In Re the Marriage of Bos , 238 Mont. 267 ( 1989 )

IN THE SUPREME COURT OF THE STATE OF MONTANA
IN RE THE MARRIAGE OF
ROYCE A. ROS, r
( y7
.
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Plaintiff and Respondent,
and
JERAL L. BOS,
Defendant and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Michael Keedy, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Hash, O'Brien & Barlett; C. Mark Hash, ~alispell,
Montana
For Respondent:
Royce A. O'Erien, pro se, Tacoma, washington
submitted on ~riefs: Zune 16, 1989
Decided: July 24, 1989
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Clerk
Mr. Justice William E. Hunt, Sr. delivered the Opinion of the
Court.
Jeral L . Bos (husband) appeals from the distribution
mandated in the dissolution of marriage decree entered by the
District Court of the Eleventh Judicial District, Flathead
County. We affirm.
The issue raised on appeal is whether the District Court
properly distributed the marital estate when it considered a
lump sum Workers' Compensation disability award.
Royce (wife) and Jeral (husband) Bos were married on
October 27, 1973. On February 13, 1986, wife filed a
petition for dissolution of the marriage and for the
equitable distribution of the marital estate. A hearing on
the matter was held on June 2, 1987. On February 18, 1988,
the District Court entered its findings of fact and
conclusions of law and decree dissolving the marriase and
dividing the marital property. The findings of fact and
conclusions of law were twice amended.
When dividing the marital property, the District Court
considered several facts pursuant to § 40-4-202, MCA. Among
the facts considered was a lump sum Workers' Compensation
award paid to husband which is the subject of this appeal.
On January 9, 1978, husband was injured while working as
a carpenter in Whitefish, Montana. On December 26, 1985, the
Workers' Compensation Division approved a final settlement
that resulted in a net award of $35,219.59. From that
amount, husband paid $26,039.55 in marital obligations and
the remainder on living expenses.
Upon distribution of the marital estate wife received
property with a net value of $24,608.25 and husband received
property with a net value of $24,037.69. Husband argues that
the District Court erred in the distribution because the
marital estate would have had a lesser net value had
husband's Workers' Compensation award not been applied to
reduce marital debts. We disagree.
In In re the Marriage of Jones (Mont. 1987), 745 P.2d
350, 44 St.Rep. 1834, we held that where a lump sum Workers'
Compensation award of husband was commingled in a marital
account and later used to reduce marital debts, such was
includable in the marital estate. Further, we upheld the
District Court's determination that wife was entitled to
one-half of the marital estate notwithstanding the reduction
of marital debts by application of husband's benefits.
In the present case, as in Jones, husband received a
Workers' Compensation award in which the funds were used to
reduce marital debts. In applying the funds to reduce the
marital debt, husband placed the funds in the marital estate
thus, commingling the funds.
Where the District Court based its distribution of
marital assets on substantial credible evidence, it will not
be overturned absent a clear abuse of discretion. In re the
Marriage of Stewart (Mont. 1988), 757 P.2d 765, 767, 45
St.Rep. 850, 852. In light of our holding in Jones, there
was no abuse of discretion.
Affirmed.
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We Concur:
/ CH5e.f Justice
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/ Justices