Opinion
No. 88-423
Submitted on Briefs June 16, 1989
Decided July 24, 1989
Appeal from the District Court of Flathead County. Eleventh Judicial District. Hon. Michael Keedy, Judge Presiding.
Hash, O'Brien Bartlett, C. Mark Hash, Kalispell, for defendant and appellant
Royce A. O'Brien, Tacoma, pro se
Jeral L. Bos (husband) appeals from the distribution mandated in the dissolution of marriage decree entered by the District Court of the Eleventh Judicial District, Flathead County. We affirm
The issue raised on appeal is whether the District Court properly distributed the marital estate when it considered a lump sum Workers' Compensation disability award
Royce (wife) and Jeral (husband) Bos were married on October 27, 1973. On February 13, 1986, wife filed a petition for dissolution of the marriage and for the equitable distribution of the marital estate. A hearing on the matter was held on June 2, 1987. On February 18, 1988, the District Court entered its findings of fact and conclusions of law and decree dissolving the marriage and dividing the marital property. The findings of fact and conclusions of law were twice amended
When dividing the marital property, the District Court considered several facts pursuant to § 40-4-202, MCA. Among the facts considered was a lump sum Workers' Compensation award paid to husband which is the subject of this appeal
On January 9, 1978, husband was injured while working as a carpenter in Whitefish, Montana. On December 26, 1985, the Workers' Compensation Division approved a final settlement that resulted in a net award of $35,219.59. From that amount, husband paid $26,039.55 in marital obligations and the remainder on living expenses
Upon distribution of the marital estate wife received property with a net value of $24,608.25 and husband received property with a net value of $24,037.69. Husband argues that the District Court erred in the distribution because the marital estate would have had a lesser net value had husband's Workers' Compensation award not been applied to reduce marital debts. We disagree
In In re the Marriage of Jones (Mont. 1987), [ 229 Mont. 128,] 745 P.2d 350, 44 St.Rep. 1834, we held that where a lump sum Workers' Compensation award of husband was commingled in a marital account and later used to reduce marital debts, such was includable in the marital estate. Further, we upheld the District Court's determination that wife was entitled to one-half of the marital estate notwithstanding the reduction of marital debts by application of husband's benefits
In the present case, as in Jones, husband received a Workers' Compensation award in which the funds were used to reduce marital debts. In applying the funds to reduce the marital debt, husband placed the funds in the marital estate thus, commingling the funds
Where the District Court based its distribution of marital assets on substantial credible evidence, it will not be overturned absent a clear abuse of discretion. In re the Marriage of Stewart (Mont 1988), [ 232 Mont. 40,] 757 P.2d 765, 767, 45 St.Rep. 850, 852. In light of our holding in Jones, there was no abuse of discretion
Affirmed
MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES SHEEHY, McDONOUGH, HARRISON, WEBER and GULBRANDSON concur