Marriage of Spencer

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NO. 94-510 IN THE SUPREME COURT OF THE STATE OF MONTANA 1995

IN RE THE MARRIAGE OF SHELLY L. SPENCER, Petitioner and Appellant, &p,j ;) fj ;yyj and RICHARD V. SPENCER, Respondent and Respondent.

APPEAL FROM: District Court of the Nineteenth Judicial District, In and for the County of Lincoln, The Honorable Robert S. Keller, Judge presiding.

COUNSEL OF RECORD: For Appellant: Donald L. Shaffer, Attorney at Law, Libby, Montana For Respondent: William A. Douglas, Douglas & Sprinkle, Libby, Montana

Submitted on Briefs: May 4, 1995 Decided: June 6, 1995 Filed:

• • Clerk

Justice William E. Hunt, Sr., delivered the opinion of the Court. Appellant Shelly L. Spencer appeals from that portion of a dissolution decree from the Nineteenth Judicial District Court, Lincoln County, which ordered her to divide with respondent Richard V. Spencer the net proceeds from the eventual sale of the family home in the event that Shelly remains in the home until the minor children reach the age of 18, or graduate from high school. We affirm. Appellant raises the following issue: Did the District Court err in determining that appellant should divide with respondent the net proceeds from the eventual sale of the family home in the event that she remains in the home until the minor children reach the age of 18, or graduate from high school? The parties were married on May 28, 1987. Two children were born to the parties during their marriage. Richard's parents loaned the parties $2000 as a down payment for the purchase of a $32,000 home. At the time of the dissolution hearing, the principal balance owing on the home was $30,000. The monthly purchase payment of $334 includes insurance and taxes. The District Court ordered that Shelly be permitted to reside in the home until both children reach the age of 18, or graduate from high school. The District Court ordered further that in the event Shelly should cease to use the home as her residence, or that when the children reach the age of 18 or graduate from high school, the property should be sold, Richard should be reimbursed the $2000

down payment loan he received from his parents, and the net proceeds from the sale should be divided equally between the parties. It is from this portion of the District Court's decree that Shelly appeals. We review a district court's division of marital property to determine whether the division is clearly erroneous. In re Marriage of Maedje (19941, 263 Mont. 262, 265-66, 868 P.2d 580, 583. In In re Marriage of Rogers (1987), 226 Mont. 163, 734 P.2d 677, we concluded that it was not error to order that the wife should receive an equal share of the proceeds from the sale of the family home which was to occur after the children, who were in the husband's custody, reached 18, even though the husband would be making the mortgage payments until the home was sold. We hold that it was not error for the District Court to order an equal division of the proceeds from the eventual sale of the family home pursuant to the terms of the dissolution decree. We affirm. Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1988 Internal Operating Rules, this decision shall not be cited as precedent and shall be published by its filing as a public document with the Clerk of the Supreme Court and by a report of its result to Montana Law Week, State Reporter and West Publishing Company.

Justice 4

June 6, 1995

CEkTIFICATB OF SERVICE

I hereby certify that the following certified order was sent by United States ~mail, prepaid, to the following named:

DONALD L. SHAFFER Ati :orney at Law 50: 2 Main Lit Iby, MT 59923

William A. Douglas Douglas & Sprinkle Box 795 Libby, MT 59923-0795

E !D SMITH C:LBRK OF TIIB SUPREME COURT STATE OF MONTANA