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In re Marriage of Smith

Supreme Court of Montana

June 18, 2019

IN THE MARRIAGE OF: CHERYL L. SMITH, Petitioner and Appellant, and RANDALL B. SMITH, Respondent and Appellee.

          Submitted on Briefs: April 3, 2019

          APPEAL FROM: District Court of the First Judicial District, In and For the County of Broadwater, Cause No. DR-2014-09 Honorable James P. Reynolds, Presiding Judge.

          For Appellant: Cheryl L. Smith, Self-Represented, Townsend, Montana.

          For Appellee: Randall B. Smith, Self-Represented, Townsend, Montana.

          OPINION

          JIM RICE JUDGE.

         ¶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 Cheryl L. Smith (Cheri) appeals from the Findings of Fact, Conclusions of Law, and Decree of Dissolution issued by the First Judicial District Court, Broadwater County, dissolving the marriage between Cheri and Randall B. Smith (Randy). Both parties were represented by counsel in the District Court, but are self-represented in the appeal. Regrettably, especially for a case that has been pending for over five years, we conclude it is necessary to reverse and remand for further proceedings due to errors in the District Court's distribution of the marital estate, which may have been contributed to by unfortunate mistakes in the processing of the case.

         ¶3 The parties were married on January 19, 2008, in Broadwater County. Cheri and Randy each owned a home and real property prior to their marriage. No children were born to the marriage. The principal assets of the marital estate include real property, tools, and vehicles. In March 2014, Cheri petitioned for dissolution. After Randy's default for failing to appear was set aside, the case proceeded and the parties filed various motions, including Cheri's motion to compel discovery.

         ¶4 On August 21, 2015, the District Court held a hearing on case status and scheduling, and on pending motions. Regarding Cheri's motion to compel discovery, the court ordered Randy to produce his 2014 receipts and other requested documents within thirty days, and directed Cheri's counsel to prepare an order compelling Randy's response to those requests. Correspondingly, the court granted Randy's motion to quash Cheri's request to depose Randy about non-produced documents. The court set the merits hearing for Tuesday, October 27, 2015, in the Broadwater County District Court.

         ¶5 On September 11, 2015, Cheri filed a brief in response to a September 9, 2015 letter Randy's counsel had sent to the court, and stated therein that the court needed to enter the Order to Compel, which had been provided by Cheri's counsel. The merits hearing was rescheduled to November 13, 2015, due to a criminal case setting, and the court conducted a status conference on November 6, 2015. The court acknowledged a proposed order compelling Randy to answer discovery had been submitted, and stated it had been signed by the court. The court explained the main task for trial was to address an equitable property division. Lastly, the court discussed exchange of the parties' proposed findings of fact and conclusions of law, and requested the court be provided with hard copies the day before the trial, when the parties' counsel were scheduled to exchange their versions. The Clerk of District Court stated it would be fine to submit them by either hard copy or email, "as long as you have them in the file." The court stated that counsel should file the originals in Broadwater County and send him courtesy copies to his office in Helena.

         ¶6 The District Court conducted the trial on November 13, 2015. Cheri and Randy testified and submitted exhibits. There was no indication that the parties had not submitted or exchanged their proposed findings and conclusions as intended. Cheri called Dennis Williams (Williams), an expert witness concerning valuations of the real property, but Randy objected, asserting Williams had not been disclosed. The court sustained the objection, but granted Cheri's counsel the opportunity to file a brief on her position that the court should hear the testimony and take further evidence regarding the property values. Cheri's counsel filed a brief on December 7, 2015, and Randy's counsel filed a response on December 24, 2015.[1]

         ¶7 On February 16, 2017, fourteen months later, the District Court held a hearing on this issue, ruled exclusion of Cheri's witness had been error, and took additional testimony. Unlike the trial, the hearing was conducted in Lewis and Clark County. Williams testified about the twenty acres associated with the home at 41 Grandview Loop, explaining it was a non-conforming lot with dimensions of approximately 220 feet wide by a mile long, running along a section line. Because of its non-conforming nature, Williams testified it would be difficult to obtain financing from a bank or other lender for the lot. He explained a 2008 appraisal prepared by Matt Dalton for Wells Fargo Bank included only the home and a ten-acre portion of the lot, while a 2014 Dalton appraisal had considered all twenty acres, both shops, and the house. Following this hearing, the court and counsel agreed that no additional proposed findings would be filed by counsel.

         ¶8 On June 19, 2018, the court entered its decree, finding that Cheri and Randy could support themselves, neither required maintenance, and each party would receive the property and corresponding debt with which they entered the marriage. By then, the attorneys for both parties had ceased practicing law for reasons of retirement and relocation outside the State. Cheri filed a notice of appeal on July 19, 2018, and her counsel moved to withdraw on July 23, 2018.

         ¶9 In her initial briefing, Cheri argued the record was not properly constituted, explaining that "certain pleadings, exhibits and orders [are] not included in the District Court records and therefore [are] not available for the Court's consideration in making [its] rulings." Cheri argued that, consequently, the focus of her appeal had changed from challenging the merits of the decree to addressing "questions of missing pleadings, records and exhibits . . . ." Specifically, the Order to Compel discovery from Randy, which had included an award of Cheri's attorney's fees in the amount of $7, 500, was not included in the record, except for a partial copy of what appeared to be page 4 of the Order, and was not entered into the record or apparently served upon the parties. Cheri's proposed findings of fact and conclusions of law, presenting her view of the evidence, were also missing. The trial exhibits had not been transferred with the record. Further, the court's decree did not address Cheri's request to restore ...


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