Johnson v. Bick ( 2021 )

09/07/2021
DA 20-0498
IN THE SUPREME COURT OF THE STATE OF MONTANA
2021 MT 222N
THOMAS JAMES BICK,
Petitioner, Obligor, and Appellant,
v.
KATHLEEN JO JOHNSON,
Respondent, Obligee, and Appellee,
and
STATE OF MONTANA EX REL. MONTANA
DEPARTMENT OF PUBLIC HEALTH AND HUMAN
SERVICES, CHILD SUPPORT ENFORCEMENT DIVISION,
Respondent and Appellee.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause Nos. DV 19-1188 and
DR16-1241
Honorable Rod Souza, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Thomas J. Bick, Self-Represented, Billings, Montana
For Appellee Kathleen Jo Johnson:
Robert J. Waller, Attorney at Law, Billings, Montana
For Appellee Montana Department of Public Health and Human Services, Child
Support Enforcement Division:
Andrew Betson, Department of Public Health & Human Services Child
Support Division, Butte, Montana
Submitted on Briefs: August 11, 2021
Decided: September 7, 2021
Filed:
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__________________________________________
Clerk
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Justice Laurie McKinnon delivered the Opinion of the Court.
¶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 This is a consolidated appeal of Thomas James Bick and Kathleen Jo Johnson’s
dissolution of marriage case and associated child support case.1 Bick appeals from the
District Court’s December 31, 2018 Findings of Fact, Conclusions of Law, Order and
Decree of Dissolution (Decree) and two Qualified Domestic Relations Orders (QDROs).
We affirm.
¶3 Bick and Johnson married in September 1987 and have two children together,
H.B. and K.B. The parties resided in Billings, Montana since their marriage. In
May 2016, Johnson told Bick that she had a job offer in Bozeman. She moved to
Bozeman on June 14, 2016, with H.B. and K.B. Johnson signed a Petition for
Dissolution of Marriage on June 13, 2016, before moving, and she filed the petition on
October 24, 2016. Bick was served on February 21, 2017, and he filed his response on
March 8, 2017. The District Court held a two-day trial and issued its Decree, dissolving
the marriage on December 31, 2018. In the Decree, the court used October 24, 2016—
1
Bick has filed three separate Notices of Appeal. This Court has consolidated the matters under
Cause No. DA 20-0498. The procedural history prior to the consolidation is irrelevant to the
resolution of the issues presented on appeal.
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the date Johnson filed the Petition for Dissolution of Marriage—to value the marital
estate.
¶4 The District Court allowed Bick to keep the marital home and buy out Johnson’s
equity with an equalization payment. The District Court ordered Bick pay Johnson an
equalization payment within ninety days of December 31, 2018. The payment was due
March 31, 2019. Bick made the payment in full on October 21, 2020. At a
September 2020 hearing on a motion to hold Bick in contempt for the equalization
payment, the District Court heard credible testimony from Bick’s bank that other
circumstances prevented him from obtaining financing on the home. The District Court
acknowledged Bick could not make the equalization payment without obtaining
financing. The District Court excused Bick’s untimely equalization payment and denied
Johnson’s motion to hold Bick in contempt but found post-judgment interest was the
appropriate remedy. The District Court ordered Bick pay Johnson $11,676.59 in interest.
¶5 Regarding the children and related tax matters, the parties were operating under a
parenting plan which called for alternating weekends. Bick opted not to enforce the plan
for the sake of the children and to maintain consistency for the children and their
extracurricular activities. The parties disagreed on how to file their 2017 taxes. Johnson
advocated that each party elect married filing separately status, each claim one child as a
dependent exemption, and each pay their own tax obligation or receive their own refund.
Bick wanted the parties to file jointly to minimize the parties’ tax liability and to share
equally in any refund, liability, and tax preparation fee. With each party filing separately,
Johnson received a refund and Bick owed a liability. Johnson testified at trial that she
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had already filed H.B.’s Free Application for Federal Student Aid (FAFSA) in
October 2017 using only her income and was concerned that altering the FAFSA (with a
filing jointly status) would affect H.B.’s financial aid. She testified that filing married
and jointly would result in the loss of a Pell Grant that covered half of H.B.’s tuition. In
the Decree, the District Court specifically found that “Kathleen filed separately due to the
impact on H.B.’s financial aid package.”
¶6 The District Court held a hearing to resolve the tax issues on October 1, 2018. At
the hearing, the District Court ordered the parties file married but separately. The court
determined that Bick would claim H.B. as a dependent exemption and Johnson would
claim K.B. In the Decree, the District Court explained that Johnson would claim K.B.
because K.B. lived with Johnson. The court ordered Johnson pay Bick $500, recognizing
the sizeable refund Johnson would receive as a result of the parties filing their taxes
separately. The District Court added that any additional liability that Bick incurred could
be accounted for in the equity payment and potentially be reduced, but it made clear it
had not made a determination on the matter and the parties could argue their positions in
their proposed findings and conclusions.
¶7 The Decree provided for the Montana Department of Health and Human Services
Child Support Enforcement Division (CSED) to calculate the child support obligation. It
further provided a monetary amount Bick was to be credited against any possible arrears,
a start date of April 2017 for child support obligation, and a $100 per month variance
from the child support calculation. The court specifically outlined the items for which
Bick was to be credited for back pay in child support in its Finding of Fact Number 56.
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The court determined that these expenses reflected Bick supporting K.B. and/or H.B. and
their respective activities, and therefore he would receive a dollar-for-dollar credit. The
court clarified that it would not credit Bick “for costs incurred to facilitate his parenting
time or for gifts to the girls” and Bick would “not receive credit for hotel stays to watch
K.B. play soccer because those items are addressed in the variance infra.” The
District Court explained that the variance “would assist [Bick] in paying for lodging and
meals out to parent.”
¶8 Johnson’s attorney prepared the QDROs for Bick’s Billings Clinic 403(b) Plan
and his Billings Clinic Pension Plan. Bick was named the “Participant” in each QDRO
and Johnson was named the “Alternate Payee.” The final provision in each QDRO
required Bick to pay the one-time fee for review of the QDRO. The one-time fee for
each QDRO was $300. The parties stipulated to the court entering each QDRO. On
November 6, 2019, the District Court signed the QDROs.
¶9 Three issues Bick raises on appeal ask this Court to overturn decisions the
District Court made in the Decree. In an October 8, 2019 Order, this Court determined
an appeal of the Decree was time-barred. This Court, however, is “predisposed to give
pro se litigants considerable latitude in proceedings” so long as that latitude does not
prejudice the other party. First Bank (N.A.)-Billings v. Heidema, 219 Mont. 373, 376,
711 P.2d 1384, 1386 (1986). After reviewing the issues raised on appeal and the records
in the corresponding cases, we determine a review on the merits as to each issue is
appropriate and that such review does not prejudice Johnson.
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¶10 The first issue raised on appeal is whether the District Court erred in using
October 24, 2016 to value the marital property. We review for an abuse of discretion a
district court’s determination of the valuation date for marital assets. See In re Marriage
of Wagner, 208 Mont. 369, 380-81, 679 P.2d 753, 759 (1984). This Court reviews a
district court’s findings of fact to determine whether the findings are clearly erroneous.
In re M.A.L., 2006 MT 299, ¶ 17, 334 Mont. 436, 148 P.3d 606. Bick argues the
District Court, without specific rationale, did not follow the general rule to value the
parties’ marital property at the time of dissolution and instead used the date Johnson filed
the Petition for Dissolution, October 24, 2016. He argues the District Court arbitrarily
assumed the parties’ marriage was effectively over on this date and using this valuation
date was erroneous because it was clear Johnson premeditated her filing to the prejudice
of Bick. Bick argues the October 24, 2016 date is not relevant as a date of separation and
is therefore arbitrary and the District Court ignored evidence of Johnson’s pre-separation
actions designed to deprive Bick of marital property.2 He maintains that the
District Court’s decision resulted in an inequitable disposition of the marital estate
because he continued the household upkeep, continued funding retirement, and paid
household bills, medical bills, property taxes, and costs associated with refinancing the
family home. Bick argues the District Court should have considered Johnson’s pre-filing
2
In support of his claim that Johnson premeditated her filing to Bick’s prejudice, Bick points to
Johnson’s decisions to leave Bick long before she told him, taking adult education classes,
applying for employment, going through a three-month interview process and accepting
employment, retaining counsel and signing the Petition for Dissolution prior to moving from
Billings, and renting a Bozeman apartment—all without Bick’s knowledge.
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actions and selected June 14, 2016, the date Johnson moved to Bozeman, as the date of
valuation.
¶11 “As a general rule, the value of the marital estate should be determined at or near
the time of dissolution. However, the unique circumstances of marital relationships can
modify this generally accepted date for the valuation of assets.” In re Marriage of
Hochhalter, 2001 MT 268, ¶ 17, 307 Mont. 261, 37 P.3d 665 (citations and internal
quotation marks omitted). The point at which the marital relationship ended
“for practical purposes” can be the relevant time for valuation of the marital estate—
meaning the date of separation, rather than the date of dissolution, is determinative.
See In re Marriage of Geror, 2000 MT 60, ¶¶ 11, 15-16, 299 Mont. 33, 996 P.2d 381(the district court had not abused its discretion in valuing the marital assets at the time of
separation rather than at the time of dissolution). Thus, a district court may elect to value
assets at the time of separation or on any other date the court reasonably determines the
marital relationship has ended for practical purposes. Marriage of Geror, ¶ 11. An
equitable division of the marital estate is more important than the date on which the court
values the parties’ assets. Schwartz v. Harris, 2013 MT 145, ¶ 18, 370 Mont. 294,
308 P.3d 949.
¶12 Here, Bick wanted to value the estate as of June 14, 2016, the date of separation.
Johnson wanted to value the estate as of April 30, 2018, the trial date. Johnson signed
her Petition for Dissolution on June 13, 2016, but as the District Court noted, petitions for
dissolution are not effective when signed and must be filed. Johnson filed her Petition for
Dissolution on October 24, 2016. The District Court specifically found that it
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“received no evidence the value of a marital asset or liability materially changed between
June 14, 2016, and October 24, 2016, that would render valuing the marital estate on
October 24, 2016, inequitable.” This finding is not clearly erroneous. Accordingly, we
conclude the District Court did not abuse its discretion in valuing the marital estate as of
October 24, 2016.
¶13 The second issue raised on appeal is whether the District Court correctly
concluded Johnson was entitled to post-judgment interest on the equalization payment.
Whether a party is entitled to post-judgment interest is a conclusion of law that this Court
reviews de novo. In re Marriage of Debuff, 2002 MT 159, ¶ 15, 310 Mont. 382,
50 P.3d 1070. “Once a person is liable for a money judgment, and payment is not made,
the person entitled to the judgment is further entitled to a fair rate of interest.”
Knudson v. Knudson, 191 Mont. 204, 208, 622 P.2d 1025, 1027 (1981);
see § 25-9-205, MCA. Post-judgment interest is a right under § 25-9-205, MCA, and is
not a matter of discretionary award. Warrington v. Great Falls Clinic, LLP,
2020 MT 174, ¶ 10, 400 Mont. 360, 467 P.3d 567. A judgment bears interest from the
date of its entry in the trial court even if it is subject to direct attack. Resner v.
N. Pac. Ry., 161 Mont. 177, 189, 505 P.2d 86, 92 (1973) (overruled on other grounds)
(quotation marks omitted). On appeal, Bick does not dispute the amount of interest but
only whether it was appropriate and equitable. He argues he was not informed by the
District Court or his counsel that an appeal deadline began to run on December 31, 2018.
Bick maintains that because the case was still proceeding on related matters, he assumed
there was no final judgment yet. He further argues the District Court ordering him to pay
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the interest was not equitable because he had been thwarted on multiple occasions to
refinance the home and had kept the court informed of his failures.
¶14 The equalization payment was due on March 31, 2019, but was not paid until
October 21, 2020. Contrary to Bick’s arguments or assumptions, the order to make the
equalization payment within ninety days was not contingent on the resolution of other
motions, hearings, the parties’ associated CSED case, or refinancing the marital home.
Johnson’s right to the money vested on the date the Decree was filed. See In re Marriage
of Mannix, 242 Mont. 137, 139, 788 P.2d 1363, 1365 (1990). Accordingly, Johnson was
entitled to post-judgment interest from that date. The District Court was correct
concluding Johnson was entitled to post-judgment interest on the equalization payment.
¶15 The third issue raised on appeal is whether the District Court erred on issues of
taxation. Bick argues the court erred on several counts related to the parties’ taxes. First,
he asserts the court erroneously found that filing 2017 taxes married and jointly would
impact H.B.’s financial aid for college. Bick maintains that no evidence supported this
finding and Johnson’s assertion that it would impact H.B.’s tuition was false because he
has paid 100 percent of H.B.’s college tuition. Bick further argues that by filing
separately, the couple incurred thousands of dollars of additional state and federal tax
they would not otherwise have had to pay, and Bick was burdened with the entire
liability. Bick also argues the District Court erred by not accounting for the tax
discrepancy with the equalization payment.
¶16 We first note that Bick did not object to or present evidence to contradict
Johnson’s testimony that altering H.B.’s FAFSA would negatively impact her financial
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aid. More so, his argument that he has paid 100 percent of H.B.’s college tuition ignores
the fact that financial aid assists a student in expenses beyond tuition (i.e., housing
expenses and school supplies). The District Court’s finding that filing jointly would
negatively impact H.B.’s financial aid reflects that the court appropriately considered the
parties’ testimony and made a determination that was in the best interests of H.B. and the
parties under the circumstances. The court’s finding is not clearly erroneous. Further,
the court did not err by not accounting for the tax discrepancy with the equalization
payment. It was within the court’s discretion to consider the parties’ arguments on this
matter, and we conclude that the court did not abuse its discretion.
¶17 Bick also argues the District Court erred when it allowed Bick no child
dependents.3 He maintains that he should not be penalized for prioritizing his children’s
best interests and not enforcing the parenting plan, while Johnson benefits by claiming
K.B. as a dependent for tax years 2018, 2019, and 2020. This Court reviews a district
court’s award of a tax exemption for an abuse of discretion. In re Marriage of Foreman,
1999 MT 89, ¶ 41, 294 Mont. 181, 979 P.2d 193. The general rule under federal law is
that the primary custodial parent is entitled to the dependency deduction.
See In re Marriage of Milesnick, 235 Mont. 88, 93-94, 765 P.2d 751, 754-55 (1988). The
parties do not dispute that Johnson was the primary custodial parent. The District Court
3
The District Court did assign Bick a dependent; however, H.B. turned eighteen in
February 2018 and graduated from high school in May 2018.
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did not abuse its discretion in awarding the tax dependency deduction for K.B. to
Johnson, K.B.’s primary residential custodian.4
¶18 The fourth issue raised on appeal is whether the District Court erred in crediting
Bick for child support. We review for an abuse of discretion a district court’s award of
child support. Albrecht v. Albrecht, 2002 MT 227, ¶ 7, 311 Mont. 412, 56 P.3d 339.
Child support awards necessarily require a district court to consider several factors in
addition to the amount of income of each parent. In re Marriage of Craib,
266 Mont. 483, 492, 880 P.2d 1379, 1385 (1994). Bick argues the following expenses
should have been credited toward Bick’s back child support:
1. 04/19/2018 motel expenses for a K.B. soccer trip to Missoula
2. 05/20/2018 motel expenses for a K.B. soccer trip to Missoula
3. 06/10/2018 motel expenses for a K.B. soccer trip to Kalispell
4. 08/07/2017 campground expenses K.B. climbing in Tetons
Bick argues these stays helped “facilitate parenting time between April 1, 2017, and
July 11, 2018”—the eligible timeframe from which Bick could receive credit for back
pay—and the expenses were not for Bick to go observe his daughter playing soccer, but
rather, show Bick enabling his daughter to attend soccer matches and spend time with her
father. The District Court, however, specifically determined that it would not credit Bick
for “costs incurred to facilitate his parenting time or for gifts to the girls.” As an
example, the District Court specifically excluded hotel stays to watch K.B. play soccer
because those expenses were addressed in the variance. The District Court did not give
4
The District Court acknowledged that given the nature of K.B.’s activities, a parenting plan
where Bick would parent K.B. in Billings every other weekend and during the summer could not
occur. The court accounted for this by awarding Bick a variance in monthly child support.
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Bick credit for such expenses because it gave Bick a variance from the child support
amount calculated in accordance with the Montana Child Support Guidelines. The
variance, as the District Court clarified, was intended to assist Bick in paying for lodging
and meals out to parent. Even assuming the motel and campground expenses were
expenses paid to enable K.B. to play soccer and spend time with Bick, such expenses
cannot be credited toward child support. “The manner in which child support is to be
used is left to the discretion of the custodial parent . . . .” Williams v. Budke,
186 Mont. 71, 75, 606 P.2d 515, 517 (1980). Child support is to be paid to the child’s
custodian and is not to be directly paid to the child or for a child’s expense.
See Williams, 186 Mont. at 75, 606 P.2d at 517. The District Court did not err by not
crediting Bick for the motel and campground expenses.5
¶19 The fifth issue raised on appeal is whether the District Court erred in ordering
Bick to pay the costs to divide his retirement accounts.6 “The distribution of marital
property in a dissolution proceeding is governed by § 40-4-202, MCA, under which a
5
Bick also argues the District Court ordered Bick to continue paying for Johnson’s phone, phone
service, and car insurance not only through trial delays but also once child support had started
and after the court closed the window on child support credits. The record does not support
Bick’s argument. The District Court clarified in an April 2020 Order that its Finding of Fact
No. 56 in the Decree stating Bick “shall receive dollar-for-dollar credit for cell phone bills paid
[and] automobile insurance for the children” referred to the children’s cell phones and not
Johnson’s. Contrary to Bick’s argument on appeal, he was not ordered to pay for Johnson’s cell
phone expenses nor her auto insurance. The District Court did not err by not crediting Bick in
back child support for these expenses because money Bick spent on Johnson’s cell phone and car
insurance is not money he spent on the children, and thus cannot be credited as back pay on child
support.
6
Bick filed a Notice of Issues in December 2019 and brought this same issue to the
District Court’s attention but failed to request a remedy for or relief from the QDROs. The issue
was not raised again before the District Court. The issue is not properly before this Court on
appeal, but we again grant leniency because Bick is representing himself on appeal.
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trial court is vested with broad discretion to distribute the marital property in a manner
that is equitable to both parties.” Richards v. Trusler, 2015 MT 314, ¶ 11,
381 Mont. 357, 360 P.3d 1126. The trial court must reach an equitable distribution and
not necessarily an equal distribution. Richards, ¶ 11. “The district court’s apportionment
of the marital estate will stand unless there has been a clear abuse of discretion as
manifested by a substantially inequitable division of the marital assets resulting in
substantial injustice.” Richards, ¶ 11. When issuing a decision in a dissolution action, a
district court should consider the costs attendant to its division of marital property and, if
necessary, adjust its apportionment to reflect an equitable distribution in accordance with
the requirement of § 40-4-202, MCA. In re Marriage of Debuff, ¶ 28. Bick argues that
the District Court blindly signed the QDROs without knowing each charged a $300 fee to
effectuate Bick’s 403(b) Plan and Bick’s Pension Plan. Here, the District Court entered
the QDROs as written by Johnson’s attorney and as stipulated to by both Johnson and
Bick. Bick did not object to the QDRO either before or after the District Court entered
the orders. Moreover, he fails to show this was an abuse of discretion or that the District
Court misapplied the law. Nothing in the record indicates the District Court abused its
discretion by ordering Bick to pay the one-time fee to review each QDRO.
¶20 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. In the opinion
of the Court, the case presents a question controlled by settled law or by the clear
application of applicable standards of review.
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¶21 Affirmed.
/S/ LAURIE McKINNON
We Concur:
/S/ MIKE McGRATH
/S/ INGRID GUSTAFSON
/S/ BETH BAKER
/S/ DIRK M. SANDEFUR
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