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. 

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# !,A ; NANCY LIEN GRIFFIN, ,.., 3, I

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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, 1996Justice W. William Leaphart delivered the Opinion of the Court.

Nancy LienGriffin appeals,and Martin Griffin cross-appeals, from the June 16, 1994, Findings of Fact, Conclusions of Law and Partial Judgment and theDecember 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 theDistrict Court err inmaking its determination of the option purchase price set for the parties' business? 2. Did theDistrict Court err ingrantingNancy anew 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 theDistrict Court err indeterminingthatMartindid 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 condemnationproceeds 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 theDecree,Martinwas awardedMLC while Nancy was granted a 180-dayoption 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 ofmarriage. In the first appeal,we remanded the case to theDistrict Court for findings regardingthe option contract to purchase MLC, a determination of child support due under the UniformChild SupportGuidelines,andvaluation

### 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 exerciseher option topurchase 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 Courtdetermined thatNancy should

### have theopportunity to purchase the business for $323,305. Nancy exercisedher option to purchase MLC and, 

### on August 17, 1994, took control of MLC. 1. Did theDistrictCourt err inmaking itsdetermination of the option purchase price set for the parties' business? Nancy alleges that the District Court made mathematical and 3accounting errors indetermining the $323,305option 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 canbe 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 inpursuing an appeal as to the optionprice. See Turner,No. 95-329,slip op. at 11 (Mont.Jan. 11, 1996) (citingMartin 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 (9thCir. 19931, 987 F.2d 1392, 1408). That is, she is deemed to have waived any objection to the optionprice. Accordingly,we do not consider themerits of Nancy's argument that the District Court over-valued MLC. 2. Did theDistrict Court err ingrantingNancy a new option to purchase the parties' business? In his cross-appeal,Martin alleges that the District Court erred ingrantingNancy a new option topurchase MLC. Based on the 4foregoing reasoning, Martin can also be said to have waived any objection to the option contractwhenhe 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 objectionby 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 vacationpay issue was presented at a hearing held onNovember 30, 1994. However, in its Order and Final Judgment and Decree of December 2,1994,the District Courtmade no ruling regarding Martin'swithdrawal of the $3,000in vacationpay. 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 5remand this issue to theDistrict 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 determinationand calculation of child support to Ann Steffens,a child supportguidelines 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 supportdue under the guidelines. We agree. The monies withdrawn as "shareholder loans" fromMLC, along with materials taken fromMLC'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-kindpayments received by the parent in the course of self-employment or operation of a business if such reimbursementsor in-kindpayments reduce personal 6living expenses." 46.30.1508 (1)(b) , ARM. Accordingly, the full amounts of the "shareholder loans" and materials taken from MLC inventory shouldhave been listed as other income onMartin's child support worksheets. We remand for a determination of the child supportdue when all of Martin's income,including the shareholder loans and materials taken fromMLC, 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 Conclusionsof Law,dated November 14, 1991,Nancy was awarded the "contentsof the family home" listed at a value of $20,290. In this appeal,Nancy asserts that the awardwas 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 familyhome,rather,theywere inhis possession or at a condominium located at Big Sky,Montana. Nancy 7values this property at $8,100,however, from the record it is not clearwhether 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 $8,100of the $20,290 inproperty 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 apportionmentof themarital assetswhen 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,wenote that inNancy's original proposal fordistributing 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 theDistrict Court err indeterminingthatMartin 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 occurredwhile Martin was in control of MLC. Nancy argues that these contingent liabilitieswere 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 $27,850plus interest and attorney's fees. In its Final Judgment and Decree of December 2, 1994, the District Court stated "[slhould any judgmentsbe rendered against Madison Lumber Company in those two suits,such judgments arevalid 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 condemnationproceeds he received from the State of Montana to the parties' business? In reviewingadistrict court's findingsof 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 findingsare 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 "clearlyerroneous 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 (citingUnited 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 $7,500by the State for this condemnation, aportion 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 $7,500in an MLC account, Martin endorsed the check and gave it to his father in partial payment for amotor 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,couldbe restored. TheDistrict 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 

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Justices