IN RE THE MARRIAGE OF: WILLIAM BARTON KENNEY, Petitioner, Appellant and Cross-Appellee, and CHARLOTTE M. KENNEY, Respondent, Appellee and Cross-Appellant.
Submitted on Briefs: December 14, 2016
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
Appellant: William M. Gilbert, High Plains Law, PLLC,
Appellee: Martha Joan Messex Casey, Hendrickson Law Firm,
P.C., Billings, Montana
Michael E Wheat Justice
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
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.
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.
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 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.
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
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.
William filed a timely appeal.
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.
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 ...