No. 94-495

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

IN RE THE MARRIAGE OF

WILLIAM R. HAMILTON,

Petitioner and Respondent,

APPEAL FROM: District Court of the Eleventh Judicial District,

In and for the County of Flathead,

The Honorable Ted 0. Lympus, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Paula Johnson-Martin, Attorney at Law,

Whitefish, Montana

For Respondent:

Bruce McEvoy; Warden Christiansen, Johnson & Berg,

Kalispell, Montana

Filed:

Submitted on Briefs: January 12, 1995

Decided: February 14, 1995
Justice W. William Leaphart delivered the Opinion of the Court.

Kathleen D. Hamilton (Kathleen) appeals from the findings of

fact, conclusions of law, and decree entered in the Eleventh

Judicial District Court, Flathead County, dissolving her marriage

to William R. Hamilton (William). We affirm.

The issue Kathleen presents is essentially: whether the

District Court erred in its distribution of property.

On January 29, 1984, just prior to their marriage, Kathleen

and William signed an antenuptial agreement. The agreement was

prepared by William. Neither party was represented by an attorney

in the preparation or signing of the document. The agreement

stated that William's trust fund (worth between $400,000 and

$500,000) , pickup truck, and boat would all remain his separate

property. The agreement stated that Kathleen's car would remain

her separate property. It also contained a mutual waiver of

spousal support, and an agreement to split marital debts equally

between the parties.

William's trust fund was established after William's father

died in 1972. William's mother was the primary beneficiary and

William was the secondary beneficiary. After his mother's death,

in 1991, William became the sole trust beneficiary. Kathleen and

William were married on February 14, 1984 in Monterey County,

California.

Shortly after their marriage, the parties moved to Whitefish,

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Montana. When the parties first moved to Whitefish, William seldom

worked, but as years passed he worked an increasing amount.

Kathleen worked full time as a licensed practical nurse after

arriving in Whitefish, and attempted to work full time throughout

the marriage.

William's mother lived with the parties for a few years before

they became concerned that they could not give her the care she

required. While his mother was alive, William had liberal powers

to draw on the trust. He did so to provide for his mother's care,

and for the benefit of both himself and Kathleen. The parties

lived off their incomes and money generated by the trust fund.

On June 26, 1992, William filed a petition for dissolution.

In the petition, William alleged that the antenuptial agreement

equitably divided the parties' property mentioned in the agreement,

and requested an equitable division of property accumulated during

the marriage. On September 17, 1992, Kathleen filed her response

in which she denied that the antenuptial agreement was valid and

binding. She requested an equitable division of all marital

property. On February 16, 1993, Kathleen filed an amended response

to William's petition. She included a request for spousal support

which was not included in her original response.

William moved for partial summary judgment on December 21,

1992. He asked the court to determine that the property mentioned

in the antenuptial agreement be distributed in accordance with the

agreement. On May 12, 1993, the court denied William's motion on

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the basis that the antenuptial agreement was signed in I984 and

Montana did not adopt the Uniform Premarital Agreement Act until

1987. Instead, the court held that the antenuptial agreement, if

conscionable, was only one factor to consider in the distribution

of marital property.

The court held a hearing on the dissolution on September 13,

1993. On July 11, 1994, the court entered its findings of fact,

conclusions of law, and decree. The court found that it was

equitable to return to William his remaining pre-marital

properties, inherited properties, and properties traceable to the

trust. After the parties separated but prior to the entry of

dissolution, Kathleen had received $18,000 from a joint bank

account and an account containing the proceeds from the sale of the

Whitefish home. The court allowed her to retain this money. In

addition, the court awarded Kathleen a car paid for by trust monies

as a replacement for her car that was mentioned in the antenuptial

agreement. The court made William and Kathleen responsible for

credit card debt of $7,000 and $4,600 respectively. It also denied

Kathleen's claim for spousal support as she was able to support

herself through appropriate employment. Kathleen appeals.

The sole issue we consider on appeal is whether the District

Court erred in distributing the marital estate.

We review divisions of marital property to determine whether

the district court's findings of fact are clearly erroneous. In re

Marriage of Nordberg (1994), 265 Mont. 352, 358, 877 P.2d 987, 991

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(citations omitted). Absent an abuse of discretion, this Court

will uphold the district court's decision if substantial credible

evidence supports the court's findings and judgment. Marriaqe of

Nordberq, 877 P.2d at 991.

Kathleen specifically contends that the District Court erred

by only allowing her to retain $10,000 of the proceeds from the

sale of their Whitefish home, and $8,000 she received from a joint

account. We disagree.

Section 40-4-202(l), MCA, states in relevant part:

In dividing property acquired prior to the marriage;

property acquired by gift, bequest, devise, or descent;

property acquired in exchange for property acquired

before the marriage or in exchange for property acquired

by gift, bequest, devise, or descent; the increased value

of property acquired prior to marriage; and property

acquired by a spouse after a decree of legal separation,

the court shall consider those contributions of the other

spouse to the marriage, including:

(a) the nonmonetary contribution of a homemaker;

(b) the extent to which such contributions have

facilitated the maintenance of this property; and

(c) whether or not the property division serves as

an alternative to maintenance arrangements.

We have stated that " It1 hose assets belonging to a spouse prior to

a marriage, or acquired by gift, bequest, devise, or descent during

the marriage are not part of the marital estate unless the [other]

spouse made contributions in the preservation or interest in that

property." Marriage of Nordberq, 877 P.2d at 992; citing In re

Marriage of Smith (1994), 264 Mont. 306, 871 P.2d 884

The Whitefish home was purchased with monies traceable to the

trust. The Whitefish home sold for about $269,000; about $70,000

of which was gain. Kathleen testified that her father helped out

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where he could in the construction of the house and that she and

her mother cleaned up after the construction crew on weekends and

did other odds and ends. The District Court found that Kathleen

had contributed somewhat to the construction and maintenance of the

home. It found that the $10,000 she received from the proceeds

from the sale of the home was sufficient compensation for her

efforts toward the home. We hold that substantial credible

evidence exists to support the District Court's finding and award.

The joint account contained stock originally owned by the

trust. William liquidated some of the stock to pay marital debts

and other expenses. At the time of dissolution, the account

contained cash and stocks worth approximately $35,500. The

District Court found that Kathleen had not contributed to the

account. Kathleen received $8,000 from the account prior to the

dissolution. The court allowed Kathleen to retain the $8,000. The

court also found that the assets remaining in the account were

premarital and inherited property which would be returned to

William.

There is sufficient evidence in the record to support findings

that Kathleen did not contribute to the joint account, and that any

actions she took which helped maintain the account were

sufficiently compensated when she received $8,000 from the account.

We hold that the District Court sufficiently considered the

factors listed in § 40-4-202(l), MCA, and did not abuse its

discretion in distributing the marital estate. Affirmed.

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Pursuant to Section I, Paragraph 3(c), Montana Supreme Court

1988 Internal Operating Rules, this decision shall not be cited as

precedent and shall be published by its filing as a public document

with the Clerk of the Supreme Court and by a report of its result

to Montana Law Week, State Reporter and West Publishing Company.

&#&&

Justice/

We concur:
February 14, 1995

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid,

to the following named:

Paula Johnson-Martin

Attorney at Law

6336 Highway 93 So.

Whitefish, MT 59937

Bruce McEvoy, Esq.

Warden, Christiansen, Johnson & Berg

P.O. Box 3038

Kalispell, MT 59903-3038

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA