Beargrass in bloom
June 20th, 2009Jammin’ … hand-jammin’ that is.
June 20th, 2009
Getting away from it all … for a few days
June 20th, 2009
Climbing a crack up Lolo way.
Value Rise Brings Maintenance Demise
June 1st, 2009Donald and Irene divorced in 2004 after 43 years of marriage. He was 70 and she was 69 at the time. The trial court then divided their assets including his pension approximately equally — according to the valuation testimony at trial. Donald had some part time jobs and had more social security than Irene. The trial court awarded Irene lifetime maintenance of $1,000 a month from Donald. Donald appealed the maintenance award as well as the trial court’s inclusion of all of premarital and inherited assets of both parties in the marital estate. The Supreme Court affirmed the original decision in In Re Marriage of Crilly 2005 MT 311.
Five months after the Supreme Court had affirmed the trial court’s initial decision, Donald filed a motion to end maintenance. The trial court ultimately granted the motion and this time, Irene appealed. Irene had been awarded 3 lots as part of her division of the marital net worth. At the time of trial, those lots were valued at $225,960. She subsequently sold the lots for $556,000 — approximately $330,000 more than the value at trial. Donald’s income, through no fault of his own, had decreased $1,000 a month. And the sale of the property converted the lots to income-producing property.
The Supreme Court affirmed. Clearly, the division of property in retrospect was not equal by a long shot and there was ample reason, the Court held, to find that continuing to require Donald to pay Irene maintenance was unconscionable.
The decision is In Re Marriage of Crilly, 2009 MT 187.
LOVE MAY ONLY TAKE A MOMENT, BUT COMMON LAW MARRIAGE IS NOT SO QUICK.
May 30th, 2009James and Jacqueline fell in love in the State of Washington. They held an informal ceremony in Washington October 4, 1994, and vowed to each other to be married “under God”. Washington does not recognize common law marriages and apparently would not have recognized this one. The next year, however, they moved to Montana. James sold property he had previously owned and bought a ranch in Montana where they lived for the next 11 years. The ranch didn’t make money but doubled in value by the time Jacqueline filed for divorce in 2006. By then, the couple had made multiple representations to multiple institutions that they were married. James told his union they were married. He told the IRS he was married on his tax returns. They held themselves out as married to others. The trial court found that they were married and pegged the date of their marriage to the October 1994 event in Washington. James appealed on the basis of a line of cases that held that common law marriage comes about in an instant. Those cases were overruled (and good riddance). The only curious thing is the retroactive effectiveness of a marriage to a date time and place it was clearly legally impossible.
Also of interest here was the fact that post trial motions of the parties substantially affected the ultimate outcome. The trial court greatly reduced James’ cash payment due Jacqueline. Rarely do post trial motions produce much. Here, clearly the effort was well rewarded, however — for James, at least.
Finally, Jacqueline contended that although the ranch was purchased with proceeds from the sale of James’ premarital property, she was entitled to share in the increase in its value. They bought the ranch for $340,000 and its value at the time of divorce was $660,000 — so serious money was at issue here.
The Supreme Court repeated its earlier standards: that Jacqueline would have to show that she contributed to the preservation or appreciation in value of the ranch and that she would have no entitlement if the increase in value was solely the result of market forces. The Supreme Court reversed and remanded on this issue, holding that the trial court had not made any specific findings of fact about Jacqueline’s contribution to the appreciated value of the ranch or whether she acquired any marital interest in the appreciated value.
The case is Marriage of Swanner-Renner 2009 MT 186
Jointly Titled Premarital Home Distributed to Husband in 5 Month Marriage
May 7th, 2009Does title control distribution of assets in a divorce? Nope.
Seven months before this couple married, they purchased a home. They bought the home with the husband’s money. They titled the home jointly. They marry. They separate 7 months later. Husband makes all the mortgage payments on the home before and after separation.
The trial court awards the home to husband. Wife appeals claiming the trial court had no jurisdiction to award the home to husband because title was joint and the home was purchased before marriage. Section 40-4-201(1) MCA grants trial courts the power to equitably distribute property “…however and whenever acquired and whether the title thereto is in the name of the husband or wife or both.”
The Supreme Court affirmed, holding that title — in and of itself — does not control the distribution of property in a divorce.
Looking forward to driving over the Beartooth Highway
May 2nd, 2009
More Detailed Findings Required to Sustain Decision on Appeal
April 30th, 2009What are adequate findings supporting a trial court decision modifying maintenance? In In Re Marriage of Webster 2009 MT 147N the Montana Supreme Court made it clear that these oral findings are not enough:
“. . . I understand Mr. Webster would like to quit working and certainly understand that, and you’ve worked hard and you’ve worked long, but it sounds like Mrs. Webster is in an increasingly difficult circumstance, and so really what this boils down to in a sense is whether you help pay for her care or whether the taxpayers help pay for her care, and to me, that’s kind of a difficult position to put a Court into. I appreciate the fact that you are willing to try and help out and pay $250 a month. I think what I am going to do is, I’ll cut your obligation in half, to $375 a month. I definitely understand that you have a change in circumstances, and you need some give here, but I also believe that you have an obligation to support your exwife.” See Appellant’s Brief, page 10.
This case concerned an ex-husband wishing to retire and to reduce his maintenance obligation to his fully disabled ex-wife. The Montana Supreme Court remanded the case to the trial court with instructions to the trial court to simply forward its findings and conclusions back to the Supreme Court for review: “Accordingly, we remand this matter to the District Court for entry of appropriate findings of fact and conclusions of law. The District Court shall forward its findings and conclusions to the Clerk of the Supreme Court for our review.” The case was not reversed.
Partitioning Co-Habiting Couple’s Real Estate
April 30th, 2009Vern and Nancy lived half the year in California and half in Montana. They were not married. Vern inherited a home from his dad in Glasgow that served as their Montana residence. Vern purchased two additional properties in Glasgow: an additional home they fixed up for a rental with a loan secured by his inherited home and another run-down property for cash. He placed both of these two additional acquired properties in his and Nancy’s name jointly.
Vern and Nancy ended their relationship after 8 years. Vern sued for partition of the two jointly titled properties. The trial court awarded the rental to him and ordered him to pay Nancy $5,400 for her contribution to the property. Based upon emails between the parties post-separation as well as testimony, the trial court found Vern intended the run-down property as a gift to Nancy. The court ordered Vern to deed the property to her or pay her $5,300 for the property.
Vern appealed the portion of the decision awarding Nancy the run-down property. He argued that he had not intended to simply give Nancy the property — and in any event, legal title was in their names jointly and there was no evidence of delivery.
The Montana Supreme Court affirmed the decision, emphasizing that partition actions are actions in equity. In a partition action, the court starts with the presumption that jointly titled property is owned in equal shares. That presumption is rebuttable, however. Evidence of unequal contribution to the property is sufficient to lead to another presumption: that the parties own shares based upon their relative contribution. That presumption is rebuttable too: by evidence that one party intended a gift to the other. According to the Supreme Court evidence of intent to gift casts a wide net: “The party may establish proof of a gift by parol evidence, such as conduct over the course of time, the relationship between the two parties, the sharing of expenses, labor, or any other admissible means.” One might wonder what evidence could not be offered as proof of a gift.
The case is Anderson v. Woodward 2009 MT 144
Birth Dates Removed
April 22nd, 2009The Montana Supreme Court withdrew its opinion in Marriage of Chapman and Panagakis, 2009 MT 119N and reissued the opinion without the birthdates of the two children. Now the opinion reflects only the year of their birth.
