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In re Marriage of Ulrich

Supreme Court of Montana

June 18, 2019

IN RE THE MARRIAGE OF: LARAE ANNANETTE ULRICH, Petitioner and Appellee, and DALE ELMER ULRICH, Respondent and Appellant.

          Submitted on Briefs: March 13, 2019

          APPEAL FROM: District Court of the Seventh Judicial District, In and For the County of Dawson, Cause No. DR-17-001 Honorable Katherine M. Bidegaray, Presiding Judge.

          For Appellant: Dale Elmer Ulrich, Self-Represented, Shelby, Montana.

          For Appellee: Mark Epperson, Attorney at Law, Glendive, Montana.

          OPINION

          Dirk Sandefur 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 Dale Elmer Ulrich (Dale) appeals pro se from the constituent judgments of the Montana Seventh Judicial District Court, Dawson County, dissolving his marriage with LaRae Annanette Ulrich (LaRae) and apportioning their marital estate. The court's ultimate apportionment of the marital estate is encompassed within its: (1) July 7, 2017 findings of fact, conclusions of law, and decree of dissolution; (2) June 6, 2018 order enforcing and amending the decree; and (3) October 10, 2018 order denying Dale's second motion to compel compliance with the decree. Dale asserts that the court failed to equitably apportion the marital estate as required by § 40-4-202, MCA. We affirm.

         ¶3 Dale and LaRae were married for approximately 23 years from 1987 until they separated in 2010 following Dale's arrest and incarceration on the offense of incest, a felony. The parties have three children born as issue of their marriage, all of whom reached the age of majority prior to the filing of LaRae's petition for dissolution of marriage on January 3, 2017. In 2017, LaRae and Dale were respectively 47 and 56 years old. LaRae continued to reside in the marital home with one of her adult daughters and her grandchildren. While she worked from time to time in other part-time jobs, LaRae primarily worked as a public school custodian and was still working at the time of dissolution of the parties' marriage. Dale was convicted of incest in 2011 and was sentenced to 60 years in prison, with 20 suspended, effective December 2011.

         ¶4 Over the course of their marriage, the parties accumulated various items of real property, personal property, and debt. At the time of dissolution, the marital estate assets primarily included a residential lot in Glendive, Montana, a mobile home, various motor vehicles and trailers of model years between 1973 and 2006, personal bank accounts, LaRae's Montana Public Employees System (PERS) retirement account ($45, 000 balance), and other miscellaneous items of personal property (including, inter alia, an unspecified number of firearms, knives, tools, camping and hunting gear, and reloading equipment and supplies). The major items of marital debt at the time of dissolution were a $32, 000 real estate mortgage and $20, 000 in outstanding medical and dental bills.

         ¶5 At the time of his 2010 arrest, Dale had approximately $71, 000 in an employer-maintained 401(k) retirement account. After his arrest and incarceration, Dale gave LaRae an unrestricted general power of attorney to, inter alia, give her control and use of his 401(k) account to help provide for family expenses. Dale contemplated that LaRae would make expenditures from the proceeds of his 401(k) account but testified that he did not contemplate that she would spend all of those funds. LaRae testified at trial that she was aware of Dale's contemplation but, as of 2017, needed and spent the entire after-tax balance ($55, 000) on outstanding debts and living expenses for her and their three children.[1] Dale presented no evidence contradicting LaRae's testimony but asserted that he authorized her to make expenditures only for "household" expenses.

         ¶6 At bench trial on May 30 and June 23, 2017, Dale appeared pro se telephonically from prison. Without objection, LaRae presented a marital assets and liabilities spreadsheet, entitled "Financial Settlement of LaRae Ulrich and Dale Ulrich." The spreadsheet set forth a line-item inventory and valuation of the marital estate. The spreadsheet identified and valued various general categories of personal property without further specification (e.g., guns, knives, Dale's family heirlooms, and tools). Not listed on the spreadsheet but acknowledged by the parties at trial as included in the marital estate were otherwise unspecified "camping and hunting gear and reloading equipment and supplies." Neither party assigned values to the off-spreadsheet items.

         ¶7 At trial, Dale did not dispute the completeness or sufficiency of the spreadsheet and supplemental testimonial reference to the off-spreadsheet items of personal property as the full complement of the marital estate inventory. Nor did he dispute any of the itemized valuations or the tabulated net value of the marital estate inventory. Without specifically identifying the number and types of guns the parties owned, which guns LaRae would keep, and which guns he wanted to keep, Dale stipulated at trial that LaRae could keep the "vast majority" of the parties' guns. Without further specification, Dale further testified that he wanted all of the parties' knives, camping and hunting gear, and reloading equipment and supplies. Though he would later assert that the court should have required LaRae to account for them, Dale acknowledged at trial without objection or exception that some of the personal property the parties possessed in 2010 may have since been lost, stolen, or depleted due to damage.

         ¶8 Whether based on the parties' agreement or as indicated on the evidence presented, the District Court found that the spreadsheet valuations presented by LaRae were "reasonable." The court accordingly apportioned the listed assets and debts to the parties as proposed in LaRae's spreadsheet except for the mobile home (apportioned to LaRae instead of Dale) and LaRae's PERS account ($30, 000 to LaRae and $15, 000 to Dale instead of 100% ($45, 000) to LaRae).[2] The court further: (1) allocated all of the unidentified "camping and hunting gear, heirlooms, tools, reloading equipment and supplies" to Dale; (2) ordered LaRae to submit a qualified domestic relations order to effect the ordered division of her PERS account; and (3) ordered LaRae to turn over to Dale's designate within seven days his allocated "share of knives, guns, camping and hunting gear, heirlooms, tools, reloading equipment, and supplies."[3]

         ¶9 On November 13, 2017, Dale filed a motion to compel LaRae to immediately pay him $15, 000 in satisfaction of his allocated share of her PERS account and to further turn over his previously allocated "share of knives, guns, camping equipment, hunting gear, [heirlooms], tools, reloading equipment and supplies." Upon hearing, the District Court found that LaRae had already turned over "many items on [Dale's] list" including 8 guns, 62 knives, a "substantial portion" of the camping and hunting gear, reloading equipment and supplies, tools, and "nearly all the heirlooms." Except for finding and ordering that LaRae still had to turn over "15 ...


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