Marriage of Frank ( 2022 )

09/20/2022
DA 21-0259
Case Number: DA 21-0259
IN THE SUPREME COURT OF THE STATE OF MONTANA
2022 MT 179IN RE THE MARRIAGE OF:
CHELSEY E. GEORGE, f/k/a
CHELSEY E. FRANK,
Petitioner and Appellant,
and
MICHAEL E. FRANK,
Respondent and Appellee.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. ADR-2019-50
Honorable Mike Menahan, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
David B. Cotner, Cotner Law, PLLC, Missoula, Montana
For Appellee:
Molly K. Howard, J.R. Casillas, Datsopoulos, MacDonald & Lind, P.C.,
Missoula, Montana
Submitted on Briefs: January 19, 2022
Decided: September 20, 2022
Filed:
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__________________________________________
Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.
¶1 Chelsey E. George, f/k/a Chelsey E. Frank (Chelsey), appeals the April 22, 2021
Findings of Fact, Conclusions of Law and Order of the First Judicial District Court, Lewis
and Clark County, distributing the marital estate and calculating child support after her
dissolution of marriage from Michael E. Frank (Mike). We restate and address the
following issues:
1. Whether the District Court abused its discretion regarding the division of property.
2. Whether the District Court abused its discretion in calculating child support.
3. Whether the District Court’s adoption of Mike’s proposed Findings of Fact and
Conclusions of Law warrants a new trial.
¶2 We affirm in part, reverse in part, and remand for further proceedings consistent
with this Opinion.
PROCEDURAL AND FACTUAL BACKGROUND
¶3 Chelsey and Mike married in November 2007 and separated on November 1, 2018.
On January 8, 2019, Chelsey filed a petition for dissolution, seeking equitable distribution
of assets and liabilities, a parenting plan for their child, E.F. (age 11), child support, health
insurance, maintenance, and attorney fees. On June 7, 2019, the parties filed a Stipulated
Final Parenting Plan, agreeing to a 50/50 split of parenting time and resolving all issues
except child support. The parenting plan, adopted by the District Court on June 29, 2020,
requires Mike to pay E.F.’s health, dental, and vision insurance premiums, and all
uncovered medical expenses, as well as 50% of E.F.’s extracurricular activity expenses.
From November 2018 until September 30, 2019, Mike paid Chelsey $1,500 per month in
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temporary family support. In September 2019, the parties stipulated that Mike would
receive $50,000 from the estate and Chelsey would receive a lump sum of $100,000 from
the estate. Mike also agreed to pay Chelsey $5,000 per month in support. The parties
received $25,000 each for attorney fees.
¶4 The matter proceeded to trial in June 2020. Six witnesses testified, including three
experts, and 260 exhibits were admitted over three days. The parties submitted post-trial
briefing and proposed findings of fact and conclusions of law. The parties stipulated to the
entry of a decree of dissolution on June 26, 2020, reserving the contested issues from trial
to be decided by the District Court. The District Court filed its Findings of Fact,
Conclusions of Law and Order on April 22, 2021.
¶5 Chelsey appeals, asserting that the court’s division of property was clearly
erroneous, resulting in an abuse of discretion and requiring remand for a new trial. Chelsey
also argues on appeal that the court abused its discretion by deviating from the child support
guidelines and improperly adopted verbatim Mike’s proposed findings of fact and
conclusions of law.
Financial History
¶6 When Mike and Chelsey married, Mike was 40 years old and was the Vice President
of Corporate Integrity in the Human Resources Department at Blue Cross Blue Shield of
Montana (BCBS). Mike was earning $135,701 per year. Chelsey was 31 years old and
worked for Helena-based George’s Distributing, Inc., her family’s business. Chelsey was
earning $86,388 per year. By December 2010, Mike was the President and the Chief
Executive Officer (CEO) at BCBS, making $405,819 per year. Mike later became an
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executive in Healthcare Service Corporation (HCSC), the company that acquired BCBS in
2013, and was earning a base salary of approximately $520,000 per year.
¶7 Mike’s HCSC compensation package included an annual performance incentive
(API) that rewarded employees for hitting short-term performance goals over the previous
12-month period, and a long-term incentive program (LTIP) that was based on performance
over a three-year period. Both the API and the LTIP allowed Mike to defer up to 100% of
this income into a Master Deferred Compensation Plan. The incentive plans do not accrue
during the performance period. They are paid during the first quarter of each future
projection year; they are not guaranteed; and they are unfunded. The plans are
non-assignable and cannot be transferred.
¶8 Chelsey and Mike primarily lived on Chelsey’s income and Mike’s base pay
throughout their marriage. Mike and Chelsey agreed that Mike should defer almost all his
bonus income into retirement so that he and Chelsey could put money aside for the future.
During the three years prior to trial, Mike’s income totaled $2,495,314 (2017), $2,619,992
(2018), and $3,052,951.71 (2019). Chelsey’s income totaled $247,903 (2017), $152,599
(2018), and $115,345 (2019). By the date of trial, the marital estate exceeded $16,000,000.
Chelsey testified that she had no idea how much money Mike was putting away and was
shocked to learn through the discovery process that Mike was making between $2 and $3
million per year.
¶9 After the parties physically separated, they maintained separate personal checking
accounts and credit cards. Mike continued to manage the parties’ real property and joint
finances. Mike and Chelsey purchased a residence in the same neighborhood as the family
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home in both of their names so that Mike could live near E.F. The parties continued to
jointly own three other parcels of real property until March 2020, when they decided to sell
their Big Sky home and put the net proceeds in a joint account. Since their separation,
Mike has paid all mortgages, real estate taxes, and insurance, as well as all maintenance
expenses related to their real property holdings, including housekeeping, landscaping, and
remodeling expenses for Chelsey’s residence. Mike also paid all income taxes and some,
but not all, of Chelsey’s medical bills during the separation.
Date of Separation Valuation
¶10 The parties dispute whether the marital estate should be valued as of the date that
the parties separated, November 1, 2018, or June 2020, closer to the date the parties’
marriage was dissolved. The estate includes several jointly-owned real properties and
vehicles, as well as multiple shared and individual checking, investment, and retirement
accounts, $1.2 million in premarital contributions, and $1.5 million in liabilities.1
¶11 Chelsey testified that the parties continued to comingle their finances and other
assets after they separated. She testified that she and Mike went to counseling together
until shortly before the end of 2018. She testified, “Even when we were so-called
separated, we still bought a house together, because we were working on our marriage. . . .
I took care of [E.F.] the majority of the time for . . . the first five months of 2019.” Chelsey
1
The parties dispute whether the marital estate should also include Mike’s bonus incentives
received post-separation and Chelsey’s ownership interest in George’s Distributing. Both issues
are discussed in detail below.
5
contended that Mike traveled 31 times in 2019, during which time she had sole parenting
responsibilities. Chelsey traveled as well, roughly 15 times between 2019 and early 2020.
¶12 Mike testified that the parties did not live together or operate as a family unit
post-separation. He testified that he solely supported the marital estate financially during
the separation and felt that a later valuation date would create an unjust distribution in
Chelsey’s favor because “once we were separated, there were no contributions from
Chelsey to, you know, my work, my home, or otherwise.”
¶13 At the close of the trial, the District Court discussed its inclination to value the
marital estate at the date of separation and announced that the court would accept post-trial
briefing on the issue. The District Court stated:
In nearly every case that I have, the parties’ marital estate is essentially
assessed on the day that they split up . . . . I understand Chelsey’s position
here is that she worked incredibly hard during the years of their marriage in
order to help Mike succeed in his position. I mean, I get that. That testimony
came through loud and clear. But it’s hard for me to say that that continued
-- you know -- we know that it didn’t continue to occur after November 1st,
2018. Mike continued to have success and continued to rise in the ranks of
the corporation at HCSC. So it’s hard for me to attribute that portion of
Mike’s income or success to the marital estate when the parties clearly had
separated prior to that time.
¶14 Both parties submitted post-trial briefing on the issue. The court concluded that the
date of separation was appropriate because “[b]ased on the evidence presented . . . the
parties were separated and the marital relationship was terminated on or before November
1, 2018.” The District Court found that “Chelsey made no contributions, non-monetary or
otherwise, which facilitated the receipt or maintenance of any property.” The District
Court determined that “[t]o include in the valuation of the marital estate the accumulation
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of assets or growth of assets after the parties’ separation would effectuate an injustice and
frustrate the intended purpose of equitable property division.”
Retirement Accounts
¶15 The parties agreed at trial that Chelsey should receive a portion of Mike’s two-part
pension plan divided in accordance with In re Marriage of Rolfe, 234 Mont. 294, 298-99,
766 P.2d 223, 226-27 (1988) (“Rolfe II”), where the court determined the marital interest
of the ex-husband’s retirement benefits by dividing the length of the ex-husband’s
employment during the marriage by the ex-husband’s entire length of employment and
applying the fraction to all future benefit payments.
¶16 Mike argued that the numerator 11 should be used to calculate both parts of the
pension plan, representing Mike’s years of service from the date of marriage through the
date the parties separated. Chelsey argued that the numerator 12.5 was appropriate,
representing the parties’ years of marriage through the date of trial. The District Court
agreed with Mike, finding that “Mike’s overwhelming financial support of the marital
estate since separation . . . supports utilizing a numerator of 11.”
¶17 The terms of Mike’s HCSC Master Deferred Compensation Plan provide that the
plan is not fully vested until the earliest occurrence of any of the following events:
1. the participant’s 65th birthday;
2. the death of the participant;
3. separation from service due to the disability of the participant;
4. separation from service due to involuntary termination of the participant’s
employment without cause;
5. separation from service due to voluntary termination of the participant’s
employment for good reason within twelve months following a change in
control; or
6. termination of the plan.
7
¶18 Mike is 55 years old. The following table shows the contributions Mike made to
his various retirement accounts post-separation, including to his HCSC Master Deferred
Compensation Plan and two Merrill Lynch accounts, which he funded with monies
received from his 2019 and 2020 API and LTIP bonuses:2
Date Account Amount Incentive Years earned
March 15, 2019 HCSC $26,366.46 2019 API 2018
March 15, 2019 HCSC $74,088.00 2019 LTIP 2016, 2017, 2018
April 22, 2019 Merrill Lynch $932,901.91 2019 LTIP 2016, 2017, 2018
2647
March 13, 2020 HCSC $447,338.31 2020 API 2019
March 13, 2020 HCSC $1,000,008.00 2020 LTIP 2017, 2018, 2019
March 13, 2020 Merrill Lynch $673,015.51 2020 LTIP 2017, 2018, 2019
2894
As of April 30, 2020, the balance of Mike’s HCSC Master Deferred Compensation Plan
was $10,025,724.01.
¶19 At trial, Mike testified that he believed it was fair that Chelsey should receive a
portion of the bonuses and deferred compensation that he earned while the parties were
married and until the date of their separation. Chelsey argued that the accounts should be
valued as of the date of dissolution and equally split. Chelsey proposed that, because of
the deferred compensation plan’s complex structure and limitations, Mike should continue
2
On March 15, 2019, Mike deferred $16,276.90 from his 2019 API to his Prudential 401(k)
retirement account. On March 13, 2020, Mike deferred $16,926.92 from his 2020 API to his
401(k). The parties agreed at trial that Mike’s 401(k) should be awarded in its entirety to Mike.
8
to hold the account and act as fiduciary of her interest until a qualifying event under the
plan. Mike argued against being a fiduciary for Chelsey’s assets, citing potential future
conflicts and administrative burden, and emphasizing his preference to have the marriage
dissolved with a “clean break.”
¶20 After adopting the date of separation valuation “for all assets,” the District Court
declined to include either of Mike’s APR and LTIP-funded Merrill Lynch bonus accounts
in the marital estate because, the court reasoned, those accounts were established and
“funded post separation by monies earned solely by Mike after the parties separated.”
¶21 The District Court awarded the HCSC Master Deferred Compensation Plan entirely
to Mike with a post-tax valuation of $4,553,177.60, finding that awarding this asset to Mike
was equitable “[d]ue to the fact that this asset represents nothing more than a promise to
pay in the future, that it is unsecured, that it cannot be divided, transferred or pledged,” and
that Mike made “significant post separation contributions to this account” while “Chelsey
did not contribute to Mike’s additions to these accounts after November 1, 2018.” The
District Court also found the parties would be best served by completely dividing their
financial lives as part of the dissolution; therefore, the court declined to require Mike to act
as fiduciary in managing the deferred compensation plan for Chelsey.
¶22 Included in the District Court’s valuation of Mike’s HCSC Deferred Compensation
Plan were estimated state and federal income taxes and other tax consequences, which
Mike argued would certainly be applied when funds were distributed. Mike testified that
he has no present intentions to retire. When Chelsey’s counsel asked him to clarify his
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proposal for dividing the deferred compensation plan equitably at trial, Mike testified as
follows:
COUNSEL: And you would have $15.48 million, less the amount of money
you borrowed to pay to Chelsey, which is -- if it’s 2.5, you
would have $13 million, and she would have 8; correct?
MIKE: I don’t agree with the math.
COUNSEL: So what’s 15.5 minus 2.5?
MIKE: No. The part I don’t agree with is that the $10 million that
you’ve identified under the master deferred comp is still
subject to tax. So I think that number needs to be moved to $5
million, because that’s the actual present day value of it. Even
though I can’t receive it, it’s still going to be subject to tax.
¶23 The parties stipulated to allowing Benjamin Yonce, CPA, CVA to perform tax
calculations and produce a report assigning after-tax values to the accounts as of November
1, 2018, and June 1, 2020.3 The District Court accepted Yonce’s net-of-tax value of
$4,553,177.60 as of November 1, 2018, finding it credible and representative of the true
present value of the asset.
¶24 Valuing the deferred compensation plan at its post-taxation value, using the date of
separation valuation, applying the court’s formula from Rolfe II with a numerator of 11 to
Mike’s two-part pension plan, and subtracting all liabilities from Mike’s portion of the
estate ($1,466,214), the District Court required Mike to pay Chelsey $1,234,758.75 to
equalize the marital estate. Chelsey’s expert calculated an equalization payment after tax
3
The District Court found that the parties stipulated to a tax calculation from Yonce; however, the
record indicates that while the parties stipulated to allowing Yonce to perform and present tax
calculations, Chelsey did not stipulate to their application.
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of between $2,729,205.66 and $3,107,456.76 by including “all assets” and the growth of
the parties’ various investment accounts after November 1, 2018.
George’s Distributing
¶25 George’s Distributing is owned by Chelsey’s father, Jim George. In 1994, Jim
gifted 200 shares of the company to Chelsey. From 2007 to 2014, Jim regularly transferred
shares of the company to Chelsey. In 2012, 2013, and 2014, Chelsey elected to split her
annual gift of shares with a trust she established for E.F. The value of the marital estate
initially excluded Chelsey’s interest in George’s Distributing, which was around 33% of
the company at the date of trial. Chelsey also serves as trustee of E.F.’s 11% ownership
interest in George’s Distributing.
¶26 At trial, Jim testified that the stock transfers were never compensation for work that
Chelsey had done for the company but were a part of his family’s tradition of gifting
ownership interest in the family business, and also served his and his wife’s estate planning
goals at the time. In 2015, Jim stopped gifting because, as Jim testified, he “wanted control.
I was still in the business, and . . . I didn’t want to give up more than 50 percent.” In 2009,
Chelsey and Mike acquired 200 shares that had been gifted to Chelsey’s sister as part of
their reimbursement for a loan they made to George’s Distributing in 2008.
¶27 From 2007 to 2018, George’s Distributing’s annual gross sales more than doubled.
Despite her role as the President of George’s Distributing, Chelsey was the company’s
ninth-highest paid employee in 2018, with a base salary of $63,000 per year—more than
$20,000 per year less than she was making in 2007 when she married Mike.
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¶28 When E.F. was born, Chelsey testified that she hired a general manager and two
sales managers to allow her to focus on raising E.F. and prioritize supporting Mike in his
new role as CEO. Chelsey testified, “George’s suffered because I had to devote, you know,
a lot of time at home.” Both parties testified they had a successful “partnership.”
¶29 At trial, the parties disputed the value of Chelsey’s interest in George’s Distributing.
Chelsey hired Thomas Copley, CPA, who valued Chelsey’s interest at $502,988 as of
December 31, 2019, and later modified that valuation to $654,000 after changing his
methodology in response to Mike’s motion in limine to exclude his report. Mike hired
Patrick L. Anderson, a business consultant and economist from East Lansing, Michigan,
who specializes in franchise industries, including beer and wine distributorships. Anderson
valued Chelsey’s interest at $2.56 million as of May 1, 2020.
¶30 The District Court adopted Anderson’s valuation. The court reasoned that
Anderson’s valuation report was industry-specific, narrowly tailored, and credible, while
the court found that Copley “has no particular expertise in valuing interest in a wine and
beer distributorship.” The court accepted Anderson’s May 1, 2020 valuation date without
any discussion related to the specific valuation date used, and notwithstanding the court’s
ruling that it would use November 1, 2018, the date the parties separated, as the valuation
date for the marital estate.4 The District Court included George’s Distributing in the marital
4
At trial, Anderson testified that “there’s no real difference [in the value of George’s Distributing]
between if this was January 1 or May 1. I mean, this company is very stable, profitable, growing.
It’s going to be that way. It was that way on January 1, and it’s that way on May 1.” Neither
Anderson, nor Copley, offered testimony as to the company’s valuation as of November 1, 2018.
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estate, applied Anderson’s valuation as of May 1, 2020, and gave Chelsey a $27,494 credit
for her 200 shares acquired pre-marriage.
Child Support
¶31 Utilizing only the parties’ base pay figures of $520,000 per year for Mike and
$63,000 per year for Chelsey, the District Court awarded Chelsey $1,629 per month in
child support from Mike. The District Court acknowledged that this amount represents a
deviation from the guidelines, but deemed that the variance was necessary to accurately
reflect the true monthly income of the parties, the variance would not adversely affect the
child’s standard of living, and that following the guidelines in this case would be unjust to
Mike and result in a windfall to Chelsey.
STANDARDS OF REVIEW
¶32 A district court’s findings of fact in a division of marital property are reviewed to
determine whether they are clearly erroneous. In re Marriage of Swanson, 2004 MT 124,
¶ 12, 321 Mont. 250, 90 P.3d 418. We review a district court’s conclusions of law for
correctness. Schwartz v. Harris, 2013 MT 145, ¶ 15, 370 Mont. 294, 308 P.3d 949. “A
finding of fact is clearly erroneous if it is not supported by substantial evidence, if the court
misapprehended the effect of the evidence or our review of the record convinces us that the
district court made a mistake.” In re Marriage of Crowley, 2014 MT 42, ¶ 24, 374 Mont.
48, 318 P.3d 1031. If the findings are not clearly erroneous, the court’s division of property
will be affirmed absent an abuse of discretion. In re Marriage of Funk, 2012 MT 14, ¶ 6,
363 Mont. 352, 270 P.3d 39. A district court abuses its discretion if it acts arbitrarily
without conscientious judgment or exceeds the bounds of reason, resulting in substantial
13
injustice. In re Marriage of Alexander, 2011 MT 1, ¶ 11, 359 Mont. 89, 246 P.3d 712.
“We examine each case individually, with an eye to its unique circumstances.”
In re Marriage of Hutchins, 2018 MT 275, ¶ 7, 393 Mont. 283, 430 P.3d 502.
¶33 We review a district court’s child support award for an abuse of discretion.
In re Marriage of Anderson, 2014 MT 111, ¶ 11, 374 Mont. 526, 323 P.3d 895.
¶34 A district court’s conclusions of law are reviewed de novo to determine whether
they are correct. Giambra v. Kelsey, 2007 MT 158, ¶ 28, 338 Mont. 19, 162 P.3d 134.
DISCUSSION
1. Whether the District Court abused its discretion regarding the division of property.
¶35 Section 40-4-202, MCA, vests the district court with broad discretion to equitably
apportion the marital estate in a manner equitable to each party according to the
circumstances of each case. Marriage of Funk, ¶¶ 16, 19 (“This directive applies to all
assets, including pre-acquired property and assets acquired by gift, bequest, devise, or
descent.”). “The theory of equitable distribution recognizes, and attempts to compensate
for, each party’s contribution to the marriage.” In re Marriage of Bartsch, 2007 MT 136,
¶ 20, 337 Mont. 386, 162 P.3d 72. The statute requires an equitable, but not necessarily
equal, division of the marital estate, however and whenever acquired. Marriage of
Hutchins, ¶ 31; Marriage of Funk, ¶ 34.
¶36 When distributing the marital estate, a district court “focuses on the overall
distribution of the entire marital estate and not an item by item accounting.” In re Marriage
of Hochhalter, 2001 MT 268, ¶ 37, 307 Mont. 261, 37 P.3d 665 (citing In re Marriage of
Baer, 1998 MT 29, ¶ 36, 287 Mont. 322, 954 P.2d 1125). This Court does not attempt on
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appeal to review every element of a complex property distribution. In re Marriage of
Richards, 2014 MT 213, ¶¶ 24, 38, 376 Mont. 188, 330 P.3d 1193; Marriage of
Hochhalter, ¶ 37 (citing In re Marriage of Gallinger, 221 Mont. 463, 468-69, 719 P.2d
777, 781 (1986)).
¶37 Chelsey contends the District Court’s findings regarding the division of property
were clearly erroneous because the court incorrectly used the date of separation to value
significant assets, failed to include all assets, failed to consider significant post-separation
growth of certain assets, and improperly included tax consequences as a liability for Mike’s
investment accounts when no imminent liquidation was contemplated. Chelsey contends
that the District Court also erred by including her gifted shares in George’s Distributing in
the marital estate, erred in valuing George’s Distributing near the date of dissolution, and
erred in adopting Anderson’s valuation of George’s Distributing. Finally, Chelsey
contends the District Court failed to consider the statutory factors of § 40-4-202(1), MCA,
specifically Mike’s ability to acquire significant capital, in distributing the marital estate.
Chelsey asserts that these errors amount to an abuse of discretion requiring remand and a
new trial.
¶38 Mike argues the District Court’s findings are not clearly erroneous because they are
supported by substantial evidence, including three days of trial testimony and extensive
post-trial briefing on all issues raised on appeal. Mike further asserts that Chelsey waived
her right to seek a new trial by failing to move for one before appealing, and fails to satisfy
any of the grounds set forth in §§ 25-11-102 and -103, MCA.
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Valuation Date
¶39 “Generally, valuing the property near the time of dissolution results in equitable
apportionment, but unique circumstances may call for valuation at a different time.”
Marriage of Alexander, ¶ 16. “When conflicting valuation evidence is presented the
district court must indicate the basis for its determination. If no explanation is made the
court has abused its discretion.” In re Marriage of Rolfe, 216 Mont. 39, 46, 699 P.2d 79,
83 (1985) (“Rolfe I”). As long as the court’s valuation is reasonable in light of the evidence
submitted, we will not disturb the finding on appeal. Marriage of Alexander, ¶ 16.
¶40 Equitable apportionment is more important than “designating the moment” at which
the court should value marital property. Schwartz, ¶ 18. This Court has affirmed a district
court’s use of the date of separation where the parties “began managing their finances
separately and eventually lived separately from that time.” Schwartz, ¶ 18 (internal
quotations omitted); see also In re Marriage of Tipton, 2010 MT 144, ¶ 24, 357 Mont. 1,
239 P.3d 116; In re Marriage of Williams, 2011 MT 63, ¶ 26, 360 Mont. 46, 250 P.3d 850(“[T]he date of separation can be used as the appraisal date when one spouse accrued
significant wealth and the other accrued significant debts after the parties had separated but
before formal dissolution.”).
¶41 In Schwartz, the husband continued to manage the wife’s finances and rental
properties, and the family unit remained largely intact during the separation—the husband
and wife had almost daily phone contact, they traveled together to the children’s sporting
events, vacationed together, and gave the children joint Christmas and birthday gifts.
Schwartz, ¶ 19. We determined that, although the parties had been separated since 2002,
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the trial court did not abuse its discretion in using the 2009 property values to distribute the
marital estate because the parties “continued to function as a family unit.” Schwartz,
¶¶ 19-20 (internal quotations omitted). We stated, “We are not persuaded that the
circumstances here required use of the 2002 property values to avoid unfairness or
inequity.” Schwartz, ¶ 20. In Marriage of Tipton, we affirmed a trial court’s valuation
date of approximately one year after the parties’ separation and one year prior to their
dissolution because the parties were neither living together nor comingling their assets by
that time. Marriage of Tipton, ¶ 24 (finding deviation from the general rule was justified
“based on the unique circumstances of [the] case”).
¶42 The District Court used the date of the parties’ separation, November 1, 2018, as the
valuation date to equitably divide the majority of the parties’ assets, including several large
investment accounts, as well as Mike’s pension and deferred compensation plan. The court
summarily held that “the parties were separated and the marital relationship was terminated
on or before November 1, 2018,” reasoning that “Chelsey made no contributions,
non-monetary or otherwise, which facilitated the receipt or maintenance of any property.”
¶43 The record reflects that during the approximately 20 months between the parties’
separation and decree of dissolution. Mike continued to perform his traditional role in the
family of managing the parties’ real property and joint finances; the parties continued to
jointly own multiple parcels of real property until March of 2020; they jointly purchased a
home and sold a home during that time; and they maintained separate and comingled
finances. Chelsey’s unrefuted testimony was that she and Mike “were working on [their]
marriage”; they attended couples’ counseling together through December 2018; and she
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was E.F.’s primary caretaker for at least the first five to seven months of the parties’
separation, notwithstanding the parties’ agreed-upon 50/50 parenting arrangement.
¶44 By valuing the marital estate as of the date of separation, the District Court also
excluded 100% of Mike’s API and LTIP payments from the marital estate, even though
the majority of those payments were based on work Mike performed before the parties
were even separated. For example, Mike’s 2019 API was based on work performed in
2018; therefore, 83.3% of that payment was earned before the parties separated. Mike’s
2019 LTIP payments were based on work performed in the years 2016 through 2018;
therefore, 94.4% of those payments were earned before the parties separated. By using the
date of separation, though, the District Court excluded 100% of all API and LTIP payments
because they were not actually paid out until after November 2018.
¶45 While a district court has broad discretion in equitably apportioning the marital
estate, and “unique circumstances may call for” a valuation date other than the generally
accepted practice of valuing property near the time of dissolution, the valuation must “be
reasonable in light of the evidence submitted.” Marriage of Alexander, ¶ 16. It is
incumbent upon a district court to explain the basis for its deviation, and that explanation
must be supported by the evidence in the record. Rolfe I, 216 Mont. at 46, 699 P.2d at 83.
¶46 The theory of equitable distribution undeniably recognizes, and attempts to
compensate for, each party’s contribution to the marriage. Marriage of Bartsch, ¶ 20. The
District Court had a duty to adequately explain the inconsistencies in the record with its
decision to deviate from the general rule of valuing the parties’ marital property as of the
date of dissolution. The court’s conclusory explanation falls short of “reasonable in light
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of the evidence submitted.” Marriage of Alexander, ¶ 16. We are not persuaded that
unique circumstances required the court to value the majority of the parties’ assets as of
the November 2018 separation date to avoid unfairness or inequity. To the contrary, by
using the date of separation as the point at which the estate was valued, the court excluded
entirely Mike’s API and LTIP payments that were undisputedly based, to a great degree,
on work Mike performed pre-separation. The District Court abused its discretion “as
manifested by a substantially inequitable division of the marital assets resulting in
substantial injustice.” Marriage of Hutchins, ¶ 7.
Retirement Accounts
¶47 Chelsey maintains that the District Court erred by valuing specific significant assets
of the estate, such as Mike’s pension and HCSC Master Deferred Compensation Plan, at
the date of the parties’ separation because her contributions to Mike’s success both during
their marriage and post-separation entitle her to one-half of his pension and all deferred
income Mike earned through the date of trial. Mike relies on Marriage of Hutchins to
argue that the District Court’s valuation date of separation was appropriate for his pension
and asserts that, as in Marriage of Hutchins, Chelsey is not entitled to any deferred
compensation he received after the parties separated. On appeal, Chelsey claims that by
ignoring the increase in value of the marital estate over the parties’ separation, and by
awarding all post-separation marital assets and growth to Mike, the marital estate was
reduced by more than $5,000,000.
¶48 It is well-established in Montana that retirement benefits are part of the marital
estate. Rolfe II, 234 Mont. at 296, 766 P.2d at 225. Valuing pensions presents several
19
problems, including what value, if any, should be assigned to nonvested benefits. Rolfe I,
216 Mont. at 46, 699 P.2d at 83 (citing In re Marriage of Brown, 544 P.2d 561, 562-63
(Cal. 1976) (“Pension rights, whether or not vested, represent a property interest; to the
extent that such rights derive from employment during coverture, they comprise a
community asset subject to division in a dissolution proceeding.”)).
¶49 At trial, the parties agreed that Chelsey should receive a portion of Mike’s two-part
pension plan divided in accordance with our holding in Rolfe II. Mike argued that the
numerator 11 should be used in both calculations, representing Mike’s years of service
from the date of marriage through the date the parties separated. Chelsey argued that the
numerator should be 12.5, representing the parties’ years of marriage through the date of
trial. The District Court agreed with Mike, finding the parties’ post-separation acquisitions
were the result of their individual efforts and holding the facts of the case supported
utilizing a date of separation valuation for the pension.
¶50 In Marriage of Hutchins, the trial court apportioned four investment accounts to the
husband using the date of the parties’ financial separation, which was several months after
their physical separation. Marriage of Hutchins, ¶¶ 56, 63. The wife argued that she was
entitled to the increase in value of the accounts between the court’s valuation date and the
date of dissolution. Marriage of Hutchins, ¶ 57. We affirmed, explaining that the date of
financial separation was appropriate because “unique circumstances existed”; the parties
had separated their finances and did not comingle assets after that time, and the wife “was
not necessarily entitled to the increase in the accounts’ values after the parties separated.”
Marriage of Hutchins, ¶¶ 63, 65.
20
¶51 As discussed above, Marriage of Hutchins is distinguishable from the present case
because Mike and Chelsey did not financially separate in November 2018 when they
physically separated. Unlike Marriage of Hutchins, the parties here continued to comingle
finances well into the following year as the dissolution proceedings carried on. Because
we have determined that unique circumstances did not exist to justify the District Court’s
use of the date of the parties’ separation, the District Court erred by utilizing the numerator
11 to calculate Chelsey’s portion of Mike’s two-part pension plan pursuant to Rolfe II.
Exclusion of Marital Assets and Growth
¶52 At trial, Mike conceded that the District Court should value certain significant assets
related to his deferred compensation plan at the parties’ dissolution date because he
believed that Chelsey had contributed to the earnings in those investment accounts
pre-separation, and thus she was entitled to the increase in value over the course of the
parties’ separation. Mike testified that Merrill Lynch account 2647 ($932,901.91) was his
2018 API bonus paid in 2019, and Merrill Lynch account 2894 ($673,015.51) was funded
with monies from his LTIP bonus paid in 2020, which included earnings from 2017 and
2018. However, in post-trial briefing, Mike submitted a new proposed apportionment
identifying all assets as of the date of separation and labeled each of these accounts as
“Established post separation.” The District Court awarded the accounts, in their entirety,
to Mike, finding that “Merrill Lynch accounts 2647 and 2894 were funded post separation
by monies earned solely by Mike after the parties separated.”
¶53 Chelsey argues on appeal that by ignoring the undisputed testimony that at least
some of Mike’s API and LTIP earnings were marital assets, she was deprived of almost
21
$2 million. She contends that by effectively freezing the value of the marital estate and all
of the parties’ investment accounts at the date of separation, and then by making
calculations based on that fixed amount and not a percentage of the account at the time of
the actual division of property, the court effectively awarded all of the growth of those
assets during the pendency of the dissolution proceedings to Mike. In other words, Chelsey
argues that while her portion of the asset continued to grow while the parties were
separated, the District Court failed to award her any of that growth. Chelsey argues that
although the District Court fixed her share of the marital estate as of November 1, 2018,
she did not receive any of the assets at that time, and had no control over those assets during
that time. By default then, Mike earned a windfall by getting to keep the growth of both
his and Chelsey’s portion of the funds.
¶54 To support its decision to exclude assets acquired post-separation or increases in the
value of assets that existed as of the date of separation, the District Court relied primarily
on this Court’s decision in In re Marriage of Wagner, 208 Mont. 369, 679 P.2d 753 (1984),
which is distinguishable.5 In Marriage of Wagner, after separating from her husband, a
wife borrowed money from her family to establish a new ranching operation that generated
significant profits. Marriage of Wagner, 208 Mont. at 373, 679 P.2d at 755. Conversely,
5
The District Court also analyzed two non-cite cases, In re Marriage of Gallagher,
No. DA 01-0871, 2003 MT 124N, 2003 Mont. LEXIS 211, and language from the dissent in
In re Marriage of Jolly, No. DA 05-0439, 2006 MT 352N, 2006 Mont. LEXIS 685. Because these
are non-cite cases with no precedential value, we will not consider them here. See State v. Ferre,
2014 MT 96, ¶¶ 15-16, 374 Mont. 428, 322 P.3d 1047 (“It is well-established that unpublished
orders and opinions from this Court are not to be cited as precedent.”) (citing State v. Oie, 2007
MT 328, ¶ 16, 340 Mont. 205, 174 P.3d 937 (“[W]hen included in briefs, we give no regard to
such citations.”)); State v. Little, 260 Mont. 460, 468, 861 P.2d 154, 159 (1993) (“We do not
recognize citations to unpublished opinions.”)).
22
the husband dissolved his ranching operation and did not pay down operating expenses,
but instead incurred more debt. Marriage of Wagner, 208 Mont. at 374, 679 P.2d at 755.
After consideration of the unique circumstances presented by the case, we determined that:
[N]either the husband’s increased financial obligation, nor the wife’s real
estate and livestock purchases should legitimately be denominated “marital
assets” for two reasons: (1) both were acquired after the marital relationship
was irretrievably broken; (2) the disparity of the parties’ business acumen
resulted in a change of either’s financial status after the separation so that
selection of the later date would create an unjust distribution.
Marriage of Wagner, 208 Mont. at 379-80, 679 P.2d at 758.
¶55 In this case, although Mike received a substantial distribution from his employer
after the parties separated, there was nothing unique about the circumstances surrounding
his bonus payments, especially the LTIP bonus, which was based on metrics that Mike had
been working toward for the previous three years. Additionally, the record includes
testimony from Mike that he believed the equitable thing to do was to share his bonuses
with Chelsey, as well as testimony from Chelsey that she and Mike had jointly decided to
defer those anticipated funds for their family’s benefit later on.
¶56 While it is true that Mike’s incentive programs did not technically accrue until after
the parties were separated, it is also undisputed that Mike was working toward the specific
benchmarks rewarded by those incentive programs while the parties were still together,
and at least the 2019 bonuses were paid out with certainty before the dissolution date.
Including marital assets received post-separation but earned pre-separation does not require
the court in this case to speculate about the increase in value because the growth at issue is
not unknown future growth but the quantifiable difference between two past dates that can
23
be established by the account balances at each respective point in time. Because Chelsey
is entitled to a portion of Mike’s bonus accounts received post-separation, she is likewise
entitled to the growth of her share of these assets throughout the pendency of the
dissolution. See In re Marriage of Krause, 200 Mont. 368, 380-81, 654 P.2d 963, 969
(1982); Rolfe II, 234 Mont. at 298-99, 766 P.2d at 226 (reasoning that because the wife
could easily earn over 3% were she able to invest the money immediately, “to value
payments [as of the date of dissolution, yet suspend payment until the husband
retires], without also demanding an immediate cash payment to wife, would result in an
unfair windfall to husband”).
¶57 The District Court erred by valuing Mike’s retirement accounts as of the parties’
separation because this date deprives Chelsey of a portion of her share of the assets.
Tax Consequences
¶58 We have held that a district court abuses its discretion when it fails to consider
concrete and immediate tax liability, particularly “when its property distribution order
precipitates such tax liability.” In re Marriage of Thorner, 2008 MT 270, ¶ 21, 345 Mont.
194, 190 P.3d 1063 (citing In re Marriage of Haberkern, 2004 MT 29, ¶ 17, 319 Mont.
393, 85 P.3d 743); see also In re Marriage of Clark, 2015 MT 263, ¶ 16, 381 Mont. 50,
357 P.3d 314 (“[W]here a property distribution ordered by a court includes a taxable event
precipitating a concrete and immediate tax liability, such tax liability should be considered
by the court before entering its final judgment.”) (citing In re Marriage of Beck, 193 Mont.
166, 172, 631 P.2d 282, 285 (1981)).
24
¶59 Conversely, we have held that a district court does not abuse its discretion by failing
to consider tax liabilities when those liabilities are not imminent taxable events. “Such
consideration would cause the court to speculate as to the value of the specific marital
asset.” Marriage of Haberkern, ¶ 17 (citing In re Marriage of Debuff, 2002 MT 159,
¶¶ 48-50, 310 Mont. 382, 50 P.3d 1070; In re Marriage of Taylor, 257 Mont. 122, 127, 848
P.2d 478, 481 (1993); In re Marriage of Swanson, 220 Mont. 490, 496, 716 P.2d 219, 223
(1986); In re Marriage of Gilbert, 192 Mont. 444, 447, 628 P.2d 1088, 1089 (1981)).
¶60 Chelsey argues that the District Court improperly included future tax consequences
in its valuation of Mike’s deferred compensation plan, reducing the value of the parties’
most significant asset, and because the District Court awarded the entire plan to Mike, this
error resulted in an undervalued equalization payment to Chelsey. Mike argues that he will
inevitably incur tax liabilities upon distribution of any funds eventually received from his
deferred compensation plan, so awarding him this asset but failing to account for tax
liability creates a windfall to Chelsey.
¶61 In Marriage of Haberkern, we squarely addressed the issue of “whether a district
court abuses its discretion when it entertains a tax liability in valuing a marital asset where
the distribution order does not specifically force a sale of the asset to satisfy the distribution
nor is there an imminent sale of such asset.” Marriage of Haberkern, ¶ 17. We reversed
the district court’s decision to deduct a twenty-two percent tax rate from the value of the
husband’s seven retirement accounts, which could not be liquidated without penalty for a
minimum of three years, reasoning that “[t]o apply a deduction of a ‘reasonable’ tax rate
to retirement accounts that may be liquidated at some time in the future frustrates the goal
25
of achieving a fair and equitable disposition of the marital estate.” Marriage of Haberkern,
¶ 19. We concluded it was unreasonable to consider tax consequences “in light of
numerous unknown factors such as the value of the account at the time it is eventually
liquidated; the tax laws in effect at the time it is eventually liquidated; and when the account
will eventually be sold. Otherwise, such valuations are merely conjectural.” Marriage of
Haberkern, ¶ 19. In this case, the District Court’s distribution order does not trigger a
taxable event as to Mike’s deferred compensation plan, either directly or by circumstance.
The District Court did not order the account to be liquidated and the record does not reflect
that Mike’s equalization payment to Chelsey compels the liquidation of any portion of the
account.
¶62 Although the taxable event may be inevitable, it is neither concrete nor immediate.
The taxable event is certainly not immediate because, similar to the situation in Marriage
of Haberkern, Mike cannot withdraw funds from his deferred compensation plan until
sometime in the future without incurring a penalty. The taxable event here is not concrete
because of the “numerous unknown factors such as the value of the account at the time it
is eventually liquidated; the tax laws in effect at the time it is eventually liquidated; and
when the account will eventually be sold.” Marriage of Haberkern, ¶ 19.
¶63 The District Court erred by discounting the value of Mike’s deferred compensation
plan by factoring in future tax consequences.
George’s Distributing
¶64 Section 40-4-202, MCA, “obligates a court to equitably apportion between the
parties all assets and property of either or both spouses, regardless of by whom and when
26
acquired.” Marriage of Funk, ¶ 19; see also In re Marriage of Richards, 2014 MT 213,
¶ 33, 376 Mont. 188, 330 P.3d 1193. Specifically when distributing premarital property
and property that is gifted or inherited, the court must also consider the contributions of the
other spouse to the marriage, and take into account the following three factors as set forth
in § 40-4-202(1), MCA: (a) the nonmonetary contribution of a homemaker; (b) the extent
to which the contributions have facilitated the maintenance of the property; and (c) whether
or not the property division serves as an alternative to maintenance arrangements.
Marriage of Funk, ¶ 19. In Marriage of Funk, we explained:
The court’s decision must reflect that each of these factors was considered,
but these considerations are not limitations on the court’s obligation to
equitably apportion all of the property, based upon the unique factors of each
case. It will be incumbent upon the parties to provide full disclosure of all
property. It will be incumbent upon the court to consider the assets and
liabilities of each of the parties and to enter property-specific findings of fact
underlying the apportionment, which findings are grounded in the language
of § 40-4-202, MCA, and based upon substantial evidence.
Marriage of Funk, ¶ 34.
¶65 At trial, the parties disputed the value and valuation date of George’s Distributing
and argued over whether Chelsey’s shares in the company should be considered a marital
asset. The District Court determined that Chelsey’s interest was a marital asset that should
be awarded to Chelsey at Anderson’s May 1, 2020 valuation of $2.56 million, with an
offset for her premarital interest. The District Court reasoned that Mike’s financial and
non-financial contributions to the marital estate facilitated the appreciation of this asset by
allowing Chelsey to defer income, raises, and bonuses, and to invest her time in growing
the company. The District Court found that the parties’ loan further comingled the asset,
27
“changing the characterization of what otherwise might be considered a gifted asset.” The
District Court also concluded that no maintenance was required in this case.
¶66 The District Court found Mike’s testimony that he “contributed to George’s
Distributing, Inc. during the marriage by promoting the company with business and
political associates, volunteering physical labor and at times providing advice relating to
various business matters” credible. Beyond those activities, Mike’s financial support of
the marital estate enabled Chelsey to minimize her income, distributions, and bonuses from
George’s Distributing, allowing her to use funds that would have otherwise been part of
the marital estate to contribute to the company’s growth during the parties’ marriage. The
record reflects that during the parties’ marriage from 2007 through 2019, George’s
Distributing more than doubled its annual gross sales. While Chelsey’s compensation
fluctuated from year to year, her pay did not remotely match the company’s growth. The
year of their separation in 2018, Chelsey, as company president, was the ninth-highest paid
employee, excluding distributions, earning a base salary of $63,000 per year. Chelsey’s
2018 base salary was more than $20,000 less than she was making in 2007 when she
married Mike. Even after accounting for bonuses and distributions, Chelsey brought home
$8,538 less from George’s Distributing in 2018 ($112,683) than she did in 2007
($121,388). While Chelsey testified, “there wasn’t a lot of support for my family’s
business from Mike,” conflicting evidence does not preclude a trial court’s determination
that substantial evidence exists to support a finding of fact. In re A.K., 2015 MT 116, ¶ 31,
379 Mont. 41, 347 P.3d 711. The District Court’s finding that Mike contributed to the
maintenance of George’s Distributing during the marriage is supported by substantial
28
credible evidence in the record and is not clearly erroneous. The court did not abuse its
discretion when it included George’s Distributing in the marital estate.
¶67 Chelsey also argues on appeal that Anderson’s valuation was highly inflated as it
failed to consider George’s Distributing’s unique geographic area and relatively high
expenses compared to other distributorships, and was ultimately unfair to Chelsey because
Anderson used a May 1, 2020 valuation date, while the District Court valued the parties’
other assets as of the date of separation.
¶68 A district court “sits in the best position to judge the credibility of testimony and
proffered evidence, and this Court defers to the district court’s resolution of conflicting
evidence.” In re Marriage of Frick, 2011 MT 41, ¶ 23, 359 Mont. 296, 249 P.3d 67. We
have recognized that “under [some] circumstances, selection of a single evaluation point
for determining net worth of the parties could create an inequitable disposition.”
In re Marriage of Walls, 278 Mont. 413, 417, 925 P.2d 483, 485 (1996) (quoting
In re Marriage of Lippert, 192 Mont. 222, 226-27, 627 P.2d 1206, 1208 (1981)
(“[D]iscretion by the District Court is necessary when determining the worth of marital
assets which fluctuate in value. For example, the value of a particular common stock may
change drastically during the course of a dissolution while the value of the family home or
other personal property remains stable.”). Valuing different assets at different times is not
an abuse of discretion so long as “the findings as a whole are sufficient to determine the
net worth and to decide whether the distribution is equitable.” Marriage of Walls, 278
Mont. at 417, 925 P.2d at 485 (internal quotations and citations omitted); see also In re
Marriage of Milesnick, 235 Mont. 88, 96, 765 P.2d 751, 756 (1988) (“If a single valuation
29
date would lead to an inequitable distribution of property, the District Court may choose
several different times for valuation.”).
¶69 The District Court had credible expert testimony to support its valuation for
George’s Distributing. The District Court found that both Mike’s expert, Anderson, and
Chelsey’s expert, Copley, were qualified to provide a valuation for the court, but that
Anderson and his staff have “extensive knowledge of the alcohol beverages industry,
geographic analysis of market areas, financial analysis, damages and valuation models”
and “determining the value of George’s and Chelsey’s ownership interest therein falls
squarely within Anderson’s typical scope of work and expertise.” Conversely, the District
Court determined that “Copley’s experience is limited to valuing ‘three or four’ local
distributorships in the past.” The court provided detailed findings summarizing the
extensive testimony from both experts as to their complex methods and analyses.
¶70 At trial, Anderson testified that there would be no real difference between his
valuation date of May 1, 2020, and Copley’s valuation date of December 31, 2019.
Anderson further testified that his calculations included the effects of the COVID-19
pandemic, stating, “[W]e took a one-time adjustment as probably an overly-conservative
adjustment. But that I think fulsomely takes into account anything that’s happening to the
value of this business this year.” Copley’s calculations did not.
¶71 Substantial credible evidence supported the District Court’s decision to adopt
Anderson’s valuation of George’s Distributing as of May 1, 2020. Notably, neither party
submitted a valuation for George’s Distributing as of November 1, 2018, and we have
repeatedly stated that it is “the parties’ responsibility to provide the District Court with
30
competent evidence regarding property values.” Marriage of Hutchins, ¶ 52 (citing
Marriage of Funk, ¶ 7). On the record before it, the District Court provided a thorough
analysis of both experts’ qualifications and thoroughly supported its decision to adopt
Anderson’s valuation. We decline to disturb the District Court’s valuation of this asset on
appeal.6
Statutory Factors
¶72 In making its apportionment, a district court must consider the statutory factors
listed in § 40-4-202, MCA. Marriage of Hutchins, ¶ 7. The factors include the duration
of the marriage and prior marriage of either party, the age, health, station, occupation,
amount and sources of income, vocational skills, employability, estate, liabilities, and
needs of each of the parties, custodial provisions, whether the apportionment is in lieu of
or in addition to maintenance, and the opportunity of each for future acquisition of capital
assets and income. Section 40-4-202(1), MCA. The court must also consider “the
contribution or dissipation of value of the respective estates and the contribution of a
spouse as a homemaker or to the family unit.” Section 40-4-202(1), MCA. The factors
listed in § 40-4-202(1), MCA, must be considered and referenced in the court’s findings
and conclusions, and there must be competent evidence presented on the values of the
property. In re Marriage of Collett, 190 Mont. 500, 504, 621 P.2d 1093, 1095 (1981).
6
Because we hold the District Court erred in utilizing a valuation date of November 2018 for the
parties’ other significant assets, we need not address Chelsey’s contention that the court’s May 1,
2020 valuation date for George’s Distributing was unfair by comparison since all assets are being
valued as of the date of dissolution, which was only eight weeks after Anderson’s valuation date
and took “into account anything that’s happening to the value of [George’s Distributing] this year.”
31
Although district courts are encouraged to make specific findings on each factor listed in
§ 40-4-202(1), MCA, the factors “are not limitations on the court’s obligation and authority
to equitably apportion all assets and property of either or both spouses, based upon the
unique factors of each case.” Marriage of Funk, ¶¶ 19, 25.
¶73 Mike maintains the court properly considered all factors. Chelsey argues that the
District Court failed to consider the statutory factors in § 40-4-202(1), MCA, when
distributing the marital estate, particularly Mike’s ability to acquire capital. Chelsey
contends that, because the evidence establishes Mike’s average earnings from 2017-19 are
22 times Chelsey’s average earnings, “the court’s 50-50 allocation of a skewed marital
estate shows it failed to consider this statutory criteria.” Chelsey explains:
Copley provided testimony as to each party’s opportunity to acquire capital.
Copley opined that if Chelsey received 50% of the HCSC deferred
compensation plan through 2020, that plan would grow to a value of
$10,600,000 by August 30, 2030. If Mike received 50% of the HCSC
deferred compensation, he would have deferred compensation estimated at
$37,000,000 by the same date. Chelsey was awarded 0% of the HCSC
deferred compensation. As such, Mike’s value in his HCSC plan will exceed
$46,000,000 and Chelsey will have none. The testimony was undisputed.
The court, by ignoring this statutory factor, exacerbated its error.
¶74 The District Court’s Findings of Fact, Conclusions of Law and Order contains
detailed findings regarding the parties’ current and future earnings potential and liabilities.
For example, Finding No. 133 provides:
This division of property takes into consideration the property each party
contributed to the marital estate, each party’s financial and nonfinancial
maintenance of the marital estate, the fact that Chelsey is almost 10 years
younger than Mike, and the fact that both parties have the ability to acquire
significant assets in the future. This division also leaves Chelsey’s business
interests intact and allows her to proceed debt free.
32
¶75 Chelsey’s argument on this issue is unsupported by the record. The District Court’s
property allocation, with which Chelsey takes issue, does not show that the court failed to
consider the statutory factors. Faced with an extensive and complicated estate, the District
Court considered each party’s arguments and made findings and conclusions as to an
equitable distribution. Marriage of Collett, 190 Mont. at 504, 621 P.2d at 1095. While we
have concluded the District Court erred in several of its determinations, the District Court
nevertheless considered the statutory factors when apportioning the marital estate.
Division of Property Conclusion
¶76 The District Court abused its discretion by valuing the marital estate as of the date
of the parties’ separation. The District Court erred by discounting the value of Mike’s
deferred compensation plan by factoring in future tax consequences that were neither
imminent nor concrete. The District Court did not abuse its discretion when it included
George’s Distributing in the marital estate and substantial credible evidence supported the
court’s decision to adopt Anderson’s valuation of George’s Distributing as of May 1, 2020.
The District Court properly considered the statutory factors in § 40-4-202, MCA.
2. Whether the District Court abused its discretion in calculating child support.
¶77 Montana’s child support guidelines promote the principle that “parents have the first
priority to meet the needs of their children according to their financial ability.” Marriage
of Williams, ¶ 23 (citing Admin. R. M. 37.62.101(2)). “In a dissolution of marriage, a
child’s standard of living should not, to the degree possible, be adversely affected because
a child’s parents are not living in the same household.” Admin. R. M. 37.62.101(2). The
guidelines create a rebuttable presumption that require the court to consider each case “on
33
its own merits and circumstances,” and support its decision to deviate from the guidelines
after considering evidence that “a child’s needs either are, or are not, being met.”
Admin. R. M. 37.62.102(1); § 40-4-204, MCA. To deviate from the guidelines, the district
court must find by “clear and convincing evidence that application of the guidelines would
be unjust or inappropriate.” In re Marriage of Albinger, 2002 MT 104, ¶ 12, 309 Mont.
437, 47 P.3d 820 (citing § 40-4-204(3)(a), MCA). If the court finds the guideline amount
is unjust or inappropriate in a particular case, it must state its reasons for that finding.
Section 40-4-204(3)(b), MCA.
¶78 The guidelines define income as “actual income, imputed income, or any
combination thereof which fairly reflects a parent’s resources available for child support.”
Admin. R. M. 37.62.105(1). “Actual income” is further defined to include: “economic
benefit from whatever source derived . . . [including] but not limited to income from
salaries, wages, tips, commissions, bonuses, earnings, profits, dividends, severance pay,
pensions, periodic distributions from retirement plans . . . .” Admin. R. M.
37.62.105(2)(a). “Imputed income” means income not actually earned by a parent, but
which is attributed to the parent. Admin. R. M. 37.62.106(1). It is appropriate to impute
income to a parent when the parent is underemployed. Admin. R. M. 37.62.106(2). When
determining income under the guidelines, the court must consider the disposable income
of the parent, not their income tax returns alone. In re Marriage of Gray, 242 Mont. 69,
73, 788 P.2d 909, 912 (1990). A parent receives credit for supplemental needs paid by that
parent. Admin. R. M. 37.62.123(3). Supplemental needs include the reasonable cost of
34
health insurance coverage, unreimbursed health care expenses, and other needs of the child
as determined by the circumstances of the case. Admin. R. M. 37.62.123(1).
¶79 On appeal, Chelsey seeks child support in the amount of $9,471 per month, which
she argues is in line with the guidelines and takes into account Mike’s approximately $2.5
million in annual income that the District Court ignored. Chelsey claims that following
the guidelines would provide her with “adequate resources to maintain the lifestyle she and
Mike provided to E.F. while they were married” and allow E.F. to have a consistent
standard of living when he is with both parents. Mike argues the District Court’s child
support payment is appropriate given the parties’ pattern of living on base salaries and
Mike’s obligation to pay 100% of E.F.’s insurance premiums and uncovered medical
expenses.
¶80 The District Court’s findings and conclusions adequately support its decision to
deviate from the guidelines. The District Court found that “[o]n its face, [Chelsey’s]
budget is not consistent with the parties’ marital spending or lifestyle.” The court
concluded that “[g]iven the uncertainty of Chelsey’s bonuses, the fact that she is
undercompensated and the inability to quantify with precision her other non-cash
employment benefits, it is appropriate to use Chelsey and Mike’s base incomes to calculate
Child Support.” Recognizing that the statutory definition of “actual income” is broad and
“may include Mike’s various bonuses,” the District Court nonetheless concluded “it would
be unjust and inequitable to include bonuses which Mike is not guaranteed to Mike’s
income.” The District Court supported this conclusion with the example of Mike’s HCSC
Master Deferred Compensation Plan, which the court found reflects an unsecured promise
35
to pay with no guarantee that Mike will not lose the entire balance if his employer goes
bankrupt.
¶81 Additionally, the District Court considered: (1) the undisputed testimony that the
family lived, for the most part, on the parties’ base salaries during the marriage;
(2) Chelsey’s imputed income, which the court found to be $220,000 per year; (3) Mike’s
50/50 parenting time and obligations in the parenting plan to continue to pay for E.F.’s
medical, ocular, dental and orthodontia, and other agreed child-related expenses; (4) E.F.’s
11% interest in George’s Distributing; and (5) the fact that E.F.’s needs are “generously”
provided for in both homes. The District Court determined that the presumption created
by the guidelines was rebutted in this case by evidence that the child’s needs have been
and will continue to be met despite the variance, and that following the guidelines would
be unjust to Mike and result in a windfall to Chelsey.
¶82 The District Court’s factual findings regarding child support are sufficiently
supported by the record and the court did not abuse its discretion in deviating from the
guidelines.
3. Whether the District Court’s adoption of Mike’s proposed Findings of Fact,
Conclusions of Law warrants a new trial.
¶83 Section 25-11-103, MCA, limits the remedy of a new trial for cases tried by the
court without a jury, except in the case of an irregularity in the proceedings or an abuse of
discretion by which either party was prevented from having a fair trial; an accident or
surprise that ordinary prudence could not have guarded against; or newly discovered
36
material evidence. Adams v. Dep’t of Highways, 230 Mont. 393, 398, 753 P.2d 846, 849
(1988).
¶84 While we discourage district courts from adopting a party’s proposed findings and
conclusions verbatim, “such an action is not per se error.” Wurl v. Polson Sch. Dist. No.
23, 2006 MT 8, ¶ 29, 330 Mont. 282, 127 P.3d 436. This Court has approved the verbatim
adoption of findings and conclusions where they are comprehensive and detailed and
supported by the evidence. Wolfe v. Webb, 251 Mont. 217, 229, 824 P.2d 240, 241 (1992)
(citing Pipinich v. Battershell, 232 Mont. 507, 510, 759 P.2d 148, 150 (1988)). To
determine if a district court’s use of proposed findings of fact and conclusions of law was
proper, we ask whether the proposed findings “are sufficiently comprehensive and
pertinent to the issues to provide a basis for decision and whether they are supported by the
evidence presented.” In re Marriage of Benner, 219 Mont. 188, 193, 711 P.2d 802, 805
(1985) (citing In re Marriage of Jensen, 193 Mont. 247, 253, 631 P.2d 700, 703 (1981)).
¶85 Chelsey argues that the District Court’s near verbatim adoption of Mike’s proposed
findings and conclusions should render its order reversible as evidence that the court failed
to exercise its independent judgment. Mike asserts that Chelsey fails to identify specific
findings that are allegedly unsupported, and the notion that the District Court blindly
adopted Mike’s proposed findings is refuted by the extensive record. Mike maintains that
Chelsey is not entitled to a new trial because she neither requested a new trial nor does she
have grounds for one.
¶86 The District Court’s adoption of Mike’s proposed findings and conclusions is not
per se error. Nevertheless, “[i]f inadequate findings result from improper reliance upon
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drafts prepared by counsel—or from any other cause—it is the result and not the source
that is objectionable.” Marriage of Jensen, 193 Mont. at 252, 631 P.3d at 703. As
discussed in detail above, irrespective of the source, we have found some of the District
Court’s resulting findings and conclusions to be in error.
¶87 The record is sufficiently comprehensive to provide a basis for the District Court’s
reconsideration on remand. Chelsey’s basis for requesting a new trial is entirely due to the
trial court’s adoption of Mike’s proposed findings and conclusions nearly verbatim.
Chelsey points to nothing in the record that allegedly prevented her from having a fair trial,
notwithstanding the court’s errors, which can be corrected on remand without a new trial.
Dissolution proceedings originated in January 2019 and the trial itself spanned three days
in June 2020. Six witnesses testified, including three experts, and 260 exhibits were
admitted into the record. The trial transcript contains over 800 pages of testimony. There
were no irregularities in the proceedings, and Chelsey has not asserted any accident,
surprise, or newly discovered material evidence justifying a new trial under § 25-11-103,
MCA. The District Court is “in the best position to reconsider the evidence . . . and
reapportion the estate on the existing record” consistent with this Opinion. Marriage of
Williams, ¶ 15.
CONCLUSION
¶88 The marital estate includes Chelsey’s interests in George’s Distributing and Mike’s
retirement earnings, including the gross value of his deferred compensation plan, up to the
date of the parties’ dissolution. The District Court did not abuse its discretion in calculating
child support. Although the District Court committed some errors as discussed above,
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Chelsey has not demonstrated that the errors were due to the District Court’s adoption of
Mike’s proposed Findings of Fact, Conclusions of Law such that they require a new trial.
¶89 Affirmed in part, reversed in part, and remanded for further proceedings consistent
with this Opinion.
/S/ JAMES JEREMIAH SHEA
We Concur:
/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ INGRID GUSTAFSON
/S/ JIM RICE
Justice Dirk Sandefur has recused himself and did not participate in the decision of this
case.
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