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SAVING MARITAL HOME FROM FORECLOSURE
© 1994 National Legal Research Group, Inc.
MONTANA: In re Marriage of Barker, ___ Mont. ___, 870 P.2d 86 (1994).
The fact that the wife single-handedly rescued the marital home from foreclosure supported the court's conclusion that she should be awarded all the equity in the marital home.
After 26 years of marriage, the couple only had two assets of monetary significance: the marital home and the husband's forthcoming military pension. The husband agreed that the wife should keep the home, but he requested one-third of the home's equity, or $14,000. Since the wife had long ago quit her job to be a homemaker, the husband suggested that the wife could take six months to pay him and that the money could be obtained by refinancing the loan. At the time of trial, the home was valued at $80,000 and was encumbered by an $18,000 mortgage.
The trial court, however, awarded the home to the wife, complete with all the equity and all the debt. The court pointed out that the wife had single-handedly saved the home from foreclosure when the husband was unemployed. When the house was just about to be sold in a foreclosure sale, the husband told the wife to just let the bank take the home, but the wife secured the help of a clergyman in cosigning a note for $3,000 and saved the home.
Further, the trial court observed, the husband presented no evidence of the feasibility of refinancing. And even if the home was sold, the husband would receive very little from the sale. Finally, the court noted that the husband had substantially greater earning capacity than the wife in his current job as an insurance salesman.
The wife also received 45% of the husband's military pension. The total distribution resulted in the wife netting 84% of the marital assets. The husband appealed.
The Montana Supreme Court approved the division, however. The court analyzed the statutory framework for allocation of marital property and noted that the trial court properly took into consideration the duration of the marriage, the earning capacities of the parties, the nonmonetary contributions of each spouse, and "the extent to which such contributions have facilitated the maintenance of the property." 870 P.2d at 86.
In a concurring opinion, Justice Trieweiler took special note of the wife's effort to save the home, finding that he would affirm the lower court ruling on this reason alone. The fact that the wife was solely responsible for avoiding foreclosure of the marital home constituted a significant "contribution" to the marital estate, in Justice Trieweiler's view, fully justifying the disparate distribution.
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