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In re Marriage of Low

Supreme Court of Montana

January 9, 2018

IN RE THE MARRIAGE OF: JESSICA MAY LOW, Petitioner and Appellee, And SCOOBY NELS LOW, Respondent and Appellant.

          Submitted on Briefs: December 20, 2017

         District 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

          For Appellant: George B. Best, Julia D. Nordlinger, Best & Westover Law Office, Kalispell, Montana

          For Appellee: Peter F. Carroll, Attorney at Law, Kalispell, Montana


          Beth Baker, Justice.

         ¶1 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 Montana Reports.

         ¶2 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.

         ¶3 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.

         ¶4 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."

         ¶5 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.

         ¶6 Another year passed.

         ¶7 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.

         ¶8 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 ...

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