Marriage of Calder & Russell
CourtMontana Supreme Court
Date FiledNovember 4, 2026
DocketDA 26-0079
JudgeGustafson
StatusUnpublished
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Full Opinion
11/04/2026
DA 26-0079
Case Number: DA 26-0079
IN THE SUPREME COURT OF THE STATE OF MONTANA
2026 MT 266N
IN RE THE MARRIAGE OF:
BRUCE CALDER,
Petitioner and Appellee,
and
JULIE MARIE RUSSELL,
Respondent and Appellant.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and For the County of Lake, Cause No. DR-2024-104
Honorable John A. Mercer, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Julie Marie Russell, Self-Represented, St. Ignatius, Montana
For Appellee:
Justin Kalmbach, Kalmbach Law Office, PLLC, Polson, Montana
Submitted on Briefs: September 30, 2026
Decided: November 4, 2026
Filed:
__________________________________________
Clerk
Justice Ingrid Gustafson 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 appeal arises from a dissolution proceeding in which the District Court
concluded that the principal residence at 64202 Cold Creek Lane, St. Ignatius (Cold Creek
property)—although titled solely in Respondent/Appellant Julie Russell’s (Russell)
name—was held in constructive trust and ultimately awarded the property to
Petitioner/Appellee Bruce Calder (Calder) as part of the equitable division of the marital
estate. Russell appeals the District Court’s property characterization and distribution and
contends she was denied a meaningful opportunity to present her case. We affirm.
¶3 The parties’ relationship and the acquisition of the Cold Creek property are
established by an extensive record developed at two hearings and by documentary exhibits.
The parties met July 7, 2023, became engaged August 8, 2023, and held a common-law
marriage ceremony on September 9, 2023. After they met but before they married, they
identified the Cold Creek property and agreed to pursue its purchase together, submitting
a joint buy-sell agreement on August 3, 2023. Before closing, however, Calder’s existing
buyer-broker relationship created an unexpected obstacle: his Kalispell realtor asserted a
commission claim that threatened to complicate the transaction. After consulting with
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Russell’s agent about options to address that commission dispute, the parties rescinded the
joint offer and resubmitted an offer around August 17, 2023, listing only Russell as buyer.
The replacement agreement was backdated to August 3, 2023, for convenience, and just
days before the parties’ marriage ceremony, the sale closed August 28, 2023—with Calder
providing the earnest money and funding the entire purchase price and closing costs.
Before the dissolution hearing, Calder had invested approximately $954,581.43 in
purchase and improvements in the Cold Creek property, and Russell had contributed
approximately $69,895.40, most of which was for a portable “tiny house.”
¶4 Calder filed for dissolution October 1, 2024. Russell obtained an ex parte order
excluding Calder from the property on December 9, 2024; the District Court later vacated
that order after the April 18, 2025 hearing. Following the April hearing, the District Court
entered an order on June 4, 2025, that, after reciting the evidence and testimony, concluded
the transaction “effectively establish[ed] a constructive trust in accordance with MCA
§ 72-38-123 with Ms. Russell acting as the constructive trustee holding the Cold Creek
Property for the benefit of both parties, and is part of the marital estate.” The court’s June 4
order also granted limited relief concerning interim expenses and counsel fees.
¶5 At the January 9, 2026 final hearing, Russell appeared pro se after her second
attorney withdrew. The court offered her a continuance under Montana’s Uniform District
Court Rule 10, which Russell declined after stating she had attempted to secure substitute
counsel but had been unsuccessful. On January 26, 2026, the District Court entered its
final Findings of Fact, Conclusions of Law, and Decree. The Decree incorporated the
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June 4, 2025 findings and ordered transfer of the property to Calder, an equalization
payment to Russell, and other apportionments. The Decree expressly incorporated the
earlier findings—“The Court previously issued Findings of Fact, Conclusions of Law, and
Order on June 4, 2025, Dkt#66. The Court incorporates those findings and conclusions by
reference as if fully set forth herein.”
¶6 District courts are vested with broad discretion to apportion the marital estate in a
manner equitable to each party under the circumstances. In re Marriage of Funk, 2012 MT
14, ¶ 6, 363 Mont. 352, 270 P.3d 39. A district court’s division of marital property is
reviewed for clear error in its findings of fact and for abuse of discretion in its
apportionment. In re Marriage of Funk, ¶ 6. A finding of fact is clearly erroneous if it is
not supported by substantial evidence, if the court misapprehended the effect of the
evidence, or if this Court is left with a definite and firm conviction that a mistake has been
made. In re Marriage of Tummarello, 2012 MT 18, ¶ 21, 363 Mont. 387, 270 P.3d 28.
Absent clearly erroneous findings, we will not overturn the district court’s apportionment
unless it acted arbitrarily, without conscientious judgment, or exceeded the bounds of
reason resulting in substantial injustice. In re Marriage of Tummarello, ¶ 21.
¶7 Procedural due process claims—whether a party was afforded a meaningful
opportunity to be heard—are reviewed de novo. Hennon v. Weber, 2025 MT 260, ¶ 11,
425 Mont. 14, 579 P.3d 151. Due process requires notice and an opportunity to be heard
at a meaningful time and in a meaningful manner. Kulstad v. Maniaci, 2010 MT 248, ¶ 41,
358 Mont. 230, 244 P.3d 722.
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¶8 Russell asserts the District Court erred in its characterization and apportionment of
the Cold Creek property. The starting point for analysis is § 40-4-202, MCA, which
requires the court to “finally equitably apportion between the parties the property and assets
belonging to either or both, however and whenever acquired and whether the title to the
property and assets is in the name of the husband or wife or both.” The statute directs the
court to consider a non-exclusive list of factors: duration of the marriage; age; health;
income; employability; contributions to the family unit; and, when the property was
acquired prior to marriage or by gift or devise, the nonmonetary contributions of the other
spouse, the extent to which those contributions facilitated maintenance of the property, and
whether the division serves as an alternative to maintenance. In re Marriage of Funk
clarified that the statute’s overarching premise is that the court has authority to apportion
all assets—including premarital, gifted, or inherited property—and that the special
considerations for premarital, gifted, and inherited property are factors to be considered,
not categorical bars to distribution. In re Marriage of Funk, ¶¶ 12–20.
¶9 Applying those principles here, the District Court’s findings reflect a careful
engagement with the statutory factors and with the evidentiary record. The court found,
based on testimony and exhibits, that Calder funded the purchase price and the
overwhelming majority of the subsequent improvements—totaling approximately
$954,581.43—while Russell’s monetary contribution was approximately $69,895.40—
much of which was for a portable structure that the court treated as removable and subject
to reimbursement. The court also found the parties had initially intended joint ownership,
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that the replacement buy-sell agreement listing only Russell as buyer was a deliberate
response to a commission dispute with Calder’s prior realtor, and that the parties and their
realtors understood the plan was to place title in Russell’s name temporarily and later effect
a quitclaim to both names. Those factual findings are amply supported by the documentary
record—purchase agreements, title and escrow documents, bank verification of funds, and
contemporaneous communications—and by the testimony of the realtors and Calder
himself.
¶10 Russell’s central contention is that the property was an unequivocal premarital gift
to her and therefore should have been excluded from the marital estate. Montana law
recognizes that an inter vivos gift requires donative intent, delivery, and acceptance.
Albinger v. Harris, 2002 MT 118, ¶ 31, 310 Mont. 27, 48 P.3d 711. But the existence of a
deed and the contemporaneous circumstances surrounding a conveyance are highly
probative of the grantor’s intent. Russell relies heavily on Gross v. Gross, 239 Mont. 480,
482, 781 P.2d 284, 285 (1989), which holds that an executed deed creates a presumption
of delivery that can only be overcome by clear and convincing evidence. Here, the record
provides that clear and convincing evidence—Calder’s contemporaneous actions and
communications showing he funded the purchase and intended to be added to the title later,
as well as the realtors’ testimony that the title arrangement was a deliberate response to the
commission dispute rather than an unconditional gift. The District Court reasonably
credited that evidence over Russell’s contrary account and the testimony of her son, whose
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potential bias the court could consider. See In re Estate of Cook, 2020 MT 240, ¶ 27,
401 Mont. 374, 472 P.3d 1179 (trial court is best positioned to assess witness credibility).
¶11 The District Court also concluded that the circumstances supported imposition of a
constructive trust.1 The court’s June 4, 2025 order provides, “the real estate transaction
wherein Ms. Russell was the sole buyer of the Cold Creek Property [] effectively
establish[ed] a constructive trust in accordance with MCA § 72-38-123 with Ms. Russell
acting as the constructive trustee holding the Cold Creek Property for the benefit of both
parties, and is part of the marital estate.” That conclusion is consistent with the statutory
standard for a constructive trust—where retention of legal title by the holder would result
in unjust enrichment because of the circumstances of acquisition or the parties’
understanding—and with the evidence that Calder paid the purchase price and costs of
substantial improvements and the parties intended joint ownership. The court’s
constructive trust finding therefore rests on substantial evidence and on a legally
cognizable equitable theory.
¶12 Russell argues the District Court improperly recharacterized the transaction post hoc
and relied on a theory not litigated by the parties. But the record shows the court first
expressed its preliminary view at the April 2025 hearing and then afforded the parties
further proceedings and an opportunity to be heard. The June 4, 2025 order memorialized
the court’s considered view after receiving testimony and exhibits. The court’s later
1
Pursuant to § 72-38-123, MCA, “a constructive trust arises when a person holding title to property
is subject to an equitable duty to convey it to another on the ground that the person holding title
would be unjustly enriched if the holder were permitted to retain it.”
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incorporation of those findings into the Final Decree was not an impermissible post hoc
reconstruction, but rather the culmination of the evidentiary process. Under In re Marriage
of Funk, the court must consider the § 40-4-202, MCA, factors and make property-specific
findings. In re Marriage of Funk, ¶ 34. The District Court did so—identifying the parties’
contributions, the short duration of the marriage, the parties’ relative incomes and
employability, the parties’ respective nonmonetary contributions, and the practical
consequences of awarding or denying the property. Those findings are neither conclusory
nor unsupported. They reflect the District Court’s weighing of the evidence and credibility
determinations to which this Court defers.
¶13 Finally, the court’s apportionment—awarding the property to Calder while ordering
reimbursement to Russell for certain discrete contributions and an equalization payment—
was an equitable resolution that accounted for Calder’s overwhelming monetary
investment and Russell’s smaller, identifiable contributions. The court’s approach honored
the mandate in § 40-4-202, MCA, to equitably apportion property “however and whenever
acquired” and to consider the enumerated factors—it did not substitute an arbitrary or
unreasonable result. Because the District Court’s findings are supported by substantial
evidence and its division of the parties’ assets and debts falls within the bounds of reasoned
discretion, we conclude there was no abuse of discretion.
¶14 Russell next contends she was deprived of a meaningful opportunity to present her
case because of breakdowns in representation and because the court proceeded to final
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hearing after her counsel withdrew. The record requires a careful, context-sensitive
analysis.
¶15 Due process requires notice and an opportunity to be heard at a meaningful time and
in a meaningful manner. Kulstad, ¶ 41. Here, Russell claims the court proceeded despite
her counsel’s withdrawal. Thus, the critical questions are whether she was given a fair
opportunity to secure counsel or to proceed knowingly pro se and whether the court’s
management of the proceedings was reasonable under the circumstances. The District
Court expressly addressed Russell’s representation problems on multiple occasions. After
the April hearing, Russell moved for rehearing and for relief under M. R. Civ. P. 60(b),
alleging various failures of her counsel. The court considered those claims and denied
rehearing in its May 22, 2025 order, concluding that Russell’s disagreements with counsel
reflected tactical choices and that she had not shown circumstances warranting relief. The
court explained that trial strategy and tactical decisions ordinarily fall within counsel’s
discretion and do not, without more, justify setting aside a judgment.
¶16 When Russell’s second attorney withdrew shortly before the January 9, 2026 final
hearing, the District Court again addressed the representation issue. The court informed
Russell of her right to seek a continuance under MUDCR 10 and offered a twenty-one day
continuance to secure counsel. The court’s offer was not perfunctory—it was a concrete
opportunity to obtain counsel and to delay final adjudication. Russell acknowledged she
had contacted numerous firms—she testified she had “not had good luck in trying to hire
an attorney”—but she nonetheless elected to proceed. That election, made after the court’s
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explicit offer of additional time, constitutes a knowing and voluntary waiver of the
continuance. Under these circumstances the court did not deprive Russell of a meaningful
opportunity to be heard, but rather provided the procedural safeguards required by due
process and allowed Russell to choose how to proceed.
¶17 Russell also asserts that prior counsel’s failures left the evidentiary record
incomplete and that the court should have granted a new hearing to permit fuller
development of the facts. The District Court considered and rejected that contention in its
May 22, 2025 order, noting Russell had not submitted any offers of proof of the omitted
testimony or exhibits that would have altered the outcome and that she had not
demonstrated necessary circumstances under M. R. Civ. P. 60(b). This Court has
recognized that a party’s disagreement with counsel’s tactical choices does not, without
more, establish a due process violation. See State v. Schowengerdt, 2018 MT 7, ¶ 31, 390
Mont. 123, 409 P.3d 38. The District Court’s denial of rehearing and its subsequent offer
of a continuance before the final hearing were reasonable responses to the representation
issues Russell raised.
¶18 Russell compares her situation with cases in which courts curtailed
cross-examination or otherwise prevented a party from testing the opposing party’s
testimony. Hennon is instructive. In Hennon, the justice court allowed the petitioner to
decline to answer a central question and excused the witness, thereby foreclosing
meaningful cross-examination. Hennon, ¶¶ 16–17. This Court vacated the order and
remanded because the respondent had been deprived of the opportunity to test the
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petitioner’s credibility on the dispositive issues. Hennon, ¶¶ 13–17. The present record
contains no comparable restriction. Russell was permitted to testify, to present exhibits,
and to cross-examine witnesses at the April hearing when she was represented. At the
January hearing, she appeared pro se, and the court again afforded her the opportunity to
present evidence and to request a continuance. The court did not cut off cross-examination
or otherwise foreclose Russell from testing Calder’s evidence. The procedural posture
here—an initial hearing with counsel, a considered denial of rehearing after review of the
record, and an explicit offer of a continuance before final hearing that Russell declined—
does not demonstrate the kind of structural deprivation that compelled reversal in Hennon.
¶19 Finally, the court’s credibility determinations and evidentiary rulings are matters
committed to the trial court’s discretion. The District Court heard the witnesses, observed
their demeanor, and weighed conflicting testimony. Because Russell was given notice,
multiple opportunities to be heard, and an explicit choice whether to proceed or to seek
additional counsel, and because the court’s rulings and findings are supported by the
record, we conclude Russell was not deprived of due process.
¶20 The District Court’s factual findings concerning the acquisition, funding, and
treatment of the Cold Creek property are supported by substantial evidence. The court
applied the correct legal standards under § 40-4-202, MCA, and In re Marriage of Funk,
and its apportionment of the marital estate—awarding the property to Calder while
providing reimbursement and equalization to Russell—was an equitable exercise of
discretion. The court also afforded Russell a meaningful opportunity to present her case—
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its offers of continuance and its consideration of her motions for rehearing and relief reflect
a process consistent with due process requirements.
¶21 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.
¶22 Affirmed.
/S/ INGRID GUSTAFSON
We Concur:
/S/ CORY J. SWANSON
/S/ JAMES JEREMIAH SHEA
/S/ KATHERINE M. BIDEGARAY
/S/ JIM RICE
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