IN RE THE MARRIAGE OF: JESSICA MAY LOW, Petitioner and Appellee, And SCOOBY NELS LOW, Respondent and Appellant.
Submitted on Briefs: December 20, 2017
Court of the Eleventh Judicial District, In and For the
County of Flathead, Cause No. DR-10-817(D) Honorable David M.
Ortley, Presiding Judge
Appellant: George B. Best, Julia D. Nordlinger, Best &
Westover Law Office, Kalispell, Montana
Appellee: Peter F. Carroll, Attorney at Law, Kalispell,
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
Scooby Low appeals the Eleventh Judicial District Court's
final decree of dissolution, challenging the court's
determination of temporary support, its calculation of
arrearages, and its valuation and distribution of marital
assets and debts. We affirm in part, reverse in part, and
remand for entry of an amended decree.
Jessica and Scooby Low were married on December 31, 1998.
Jessica filed a Petition for Dissolution in the Eleventh
Judicial District Court on December 17, 2010. The District
Court entered an Interim Family Support Order in January 2012
that required Scooby to pay Jessica $1, 842 each month for
family expenses, as well as the parties' $1, 461.44
monthly mortgage payment. The court denied Scooby's
motion to amend the Interim Support Order in April 2012. It
found that both parties had suffered developments that
reduced their available resources-Scooby lost his lucrative
seasonal employment and Jessica sustained an injury during
the Christmas holidays. The court found that "[t]he
circumstances which existed before the parties separated no
longer exist and it is essential that each party take steps
to preserve the marital estate and provide for the best
interest of their children." It concluded, however, that
Scooby's change in income resulted from his own choices
and that the changes in circumstances were not "so
substantial and continuing that the existing interim order is
unconscionable." The court ordered the sale of certain
items of personal property to be applied to mortgage payments
and joint credit card debt.
The District Court held a two-day bench trial in August 2012.
The parties filed their proposed findings of fact and
conclusions of law in October and then waited another four
years for the decree. Because of its delay, the District
Court had to entertain numerous interim motions; it entered
orders long after trial allowing sale of the marital home and
sale of the parties' boat and boat trailer, as well as an
order requiring Scooby to transfer the 2012 tax refund to
Jessica to be applied toward the mortgage debt. In November
2013, the court held another hearing and ordered that Jessica
receive $24, 000 from the sale of the marital home; it
directed that the remaining proceeds be issued to
Scooby's counsel, "subject to adjustment in the
final distribution of the marital estate."
More than three years after trial, the court held a status
conference and required the parties to submit updated
information on their income and employment. The parties
complied. The District Court entered an order dissolving the
marriage on December 29, 2015. The order included partial
findings of fact and conclusions of law, noting the
court's inability to "simply adopt" the
parties' proposals following trial because of the nature
of the evidence, the financial issues, and the acrimony and
angst that interfered with the orderly presentation of
evidence. The court stated that it had "not yet reached
a final determination as to how the marital estate should be
divided and/or distributed, " but left in place the
August 2011 Interim Family Support Order.
Another year passed.
On January 3, 2017, the District Court entered its final
decree. The court found, based on all the evidence
considered, that because of the substantial change in
Scooby's earning capacity, as of February 2013 the
Interim Support Order was not sustainable. It retroactively
designated $600 of the monthly family support obligation to
child support, with the remaining $1, 242 allocated to
temporary maintenance. The court further determined that by
October 2013, when Jessica became employed and the marital
home was sold, Jessica had sufficient property to provide for
her reasonable needs and the ability to be self-supporting.
The net proceeds of the sale of the home, $26, 481.59, had
been distributed to Jessica, with Scooby to be given credit
in that amount against his family support arrearage. After
applying that credit, the court determined that Scooby's
family support arrearage in October 2013 was $10, 128.62.
Adding in his child support arrearage from the same date
($600 per month, less the $2, 850 he had paid), left Scooby
with a total arrearage of $30, 078.62.
The court held that each party should retain whatever
personal property he or she currently possessed, and it
adopted the values that each party attributed to the
other's personal property in determining how to allocate
the total. The final decree acknowledged that numerous items
of property had been sold with the court's permission
during the pendency of the proceedings, and the proceeds had
been applied to meet household needs and to service marital
debt. Finding that Scooby retained more value ...