered its Findings of 

Fact, Conclusions of Law and Partial Order on June 16, 1994. The 

District Court determined that Nancy should have the opportunity to 

purchase the business for $323,305. Nancy exercised her option to 

purchase MLC and, on August 17, 1994, took control of MLC. 

1. Did the District Court err in making its determination of 

the option purchase price set for the parties' business? 

Nancy alleges that the District Court made mathematical and 

3 
accounting errors in determining the $323,305 option price set for 

MLC. However, we note that Nancy voluntarily exercised her option 

to purchase MLC and paid the amount set by the District Court. In 

exercising her option, she voluntarily complied with the District 

Court's order. Where a party has voluntarily complied with a 

judgment or court order, as Nancy did in exercising her option, 

that party can be deemed to have waived objection to that aspect of 

the judgment or court order. Turner v. Mountain Eng'g and Constr., 

No. 95-329, slip op. at 7 (Mont. Jan. 11, 1996) (citing State ex 

rel. Hagerty v. Rafn (1956), 130 Mont. 554, 557-58, 304 P.2d 918, 

920-21) . In so complying, Nancy has waived her objection and 

cannot now proceed inconsistently in pursuing an appeal as to the 

option price. See Turner, No. 95-329, slip op. at 11 (Mont. Jan. 

11, 1996) (citing Martin Dev. Co. v. Keeney Co. (1985), 216 Mont. 

212, 220, 703 P.2d 143, 147-48). If Nancy objected to the 

valuation of MLC, she should not have exercised her option to 

purchase MLC based upon that valuation. In paying the amount set 

by the District Court, Nancy negated any alleged error in the 

valuation of MLC. Turner, No. 95-329, slip op. at 6 (Mont. Jan. 

11, 1996) (citing Gates v. Deukmejian (9th Cir. 19931, 987 F.2d 

1392, 1408). That is, she is deemed to have waived any objection 

to the option price. Accordingly, we do not consider the merits of 

Nancy's argument that the District Court over-valued MLC. 

2. Did the District Court err in granting Nancy a new option 

to purchase the parties' business? 

In his cross-appeal, Martin alleges that the District Court 

erred in granting Nancy a new option to purchase MLC. Based on the 

4 
foregoing reasoning, Martin can also be said to have waived any 

objection to the option contract when he allowed the transaction to 

proceed. Turner, No. 95-329, slip op. at 6 (Mont. Jan. 11, 1996). 

Even assuming the District Court exceeded the scope of its 

jurisdiction on remand, Martin waived any objection by not raising 

this issue at the District Court. Instead, Martin accepted the 

$323,305 and transferred his stock in MLC. Thus, we do not 

consider whether the District Court abused its discretion in 

granting Nancy a new option to purchase MLC 

3. Did the District Court err in not ordering Martin to 

return the vacation pay? 

On August 1, 1994, just prior to Nancy's taking control of 

MLC, Martin withdrew $3,000 from MLC which he argues he was 

entitled to as vacation pay. Nancy asserts that Martin was not 

authorized to make such a withdrawal from MLC and disburse it to 

himself and, further, that the withdrawal was in violation of the 

District Court's earlier order which required Martin to properly 

manage MLC during the pendency of the proceedings. Nancy filed a 

motion to declare Martin in contempt on September 6, 1994. 

Evidence regarding the vacation pay issue was presented at a 

hearing held on November 30, 1994. However, in its Order and Final 

Judgment and Decree of December 2, 1994, the District Court made no 

ruling regarding Martin' s withdrawal of the $3,000 in vacation pay. 

Thus, from the record, we are unable to determine whether the 

District Court abused its discretion in not requiring Martin to 

return the $3,000 of vacation pay. See In re Marriage of Smith 

(1995), 270 Mont. 263, 267-68, 891 P.2d 522, 525. Accordingly, we 

5 
remand this issue to the District Court to determine whether Martin 

was entitled to the vacation pay. 

4. Did the District Court err in its determination of back 

child support? 

In reviewing a district court's award of child support, we 

consider whether the district court abused its discretion. In re 

Marriage of DeWitt (Mont. l995), 905 P.2d 1084, 1086, 52 St.Rep. 

1089, 1090 (citing In re Marriage of Craib (1994), 266 Mont. 483, 

490, 880 P.2d 1379, 1384). In the first appeal, we remanded the 

issue of child support to the District Court to determine Martin's 

child support obligation under the Uniform Child Support 

Guidelines. Marriase of Griffin, 860 P.2d at 88. On remand, the 

District Court referred the determination and calculation of child 

support to Ann Steffens, a child support guidelines specialist with 

Guidelines Consulting, ordering her to apply the guidelines and 

submit her recommendation to the court. 

Nancy now asserts that the amounts listed on MLC's financial 

statements as "shareholder loans" should have been included in 

Martin's income in computing the amount of child support due under 

the guidelines. We agree. The monies withdrawn as "shareholder 

loans" from MLC, along with materials taken from MLC's inventory, 

were taken for Martin's personal use. Thus, these amounts should 

have been included in Martin's gross income for purposes of 

computing his child support obligation. We note that income 

includes "expense reimbursements or in-kind payments received by 

the parent in the course of self-employment or operation of a 

business if such reimbursements or in-kind payments reduce personal 

6 
living expenses. " 46.30.1508 (1) (b) , ARM. Accordingly, the full 

amounts of the "shareholder loans" and materials taken from MLC 

inventory should have been listed as other income on Martin's child 

support worksheets. We remand for a determination of the child 

support due when all of Martin's income, including the shareholder 

loans and materials taken from MLC, is included in the computation. 

5. Did the District Court err in allowing certain items of 

personal property to remain in Martin's possession? 

The standard of review of a district court's division of 

marital property is whether the district court's findings of fact 

are clearly erroneous. Marriaqe of DeWitt, 905 P.2d at 1087 

(citing Marriase of Smith, 891 P.2d at 525) ; In re Marriage of 

McLean (1993), 257 Mont. 55, 61, 849 P.2d 1012, 1015. Where 

substantial credible evidence supports the court's findings and 

judgment, this Court will not alter the district court's decision 

unless there is an abuse of discretion. In re Marriage of Maedje 

(1994), 263 Mont. 262, 266, 868 P.2d 580, 583. 

In the original Findings of Fact and Conclusions of Law, dated 

November 14, 1991, Nancy was awarded the "contents of the family 

home" listed at a value of $20,290. In this appeal, Nancy asserts 

that the award was to include certain items of property, namely: an 

acoustic guitar, stationary bicycle, raft, mountain bike, 

children's ski gear, cabinets, and a stereo system. Martin 

counters that at the time of the 1991 order and decree that these 

items were not located at the family home, rather, they were in his 

possession or at a condominium located at Big Sky, Montana. Nancy 

7 
values this property at $8,100, however, from the record it is not 

clear whether that was the value of the property in 1991 or at the 

time of the hearing. The District Court noted that most of the 

items at issue were of inconsequential value. Essentially, Nancy 

argues that she has not received $8,100 of the $20,290 in property 

that she was awarded. Martin asserts that these items were not 

"contents of the family home," and, alternatively, that the 

distribution of the marital property was equitable. 

We note that the district court has broad discretion in 

distributing the marital assets and this Court will not disturb an 

equitable apportionment of the marital assets when it is clear that 

the district court was acting within its discretion. 1n re 

Marriage of Danelson (1992), 253 Mont. 310, 319, 833 P.2d 215, 221. 

Here, the District Court ordered that the children's ski gear 

should be delivered to the children, however, the court did not 

compel Martin to return the remainder of the items to Nancy. 

Finally, we note that in Nancy's original proposal for distributing 

the marital estate, Martin would have been awarded each of the 

items now at issue. From the record it is clear that the District 

Court was acting within its discretion and the distribution of the 

marital estate was not clearly erroneous. 

6. Did the District Court err in determining that Martin did 

not have to indemnify Nancy with regard to two claims asserted 

against the parties' business? 

At the time Nancy exercised her option to purchase MLC, one 

lawsuit was pending against MLC and a second suit was filed on 

November 16, 1994. Both suits arise out of events that occurred 
while Martin was in control of MLC. Nancy argues that these 

contingent liabilities were not considered in the appraisals of MLC 

and, as a result, MLC was overvalued. The first suit sought 

$20,035, however, it has now been dismissed with prejudice. The 

second suit seeks $27,850 plus interest and attorney's fees. 

In its Final Judgment and Decree of December 2, 1994, the 

District Court stated "[slhould any judgments be rendered against 

Madison Lumber Company in those two suits, such judgments are valid 

liabilities against the Company, and Nancy purchased the Company's 

liabilities as well as its assets." We agree with the District 

Court. In any event, we note that the first claim has been 

dismissed with prejudice. Based upon the evidence before the 

District Court, it was within the court's broad discretion to deny 

Nancy's motion for indemnification. As the District Court noted, 

Nancy purchased the assets of the corporation as well as its 

liabilities. 

7. Did the District Court err in requiring Martin to return 

the condemnation proceeds he received from the State of Montana to 

the parties' business? 

In reviewing a district court's findings of fact, we determine 

whether the findings are clearly erroneous. Daines v. Knight 

(1995) , 269 Mont. 320, 324, 888 P.2d 904, 906 (citing Columbia 

Grain Int'l v. Cereck (1993), 258 Mont. 414, 417, 852 P.2d 676, 

678) . We have adopted a three-part test to determine whether 

findings are clearly erroneous. Interstate Prod. Credit Ass'n v. 

DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287. The test 

provides that: (1) the Court will determine whether the findings 
are supported by substantial evidence; (2) if the findings are 

supported by substantial evidence, the Court will determine if the 

district court has misapprehended the evidence; and (3) if the 

findings are supported by substantial evidence and that evidence 

has 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 the court with the 

definite and firm conviction that a mistake has been committed." 

DeSave, 820 P.2d at 1287 (citing United States v. United States 

Gypsum Co. (1948), 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746). 

In 1992, the State of Montana condemned .14 acres of MLC's 

land to widen a highway. MLC was paid $7,500 by the State for this 

condemnation, a portion of the proceeds was allocated to the taking 

of the .14 acres and the remainder was allocated to site 

improvements, including a new gravel area and fence. However, 

instead of depositing the $7,500 in an MLC account, Martin endorsed 

the check and gave it to his father in partial payment for a motor 

home that Martin had lived in for one and one-half years. Nancy 

alleged that the condemnation proceeds were the property of MLC 

and, as such, should be returned so that the visibility of and 

access to MLC, which had been impaired by the widening of the 

highway, could be restored. The District Court agreed, determining 

that the proceeds were property of MLC and should be returned. 

Substantial evidence supports the District Court's determination 

that the condemnation proceeds should be returned to MLC. 

Accordingly, we affirm the District Court on this issue. 
Affirmed in part, reversed in part, and remanded for 

proceedings consistent with this opinion. 

We concur: A 

ccdz?- Justices