No. 80-328 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

IN RE THE MARRIAGE OF JUDITH 

MARIE GOMKE, 

Petitioner and Appellant, 

VS . 

DONALD WAYNE GOMKE, 

Respondent and Respondent. 

Appeal from: District Court of the Twelfth Judicial District, 

In and for the County of Hill. 

Honorable B. W. Thomas, Judge presiding. 

Counsel of Record: 

For Appellant: 

Morrison, Ettien and Barron, Havre, Montana 

For Respondent: 

Bosch, Kuhr, Dugdale, Warner & Martin, Havre, Montana 

Submitted on briefs: December 17, 1980 

Decided: April 20, 1981 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court. 

Petitioner Judith Marie Gomke, wife, appeals an order 

of the Hill County District Court amending its decree of 

dissolution of the parties' marriage to allow her ex-husband, 

respondent Donald Wayne Gomke, to retain the family farm and 

pay the wife her share of the marital estate in four annual 

installments. The sole issue on appeal is whether the District 

Court thereby abused its discretion. We hold that it did 

not and affirm. 

Judith and Donald Gomke were divorced on June 23, 1980. 

In the decree dissolving their marriage, the court ordered 

that the major asset of the marriage, a small farm (including 

the family home and farm machinery) be sold and the proceeds 

divided between the parties, 55 percent to the husband and 

45 percent to the wife. The court weighted the apportionment 

of the marital estate slightly in favor of the husband 

because 480 acres of the 640 acre farm were derived from 

his family's farm. 

In his findings, Judge Thomas found that the farmlands 

did not constitute an economic unit. He concluded that to 

divide the property between the parties in kind and to 

oblige the husband to compensate the wife under a payment 

plan for the excess value of any land he received was impractical. 

The court found that the husband's prospects to pay the wife 

off on a reasonable basis and to meet all of his other 

financial obligations were poor. 

The husband moved to amend the court's findings, conclusions, 

and decree on July 3, 1980. After a hearing, the District Court 

granted the motion on July 24, 1980. The court devised a 

plan by which the husband could attempt to retain and work 
the farm while paying the wife her share of the equity on a 

short-term basis. 

The net value of the marital estate was $207,034.30. 

Payment of the wife's share of $88,684.00 was to be made in 

four equal annual installments of $22,171.00 together with 

interest at the rate of 7 percent per year. 

The wife urges that the District Court order allowing 

the husband's retention of the farm rather than requiring 

its sale and the distribution of the proceeds in accordance 

with the 45 percent to 55 percent formula denied her an 

equitable apportionment of the marital estate. She contends 

that, at aqy rate, the husband does not have adequate 

financial means to make the annual installment payments. 

Furthermore, she asserts, it is unfair for the husband to be 

awarded income-producing property and for the wife to receive 

only cash compensation under the District Court's property 

settlement. We will address her assertions individually. 

It is the wife's contention that the farm could be sold 

for significantly more than the court's determination of the 

property's fair market value. She maintains that to deny 

her the opportunity of sharing in any gain that could be 

realized over and above the District Court's valuation of 

the farm is to deny her an equitable share in the marital 

estate. The record contains some conflicting evidence on 

the property's fair market value. The court was not obliged, 

however, to accept the appraisals which the wife and her 

expert witness presented. See, Dickerson v. Dickerson 

37 St.Rep. 1286. 

(19801, Mont . , 614 P.2d 521, 524/ As it had every 

right to do, the District Court in its findings expressly 

relied on the expert testimony of other witnesses. See, 

Dickerson, supra. The value of the net estate is a question 

of fact that is determined by the District Court in dissolution 
proceedings. The wife has not even attempted to show that 

the District Court's valuation of the property is "clearly 

erroneous." Hence, we will not disturb the court's assessment 

of fair market value. See, Rule 52(a), M.R.Civ.P. 

The wife contends that the husband cannot generate 

sufficient income from the farming operation and from his 

outside employment to make the annual installment payment to 

her, and, at the same time, to pay all other existing indebtedness. Therefore, she urges us to find that the District Court 

abused its discretion by not requiring the property to be 

sold. 

We have espoused the policy that a family farm or a 

ranch should be kept intact and operated as a unit upon a 

marriage dissolution whenever there is a reasonable means of 

providing a wife her equitable share of the marital property 

short of selling the land. In Re Marriage of Jacobson (1979), 

Mont. , 600 P.2d 1183, 1186-88, 36 St.Rep. 1773, 1777-79. 

That is a policy tied to the economic realities of a 

predominantly rural state like Montana. Family-run farms 

and ranches constitute an important part of the state's 

economy and of its way of life. Many parents wish to pass 

the family farm or ranch to their children before their 

deaths and want to insure the continuity of a family heritage. 

That understandable desire would be frustrated if the courts 

of the state were required to sell family farms and ranches 

as a matter of course in order to effect an "equitable" 

property settlement for the spouse who does not wish to 

remain on the farm after a marriage dissolution. 

As the District Court found, the farmland in dispute 

has been owned by the Gomke family since 1917 and the husband 

has lived there all of his life. After he was grown, the 

husband stayed on the farm because of his father's poor 
health. After the parties were married, the husband farmed 

the land on a crop-share basis. 

Both the husband, Donald Gomke, and his mother, Leona 

Gomke, want the farm to remain in the family. The husband, 

in turn, desires to pass the land on to his own son one day. 

In 1974, Leona Gomke, the husband's mother, sold 480 acres 

of the 640 acre farm presently owned by the parties to her 

son and his wife at a price below market value. Although 

the contract for deed according to which she sold the land 

is now in default, Leona Gornke has not initiated any proceedings 

to terminate the contract. The District Court inferred an 

intent by the mother to make a partial gift to her son 

individually. 

In Jacobson, supra, we held that the District Court 

had not abused its discretion in allowing the husband, 

upon dissolution of the parties' marriage, to retain the 

family ranch and to purchase the wife's 50 percent interest 

on an installment basis. The marital estate there had a net 

value of over a million dollars. The District Court gave 

the husband the option of paying for the wife's interest in 

a lump sum or of paying her 20 percent down with the remainder 

to be paid in 30 equal annual installments, interest to 

accrue at 7 percent per annum. 

Unlike the ranch in Jacobson, supra, the Gomke farm 

is rather heavily encumbered. In addition, the husband's 

income from the farm operations and from outside sources is 

somewhat limited. The District Court found that he earned 

approximately $655 in monthly net pay from his employment at 

the Cargil Elevator in Fresno, Montana. Over the past ten 

years, the annual income received from the farm has varied 

greatly, ranging from ca. $250 to ca. $14,000. Under the 

decree of dissolution, the husband is also obliged to pay 
$300 per month in child support to the wife who has custody 

of the parties' three minor children. 

Nevertheless, the major part of that indebtedness is 

owed to the husband's mother. There is every reason to 

think that she will help her son retain the land. The 

amount of indebtedness should, therefore, not materially 

hinder the husband's efforts in paying the installments owed 

to the wife. Given the husband's relatively low yearly 

income, he will quite possibly have to refinance the property 

or arrange for private loans in order to make the annual 

installment payments to the wife. 

The installment scheme of the District Court more than 

adequately protects the wife's interest in the marital 

property. The court appears to have closely modelled its 

installment plan on the one approved of in Jacobson. The 

decree provides that the wife's interest in the marital 

property either be paid immediately or in no more than three 

years--with interest at seven percent per year. The outstanding balance owed by the husband to the wife constitutes 

a lien on the land until fully paid. If an installment is 

not paid on time, the husband's option to purchase terminates, 

and the property is to be sold as the parties may agree or 

as the court orders, if they cannot agree. If the husband 

sells the farm or any part of it before the wife is fully 

paid, the wife will participate to the extent of 45 percent 

in the gain realized over the valuation placed on the farm 

by the District Court. Under the circumstances, we are 

persuaded that the trial court has acted in an equitable 

manner to protect the interests of both parties. We find no 

abuse of its discretion. 

Similarly, we reject the wife's argument that the ~istrict 

Court's property settlement scheme is inherently unfair to 
her because it allows the husband to retain income-producing 

property while she receives only cash. She can reinvest that 

cash in any income-producing property she wishes. 

The husband has requested attorney fees and costs on 

appeal. We decline to award them. The wife's appeal of the 

District Court's installment plan was not so unreasonable or 

frivolous as to justify such an award in light of the fact 

that the farmland was heavily encumbered and the husband has 

only limited resources with which to make the yearly payments 

to the wife. We think she had a reasonable basis to petition 

for relief under the rule of the Jacobson case, supra. 

We remand to the District Court and direct it to modify 

its decree to specifically provide that the outstanding installment balance shall constitute a lien on - all 640 acres of the 

parties' farm until the wife is fully paid her interest in the 

marital estate. In all other respects, the judgment of the 

District Court is affirmed. 

,9+&& 

We Concur: 

Chief Justice 

f ' Justices