No. 81-208 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

IN RE THE MARRIAGE OF 

LOUIS M. KIS, 

Petitioner and Appellant, 

MARGE M. KIS, 

Respondent and Respondent. 

Appeal from: District Court of the Eleventh Judicial District, 

In and for the County of Flathead 

Honorable James M. Salansky, Judge presiding. 

Counsel of Record: 

For Appellant: 

Hash, Jellison, O'Brien & Bartlett, Kalispell, Montana 

Kenneth E. O'Brien argued, Kalispell, Montana 

For Respondent: 

Keller & Gilmer, Kalispell, Montana 

Brenda Gilmer argued and Robert Keller argued, 

Kalispell, Montana 

Submitted: December 1, 1981 

Decided: January 21, 1982 

Filed: JAN 21 2982 
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of 

the Court. 

~ppellant, ~ouis M. Kis, appeals from the Findings of 

Fact and Conclusions of Law entered on January 8, 1981, and 

Judgment entered on January 15, 1981, by the District Court 

of the Eleventh Judicial District. This judgment distributed 

the real and personal property of the parties to this 

dissolution. 

Louis and Marge Kis were married June 30, 1960. It was 

a second marriage for both. At the time of the marriage, 

Marge Kis had two children and Louis Kis had one child. No 

children were born to the marriage. All three children were 

emancipated when the dissolution proceedings were instituted. 

At the time of the marriage, Louis Kis had been employed 

as a warden for the Montana Fish and Game Department for 

approximately six years. Marge Kis worked as a bookkeeper. 

From 1960 to 1965, Louis was transferred several times, 

finally being permanently located in Kalispell, Montana. 

With joint proceeds, the parties purchased property on Foys 

Lake and constructed a home. They later purchased two 

additional lots on Foys Lake with joint proceeds. 

During the marriage, both parties continued to work. 

Louis was promoted by the Fish and Game Department to captain 

Warden in charge of the Northwest Montana District. At the 

time of trial, his salary was $19,400.00 per year. ~dditionally, 

he bought, sold and traded art, cameras, guns and photographs, 

thus earning approximately $3,000.00 per year. 

Marge Kis was self-employed as a bookkeeper. In addition, 

she invested and speculated in the purchase of commercial 

property. At the time of trial, Marge Kis owned and maintained 

solely,and in partnership with other individuals, several 
rental properties. Her annual income prior t o t r i a l had 

ranged from a low of $6,500.00 to a high of $13,500.00. 

On June 4, 1976, Louis Kis filed a petition for dissolution of the marriage. Hearings in the matter were held, 

and on October 10, 1978, a partial decree was entered by the 

District Court dissolving the marriage and making an award 

of personal property, pursuant to an agreement reached by 

the parties. This agreement awarded Louis Kis personal 

property totaling $17,917.50 and Marge Kis property totaling 

$10,693.73. 

Subsequently, on January 8, 1981, the District Court 

entered Findings of Fact and Conclusions of Law. 

The District Court determined that Louis Kis was in 

good health and highly employable due to his law enforcement 

background and other income earning vocations. The court 

also found that Louis Kis had a vested right to his Game 

Warden retirement benefits and found that the cost of an 

annuity providing similar benefits was $118,833.00. 

The District Court found Marge Kis to be in only fair 

health as a result of several operations and an impairment 

to her right arm. The court found that Marge's health 

affected her ability to repair and maintain her rental 

properties, as well as perform bookkeeping functions. 

The District Court made specific findings regarding the 

values of the real properties owned by the parties and 

determined the liabilities owed by each. The court specifically 

found that each party's business and job interests were, for 

the most part, separate. Each party had maintained separate 

bank accounts. The District Court determined that although 

Louis Kis had co-signed several bank notes, such action was 

taken at the request of lending institutions. he court 
found that at all times Marge Kis was in partnership with 

other individuals in her business transactions and Louis Kis 

was never a partner. 

Based on its findings the District Court apportioned 

the marital property as follows: 

"A. The house and two lots on Foys Lake, 

70% to the husband and 30% to the wife. 

"B. The Fish and Game Pension to the 

husband. 

"C. All the personal property as heretofore distributed in the Findings of Fact 

and by stipulation of the parties as therein set forth. 

"D. The Whitefish Arms Appartments to the 

wife. 

"E. Eastside Superette (parcel K) to the 

wife. 

"F. The Pfrimmer House (parcel L) to the 

wife. 

"G. Western Acres duplex (parcel G) to the 

wife. 

"H. The K.P.H. partnership to the wife. 

"I. Proceeds from the default duplex in 

Whitefish (parcel C) less the amount paid 

to Mr. O'Brien for Attorney's fees, to the 

wife. 

"J. Any other business properties to the 

wife." 

A judgment in accordance with the above apportionment 

was entered on January 15, 1981. 

Issues on appeal are: 

(1) Whether the Game Warden retirement benefits are a 

marital asset? 

(2) Whether the District Court erred in admitting 

evidence of the cost of an annuity to establish the present 

value of the Game Warden retirement benefits? 

(3) Whether the District Court failed to determine the 

net worth of the marital estate? 
(4) Whether the District Court's apportionment of the 

marital assets is supported by substantial evidence? 

(5) Whether the District Court abused its discretion 

by ordering the Foys Lake residence and lots sold unless an 

agreement was reached between the parties? 

Appellant, Louis Kis, first contends that his retirement 

benefits, stemming from his service with the Montana Fish 

and Game Department, should not be considered as a marital 

asset for dissolution purposes. Louis Kis relies mainly on 

the recent United States Supreme Court decision, McCarty v. 

McCarty (1981), U.S. , 101 S.Ct. 2728, and also 

Montana statute, section 19-8-804, MCA. 

In McCarty, the United States Supreme Court decided 

that military retirement benefits could not be considered 

community property to be divided equally in divorce proceedings. This decision was based primarily on the determination 

that California's community property laws conflicted with 

specific federal statutes regarding military retirement 

benefits. Therefore, federal law preempted the state statutes. 

As the case before this Court does not involve a military 

retirement benefit, the McCarty decision is not controlling. 

Section 19-8-805, MCA, relating to Game Warden retirement 

benefits, provides: 

"Any money received or to be paid as a member's 

annuity, state annuity, or return of deductions 

or the right of any of these shall be exempt 

from any s t a t e o r municipal tax and from levy, 

sale, garnishment, attachment, or any other 

process whatsoever and shall be unassignable 

except as specifically provided in 19-8-806." 

Louis Kis contends that this statute precludes inclusion 

of his retirement benefits as a marital asset. Mr. Kis 

asserts that such inclusion would violate the statutory 

exemption of retirement benefits from ". . . any other 

process whatsoever." 
We cannot construe this exemption as extending to 

determinations of marital estates in dissolution proceedings. he purpose of this provision is to protect a person's 

future retirement security. Inclusion of such benefits for 

purposes of establishing a marital estate is mandated by 

section 40-4-202, MCA, which requires apportionment of all 

the property and assets of parties to a dissolution. 

We hold that the District Court properly included the 

retirement benefits of Louis Kis as a marital asset of the 

parties. 

The appellant next contends that even if the retirement 

benefits are a marital asset, the District Court improperly 

valued the retirement benefits by accepting evidence of the 

cost of an annuity to establish the present value of the 

benefits. The District Court accepted evidence establishing 

the cost of an annuity, purchased for a 51 year old male, 

yielding $10,000 per year from and after the 55th birthday. 

The cost was $118,833.00. 

Louis Kis asserted at trial that his only assured 

retirement benefits were his contributions to the retirement 

fund. This assertion is premised upon the fact that ~ouis, 

at time of trial, was not yet 55 years of age and had not 

accumulated 25 years of service; therefore, his full retirement benefits were not assured. Evidence was introduced 

establishing that Louis Kis had contributed $14,436.00. 

We hold that the District Court properly accepted the 

evidence of the cost of an annuity as establishing the 

present value of the Fish and Game retirement benefits. 

Present value is the proper test. Value might be affected 

by the contingency of the retirement benefits failing to 

reach the levels used by the court. At time of trial ~ouis 
 is had not reached 55 years of age (retirement age) and had 

not served the 25 years necessary for a retirement benefit 

equal to the sum projected by the testimony and adopted by 

the court. The possibility that Louis Kis would not reach 

55 years of age and the possibility that he would not serve 

25 years could properly be considered in arriving at value. 

However, no evidence was offered by Louis Kis showing what, 

if any, effect such a contingency would have in diminishing 

the present value figure offered by Marge Kis. The evidence 

offered by Marge Kis could properly provide a valid basis 

for the court's evaluation. Where substantial credible 

evidence supports a finding of the trial court, then that 

finding must be upheld. Rule 52(a), M.R.Civ.P. 

Appellant, Louis Kis, contends that the District Court 

failed to determine the true net worth of the marital estate 

by failing to make specific findings of value regarding 

certain properties. Specifically, Louis Kis asserts that 

the court failed to place a value on the Foys Lake residence 

and lots, the pension benefits, and the K.P.H. partnership 

interest of Marge Kis. He further asserts that the court 

failed to find that Marge Kis had made a $20,000 loan to the 

K.P.H. partnership and was also entitled to $9,000 as a 

result of a default on a contract for deed. 

A review of the record in this matter discloses that 

the ~istrict Court either had stipulated valuations at its 

disposal or made findings on the disputed properties. 

conflicting evidence was presented on the existence of 

assets as well as the value of all assets. The ~istrict 

Court resolved these conflicts in determining the value of 

the marital estate and in making an apportionment. From the 

record we cannot say that the court's findings were clearly 
erroneous, and therefore they must be affirmed. Rule 52(a), 

Louis Kis contends that the District Court's apportionment was inequitable and unsupported by the record. This 

argument rests on his assertion that the retirement benefits 

were improperly overvalued and that marital assets were 

ignored by the District Court in establishing the marital 

estate. We have already disposed of these arguments and 

need not discuss them again. 

Utilizing the stipulated values and the findings made 

the District Court , the following apportionment figures 

are established. 

Husband 

Net Assets: 

Retirement security $118,833.00 

70% value of family home 74,463.00 

70% value of Foys Lake lots 21,000.00 

Personal property 17,917.50 

Liabilities: 

VISA 

IRS (contingent) 

Valley Bank note 

TOTAL NET TO HUSBAND 

Wife 

Net Assets: 

Western Acres Duplex 

Eastside Superette 

Pfrimmer house 

Whitefish apartments 

30% value of family home 

30% value of Foys Lake lots 

First Federal Savings 

Personal property 

KPH partnership 

$ 10,500.00 

3,833.00 

19,664.00 

142,559.00 

31,901.00 

9,000.00 

14,511.00 plus accrued 

interest 

14,365.73 

26,156.12 
Liabilities: 

First National Bank of Whitefish 11,660.72 

First National Bank of Whitefish 10,997.74 

First State Bank of Whitefish 2,175.00 

First State Bank of Whitefish 3,200.00 

Whitefish Credit Union 10,000.00 

Harry Pifer, Sr. 5,000.00 

Delila Pifer 5,000.00 

Ross Linsennan 5,600.00 

First Northwestern Bank 4,500.00 

Legal fees (not involved in this 

action) 9,700.00 

VISA 1,359.00 

Master Charge 829.00 

TOTAL NET TO WIFE 

In reviewing divisions of marital property, this Court 

must determine only ". . . whether in the exercise of its 

discretion, the court acted arbitrarily, unreasonably, or 

without regard to recognized principles resulting in substantial 

injustice." Balsam v. Balsam (1979), Mont. , 589 

P.2d 652, 654, 36 St.Rep. 79, 82. Here the husband received 

an unusually large percentage of the marital estate. However, 

more than one-half of his assets result from the annuity 

valuation. We have held that the annuity valuation was 

proper. Therefore, the District Court acted within its 

discretion in apportioning the Kis marital estate. In fact 

the husband's award was generous. 

Appellant's last issue on appeal concerns the following 

order made by the District Court: 

"a. That in the event that the Petitioner 

(Louis Kis) make arrangements to transfer 

30% of the value of the house and two lots 

on Foys Lake to the Respondent (Marge Kis) 

within sixty days of this date, satisfactorily 

to her, then such house and two lots shall 

be sold at public sale, within sixty days 

thereafter, and the proceeds, after deducting the expenses of sale, shall be divided 

between the parties in the aforesaid proportion; that if the parties can agree on a 

private sale prior to that time, then it 

may be done; that either party may be the 

purchaser at the sale, whether it be public 

or private. " 
We have often stated that the District Court has broad 

discretion in ". . . devising methods to accomplish an 

equitable division of property." In re Marriage of Johnsrud 

(1977), 175 Mont. 117, 123, 572 P.2d 902, 905. Here the 

District Court foresaw problems arising from joint ownership 

and provided a reasonable alternative. We find no abuse of 

the court's discretion. 

The judgment of the District Court is affirmed. 

We Concur: