Marriage of Struck , 2017 MT 44N ( 2017 )

02/28/2017
DA 16-0467
Case Number: DA 16-0467
IN THE SUPREME COURT OF THE STATE OF MONTANA
2017 MT 44N
IN RE THE MARRIAGE OF:
BONNIE STRUCK,
Petitioner and Appellee,
and
DARVIN STRUCK,
Respondent and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and For the County of Flathead, Cause No. DR-12-037(D)
Honorable David M. Ortley, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Peter F. Carroll, Attorney at Law, Kalispell, Montana
For Appellee:
Tiffany B. Lonnevik, Lonnevik Law Firm, P.C., Kalispell, Montana
Submitted on Briefs: February 8, 2017
Decided: February 28, 2017
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Darvin Struck appeals from the District Court’s Findings of Fact, Conclusions of
Law and Decree of Dissolution entered June 29, 2016. Darvin contends that the District
Court erred in distributing the marital estate between the parties. We affirm.
¶3 The parties were married in 1984 and separated in 2012. During the marriage the
parties engaged in several modest businesses. Bonnie worked in the businesses and kept
the family home. She received no salary or Social Security contribution for her work,
although she and Darvin agreed that she could take $700 per month for her personal
expenses. The District Court found that Bonnie contributed significant services and labor
to the parties’ income-producing businesses and to the marital estate.
¶4 Darvin acquired real property in the Kalispell area and farm property in the
Rudyard area by gift or inheritance from his family. The parties lived on part of the
Kalispell property and on another part Darvin raised hay that he sold. They received
CRP payments on the Rudyard property of $25,000 per year for a number of years.
Bonnie received a gift from her parents of a life insurance policy that will pay her when
the last of them dies. Her parents intend to pay the annual premium of approximately
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$6000 as long as they are able. The District Court allocated the $193,338 present value
of the policy to Bonnie, and declined Darvin’s request that the face value of the policy be
allocated to her. Citing nemo est haeres viventis, the District Court noted that the living
(Bonnie’s parents) have no heirs, and therefore the uncertainty of the ultimate payout on
the policy makes future payment only speculative.
¶5 The District Court issued detailed findings of fact and conclusions of law, dividing
the marital property between the parties pursuant to § 40-4-202. MCA. The District
Court divided the principal assets by allocating to Darvin the Flathead County property at
a value of $513,168 and Sanders County property at a value of $23,000. The District
Court allocated the Hill County property to Bonnie at a value of $442,400.
¶6 Darvin argues on appeal that the District Court’s property division was arbitrary
and “worked a substantial injustice,” primarily because the division included property
that Darvin had obtained through gift or inheritance from family members. We conclude
that the District Court properly applied § 40-4-202. MCA, to this property and did not act
arbitrarily or contrary to law. In re Marriage of Rintoul, 2014 MT 210, ¶¶ 9-11, 376
Mont. 167, 330 P.3d 1203. Darvin also argues that several of the District Court’s
findings of fact are “clearly erroneous,” but the record shows that there was substantial
evidence to support those findings. Awarding Bonnie a share of the post-separation CRP
payments was within the discretion of the District Court.
¶7 Finally, Darvin argues that the District Court abused its discretion in admitting
testimony from Bonnie’s expert concerning property values. The District Court found
that the only competent evidence of the value of the Flathead property was provided by
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Bonnie’s expert. The record shows that the expert was properly qualified and that the
District Court did not abuse its discretion in admitting and considering the testimony.
¶8 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. In the opinion
of the Court, the District Court did not abuse its discretion and the case presents a
question controlled by settled law or by the clear application of applicable standards of
review.
¶9 Affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ DIRK M. SANDEFUR
/S/ JAMES JEREMIAH SHEA
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