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521 P.3d 415

D. McDonald v. S. McDonald

Montana Supreme Court

Decided December 20, 2022

This page is marked noindex.

Montana Supreme Court · decided 2022-12-20

Opinion - Noncite/Memorandum - Justice McKinnon, affirmed.

Relies on State v. Rosling · State v. Aegerter · Pilgeram v. Greenpoint Mortgage Funding, Inc.

Decided 2022-12-20

                                                                                         12/20/2022


                                      DA 22-0055
                                                                                     Case Number: DA 22-0055

             IN THE SUPREME COURT OF THE STATE OF MONTANA

                                    
2022 MT 247N



DENNIS DEE MCDONALD as a general
partner, managing partner and limited
partner of the OPEN SPEAR RANCH FAMILY
LIMITED PARTNERSHIP,

          Counter-Defendant and Appellant,

     v.

SHARON MCDONALD, as a general partner,
managing partner and limited partner,
KELLY MCDONALD FRASER, as a limited partner,
COURTNEY MCDONALD, as a limited partner;
and CASEY MCDONALD, as a limited partner,
OPEN SPEAR RANCH FAMILY LIMITED
PARTNERSHIP,

          Counterclaimants and Appellees.



APPEAL FROM:       District Court of the Sixth Judicial District,
                   In and For the County of Sweet Grass, Cause No. DV-2014-19
                   Honorable Brenda R. Gilbert, Presiding Judge


COUNSEL OF RECORD:

            For Appellant:

                   Hertha L. Lund, Lund Law, PLLC, Bozeman, Montana

                   David B. Gallik, Gallik Law Office, PLLC, Helena, Montana

            For Appellee Sharon McDonald:

                   Jim Lippert, Jim Lippert Attorney at Law, P.C., Big Timber, Montana

            For Appellees McDonald Children:

                   Rodd A. Hamman, Alex W. Hamman, Calton Hamman & Wolff, P.C.,
                   Billings, Montana
                                 Submitted on Briefs: November 16, 2022

                                           Decided: December 20, 2022


Filed:
                V,„ 6A•-if
         __________________________________________
                           Clerk




                             2
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     Dennis Dee McDonald (Dennis) appeals numerous orders from the Sixth Judicial

District Court, Sweet Grass County, granting dissolution of the Open Spear Ranch Family

Limited Partnership (Partnership).

¶3     Dennis and Sharon McDonald (Sharon) created the Partnership on December 29,

1997, when they, together with their four adult children, signed the Certificate and

Agreement of the Open Spear Ranch Partnership (Partnership Agreement). Their fourth

child is now deceased. The Partnership was created to minimize tax consequences and to

keep the assets within the family. Dennis and Sharon were general partners, managing

partners and limited partners and the Children were limited partners. Sharon and Dennis

each retained a 1% interest as general partners.

¶4     Sharon and Dennis maintained a common law marriage until Sharon filed for

dissolution on July 14, 2014. The couple entered into a Property Settlement Agreement

(Marital Agreement), which the District Court reviewed and approved along with the

Decree of Dissolution. Both documents reference the Partnership. The parties agreed that

the division of Partnership assets would be handled in a separate proceeding.



                                             3
¶5     On July 2, 2014, Dennis filed a Complaint to dissolve the Partnership after having

a fight with an Open Spear Ranch (OSR) ranch employee. Dennis also maintained that

Sharon and one of the Children abandoned OSR. In his Complaint, which named Sharon,

the Children and the ranch employee, Dennis alleged that “there was no hope of

reconciliation of the General Partners’ business relationship” and “[g]iven the fractured

business relationship of the General Partners, and that neither can act without the consent

of the other, it is not reasonably practicable to carry on the Partnership activities in

conformity with the Partnership Agreement.”

¶6     Sharon filed an Answer and Counterclaim on August 14, 2014, also seeking

dissolution of the Partnership but alleging that (1) Dennis failed to communicate with her

as general partner and managing partner; (2) Dennis used funds from the Partnership for

personal use; and (3) she and Dennis have a “fractured relationship.”

¶7     Dennis returned to OSR on September 1, 2014, after recovering from the fight with

the ranch employee. He testified that, upon his return, he discovered that the Partnership

bank account had been depleted from $183,148.48 to $8,508.00 within sixty days, the hay

had not been cut, and livestock had not been attended to. He thus “reassumed responsibility

for the ranch’s day-to-day operations as he always had and continues to do.” He also

alleges that Sharon and the Children never returned to OSR.

¶8     On April 3, 2015, Dennis filed a Motion to Dismiss his Complaint claiming that he

no longer sought dissolution of the Partnership. Sharon and the Children objected. The

District Court granted Dennis’s Motion on May 1, 2015, reasoning that:



                                            4
       The language of rule 41(a)(2) M. R. Civ. P. is plain and clear. The motion
       for dismissal of Complaint is granted and the counterclaims may be
       adjudicated independently. For public policy reasons, a party should be
       permitted to change his position and retreat from litigation, particularly
       where the legal rights of other parties will not be prejudiced.

Litigation over the Partnership dissolution nonetheless continued based on Sharon’s

and the Children’s counterclaims.

¶9     Dennis filed a Motion for Exclusive Control on October 7, 2015, to manage OSR

by himself. On October 30, 2015, Dennis requested an ex parte Temporary Order of

Protection to keep Sharon and the Children from entering OSR. He claimed that Sharon

conspired to have him killed and that two of the Children removed OSR property and

interfered with OSR operations. In his request, he also alleged that a ranch employee

attacked him.

¶10    Next, on November 25, 2015, Dennis filed a “Motion to Amend his Complaint” to

assert a claim for “rescission” of gifts to the Children.      The gifts were the limited

Partnership interests gifted to the Children during 2011 to 2014, which totaled 48%.

Sharon and the Children each objected to the Motion. The District Court denied the Motion

to Rescind on March 16, 2016, stating that the claim was “futile” and “procedurally

defective” because Dennis had previously requested that his Complaint be dismissed, and

the gifts were completed and not subject to rescission. The District Court also ordered that

any check over $3,000 must be co-signed by Dennis and Sharon and established duties and

obligations for Dennis and Sharon to follow to run OSR.

¶11    The Children filed a Motion for Partial Summary Judgment on May 26, 2016, to

affirm the Partnership percentages of 16% for each living child, 26% for Dennis, and 26%

                                             5
for Sharon. The following day, Sharon disclosed Jack Wicks (Wicks) as her valuation

expert. She also requested that Wicks be appointed special master under M. R. Civ. P. 53

for purposes of distributing the Partnership assets. Dennis objected to the appointment of

Wicks, arguing that Wicks had a conflict of interest because he was both Sharon’s disclosed

expert and special master.       The District Court granted the Children’s Motion on

November 29, 2016, confirming that the interests in the Partnership were as stated in the

Children’s Motion.

¶12    On June 17, 2016, Dennis filed a Motion for Summary Judgment contending that

the Partnership should not be dissolved because Dennis was successfully operating OSR

“per the Agreement and for the children’s benefit.” On November 19, 2016, the District

Court denied Dennis’s Motion and determined that the Partnership be dissolved. The

District Court based its determination on the marital divorce decree, Dennis’s conduct in

operating OSR, and the fractious relationships in the family’s history. Following its Order,

the District Court appointed Wicks as special master to determine whether an in-kind

distribution of Partnership assets, in lieu of a cash liquidation, was practicable.

¶13    On August 9, 2016, the District Court conducted a show cause hearing because

Sharon alleged that Dennis was not complying with the March 16, 2016 Order. Sharon

testified that Dennis had commingled Partnership funds with his personal funds, failed to

provide Sharon with photographs and documents that would allow her to complete the

duties assigned to her by the District Court, that Dennis attempted to control the Partnership

website Sharon was ordered to maintain, and that Dennis did not provide information to

the Partnership’s Certified Public Accountant (CPA) to facilitate timely preparation of the

                                              6
Partnership tax returns. The District Court issued a Decision and Order on Sharon’s

Motion on September 9, 2016, concluding, “1. Dennis’s practice of depositing Partnership

funds in his personal account was improper as a matter of law; 2. Dennis breached the

terms of the district court’s March 16, 2016 Order by failing to provide Sharon with

numerous business records.” The District Court ordered that Dennis provide Sharon with

photographs and documents required for Sharon to complete the duties assigned to her by

the court; provide Sharon with documentation that would allow her to oversee the

Partnership checking account; and that Dennis reimburse the Partnership checking account

in the amount he commingled, which was determined to be $127,759.01.

¶14    On January 9, 2018, Wicks filed his revised Special Master’s Report allocating 26%

of the assets to Dennis and 74% to Sharon and the Children. Dennis filed his objections

on January 19, 2018.1 From June 20 to June 22, 2018, the District Court held a Rule 53

hearing2 and considered Dennis’s objections to the revised Special Master’s Report.

During the hearing, Wicks testified that he did not take into consideration the tax

ramifications concerning capital contributions made by the parties, that he had not read the

Partnership Agreement, and that he was unaware any of the parties made capital

contributions. Dennis’s expert witness, Jim Winchell, CPA, testified that an unequal


1
  Dennis had also requested, on February 20, 2018, a hearing regarding dissolution of the
Partnership, despite the District Court having previously determined it should be dissolved.
Dennis argued he was denied an evidentiary hearing to offer evidence in support of not dissolving
the Partnership. The District Court held a hearing on October 1, 2018, and on January 23, 2019,
confirmed its previous decision that it was proper to dissolve the Partnership.
2
  M. R. Civ. P. Rule 53(d)(2) provides, in pertinent part: “[a]fter hearing, the court may adopt the
report, modify it, or reject it in whole or in part, receive further evidence, or recommit it with
instructions.”
                                                 7
in-kind division of classes of property would create tax consequences. The District Court

ruled on Dennis’s objections on March 26, 2020, adopting the Special Master’s Report of

a 26%-74% in-kind distribution. The District Court did not adjust for tax consequences or

adjust for Dennis’s contributions from his capital account at this time.

¶15    On November 16, 2020, the District Court entered an Interim Order which required

an updated Special Master’s Report that addressed outstanding valuations of the parties’

property. This Order appointed Wicks to complete another Special Master’s Report.

Wicks had retired so his associate, Scott Crosby (Crosby), performed the report instead.

Crosby’s report was very similar to Wicks’s previous report, but with some revised

valuations. Dennis filed objections on October 12, 2021 to the Updated Report of Special

Master Crosby. The District Court held a hearing on November 23, 2021. On January 28,

2022, the District Court adopted the Updated Report of Special Master Crosby, with a few

exceptions, and issued a final comprehensive order setting forth its findings of fact and

conclusions of law.

¶16    Dennis appeals and raises the following issues, some of which we restate: Did the

court err in enforcing the Partnership Agreement when it ordered dissolution; was the

District Court’s determination of partnership percentages correct as a matter of law and

should distribution of assets in accordance with these percentages be affirmed; should this

Court affirm the appointment of the special masters; and whether the court erred in its

distribution of the equipment, art, and cash assets of the partnership.

¶17    The construction and interpretation of a written agreement are questions of law that

we review for correctness. Ophus v. Fritz, 
2000 MT 251, ¶ 19
, 
301 Mont. 447
, 
11 P.3d
                           8
1192. Whether an ambiguity exists in a contract is also a question of law reviewed for

correctness. Doble v. Bernhard, 
1998 MT 124, ¶ 19
, 
289 Mont. 80
, 
959 P.2d 488
. We

review de novo a district court’s grant or denial of summary judgment, applying the same

criteria of M. R. Civ. P. 56 as a district court. Pilgeram v. GreenPoint Mortg. Funding,

Inc., 
2013 MT 354, ¶ 9
, 
373 Mont. 1
, 
313 P.3d 839
 (citation omitted). We review a district

court’s conclusions of law to determine whether they are correct and its findings of fact to

determine whether they are clearly erroneous. Pilgeram, ¶ 9. We review the appointment

of a special master for abuse of discretion. Pankratz Farms, Inc. v. Pankratz, 
2004 MT 180, ¶ 81
, 
322 Mont. 133
, 
95 P.3d 671
.

¶18    First, Dennis argues that the District Court erred when it ordered that the Partnership

be dissolved. He contends that the District Court should have followed the Partnership

Agreement, without considering the Marital Agreement because the Partnership constitutes

a business entity rather than marital property. He further asserts that the District Court

erroneously dissolved the Partnership based on “equitable division” principles that only

apply to dissolution matters. He maintains that the Partnership was profitable and requests

that we reverse the dissolution of the Partnership or remand for the District Court to follow

the language of the Partnership Agreement.

¶19    The Partnership Agreement provides that the Partnership shall be dissolved if “it is

not otherwise reasonably practicable to carry on the partnership business in conformity

with the partnership agreement.”       This is consistent also with Montana law.          See

§ 35-10-624(5)(c), MCA (A partnership “is dissolved . . . upon judicial decree, issued upon



                                              9
application by a partner, [when] it is not otherwise reasonably practicable to carry on the

partnership business in conformity with the partnership agreement.”).

¶20    The District Court dissolved the Partnership based on substantial and sufficient

evidence. The evidence shows that Dennis was unwilling to communicate with Sharon—

as a general and managing partner—regarding partnership business and that he sought to

preempt and eliminate the duties and authority granted to Sharon by the Partnership

Agreement. He tried to prevent Sharon and the Children from approaching Partnership

property by rescinding gifts of limited Partnership interests to the Children and seeking an

Order of Protection against Sharon and the Children. Notably, he commingled his personal

funds with Partnership funds.

¶21    In addition, Dennis argues that the purpose of the Partnership Agreement (to

preserve the assets and keep them within the family) is an adequate basis to reverse the

dissolution. Here, however, there was a substantial change in circumstances and positions

between the partners, which in themselves undermine the basic purpose of the Partnership.

Putting aside the parties’ dissolution, Dennis conceded that there was no hope of

reconciliation of the partners’ business relationships. Sharon and the Children also agreed

that dissolution was necessary; Sharon pointed to the marriage dissolution, lack of

communication with Dennis, and Dennis’s use of partnership funds for personal use as

reasons. Dennis asserts that Sharon had an OSR employee pick a fight with him to have

him killed, that Sharon attempted to sabotage the Partnership with the 2-signatures check

requirement, and that Sharon’s involvement with the Partnership “has become intolerable”

and will be detrimental to business.

                                            10
¶22    The District Court held an evidentiary hearing on March 16, 2016, to determine the

accuracy of Dennis’s allegations.     It found that Dennis did not establish reasonable

apprehension of bodily injury; that Dennis was not the victim of any assault by any

respondent; that a high level of distrust among the partners existed; that daily involvement

with the Partnership is impossible because of the lack of trust and hostility between the

parties; that both general partners needed to sign Partnership checks greater than $3,000;

and that Dennis must transfer all Partnership funds from his personal account to the

Partnership account. At a Show Cause hearing following the evidentiary hearing, the

District Court found that Dennis failed to follow the District Court’s orders: he continued

to commingle OSR Partnership funds with his personal funds; he did not provide Sharon

with business records; and he failed to cooperate with the Partnership’s CPA to file tax

returns.

¶23    After the District Court denied Dennis’s Motion for Summary Judgment and issued

an order dissolving the partnership, the District Court held another evidentiary hearing at

Dennis’s request to hear testimony from the parties concerning dissolution of the

Partnership. Sharon testified that she wanted the Partnership dissolved based on the lack

of trust between herself and Dennis; Dennis’s commingling of Partnership funds with his

personal funds, including credit card payments; his failure to recognize the authority of the

District Court; his failure to provide her with his personal bank statements; his failure to

individually sign Partnership checks that exceed $3,000; his accusation that Sharon hired

an OSR employee to kill him; his accusation that Sharon forged the marriage dissolution;

his failure to communicate with her regarding Partnership business matters; his failure to

                                             11
notify her of potential Partnership income; and his purchase of Partnership equipment

without her knowledge or consent. Sharon also updated the District Court that the amount

of Partnership checks that Dennis wrote exceeding $3,000, without her signature, totaled

over $528,000.

¶24     Article III of the Partnership Agreement establishes the powers of general partners.

Most notably, it requires that any decision or act shall be made only upon the approval of

the majority interest of general partners. This requires that the general partners—Dennis

and Sharon—agree when making decisions. Dennis and Sharon also have equal 1%

general partnership interests. The record demonstrates that Dennis and Sharon cannot

agree with each other because Dennis has failed to involve Sharon in Partnership matters

and has misappropriated Partnership funds. The District Court presided over 7 years of

litigation that demonstrate the broken relationship among Dennis, Sharon, and the Children

that overcome the partners’ abilities to carry on the Partnership. The District Court issued

its Findings of Fact and Conclusions of Law based on sufficient and overwhelming

evidence that supports dissolving the Partnership.

¶25     Next, Dennis claims the District Court erred when it did not consider his capital

accounts and claims Sharon acknowledged them during her testimony. He argues the

District Court held that Dennis could not disclose the capital accounts in the Marital

Agreement. The record shows otherwise; the District Court offered Dennis the opportunity

to disclose his capital account claim, both in his dissolution of marriage and the present

case.



                                             12
¶26    Dennis waived his opportunity to claim ownership of his capital accounts in two

ways. First, Dennis knew of his capital account at the time he submitted a Preliminary

Declaration of Disclosure (Disclosure) in the marriage dissolution proceedings and failed

to disclose ownership or interest in a capital account for the Partnership. See § 40-4-252,

MCA (preliminary declarations of disclosure must include the identity of all assets,

“regardless of the characterization of an asset,” in which the declarant has or may have an

interest). Pursuant to Article II, § 2.1 of the Partnership Agreement, Dennis’s capital

account is personal property that is required to be disclosed in the Disclosure. Dennis

challenges the District Court’s ruling in this regard, claiming that in the Marital Agreement,

the parties expressly waived disclosures and agreed to handle the OSR assets in the

partnership case. But the Marital Agreement was filed in May 2017, approximately

two-and-a-half years after the parties filed their preliminary disclosures. It stated, in the

“Waiver of Declaration of Disclosure” provision, that “[e]ach of the parties acknowledge

disclosure of all assets and obligations has been made by the other party and hereby waives

any declaration of disclosure to be served and filed in this marriage dissolution action.”

This provision acknowledged the preliminary disclosures and waived only those

declarations “to be served and filed”; that is, the final disclosures. Sections 40-4-252;

40-4-253, MCA. The Marital Agreement provided further that it “shall not include any

item of property, whether real or personal, tangible or intangible, titled in the name of the

Open Spear Ranch Limited Partnership.” This provision does not apply to Dennis’s alleged

$8.5 million capital account, which he claims was his property, not property of OSR.



                                             13
¶27    Second, Dennis failed to object within 30 days when Wicks proposed the in-kind

distribution of 26% to Dennis and 74% to Sharon and the Children. It took six months

after Wicks proposed the 26-74 in-kind distribution, for Dennis to argue that his capital

account was $8.5 million, and Sharon’s was $0.

¶28    Here, the District Court reasoned that if the equipment were Dennis’s personal

property, then he was required to disclose them in the divorce proceeding, and he did not

do so. Second, the Partnership tax returns show that the equipment is Partnership property,

and the returns listed each partner’s capital account consistent with their partnership

percentages. The tax returns showed that Dennis did not have $8.5 million in a capital

account. Finally, because Dennis never disclosed any of the individual assets in his marital

dissolution or in the tax returns, he is estopped from changing his position in this case.

¶29    We agree. Dennis and Sharon settled their divorce case and agreed that any issues

of partnership property would be resolved in the partnership proceeding. Dennis attempts

to undue roughly 7 years of litigation by claiming rights to capital accounts of the

Partnership significantly late in the proceedings. He raises a new claim in this case that he

had an $8.5 million capital account and that Sharon’s account was $0. The purpose of

judicial estoppel is to bind “a party to his or her judicial declarations and preclude[] a party

from taking a position inconsistent with previously made declarations in a subsequent

action or proceeding.” Kaufman-Harmon v. Kaufman, 
2001 MT 238, ¶ 15
, 
307 Mont. 45
,

36 P.3d 403
. Judicial estoppel includes four elements, which all must be satisfied: “(1) the

estopped party had knowledge of the facts at the time he took the original position; (2) the

estopped party succeeded in maintaining the original position; (3) the position presently

                                              14
taken is inconsistent with the original position; and (4) the original position misled the

adverse party so that allowing the estopped party to change its position would injuriously

affect the adverse party.” Gibbs v. Altenhofen, 
2014 MT 200, ¶ 17
, 
376 Mont. 61
, 
330 P.3d 458
.

¶30    The District Court correctly found that the four elements of judicial estoppel were

met. Dennis knew of his capital accounts when the Partnership tax returns were filed. He

succeeded in the marriage dissolution by ensuring that his capital account was not

considered in the Marital Agreement. His claim to an $8.5 million capital account as his

own property in the Partnership dissolution differs dramatically from his previous

Disclosure    in       the   marital   dissolution.   And,   Sharon   and    the   Children—as

adverse parties— would be severely injured if the District Court allowed him to claim his

capital account.

¶31    Dennis’s third issue on appeal concerns the appointment of Wicks and Crosby as

special masters.       For the first time, on appeal, he contends that the special masters lacked

training and experience in accounting. We will not consider Dennis’s assertion that the

special masters lacked accounting experience because he did not object on those grounds

in the District Court. See State v. Rosling, 
2008 MT 62, ¶ 76
, 
342 Mont. 1
, 
180 P.3d 1102

(holding that to properly preserve an issue or argument for appeal, a party must raise it in

the district court).

¶32    However, Dennis appeals the appointment of the special masters on other grounds

that he raised in the District Court. He argues that the District Court erroneously appointed

special masters who declined to address the capital accounts, did not execute an accounting,

                                                 15
did not review the Partnership Agreement, did not hold hearings, and did not determine

property ownership and offsets. The tasks assigned by the District Court to the special

masters disprove these claims.

¶33    The District Court has discretion to appoint a special master. Pankratz, ¶ 81. The

District Court explained its decision to appoint Wicks and Crosby as special masters:

“Because Mr. Wicks is already familiar with the property, he is a logical person to be

appointed as special master to make a recommendation for the parties to consider, or for

the Court’s guidance if the parties are unable to resolve the matter.” The District Court

ordered Wicks to determine whether its practical to divide Partnership property without

loss of value; to recommend an in-kind distribution of real estate, livestock, hay,

machinery, and equipment based on a 2016 appraisal; to address the Hauser Lake house;

to request relevant documents of the parties; and to report to the District Court. Later, the

District Court ordered Crosby to provide an updated report on the current market value for

all real property titled in the Partnership, equipment purchased since Wicks’s previous

report, all livestock, and all liquid cash assets and accounts receivable.

¶34    The District Court never ordered the special masters to review the Partnership

Agreement, hold hearings, or consider offsets. The special masters were ordered to

determine property ownership and incorporate the tasks previously mentioned. Any

failures by the special masters to comply with the court order were subject to objection at

hearings before the District Court. The District Court held evidentiary hearings addressing

Dennis’s objections to the appointment of special masters and, after considering all

evidence before it, exercised its discretion appropriately and appointed Wicks and Crosby

                                              16
as the special masters. The record also does not demonstrate that the special masters

submitted erroneous reports; rather, they complied with court orders and submitted

recommendations accordingly.

¶35    Dennis also appeals the District Court’s Order granting partial summary judgment

to Sharon and the Children regarding whether the interests in the Partnership gifted to the

Children in 2014 were completed and whether the Children retain a 16% interest each in

the Partnership. The District Court entered its decision to grant partial summary judgment

following briefing by the parties and conducting a hearing. Based on the record, the

District Court properly determined that Dennis failed to offer any genuine issues of

material fact. Dennis instead makes conclusory allegations about the gifts. We conclude

that the interests in the Partnership gifted to the Children are complete and cannot be

rescinded.

¶36    Lastly, Dennis argues that the District Court erred when it determined that the

Partnership owns the equipment, artwork, and cash in the Partnership bank account.

Dennis does not present argument on appeal regarding the Partnership artwork and cash.

The District Court was never presented with evidence that the artwork and cash were not

Partnership property. Accordingly, we will not address issues specific to the ownership of

the artwork and cash.

¶37    Dennis did object that he personally owned some of the Partnership equipment.

Wicks testified that Dennis asked for all the equipment, so Wicks distributed it to him.

Dennis now claims that some of the equipment allocated to him he personally owned, and

so he effectively lost the value of the specific equipment upon dissolution of the

                                            17
Partnership. However, the equipment was listed on the Partnership Income Tax Return

and depreciated.    And, if the equipment was personal property it should have been

disclosed and distributed in the divorce proceedings. Accordingly, for the same reasons

set forth regarding the capital accounts, Dennis is estopped from contesting his own tax

returns and from claiming he personally owned equipment not listed as equipment in his

divorce proceeding.    We conclude the District Court was correct in adopting the Special

Master’s Report regarding distribution of the equipment.

¶38    We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our

Internal Operating Rules, which provides for memorandum opinions. This appeal presents

no constitutional issues, no issues of first impression, and does not establish new precedent

or modify existing precedent.

¶39    Affirmed.


                                                  /S/ LAURIE McKINNON


We Concur:

/S/ JAMES JEREMIAH SHEA
/S/ INGRID GUSTAFSON
/S/ BETH BAKER
/S/ DIRK M. SANDEFUR




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