In Re the Marriage of Ruff , 247 Mont. 486 ( 1991 )

NO. 90-440
IN THE SUPREME COURT OF THE STATE OF MONTANA
19 91
IN RE THE MARRIAGE OF:
WENDELYN HOLMQUIST RUFF,
Petitioner and Respondent,
and
JOHNNY LANCE RUFF,
Respondent and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Nat Allen, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John P. Atkins, Esq., Bryan & Atkins, Bozeman
Montana
For Respondent:
Michael J. Lilly, Esq., Berg, Lilly, Stokes,
Andriolo, Tollefsen & Schraudner, Bozeman, Montana
Submitted on Briefs: January 31, 1991
MAR 1 9 1991 Decided: March 19, 1991
Chief Justice J. A. Turnage delivered the Opinion of the Court.
This dissolution of marriage was entered in the District Court
for the Eighteenth Judicial District, Gallatin County. The husband
appeals from the property distribution. We affirm.
The issues are:
1. Did the District Court err by including in the parties1
marital estate a 1979 mobile home, a 1986 Pontiac Grand Am
automobile, and a 1977 Freuhauf flatbed trailer?
2. Did the court err in valuing the parties1 portable hoist,
known as a "cherry picker?"
3. Did the court err by failing to recognize all of the
partiesv marital debts?
4. Did the court err in computing the net worth of the
marital estate and in the distribution thereof?
The parties were married in October of 1983 in Elko, Nevada.
They have one minor child, a son born on May 12, 1986. The wife
filed a petition for dissolution of marriage in August 1989. The
parties stipulated that they would share joint custody of their son
and the court adopted that stipulation in its judgment. Property
division was not so smoothly resolved. There was considerable
disagreement at the property division hearing not only about the
division of the marital estate, but also about what property was
included in the marital estate. At the time of hearing, the
husband was a self-employed truck driver earning $1,000 per month.
The wife was a travel agent earning $650 per month.
In general, the District Court accepted the wife's testimony
concerning the marital estate and debts. It awarded the wife a
1986 Grand Am automobile and a 1981 Toyota. It awarded husband a
1981 Jeep, a 1972 Freightliner, a 1977 Freuhauf flatbed trailer,
a 1979 farm trailer, a "cherry picker," a 1979 mobile home, the
parties1 joint checking account, husband's individual checking
account, a 1981 Honda, and a 1982 Magna Honda. It also ordered
husband to pay liabilities to VISA, Sears, Glen Hargrove on a
contract to buy the mobile home, and GMAC on a loan for the Grand
Am, and to pay the wife $10,117. Husband appeals.
I
Did the District Court err by including in the parties1
marital estate a 1979 mobile home, a 1986 Pontiac Grand Am
automobile, and a 1977 Freuhauf flatbed trailer?
At trial, the husband presented his testimony, his father's
testimony, and title certificates indicating that these three items
belonged to the husband's father. Husband introduced into evidence
a lease for the mobile home dated June 1, 1986, signed by himself
and his father, and a lease for the Grand Am dated September 8,
1986, also signed by himself and his father.
In contrast, the wife testified that she and the husband had
treated these three items of property as their own and that she had
never seen any of the title certificates or known about the lease
agreements introduced into evidence by the husband. She intro-
duced into evidence copies of cancelled checks by which she and
husband had made payments directly to the lienholders on the mobile
home and the Grand Am. Her evidence showed that husband and wife
had also paid for licenses, taxes, and insurance on these items.
Husband's father was not listed as an insured party on the
insurance for the Grand Am. The wife also introduced into evidence
records showing that husband and wife had taken income tax
deductions for depreciation on the Freuhauf trailer and interest
expenses on the Grand Am and the mobile home.
The court found that husband and wife are the "real owners1'
of this property and that Itthe vehicles and trailers were the
property of the parties and were treated as such both in the
practical sense and for income tax purposes." Although the court
did not explain its reasoning, we conclude that it was correct,
under a theory of resulting trust.
A resulting trust occurs where, as a result of
certain acts, a court finds that there is an
implied intent to create a trust and imposes
a trust to achieve an equitable result.
Usually resulting trusts involve cases where
the parties have used ambiguous language which
the court construes as showing a trust intent,
or where the parties have expressed no intent
to create a trust by words, but have performed
acts from which the court infers that a trust
was intended. [Citation omitted.]
Eckart v. Hubbard (1979), 184 Mont. 320, 326-27, 602 P.2d 988, 991.
Here, the parties acted for all intents and purposes as though
title to these pieces of property was held by the husband and wife.
The actions of the husband's father and of the husband and wife
indicate that the husband's father was holding the property in
trust for husband and wife.
We hold that substantial evidence supports the findings of the
court that the 1979 mobile home, the 1986 Pontiac Grand Am
automobile, and the 1977 Freuhauf flatbed trailer were part of the
marital estate.
I1
Did the court err in valuing the parties1 portable hoist,
known as a Ifcherrypicker?"
Attached to the court's findings and conclusions is "Exhibit
A," in which the court listed the marital assets. One item on that
list is "1979 Farm Trailer (cherry picker)" valued at $7,000. It
appears from the husband's testimony that these were actually two
separate items. There was evidence that the trailer had a depreci-
ated value of $6,514 and the cherry picker was worth $350. Our
standard of review is whether the District Court acted arbitrarily
or clearly abused its discretion so as to create substantial
injustice. In re Marriage of Hockaday (1989), 237 Mont. 413, 418,
773 P.2d 1217, 1221. Because the combined value of these two items
is so close to $7,000, we uphold the court's valuation.
Did the court err by failing to recognize all of the parties'
marital debts?
The husband argues that the debts owed to Glen Hargrove and
GMAC are not marital debts. He also maintains that a number of the
parties' debts were left out of the court's findings.
Because we have held that the mobile home and the Grand Am
were properly included as marital assets, it follows that the Glen
Hargrove and GMAC debts against them were properly included as
marital debts. The debts which the husband argues should have been
included were bills in husband's father's name. The court was
correct in not including those as liabilities of the marital
estate. Also, there was a $10,000 promissory note to husband's
father, signed by husband alone and not wife. The wife testified
that she had no knowledge of the $10,000 note. Obviously, the
trial court did not believe the $10,000 note was legitimate. That
was within its discretion as the assessor of credibility of
witnesses. Marriage of Gerhart (Mont. 1990), 800 P.2d 698, 700,
47 St.Rep. 2106, 2108.
We hold that the District Court did not err in determining
the parties' marital debts.
Did the court err in computing the net worth of the marital
estate and in the distribution thereof?
This argument results from the arguments raised under the
issues discussed above, as to which we have held for the wife on
all counts. Under the court's distribution of the marital estate,
the husband received property with a net value of $30,134 and the
wife received property valued at $9,900. The court ordered the
husband to pay the wife the sum of $10,117 in order to equitably
divide the marital estate. We hold that this was within the
court's discretion and does not constitute reversible error.
Affirmed.
concur: