NO. 92-247 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

IN RE THE MARRIAGE OF 

BIRGIT I. GRAY, 

Petitioner and Respondent, 

GARY E. GRAY, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Second Judicial District, 

In and for the County of Silver Bow, 

The Honorable Mark P. Sullivan, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Daniel R. Sweeney, Attorney at Law, Butte, Montana 

For Respondent: 

Kevin E. Vainio, Attorney at Law, Butte, Montana 

22 Submitted on Briefs: October 22, 1992 

Decided: December 22, 1992 

Filed: idsmith 

CLERK OF SUPREME COURi 

STATE OF MONTANA 
Justice John Conway Harrison delivered the Opinion of the Court. 

Birgit Gray petitioned for dissolution of marriage on January 

9, 1991, after nine years of marriage. A decree was entered on May 

14, 1992, in the Second Judicial District, Silver Bow County. The 

husband, Gary, appeals the property division ordered by District 

Court Judge Mark P. Sullivan. 

The parties were married on August 23, 1981, having lived 

together for the preceding year in Gary's mobile home at 210 

Lyndale Lane in Butte. No children were born of this marriage. 

Gary's youngest child lived with the couple at 210 Lyndale Lane 

until 1985, and Birgit's only child, John, lived with them 

throughout their marriage. 

Birgitls name was added to the deed on the mobile home after 

she and Gary were married. She also owned a small house at 2500 

Nettie Street in Butte, appraised in 1991 at $5,000. Birgit 

purchased this house in her own name in 1985 and used it as a 

rental property. 

At the time Birgit filed the petition, she was 37 years old 

and had been working as a customer service clerk at Montana Power 

Company for about eighteen months. Her net salary was $880 per 

month, in addition to which she received $125 per month as child 

support and approximately $75 per month from rental property. Gary 

was 48 and had worked nearly twelve years as a telecommunications 

foreman at Montana Power Company. His net salary was $2,166 per 

month. 

Gary and Birgit were unable to agree on the value of the real 

2 
property or on a division of their furniture and household goods. 

After a hearing in November 1991, the District Court entered an 

Order Distributing Marital Property on January 24, 1992. This 

order included household furnishings and other personal property. 

Three items in particular had been disputed at the November 1991 

hearing and are still disputed on appeal: a "six-piece bedroom setw 

and a Honda motorcycle, both awarded to Birgit, and a l'mattress box 

spring setw awarded to Gary. 

In his Findings of Fact, Conclusions of Law, and Order, dated 

April 8, 1992, Judge Sullivan assigned the following items to the 

marital estate: 

210 Lyndale Lane (increase in value) ... $ 30,000 

2500 Nettie St. ......... 5,000 

Husband's retirement benefit . 18,616 

Wife's retirement benefit (not vested) . . 0 

Husband's deferred savings . 40,787 

1983Dodgevan .......... 3,500 

1985Honda ........... 2,900 

1992 Honda Accord ......... 18,160 

Paintings and art supplies ...... 750 

Home furnishings ......... 4,725 

Total Marital Estate ........ $124,438 

Liabilities against the marital estate included the entire value of 

the 1992 Honda, a $3,500 balance owed on the Dodge van, and $1,550 

in debts related to the house at 210 Lyndale Lane. 

Judge ~ullivan divided the parties1 assets and liabilities as 

follows : 

Assets Gary 

Increase in value of 

210 Lyndale Lane $ 15,000 

2500 Nettie 0 

Husband's retirement 9,308 

Husband's savings 20,394 
1983 Dodge van 0 

1985 Honda 2,900 

1992 Honda 18,160 

Paintings and art supplies 0 

Home furnishing 2,362 

TOTAL $ 68,124 $ 56,314 

Liabilities 

Mortgage 

Masonry debt 

Home remodeling 

1992 Honda 

Dodge van 

NET TOTAL $ 48,414 $ 52,814 

Gary was ordered to pay Birgit her share of the increased 

value of the house within ninety days, less the $2,200 due from 

Birgit to equalize the division of the marital estate. Gary was 

also ordered to pay Birgit $500 "for the purchase of a mattress and 

box springs," and $750 for attorney's fees. 

Gary presents the following issues for review: 

1. Whether the District Court arbitrarily assigned a value, 

unsupported by any evidence, to the family home for the 

purpose of establishing a net increase in its value. 

2. Whether the District Court arbitrarily assigned a value, 

unsupported by any evidence, to the box springs and 

mattress that it had ordered Gary to give Birgit in March 

1992. 

3. Whether the District Court should have included a Honda 

motorcycle in its January 1992 Order Distributing Marital 

Property. 

4. Whether the District Court properly awarded Birgit 

attorney's fees. 

The primary issue at the November 1991 hearing and in this 

appeal is the appreciation in value of the house at 210 Lyndale 
Lane. The District Court determined that the house had appreciated 

in value during the marriage by $30,000. Both parties challenge 

this figure on the grounds that the court arbitrarily assigned a 

1981 value to the property. Gary argues that the 1981 value should 

be higher, thus reducing the increase in value assigned to the 

marital estate, while Birgit argues that the 1981 value should be 

lower. 

Neither party disputes the District Court's conclusion that 

the fair market value of the house in 1991 was $52,009. Birgitts 

appraiser valued the house at $64,500, based on sales of comparable 

single-family homes, while Gary's appraiser valued it at $47,600, 

based on sales of comparable mobile homes. We hold that the court 

acted within its discretion in selecting a figure within the range 

of figures submitted in evidence. In re Marriage of Gerhart 

(1990), 245 Mont. 279, 800 P.2d 698. The issue is whether the 

court abused its discretion in assigning a 1981 value to the house. 

Gary and his first wife (Karen Gray) bought the house as a 

mobile home in 1974. They had already purchased and paid for the 

lot. Between 1974 and 1976 they borrowed money to put in a 

basement and to install a double garage. Gary testified at the 

November 1991 hearing that when he married Birgit in 1981 he had 

invested the following amounts: 

Lotpurchasedin1971 . . . . . . . . .$1,975 

Home improvement loans, 1974-1976 . . . . . 6,980 

Payments formobile home, 1974-81 . . . . . 16,020' 

' Ninety payments at $178. Gary presented bank statements at 

the hearing showing that 90 payments had been made before August 

23, 1981, when he married Birgit. 
TOTAL . . . . . . . . . . . . . . $24,9752 

When Gary and Karen Gray were divorced in 1978, they agreed 

that the house at 210 Lyndale Lane was to be Gary's sole and 

separate property, subject to the balance payable on the purchase 

price, and that their equity in the house was $9,256. This figure 

is equal to the sum of the fifty-two payments that had been made 

before Gary and Karen Gray signed their property agreement in 1978. 

Gary agreed to pay Karen half that amount, or $4,628, when he sold 

the house. At the November 1991 hearing, Birgit presented the 1978 

property agreement as evidence of Gary's equity in the house at the 

time of their marriage. 

Gary disputed the implication that $9,256 represented the 

value of the house in 1978 and stated that Karen Gray had proposed 

''a figure that she felt would be fair and equitable. In his view, 

as expressed at the hearing, the value of the house in 1981 was the 

amount he had actually invested. No evidence on the fair market 

value of the house in 1981 was presented at the hearing. 

Birgit testified that the house was in very poor shape when 

she moved in, in 1980: the roof leaked, the basement was 

unfinished, the kitchen cabinets were falling apart, the only 

bathroom needed repairs, and the lot had not been landscaped. 

After she and Gary were married, they replaced the roof and built 

Gary provides a different figure in his brief, asserting 

that he spent $32,378, including 87 payments on the mobile home, 

before he married Birgit. He did not itemize this figure. It may 

include interest on the home improvement loans, which the court 

specifically disallowed when Gary presented evidence of the loans 

at the hearing. 
a deck; covered the entire house with brick; finished the basement 

and installed a new bathroom; replaced all the kitchen cabinets; 

replaced all the interior doors and panelling; rewired the entire 

house; and landscaped the yard. Birgit said that she had done at 

least half the work on these improvements and had used part of her 

salary to pay for building materials. 

In estimating the 1981 value for the purpose of determining 

the increase in value during the parties' marriage, Judge Sullivan 

relied on the I1equityn in the 1978 property settlement. In his 

Findings of Fact, Conclusions of Law, and Order he calculated the 

1981 value as follows: 

Equity in 1978 . $ 9,256 

First wife's lien ...... 4,678 

Balance due on August 24, 1981 . 8,075 

TOTAL .......... $22,009 

The $8,075 balance due was provided by Gary's lawyer, Daniel 

R. Sweeney, on February 24, 1992, in a letter responding to the 

judge's post-hearing request. Judge Sullivan also asked Mr. 

Sweeney to obtain an opinion as to the value of the property from 

appraiser James Burgess. Mr. Sweeney sent a copy of Burgess' 

letter, dated February 14, 1992, to Judge Sullivan on February 24. 

Another copy was submitted to this Court as an appendix to Gary's 

brief. It expresses the view that the value of a double wide 

mobile home situated on a one acre lot would remain nearly constant 

from 1978 to the present. 

Gary points out in his brief that Burgessv opinion referred to 

the entire 1978-92 period, not merely to the 1978-81 period, 
implying that during this fourteen-year period the house 

depreciated to an extent that balanced the value of the post-1981 

improvements. Therefore, he argues, the net increase in the value 

of the home was zero. 

Birgit contends in her brief that the District Court properly 

assumed, based on Burgess' opinion, that the house did not increase 

in value between 1978 and 1981, and that the court properly allowed 

for an increase in value after 1981 because the parties "converted 

the home to something resembling a conventional home." If the 

court erred at all, Birgit says, it was to overvalue the house by 

adding the amount of Karen Gray's lien to Gary's 1978 equity, 

thereby counting the same value ($4,678) twice. Instead, she 

argues, the court should have added to Gary's 1978 equity ($9,256) 

the sum of the thirty-seven payments he made after his first 

divorce and before their marriage, or $6, 586,3 for a premarital 

value of $15,842 and a postmarital appreciation of $36,167. 

A district court has broad discretionary power to determine 

the value of property in a dissolution action. In re Marriage of 

Milesnick (1988), 235 Mont. 88, 94, 765 P.2d 751, 755. The court's 

valuation need only be reasonable in light of competent evidence 

submitted. In re Marriage of Hockaday (1989), 237 Mont. 413, 418, 

773 P.2d 1217, 1221. We will review alleged valuation errors only 

on a showing that the court acted arbitrarily or clearly abused its 

discretion so as to create a substantial injustice. Hockadav, 773 

Gary actually made thirty-eight payments between his first 

divorce and his marriage to Birgit, adding $6,764 to his total 

investment. 
P. 2d at 1221; see also In re Marriage of Danelson (Mont. 1992) , 833 

P.2d 215, 49 St.Rep. 597 (discretionary judgments by the trial 

court are presumed to be correct and will not be disturbed absent 

an abuse of discretion). 

We hold that in the present case the District Court did not 

abuse its discretion in assigning a premarital value of $22,009 to 

the house at 210 Lyndale Lane, and that its action did not create 

a substantial injustice. Although Judge Sullivan offered no 

rationale for adopting the "equityw figure in Garyts 1978 property 

settlement or for adding to that figure the lien held by Gary's 

first wife, the total sum he adopted for the 1981 value is unlikely 

to be substantially different from the true value. In the absence 

of competent evidence from either party, he arrived at a reasonable 

estimate. 

I1 

Did the District Court arbitrarily assign a value of $500 to 

the box springs and mattress Gary was ordered in March 1992 to give 

Birgit? 

This question arose from the division of personal property 

Judge Sullivan ordered on January 24, 1992. The Order consisted of 

a list of items to be distributed to each party. This list closely 

resembled but was not identical to a list submitted by Gary shortly 

after the November 1991 hearing. Gary's list designated a "sixpiece master bedroom setw as Birgit's personal property and a 

Itmattress box spring setM as Garyts personal property. Judge 

Sullivan assigned the six-piece bedroom set to Birgit and the 
mattress box spring set to Gary. 

In February, 1992, Birgit filed a motion to hold Gary in 

contempt because he had not given her the items assigned to her in 

the court's January 24 Order. She amended her motion in March to 

reflect the fact that some items had been turned over to her, but 

in poor or unusable condition. Gary responded that he had in fact 

turned over all items except for those Birgit had refused to take. 

The District Court heard this matter on March 24, 1992. 

At the March hearing it became clear that Birgit and Gary did 

not agree as to the components of the "six-piece bedroom set." 

Gary presented a receipt showing that furniture comprising a sixpiece bedroom set had been purchased by the couple without a 

mattress or box springs. Birgit testified that she understood the 

bedroom set to include the queen size mattress and box springs that 

she and Gary had used with the bedroom furniture at 210 Lyndale 

Lane. Gary testified that Birgit had taken two twin size box 

spring-and-mattress sets with her when she and her son moved out of 

the house, and that he understood that the queen size set in the 

bedroom was the set awarded to him in the January 24 Order. 

Birgit testified that one of the twin box spring sets was 

broken and unusable and that she was sleeping on the floor in a 

sleeping bag. Judge Sullivan said to Gary: 

I want you to see that she has at least something to 

sleep on by tomorrow night at nine o'clock. You give her 

that queen sized mattress and box springs that was 

originally with your six-piece bedroom set or another set 

of mattress and box spring by nine o'clock tomorrow 

night, delivered to her house. 

These instructions apparently were without effect, and the court's 
final order, entered April 8, 1992, included a $500 payment to 

Birgit for the purchase of a mattress and box springs. 

Gary argues that the true value of the disputed mattress and 

box spring set was $250. At the hearing in November 1991 he 

offered a list of various household furnishings that had been 

appraised by a Butte furniture store. Included on this list was a 

"Serta queen size bed1' valued at $250. No other evidence was 

presented to establish the value of the mattress and box springs. 

Birgit argues that the court properly awarded $500 because 

that sum ltcloser approaches the replacement value of a mattress and 

box springs, and that the court could have fined Gary for contempt 

after he refused to deliver them. 

We hold that the District Court had discretion to determine an 

appropriate value for an item it had repeatedly ordered Gary to 

deliver to Birgit, and that it did not abuse that discretion in 

determining that $500 was an appropriate value. See Milesnick, 765 

P.2d at 755, and In re Marriage of Gallinger (1986), 221 Mont. 463, 

719 P.2d 777 (upholding a district courtts division of property on 

the grounds that the court had employed conscientious judgment in 

arriving at a substantially just result). 

I11 

Should the District Court have included the Honda motorcycle 

in its January 1992 Order? 

A Honda motorcycle was awarded to Birgit in the District 

Court's January 1992 Order. At the hearing in November 1991, 

Birgit testified that she and Gary had given the motorcycle to her 
son John, after buying it from Gary's sister, and that its current 

value was $75. Later, Gary testified that he and Birgit had not 

bought the motorcycle and that his sister still had title to it. 

In the following exchange, the court ordered Gary to buy the 

motorcycle and give it to Birgitts son, John: 

THE COURT: We're talking about a bike valued at $75, 

right? 

THE WITNESS [Gary]: Yes. 

THE COURT: Is that worth spending this time talking 

about it? 

THE WITNESS: Not to me, Your Honor. 

THE COURT: Well, buy the bike. Give it to her. John is 

using the bike, you dontt have kids that are using the 

bike, right? 

THE WITNESS: Right. 

THE COURT: Okay. That's going to John, Mr. Sweeney. 

Gary argues that the motorcycle belonged to his sister and 

therefore could not be included in the marital estate. Birgit 

argues that because the sister had left the motorcycle with Gary 

for several years, she had no real interest in it, and that Gary 

could in fact comply with the court's order. 

It is the duty of the trial court to resolve conflicts in the 

evidence presented, and we will not disturb its findings when they 

are based on substantial though conflicting evidence. In re 

Marriage of Obergfell (1985), 218 Mont. 83, 708 P.2d 561. We find 

that substantial credible evidence supports Judge Sullivan's 

decision to award the motorcycle to Birgit. 
IV 

The final issue is whether the District Court should have 

awarded Birgit $750 in attorney's fees. 

The District Court found that Birgit was without financial 

resources to pay her attorney's fees and awarded her $750 for that 

purpose. Gary argues that the court erroneously found that Birgit 

had no income beyond her $880 net monthly salary, and that in fact 

Birgit received $150 per month in rental income from her house at 

2500 Nettie 

We find no error on the part of the District Court. In its 

Findings of Fact, Conclusions of Law, and Order it reported that 

Birgit's monthly income included child support and rental income, 

for a total of $1,080, or approximately half the net monthly income 

reported for Gary. Because the record indicates that the District 

Court was aware of each party's financial resources and obligations 

we find no abuse of discretion in the award of attorney's fees. 

See In re Marriage of Sullivan (1990), 243 Mont. 292, 794 P. 2d 687; 

In re Marriage of Carr (1983), 205 Mont. 269, 667 P.2d 425. 

Birgit requests attorney's fees for this appeal. Section 25- 

20-104, MCA, provides that the successful party shall recover the 

costs of appeal from the other party, but attorney's fees are not 

included as costs. Allen v. Allen (1978), 175 Mont. 527, 575 P.2d 

74. Therefore we deny this request. 

Testimony at the November 1991 hearing indicated that 

officially the rent for 2500 ~ettie St. was $150 per month but 

that the tenants did not always pay it. In his Findings of Fact, 

Conclusions of Law, and Order, Judge Sullivan assumed that Birgit 

actually received $75 per month as rent for 2500 Nettie St. 
AFFIRMED. 

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 

1988 Internal Operating Rules, this decision shall not be cited as 

precedent and shall be published by its filing as a public document 

with the Clerk of the Supreme Court and by a report of its result 

to Montana Law Week, State Reporter, and West Publishing Company. 

We concur: I