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In re Marriage of Pasquinzo

Supreme Court of Montana

April 10, 2018

IN RE THE MARRIAGE OF: MERRI A. PASQUINZO, Petitioner and Appellee,
v.
DOUGLAS P. PASQUINZO, Respondent and Appellant.

          Submitted on Briefs: February 14, 2018

          APPEAL FROM: District Court of the Second Judicial District, In and For the County of Butte-Silver Bow, Cause No. DR-15-252 Honorable Kurt Krueger, Presiding Judge

          For Appellant:Douglas Pasquinzo, self-represented, Deer Lodge, Montana

          For Appellee:Bernard J. Everett, Everett Law, PLLC, Anaconda, Montana

          OPINION

          Justice Dirk Sandefur

         ¶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 Douglas Pasquinzo appeals the decree of dissolution of marriage with Merri A. Pasquinzo. Douglas raises many issues, which we distill to: (1) whether the Second Judicial District Court abused its discretion in dividing the marital estate, and (2) whether the District Court abused its discretion in denying Douglas's motion for rehearing. We affirm.

         ¶3 Douglas and Merri were married in July 1991 in Butte-Silver Bow County. While married, they acquired a twenty-plus-acre parcel of land in Jefferson County, and they placed a 1982 Bundy trailer on the property. In October 2015, through counsel, Merri filed the petition for dissolution, claiming the marriage irretrievably broken. There was one adult child of the marriage. At the time when Merri filed her petition, Douglas was detained in the Jefferson County Detention Center for a felony offense. He is currently incarcerated for two counts of sexual assault[1] in the Montana State Prison (MSP). Merri resides on the property.

         ¶4 In her petition for dissolution, Merri requested the bulk of the marital estate. She stated that the property should be awarded to her, and that each party retain their personal property. She further requested the award of the proceeds for the Contract for Deed sale of an adjoining parcel from the property. Merri did not list any liabilities.

         ¶5 Appearing as a self-represented litigant, Douglas filed an answer and a counter-petition requesting that all assets be split "50/50" and listing all the work, such as clearing stumps and trees and improving the structures, that he put into the property over the years. He stated that he bought the acreage "without Merri!" Douglas countered that the 2015 Toyota truck was leased for Merri and that the proceeds should be split from the sale of the 2011 Dodge truck at "Kelly Blue Book Value."

         ¶6 The District Court set a scheduling conference in early October 2016 for which both Merri's counsel and Douglas were present. Douglas appeared via telephone. The court issued an order scheduling a non-jury trial on November 18, 2016, and copies of this order were served upon counsel and Douglas, care of MSP. On November 14, 2016, Douglas filed a pleading titled "Dissolution of Marriage" in which he gave the history of his acquisition of and work on the property and reiterated his requested distribution of the real and tangible property. Douglas, however, was not present at the November bench trial. The court issued its findings of fact, conclusions of law, and decree of dissolution of marriage on November 18, 2016. This Court granted Douglas's petition for an out-of-time appeal on July 5, 2017.

         ¶7 "District courts have broad discretion in apportioning a marital estate." In re Marriage of Richards, 2014 MT 213, ¶ 13, 376 Mont. 188, 330 P.3d 1193 (citing In re Marriage of Crowley, 2014 MT 42, ¶ 26, 374 Mont. 48, 318 P.3d 1031). "When dividing marital property, the trial court must reach an equitable distribution, not necessarily an equal distribution." Richards v. Trusler, 2015 MT 314, ¶ 11, 381 Mont. 357, 360 P.3d 1126 (citing In re Marriage of Kostelnik, 2015 MT 283, ¶ 18, 381 Mont. 182, 357 P.3d 912; In re Marriage of Walls, 278 Mont. 413, 416, 925 P.2d 483, 485 (1996)). This Court will affirm a district court's division of property, absent clearly erroneous findings, unless the court abused its discretion. Richards, ¶ 13; Crowley, ¶ 26. "The standard of review for discretionary trial court rulings is abuse of discretion." In re Johnson, 2011 MT 255, ¶ 12, 362 Mont. 236, 262 P.3d 1105.

         ¶8 The District Court found that Merri has been a resident of Butte for more than ninety days preceding the filing of her petition. The court concluded that the parties' marriage is irretrievably broken and that there is no prospect of reconciliation. The court stated that Merri, age 68, has inadequate income and financial resources to support herself, while Douglas, age 75, is incarcerated and currently has no personal living expenses. The court awarded the property, valued at $85, 000, to Merri based on the reasons that she resides there and "she should not be required to move from the property." Along with the property, the court awarded Merri: (1) the proceeds of $550 per month for the next forty-eight months from the sale of an adjoining parcel; (2) the plow truck and back hoe, valued at $10, 000; (3) the 2011 Dodge truck, valued at $30, 000; (4) her personal property; and (5) remaining household furniture and appliances. The court pointed out that no party provided evidence of values for the items which were awarded to Douglas. The court awarded Douglas his personal property, including an older International pickup truck, a twelve-foot flatbed trailer, framed prints by Charles M. Russell, and various tools.

         ¶9 Douglas maintains that these proceedings exhibit "fraud." Citing to Montana case law, he contends that the court erred because it did not equitably divide the marital estate under § 40-4-202, MCA, because Merri receives "everything." In re Marriage of Crilly, 2005 MT 311, ¶ 10, 329 Mont. 479, 124 P.3d ...


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