Marriage of Gallinger v. Weissman

No. 8 5 - 4 6 5
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
IN RE THE MARRIAGE OF
CHERYL G. GALLINGER,
Petitioner and Appellant,
and
JEFFREY R. WEISSMAN,
Respondent and Cross-Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable William J. Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Crowley, Haughey, Hanson, Toole & Dietrich;
T. G. Spear, Billings, Montana
For Respondent:
Berger Law Firm; Arnold A. Berger, Billings, Montana
Submitted on Briefs: Jan. 23, 1 9 8 6
Decided: June 5, 1986
Filed: J N 5 - 1986
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Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
This is an appeal by both the husband and wife from a
judgment of the Yellowstone County District Court dividing
the marital property of the parties, awarding child support
and denying attorney's fees. We affirm.
Jeffrey Weissman ("husband") and Cheryl Gallinger
("wife") were married in September of 1965. They were
separated in December of 1978 and their marriage was
dissolved in December of 1 9 8 2 . The case proceeded to trial
on division of property, maintenance and child support in
June of 1 9 8 4 . The District Court issued its findings of fact
and conclusions of law in April of 1 9 8 5 . Husband thereafter
moved to amend the findings and conclusions and his motion
was granted by the trial court. Judgment on the amended
findings and conclusions was entered in June of 1 9 8 5 . Wife
then moved to amend the judgment and her motion was denied.
Wife subsequently filed her notice of appeal and husband then
cross-appealed.
Husband is the general manager (since approximately
1976) of a Billings, Montana, steel business known as Carl
Weissman & Sons, Inc. Husband is also a partial owner of
this family business. In addition, husband is the total
owner of two other steel companies called Northwest Steel,
Inc. and Northwest Steel of Idaho.
Wife, throughout the marriage of the parties, was
basically not employed outside the home except for a short
period of time in which she owned a half interest in an
interior decoration business known as "Attitudes and
Interiors." Shortly after the parties' separation, wife sold
her interest in this business although she is still qualified
as an interior design consultant. Currently wife is not
employed outside the home except for limited part-time work
as a sales clerk.
It should also be noted that the parties' marriage
produced three children, two of whom are presently minors.
At the time of dissolution, the property and assets of
the parties were quite extensive and complex. For the
purposes of this appeal, it is only important to note that
the net worth of the marital estate was approximately
$600,000 and the District Court divided it as follows:
ASSET: WIFE HUSBAND
1) 226 Clark $82,854.43 $
(family home)
2) Proceeds from sale
of 910 Princeton
3) Red Lodge Cabin 58,531.82
4) *Laurel Frontage Road Property 34,236.08
5) *Baker Contract 6,900.00
6) *Mavig Note 26,000.00
7) Northwest Steel 134,333.333 268,666.66
and Northwest Steel
of Idaho (wife's share
to be paid in cash)
8) Insurance
a) Husband's
life insurance
b) Carl Weissman &
Sons insurance
9) Cash
10) Jewelry
11) Art &
Furniture
12) Attitudes &
Interiors
contract
13) 1979 Saab
TOTAL : $372,845.94 $373.411.04
LIABILITIES:
1) *First Bank
Billings loan $131,116.17
DIFFERENCE:
between property
division $130,551.07
ONE HALF: $65,275.54
To Pay for Northwest Steel Stock to wife
(above1 $134.333.33
CREDIT 65,275.54 ( $ of difference between
$69,057.79 property division)
CREDIT 6,845.12 ( of inheritance from
Cash to wife: $62,212.67 husband's grandfather)
*(concerns Hannah-Weissman business venture)
The District Court further concluded that husband's
interest in Carl Weissman & Sons, Inc. should not be included
in the marital estate because the husband received his
interest as a gift from his father and wife made no
contribution, monetarily or otherwise, to the company.
Husband's interest in Carl Weissman & Sons, Inc. was valued
at $273,833.25 by the trial court.
The District Court also awarded husband and wife joint
custody of their children. Husband was to pay child support
payments to wife in the amount of $400 per month per child
until the children reached majority or finished high school
whichever occurred last. In addition, husband was ordered to
maintain comprehensive medical insurance for the children
with the parties dividing the cost of any medical treatment
not covered by said insurance.
Finally, the District Court directed both husband and
wife to bear the costs of his/her own attorney's fees.
At the outset, this Court feels it is necessary to note
that this case is nothing short of a tangled mess. Between
the complexity of the parties' marital property, the
hostility between the parties themselves, and the parties'
counsels' antagonistic relationship, it is little wonder this
matter has dragged on for nearly six years. (The petition
for dissolution was filed in September of 1979.) For this
reason, we compliment Judge Speare on preparing a thorough
and complete decision in this case as evidenced by his
findings of fact, conclusions of law and judgment.
Wife now presents the following issues for review by
this Court:
(1) Did the trial court fail to equitably apportion
the property and assets of the parties?
(2) Did the trial court err in amending the original
findings and conclusions?
(3) Did the trial court err in awarding $400 per month
per child in support, and in refusing to require additional
support for medical, religious and scholastic expenses?
(4) Did the trial court abuse its discretion in
refusing to award attorney's fees and costs to wife?
Husband, on cross-appeal, also adds the following
issues:
(5) Did the trial court err in awarding support of
$400 per month per child?
(6) Did the trial court award wife a greater share of
the marital estate than was justifiable by the evidence?
(7) Should the trial court have awarded attorney's
fees to husband?
We find the issues presented by husband to be basically
repetitive of the issues presented by wife (except, of
course, husband's issues seek a different result), therefore,
we will incorporate husband's issues into the four issues
presented by wife.
Husband, in his brief, a.lso moves this Court to dismiss
wife's current appeal on the grounds that the appeal was not
timely. Husband's motion to dismiss is without merit and is
hereby denied.
I.
Did the trial court fail to equitably apportion the
property and assets of the parties?
Under this issue, wife specifically lists nine items to
establish that the trial court failed to equitably apportion
the property and assets of the parties. These items include:
(1) failing to take into account the lack of cash flow, which
leaves wife with no means of maintaining the property
awarded; (2) failing to take into account wife's non-monetary
contributions to the marriage; (3) undervaluing Northwest
Steel; (4) excluding Carl Weissman & Sons from the marital
estate; (5) excluding part of Northwest Steel from the
marital estate; (6) charging Hannah-Weissman debt and
inheritance against wife's entitlement; (7) failing to take
into account husband's dissipation of assets after the
separation of the parties; (8) giving credence to husband's
testimony in the face of overwhelming evidence of his
unreliability as a witness; and (9) valuing the family home
too high.
Both parties are well aware of the standards of review
established by this Court in dissolution proceedings. First,
the standard of review regarding the division of marital
property under S 40-4-202, MCA, is well established. As this
Court recently said:
"In dividing property in a marriage
dissolution the district court has far
reaching discretion and its judgment will
not be altered without a showing of clear
abuse of discretion. The test of
discretion is whether the trial court
acted arbitrarily without employment of
conscientious judgment or exceeded the
bounds of reason resulting in substantial
injustice. "
In Re Marriage of Wessel (Mont. 1986), 715 P.2d 45, 50, 43
St.Rep. 405, 411; citing Becker v. Becker (Mont. 1985), 707
Second, this Court has repeatedly said it will not set
aside a trial court's findings of fact unless shown to be
clearly erroneous.
"Findings of fact shall not be set aside
unless clearly erroneous, and due regard
shall be given to the opportunity of the
trial court to judge the credibility of
the witnesses.
Furthermore, findings of fact are not
clearly erroneous if supported by
substantial credible evidence.
This Court's function ...is not to
substitute its judgment in place of the
trier of facts but rather it is 'confined
to determine whether there is substantial
credible evidence to support1 the
findings of fact and conclusions of law.
[Citations omitted.] Although conflicts
may exist in the evidence presented, it
is the duty and function of the trial
judge to resolve such conflicts. His
findings will not be disturbed on appeal
where they are based on substantial
though conflicting evidence. [Citations
omitted. ] "
Marriage of Wessel, 715 P.2d at 50; citing In Re Marriage of
Obergfell (Mont. 1985), 708 P.2d 561, 563-64, 42 St.Rep.
Wife argues the trial court clearly abused its
discretion in dividing the property and assets of the
parties, thus violating the developed and applicable law, and
also disregard the substantial evidence contained in the
record in arriving at its findings of fact. Wife asserts
that despite thirteen years of marriage, continued
responsibility for three children and a much narrower earning
capacity than husband, she was awarded a grossly inequitable
share of the marital estate. We disagree.
As noted above, the property and assets of the parties
were quite extensi~reand complex. This property acquired by
the parties came into their possession by many different
means including by gift, inheritance, business venture and
personal employment. The trial court carefully studied this
complicated assortment of property and assets and arrived at
what it considered to be a just and equitable division of the
marital estate. Wife now raises nine specific items which
she argues clearly illustrates that the trial court
inequitably divided the property and assets of the parties.
In response to this assertion, we direct wife's attention
once again to the standards of review regarding dissolutions
quoted above, and also note:
[Tlhis Court will not attempt to review
every element of a complex property
distribution in the same manner as might
be done if an accountant were auditing.
Our function is to examine whether there
is substantia.1 evidence to support the
property distribution. Viewing the
overall apportionment in light of the
District Court's comprehensive and
extensive findings of fact, and
considering the complexities involved, we
conclude that the property distribution
... is affirmed.
In Re the Marriage of Williams (Mont. 1986), 714 P.2d 548,
554, 43 St.Rep. 319, 327.
We hold the District Court did not abuse its discretion
in dividing the property and assets of the parties. In fact,
after reviewing the record, we find the trial court employed
conscientious judgment in arriving at a substantially just
result in a case where a just result was difficult to
achieve. Further, we hold there is substantial credible
evidence on the record to support the findings of fact and
conclusions of law of the trial court. Therefore, we affirm
the trial court's distribution of the ma.rita1 estate.
11.
Did the trial court err in amending the original
findings and conclusions?
As stated under the facts section of this opinion,
after the trial court issued its original findings of fact
and conclusions of law in April of 1985, husband then moved
to amend this court document. This motion was granted by the
trial court and judgment on the amended findings and
conclusions was entered in June of 1985. Wife now asserts
the trial court should have rejected husband's motion to
amend. We disagree.
Husband appears to have correctly submitted his motion
to amend pursuant to Rule 52 (b), M.R.Civ.P. We agree with
husband that his motion was not unreasonable due to the
amount of time which had elapsed between the date of trial
(June 1984) and the date on which the original findings and
conclusions were issued (April 1985). Husband's motion
appears mainly to have served as a reminder or "refresher" to
the trial court that the complex and extensive property of
the parties may not have been entirely equitably divided in
the original findings and conclusions. Husband's motion
apparently served its purpose because the trial court
subsequently did amend a limited number of its findings and
conclusions. We hold such a use of a motion to amend is not
unreasonable.
Did the trial court err in awarding $400 per month per
child in support, and in refusing to require additional
support for medical, religious and scholastic expenses?
Wife initially points out that during the prolonged
pendency of this proceeding, husband paid (under order of the
trial court) $500 per child per month in interim child
support. Wife now argues there is no logical reason for the
trial court to reduce her child support to $400 per child per
month especia'lly in light of the diverse financial positions
of the parties. Wife also asserts the trial court further
abused its discretion (besides reducing her child support) by
refusing to require husband to cover all the uninsured
medical costs for the children, and by refusing to require
husband to aid in any educational, religious or recreational
expenses for the children. Wife argues because of the trial
court's abuse of discretion regarding child support and other
related items, a substantial part of the burden of caring for
the children and meeting their financial needs now falls on
her new husband. We disagree.
The standard for reviewing child support awards made
under S 40-4-204, MCA, is well-settled in Montana.
The award made by the District Court will
not be disturbed on appeal unless there
has been a clear a.buse of discretion
resulting in substantial injustice.
Grenfell v. Grenfell (1979), 182 Mont. 229, 232, 596 P.2d
205, 207; see also In Re Marriage of Loegering (Mont. 1984) ,
We hold the District Court, in making its child support
award, adequately considered the items and factors set out in
§ 40-4-204, MCA. The record indicates the trial court heard
testimony concerning the financial resources of the parties,
the standard of living of the children before the separation,
and other relevant factors. In fact, after reviewing the
record, we find wife's award of $400 per month in child
support ($9,600 a year) to be more than adequate based on the
factors enumerated in § 40-4-204.
Further, we find no error in the trial court's ruling
that the parties shall equally share the responsibility for
any uninsured medical costs for the children, and also that
husband is not required to aid in any educational, religious,
or recreational expenses for the children. The trial court
was in the best position to judge the respective needs of the
parties, and we will not disturb its decision absent a clear
abuse of discretion. In the instant case, we find no clear
abuse of discretion.
That portion of the judgment regarding child support is
affirmed.
IV.
Did the trial court abuse its discretion in refusing to
award attorney's fees and costs to wife?
The awarding of attorney's fees are governed by
§ 40-4-110, MCA, which states:
The court from time to time, after
considering the financial resources of
both parties, may order a party to pay a
reasonable amount for the cost to the
other party of maintaining or defending
any proceeding under chapters 1 and 4 of
this title and for attorney's fees,
including sums for legal services
rendered and costs incurred prior to the
commencement of the proceeding or after
entry of judgment. The court may order
that the amount be paid directly to the
attorney, who may enforce the order in
his name.
This Court has stated that the awarding of attorney's fees is
clearly permissive under this statute. In Re Marriage of
Obergfell (Mont. 1985), 708 P.2d 561, 42 St. Rep. 1414.
This Court has also stated in the past "that when the
District Court refuses to award attorney's fees, it must
indicate in the findings of fact, conclusions of law, or
order why such fees were not awarded. I
' See, Lewis v. Lewis
(1982), 198 Mont. 51, 55, 643 P.2d 604, 606, and cases cited
therein. Failure to set forth the specific reasons for
denial of attorney's fees, we stated in these earlier cases,
constituted remandable error.
We now hold the rule expressed in the Lewis opinion,
and earlier opinions, to be revised. Such a rule is much too
harsh to be applied on a general basis. We hold a more
appropriate standard for reviewing a District Court's
decision not to award attorney's fees under S 40-4-110 is
whether the court abused its discretion in refusing to award
such fees. Such a standard is more in line with this Court's
other standards of review regarding dissolution actions, and
also is more in line with S 40-4-110.
In the instant case, the record indicates the trial
court was well appraised of the financial resources (and
financial burdens) of both parties as required by S 40-4-110.
After assessing this information, the trial court determined
that neither party was entitled to be awarded attorney's
fees. We find no abuse of discretion by the trial court in
directing the parties to pay their own attorney's fees.
The judgment of the District Court is affirmed in all
respects.
We concur: /
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