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In Re the Marriage of:

October 22, 2012

IN RE THE MARRIAGE OF: MICHAEL SWARTZ, PETITIONER AND APPELLEE, AND CHARLENE BOLTON, RESPONDENT AND APPELLANT.


APPEAL FROM: District Court of the Fourteenth Judicial District, In and For the County of Meagher, Cause No. DR 09-03 Honorable Randal I. Spaulding, Presiding Judge

The opinion of the court was delivered by: Chief Justice Mike McGrath

Submitted on Briefs: September 12, 2012

Decided: October 22, 2012

Filed:

Clerk

Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(d)(v), 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 Charlene Bolton (Char) appeals from findings of fact, conclusions of law, and a final decree of dissolution of her marriage to Michael Swartz (Mick) by the District Court for the Fourteenth Judicial District, Meagher County. We affirm but remand for a clarifying order.

¶3 Mick and Char were married by common law in 1992. Mick is a retired automotive supervisor for the United Parcel Service (UPS), and Char is a retired legal assistant. The parties bought a home near While Sulphur Springs, Montana in 1999. The parties took out a mortgage to pay for the property, and Mick withdrew money from his premarital retirement account to make the down payment. Mick and Char lived together in their marital home until they separated in October of 2003. When the parties separated, Char moved to Oregon, and Mick continued to live in the parties' marital home.

¶4 On July 15, 2009, Mick petitioned for dissolution of marriage. The District Court held a bench trial on October 12, 2011 and issued findings of fact, conclusions of law, and a final decree of dissolution on February 6, 2012. The court found that although the parties remained married after their separation, for all practical purposes the marriage ended in October of 2003. Accordingly, when the court divided the marital estate it elected to value the marital property, including the marital home, as of 2003 instead of the date of dissolution.

¶5 Mick was awarded the home and, because the property was a marital asset, the court awarded Char half of its value. However, the District Court determined that in 2003 Mick and Char owed more on the mortgage than the property was worth. Consequently, as there was no equity in the home in 2003, Char did not receive anything of value from the marital home and property.

¶6 The District Court also divided Mick's retirement benefits through UPS. Applying the time rule formula to divide Mick's retirement benefits, the court used 2003 as the date the marriage ended to calculate the marital portion of the pension and found that Char was entitled to twenty-four percent of Mick's monthly benefit, or $373.40. The court also divided the vehicles that the parties owned in 2003, some of which Mick has since sold. The court awarded Char half of the value of the vehicles and gave Mick ownership of the vehicles that he still has in his possession.

¶7 Additionally, the District Court evenly split debt from three credit accounts in Mick's name between the parties. Although disputed by Char, Mick testified that the debt owing on the credit accounts, which the court found to be $12,522.63, was all incurred between 1992 and October 2003. Mick admitted that he had not made any payments on the accounts since 2003 and that judgments have been entered against him in favor of his creditors. Lastly, the court denied Char's motions for spousal maintenance and an award for attorney's fees, which she requested for the first time during her closing argument. The court held that Char's requests were too late, and, in any event, that she had not presented any evidence or testimony to support her requests.

¶8 Char argues on appeal that the District Court failed to make certain necessary findings, that its division of the marital estate is inequitable, and that a number of its findings are erroneous, including the court's valuation of the marital home. We review a district court's factual findings to determine if they are clearly erroneous. In re Marriage of Tummarello, 2012 MT 18, ¶ 21, 363 Mont. 387, 270 P.3d 28. If the findings are not clearly erroneous, we will affirm the ...


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