No. 14257 IN

### THE SUPREME COWOF

### THE STATE OFI4XCANA 1979



### INRE TI-EMAFUUAGE OF 

### NANCY E. KUWZ, Petitioner and Respondent,

-VS

### THOMAS

### M. KWZ, Respondent andAppellant.



### Appeal from: District Court of 

### the Eighth JudicialDistrict, Hon. H. William

### Coder,Jdgepresiding. Counsel of Record: For Appellant: Ralph T. Randono, Great Falls, Montana For Respondent: Church, Harris, Johnson & Williams, Great Falls, Mntana

Sdmittedon briefs: March 12, 1979 Decided: 

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# 1 19-9

- Filed:

### .-:Mr. 

### Justice John Conway Harrison delivered the Opinion of the Court.

c his 

### is 

### an appeal from a judgment of the DistrictCourt of theEighth Judicial District, County of Cascade, inwhich the court granted respondent Nancy Kuntz a dissolution of marriage and ordered certain custody and property dispositions. The trialcourt ordered that the land and home, which

were 

### valued at $59,850, 

### be sold and after alldebts connected with it 

### paid, the proceeds equally divided. In addition, themachinery and livestock 

### were ordered sold. The remaining joint debts of the parties were tobe paid from the proceeds and the

### remainder divided equally. Each party was awarded the vehicle they were using atthe time of separation. Prior todiscussing the issues raised by appellant, 

### we note that the counsel for appellant herein was not the counsel that tried thismatter before the DistrictCourt. Therefore, some of the issuesraised on appeal werematters that, had he been present atthe 

### timeof the trial, 

### would have been handled differently. Nevertheless, he takes the record ashe finds it. 

### The issuespresented for our review are: 1. 

### Did the DistrictCourt err inmaking the division of property between the parties ordered inits 

### decree of October 17, 1977? 2. 

### Did the District

### Court make the required findings of factnecessary to support the decree? 3. 

### Did the DistrictCourt make the required conclusions of law

### necessary to support the decree? 4. 

### Did the DistrictCourt err inexcluding the evidence of Howard Parker as tovalue?5.  id the DistrictCourt 

### err in

### its rulings upon examination of Bruce A. Nelson (a) as to the exclusion of testimony as to other sales and (b) as toaccepting the opinion of thewitness? For the purpose of this opinion 

### we divide the issues into two categories, combining issues one through three on whether or not the court followed the statutes as required inconsidering the partiest assets for distribution and issues four and five as towhether the testimony concerning property valuation 

### was properly received. Appellant takes issuewith the fact that the court did not specifically find 

### a certainvalue as toproperty, both personal and real, and be more specific in

### its findings. He alleges that section 40-4-202 MCA requires such findings by the court in the division of the property. Here, the court found that the value of the house and land 

### was $59,850 and that there 

### was a $15,000 mortgage outstanding. The court then ordered the property sold and the proceeds divided equally after the indebtedness 

### was paid. While the court did not specifically place a value on the few cattleor the small amount of machinery thatwas on the farm, 

### it did instead order that 

### itbe sold with the farm and ordered those proceeds divided equally also. In our opinion this

was a workable method individing the only assets of the parties asboth parties had contributed towards their preservation. The court's order is logical and practical, and inour opinion follows the requirements of section 40-4- 202 MCA and case law. A review of the case law upholds the finding of the DistrictCourt in this regard. See In

### re Marriage of Caprice (1978) Mont

# . , 585 P.2d 641, 35 St.Rep. 1460, and Marriage of Barron (1978), Mont

# .

, 580 P.2d 936, 35 St.Rep. 891.Appellant 

### relies on several cases of this Court which he believes are controlling: Robertson v. Robertson (1978), Mont. 

## , 590 P.2d 113, 35 St.Rep. 1889; In

### re Marriage of Capener (1978), Mont. 

## , 582 P.2d 326, 35 St.Rep. 1026; Vivian v. Vivian (1978), Mont

# . , 583 P.2d 1072, 35 St-Rep. 1359; In

### re Marriage of Kramer (1978), Mont

# . , 580 P.2d 439, 35 St.Rep. 700; and Martinez

v. Martinez (1978), Mont. I 573 P.2d 667, 35 St.Rep. 61. These cases arenot atpoint inthismatter for they either had no findings asto the assets of the parties or record upon which required a determination of net worth to support the distribution inparticular 

### cases toone of the parties. Putting a net dollar figure on thebottom linewould not affect thejudgment inthiscase for the 

### sale would establishwhat the figure should be. Here, what the Dis

### trict Court says in

### its order 

### is: Here 

### are the assets, 

### sell them, pay your joint debts, and splitwhat remains. It 

### is a simple, practical and logical way for the District Court todivide the assets and liabilities of the parties dissolving their marriage. The duty of the court

### was toconsider the statutory factors and equitably divide the property. We find that the court did so. In addition, appellant argues that the facts do not support the findings. The standard for reviewing that claim is clearly 

### set forth inIn

### re Marriage of Jorgensen (1979), Mont. 

## , 590 P.2d 606, 36 St-Rep. 233, where 

### we said that findings may not be disturbed by us unless clearly

erroneous (Rule 52(a),M.R.Civ.P.). The evidence here supports the findings. The rule inMontana for our review of property division inmarital cases 

### iswhether the Dis

### trict Court acted arbitrarily, without employment of con-

### scientious judgment, or exceeded the bounds of reason in view of 

### all the circumstances. Zell v. Zell 

### (1977), Mont. 

# . 570 P.2d 33, 34 St.Rep. 1070. Appellant has not shown arbitrariness on the part of the District Court that goes beyond conscientious judgment or beyond reason. We

### next consider whether the court properly admitted the expert testimony of Bruce Nelson, a 

### realtor, concerning the value of the acreage and the buildings on same, and then restricted cross-examination on the sales of other property inthe area. Appellant 

### claims this casemust be reversed because Mr. 

### Nelson was allowed to testify about the value of the real estate. He also claims his attorney should have been allowed to cross-examine Mr. 

### Nelson about other sales. Mr. 

### Nelson 

### was allowed to testify 

### as an expert about his opinion of the real estatevalue. Rule 702, Mont.R.Evid., reads: "If scientific, technical, or other specialized knowledge 

### willassist the trier of fact tounderstand the evidence ordetermine a fact inissue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto inthe form of opinion or otherwise." (Emphasis supplied.) The courtmust decide whether the expert is

### qualified. Rule 104, Mont.R.Evid. Mr. 

### Nelson's qualifications are found in the record: he 

### is a licensed real estatebroker; has been so since 1952; belongs toprofessional organizations; and has made his living since 1952 selling real estate state-wide. He has sold numerous farm properties, 

### is familiar with the values of property inthe area, and had inspected the property in question. The court allowed his opinion as to the value. We 

### find no error.

### The District

### Court considered allnecessary factors and made rulings considered equitableunder the circumstances. We 

### affirm the judgment of that court.



# /' 

# 1 Justice /

We 

### concur: 

# %,ce,aw&4 mief Justice