No. 88-285 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

IN RE THE MARRIAGE OF ROBERT A. POPP, 

Petitioner/Appellant and Cross Respondent, 

and 

SUSAN (POPP) MARTIN, 

Respondent/Respondent and Cross Appellant, 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable G. Todd Baugh, Judge Presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Stephen C. Moses, Moses Law Firm; Billings, Montana 

For Respondent: 

Allen Reck, Billings, Montana 

- 

Submitted on Briefs: December 16, 1988 

Decided: January 17, 1989 

ED SMITH 

Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Robert Popp appeals a final judgment of the District 

Court of the Thirteenth Judicial District, Yellowstone County. He challenges the valuation and distribution of the 

marital estate. We affirm the judgment of the District 

Court. 

Four issues are raised in this appeal: 

1. Did the District Court improperly value the cattle? 

2. nid the District Court err in including as a marital 

asset the monies spent bv the husband to maintain himself and 

two of the parties' minor children? 

3. Did the District Court err in including as a marital 

asset the value of the irrigation pipe? 

4. Is the District Court attempting to punish the 

husband? 

This is the second time this case has been before this 

Court. In the first trial, the District Court awarded sixty 

percent of the marital estate to the husband and forty percent to the wife. In re the Marriage of Popp (1983), 206 

Mont. 415, 671 P.2d 24. In response to the wife's appeal of 

that judgment, this Court determined that the marital assets 

were improperly valued and the case was remanded for a rehearing on valuation and apportionment of the marital estate. 

On remand, the District Court used market values of the 

marital assets and ordered a fifty-fifty division of proper-. 

ty, thereby increasing the wife's share from $84,197.50 to 

$153,433.90. The husband appeals that judgment. The wife 

has filed a cross-appeal which she asks this Court to dismiss 

if it is determined that the husband's assignments of error 

are without merit. 
I 

Did the District Court improperly value the cattle? 

The District Court adopted a value of $450.00 per head 

for the parties' cows and $727.50 per head for the calves. 

The husband contends that there is insufficient evidence in 

the record to support this finding and that the court failed 

to indicate how it arrived at these figures. 

At trial, both the husband and wife offered evidence of 

cattle values as of the stipulated date of September 1983. 

The husband offered a weekly livestock summary from September 

17, 1982, which he contends supports his valuation of the 

calves at $200.00 per head. The wife offered documentation 

from cattle sales which took place in 1982 in Billings, 

Montana, at the Public Auction Yards. The February 1982 

receipt indicates a sale of 34 mixed heifers in which the 

gross sales were $8,899.77, or $261.76 per head. Thus, the 

evidence offered by the parties supports a finding valuinq 

the calves between $200.00 and $261.76 per head. We conclude 

that the District Court's value of $227.50 per head for the 

calves is supported by the evidence. 

The husband also refers to the September livestock 

summary to support his valuation of the cows at $350.00 per 

head. The wife offered an April 1982 sales receipt from a 

sales yard which indicates a sale price for culled cows 

between $526.08 and $296.10 per head, with the average sale 

price of a culled cow at $283.46. While the District Court 

did not specifically refer to the wife's exhibit when making 

its finding regarding the value of the parties' cows, we hold 

that there is sufficient evidence in the record to support 

the District Court's valuation at $450.00 per head. Whi1.e 

this figure is significantly higher than the husband's offered value at $350.00 per head, there was evidence indicating the top value of the COWS at over $500.00. This Court 
will not set aside the lower court's finding, which is not 

clearly erroneous, merely because one party wishes to have 

its valuation figures adopted instead of those arrived at by 

the court. 

I1 

Did the District Court err in including as a marital 

asset the monies spent by the husband to maintain himself and 

two of the parties' minor children? 

The District Court found that the sole source of monies 

deposited into the ranch account was a commercial account 

with Norwest Rank, and that the ranch account was used to pay 

for the expenses of the marital estate. The total indebtedness to Norwest Rank by virtue of the loans run through the 

ranch account as of September 1982 was $131,939.42. The 

parties agreed that the indebtedness, to the extent it represented money borrowed for the benefit of the marital estate, 

would be deducted from the gross marital estate to arrive at 

the net marital estate. The District Court found that 

$22,352.24 of the funds in the ranch account was spent by the 

husband for his own benefit. It concluded that those funds 

were to he treated as a distribution hut were to be added 

back into the marital estate for purposes of determining the 

value of the gross marital estate. In its amended decree, 

the District Court stated that: 

. . . it is now apparent that there are some expenditures included in the $22,352.24 that represent a 

benefit to the marital estate and must now be 

backed out of that figure. In this category the 

court now finds it appropriate to include 

two-thirds of the groceries ($2,315.16), one-half 

of the utilities ($1,002.55), Jim Eastlick 

($300.00), and two-thirds of the miscellaneous 

items ($457.76) for a total of $4,075.47 to be 

deducted. 
Thus, a total of $18,278.77 was considered as personal expenses of the husband to be added back into the marital 

estate. On appeal, the husband contends that it was error 

for the court to include - any amount of this money in the 

marital estate because the entire $22,352.24 was spent by him 

on living expenses for himself and two of the parties' minor 

children. 

The District Court has far-reaching discretion in resolving property divisions and its iudgment will not be 

altered unless a clear abuse of discretion is shown. In re 

Marriage of Watson (Mont. 1987), 739 P.2d 951, 954, 44 

St.Rep. 1167, 11?0. The husband now asks this Court to 

scrutinize the nature of the $22,352.24 in expenses as if the 

District Court had not done so. However, the court's findings indicate otherwise. It is clear from the District 

Court's detailed findings in the amended decree that the 

expenses which were not personal to the husband, but were 

expended on behalf of the marital estate, were considered 

separate and distinct and were treated as such. There is no 

evidence which would render the District Court's findings on 

this point clearly erroneous. We conclude that the court 

properly added $18,278.77 back into the marital estate to 

determine the value of the estate. 

I11 

Did the District Court err in including as a marital 

asset the value of the irrigation pipe? 

The husband argues that it was error for the District 

Court to independently value the ranch property's irrigation 

pipe and include it in the gross marital estate since its 

value was presumably included in the value of the irrigated 

ranch property. The District Court adopted as the law of the 

case the real property values established at the first trial 

which were approved by this Court. Those values were based 
on appraisals which differentiated between irrigated land and 

dry land, the value of the irrigated land being significantly 

higher. At the first trial, the court did not independently 

value the pipe since it found that: 

. . . the pipe is not a separate and distinct item 

from the ranch in that it is an integral part of 

determining whether or not the ranch can be run 

with big fields as opposed to a multitude of smaller fields, and whether the land is more valuable as 

irrigated as opposed to less valuable as dry land 

crops. 

At the rehearing, the irrigation pipe was valued independently of the real property at $6,379.00 and was included in the 

gross marital estate as personal property under "machinery." 

The husband's argument is based on his contention tha-t 

the ranch property could only he irrigated by irrigation 

pipe, so that the pipe should have no value independent of 

the irrigated land. However, this contention is not supported by the record. A report from one of the appraisers established that: 

Irrigation water is supplied by the Yellowstone 

Ditch Company. This farm has 18.34 shares of stock 

in this company. According to the company president, P. Yegen Jr. and Seth J. Kiber, one share 

allows the owner to one miner's inch of water which 

will irrigate 9.6 acres or a total in this case of 

176.2 acres. The 1982 water cost is $5 per share. 

Delivery is - by gravity ditch -- and the method of 

irrigationis £1-ood. Stock water is supplied 6 

the ~ellowstTne River, irrigation ditches, springs, 

and reservoirs. Domestic water is supplied by a 

well at the buildings. (Emphasis suppl-ied). 

Based on this evidence, we hold that it was not error for the 

District Court to independently value the irrigation pipe and 

to incl.ude it as personal property7 j.n the gross marital 

estate. 
IV 

Is the District Court attempting to punish the husband? 

It appears that the husband is dissatisfied with that 

portion of the decree which requires the ranch to be sold in 

the event that he cannot or would not pay to the wife her 

share of the net marital estate as scheduled. The decree 

requires that the ranch be listed for not less than $325,000 

beginning in February of 1988, to be reduced in sale price by 

5% twice a year until sold, and upon sale the proceeds shall 

first be distributed to the wife in the amount of 

$165,814.90. The husband argues that this arrangement is 

grossly unfair in light of a 40% reduction in value of the 

ranch property since 1982 due to drought conditions in 

Montana. 

It appears that the husband is now seeking to have the 

ranch valued at a price other than the September 1982 values. 

We are reminded that September 1982 was stipulated by the 

parties as the date of inventory and valuation for all of the 

marital assets. All of the parties' evidence concerning real 

property valuation relates to that date. The husband made no 

attempt to argue valuation or withdraw from the stipulation 

until after the District Court entered its final decree in 

1988. The District Court was merely acting upon the evidence 

before it as stipulated by the parties. We conclude that the 

husband's final assignment of error is without merit. 

Because we find no merit in any of the husband's contentions, we will not address the wife's cross-appeal. The 

judgment is affirmed. 

We Concur: 
Chief J. tice 

Justices