Marriage of Kenney

01/17/2017
DA 16-0163
Case Number: DA 16-0163
IN THE SUPREME COURT OF THE STATE OF MONTANA
2017 MT 9N
IN RE THE MARRIAGE OF:
WILLIAM BARTON KENNEY,
Petitioner, Appellant
and Cross-Appellee,
and
CHARLOTTE M. KENNEY,
Respondent, Appellee
and Cross-Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DR 14-1010
Honorable Michael G. Moses, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
William M. Gilbert, High Plains Law, PLLC, Billings, Montana
For Appellee:
Martha Joan Messex Casey, Hendrickson Law Firm, P.C.,
Billings, Montana
Submitted on Briefs: December 14, 2016
Decided: January 17, 2017
Filed:
__________________________________________
Clerk
Justice Michael E Wheat 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 William Kenney and Charlotte Greni married in January 2006 after living together
and sharing expenses since 1999. William was 47 years old at the time of the marriage
and Charlotte was 50 years old. It was the third marriage for both and the couple has no
children together.
¶3 William is healthy, employed, and has a strong work history with established
retirement and pension accounts with at least two employers. Additionally, to
supplement his income as a grain/flour miller with his current employer Grain Craft at
which he earned approximately $54,000 in 2014, William is a skillful day trader and built
an Ameritrade account containing approximately $118,000 at the time of the dissolution
hearing in September 2015. Additionally, William brought multiple vehicles, personal
items, and a Billings, Montana, house into the relationship.
¶4 Charlotte entered the relationship with personal belongings, furniture, a vehicle, a
retirement account from a former employer, and a full-time job. In 2009, Charlotte was
diagnosed with lumbar spine degenerative disc disease but continued to work full-time
until May 2012 when she had to reduce her working time. In October 2012, Charlotte
2
underwent spinal surgery followed by a second surgery in October 2013. She is facing
future surgeries as well. In January 2014, the Social Security Administration determined
that Charlotte was fully disabled retroactive to May 2012. In 2014, she received $22,126
from Social Security Disability and earned $10,834 as a part-time child care assistant at
Human Resources Development Council. She currently receives $914.00/month in
Social Security Disability benefits.
¶5 In October 2014, William filed a Petition for Dissolution of Marriage claiming the
marriage was irretrievably broken and advocating equitable division of marital property
but no awards of spousal support, maintenance, or attorney fees. Charlotte responded and
filed a counter petition for dissolution in which she agreed the marriage should be
dissolved but she sought spousal support or maintenance based upon her inability to
support herself through suitable employment. She further requested an award of her
attorney fees.
¶6 Following unsuccessful mediation in June 2015, a bench trial was held on
September 4, 2015. Both William and Charlotte testified and submitted exhibits. In
February 2016, the District Court issued its Findings of Fact, Conclusions of Law and
Decree of Dissolution. The court granted dissolution, valued the marital estate, and after
analyzing the parties’ individual financial situations equitably divided the Estate between
them. It granted Charlotte’s request for maintenance in the amount of $1,200/month for
10 years beginning in February 2016 and ordered the parties to bear their own attorney
fees and costs.
¶7 William filed a timely appeal.
3
¶8 Section 40-4-202, MCA, governs the division of property in a marital dissolution
case. We have repeatedly held that § 40-4-202, MCA, vests district courts with broad
discretion when equitably distributing the marital estate. In re Marriage of Swanson,
2004 MT 124, ¶ 12, 321 Mont. 250, 90 P.3d 418. We review a district court’s findings of
fact in a dissolution proceeding for error and absent clearly erroneous findings or abuse
of discretion, we will affirm a district court’s division of property. Swanson, ¶ 12.
¶9 William claims on appeal that the District Court failed to calculate an accurate net
worth of the marital assets and that it erred in calculating and awarding maintenance to
Charlotte. Specifically, William asserts the District Court made no findings as to the
value of the parties’ retirement accounts. He alleges that evidence of the present value of
his 401(k) accounts with both former-employer Sysco and current-employer Grain Craft
were presented at trial and should have been included in the net worth of the marital
estate. He acknowledges that the balances of his defined benefit/pension plans with each
of these employers was not presented or determined at trial as their present values are
“unclear.” He maintains that, without such a value, it is impossible to determine the net
worth of the estate or the amount of the estate each party received.
¶10 Charlotte urges us to affirm the court’s equitable decision, alleging that William
failed to provide necessary information regarding the balances of his retirement and
pension accounts.
¶11 Section 40-4-202, MCA, expressly states that the “court . . . shall . . . equitably
apportion . . . property and assets” belonging to the parties. While the District Court did
not attribute express values to William’s various retirement accounts, the court
4
nonetheless gave them adequate consideration and equitable distribution, keeping an
open record to oversee future distributions. It held that all premarital contributions—both
William’s and his employer’s—belonged to William and all post-marital contributions
were to be divided equally.
¶12 Additionally, in distributing the remaining assets in this case, the District Court
considered each of the multiple specific factors set forth in § 40-4-202(1), MCA,
including, but not limited to, age, health, station, and employability. It further carefully
reviewed Charlotte’s need for maintenance under § 40-4-203, MCA. The court’s
findings are equitable, sufficient, supported by the evidence, and not clearly erroneous.
Nor do the court’s rulings constitute an abuse of discretion.
¶13 Lastly, the court’s inadvertent use of an incorrect account balance in its
calculations resulted in an inconsequential error and does not warrant reversal.
¶14 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’s findings of fact are not clearly erroneous and the court’s
ruling was not an abuse of discretion.
¶15 We decline to address Charlotte’s tax consequences issue on cross-appeal. We
further decline her request for attorney fees on appeal.
¶16 Affirmed.
/S/ MICHAEL E WHEAT
5
We Concur:
/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ JIM RICE
6