No. 88-285

INTHE SUPREME COURTOF THE STATEOF MONTANA 1989

INRE THEMARRIAGE OF ROBERTA. POPP, Petitioner/Appellantand Cross Respondent, and
SUSAN (POPP) MARTIN, Respondent/Respondent and Cross Appellant,

APPEAL FROM: District Court of the Thirteenth Judicial District, Inand for the County of Yellowstone, The HonorableG. Todd Baugh,Judge Presiding.
COUNSEL OF RECORD:
ForAppellant: StephenC. Moses,Moses 

### Law Firm; Billings,Montana

For Respondent: Allen Reck,Billings,Montana

- Submitted onBriefs: December 16, 1988 Decided: January 17, 1989

ED SMITH

ClerkMr. JusticeFred 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 amarital asset the monies spentbv the husband tomaintain himself and two of theparties'minor children? 3. Did the DistrictCourt err in including as amarital 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 onvaluation and apportionmentof the marital estate. On remand, the District Court used market values of the marital assets and ordered a fifty-fiftydivision ofproper-. 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 sheasks this Court to dismiss if it is determined that the husband's assignments of error are withoutmerit.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 indicatehow itarrived at these figures. At trial,both the husband and wife offered evidence of cattle values as of the stipulated date of September 1983. Thehusband offered aweekly 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 supportedby 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 exhibitwhenmaking 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, therewas evidence indicating the top value of the COWS at over $500.00. This Courtwill 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 themonies spentby thehusband to maintain himself and two of theparties' minor children? The District Court found that the sole source ofmonies deposited into the ranch account was a commercial account withNorwest Rank,and that the ranch accountwas used topay for the expenses of themarital 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 accountwas spentby 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 themarital estate forpurposes of determining the value of the gross marital estate. In its amended decree, the DistrictCourt stated that:



# ... it is now apparent that there are some expenditures included in the $22,352.24 that representa 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 estatebecause the entire $22,352.24 was spentby him
on living expenses forhimself 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 scrutinizethe 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 DistrictCourt's findings on this point clearly erroneous. We conclude that the court properly added $18,278.77 back into the marital estate to determine thevalue of the estate. I11 Did the District Court err in including as a marital asset thevalue of the irrigationpipe? The husband argues that it was error for the District Court to independently value the ranchproperty's irrigation pipe and include it in the gross marital estate since its value was presumably included in the value of the irrigated ranchproperty. The DistrictCourt adopted 

### as the lawof the
case the realproperty 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 courtdid not independently value thepipe 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 fieldsas opposed to amultitude of smaller fields,andwhether the land is more valuable as irrigated as opposed to less valuable as dry land crops. At the rehearing, the irrigation pipewasvalued independently of the realproperty 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 fromone of the appraisers established that: Irrigation water is supplied by the Yellowstone Ditch Company. This farmhas 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 oneminer's inch ofwater 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, irrigationditches, springs, and reservoirs. Domestic water is supplied by a well at the buildings. (Emphasissuppl-ied). Based on this evidence,wehold that it wasnot error for the District Court to independentlyvalue 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 ranchbe listed for not less than $325,000 beginning in February of 1988, tobe reduced in saleprice 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 ranchvalued at aprice other than the September 1982values. 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 theparties' evidence concerningreal propertyvaluation relates to thatdate. Thehusband made no attempt to argue valuation or withdraw from the stipulation until after the District Court entered its final decree in 1988. The District Courtwasmerely acting upon the evidence before itas stipulatedby theparties. We conclude that the husband's final assignmentof error iswithoutmerit. Becausewe find no merit in any of thehusband's contentions, we will not address the wife's cross-appeal. The judgment is affirmed.

We Concur:Chief J.tice

Justices