No. 88-527 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

IN RE THE MARRIAGE OF 

SYLVIA GAY JOHNS, 

petitioner and Appellant, 

and 

WILLIAM J. JOHNS, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Second Judicial ~istrict, 

In and for the County of Silver BOW, 

The Honorable Frank Davis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

~enningsen, Purcell, Vucurovich & ~ichardson; Mark A. 

~ucurovich, Butte, Montana 

For Respondent: 

W. M. Hennessey, Butte, Montana . 

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, - Submitted on ~riefs: May 11, 1989 < 7 *--. 

Decided: July 24, 1989 
Mr. Justice William E. Hunt, Sr., delivered the opinion of 

the Court. 

Sylvia Johns, petitioner, appeals from the property 

distribution mandated in the dissolution of marriage decree 

entered by the District Court of the Second Judicial 

District, Silver Bow County. We affirm. 

The issues raised on appeal are: 

1. Whether sufficient evidence supported the District 

Court's valuation of the parties' real property. 

2. Whether the ~istrict Court adequately determined the 

parties' net worth. 

Sylvia and William Johns were married on September 11, 

1965. On June 12, 1987, wife filed a petition for 

dissolution of the marriage and for the equitable 

distribution of the marital estate. A hearing was held on 

April 15, 1988, which dissolved the marriage and reserved all 

other issues. On July 25, 1988, the District Court issued 

its findings of fact and conclusions of law and decree 

dividing the marital property. 

When dividing the martial property, the ~istrict Court 

considered several factors as required under 5 40-4-202, MCA. 

The factors were enumerated in the court's findings of fact 

and conclusions of law as follows: the duration of the 

marriage, real and personal property acquired during the 

marriage, the age of the parties, the employment and pension 

plans of each, the IRA accounts of each, the wife's 

inheritance, a debt on the family home, a debt for their 

adult daughter's wedding, and miscellaneous property. The 

District Court noted that in addition to wife having a higher 

monthly net income than husband, wife's pension plan had a 

present value in excess of $24,000 while husband's pension 
plan had only a future potential value of $247 per month upon 

retirement. Although it is unclear from the record how the 

valuation of the pensions was made, the parties did not raise 

the specific issue. 

Upon consideration of the parties' assets, the District 

Court decreed that each party retain as their separate 

property their IRA accounts, pension plans, deferred savings 

and motor vehicles. The family home valued at $40,000 was 

awarded to husband conditioned on payment of a $2,000 debt 

remaining on the home as well as a $2,300 debt incurred on 

the parties' adult daughter's wedding. The court also 

considered wife's inheritance and decreed that it should be 

wife ' s sole property. In addition, wife was awarded 

miscellaneous property. The District Court stated, in 

comment to its findings, that the distribution was practical, 

equitable and in the best interests of both parties. 

The first issue raised on appeal is whether sufficient 

evidence supported the ~istrict Court's valuation of the 

parties' real property. Specifically, wife argues that the 

family home awarded to husband in the distribution was 

undervalued by the District Court at $40,000. 

Both parties employed qualified appraisers to give 

expert opinions as to the present value of the home. The 

deposition testimony of both appraisers was introduced as 

evidence in court. wife's appraiser valued the home at 

$56,000 while husband's appraiser valued it at $40,000. The 

District Court accepted the $40,000 appraisal and explained 

in its findings that it accepted husband's appraisal because 

the value was more realistic for a one-bedroom home. Wife 

argues that there was no justification for the valuation and 

thus, the District Court abused its discretion. 

The District Court's findings of fact must be viewed as 

a whole. In re the Marriage of Hockaday (Mont. 1989), - 
P.2d , 46 St.Rep. 910. The standard of review in a 

distribution case is that where the District Court based its 

distribution of marital assets on substantial credible 

evidence, it will not be overturned absent a clear abuse of 

discretion. In re the ~arriage of Stewart (Mont. 19881, 757 

P.2d 765, 767, 45 St.Rep. 850, 852; In re the ~arriage Watson 

(Mont. 1987), 739 P.2d 951, 954, 44 St.Rep. 1167, 1170. We 

will not reverse the ~istrict Court on a property 

distribution determination without such a showing. See In re 

the Marriage of LeProwse (1982), 198 Mont. 357, 362, 646 P.2d 

526, 529. Moreover, the ~istrict Court has far reaching 

discretionary powers when valuing property for distribution. 

The valuation need only be reasonable in the light of the 

evidence submitted. In re ~arriage of the ~ilesnick (Mont. 

1988), 765 P.2d 751, 755, 45 St.Rep. 2182, 2187; In re the 

Marriage of ~uisi (Mont. 1988), 756 P.2d 456, 459, 45 St.Rep. 

1023, 1026. 

In the present case, the ~istrict Court predicated its 

$40,000 valuation on the expert testimony of an appraiser. 

We held in Milesnick, 765 P.2d at 755, that expert testimony 

is a reasonable premise for which the ~istrict Court may base 

a valuation. Wife, however, argues that she too presented 

expert testimony that the home had a value of $56,000 and 

that there was no rationale given by the court for its 

$40,000 valuation. However, in ~ilesnick, 765 P.2d at 755, 

we stated: 

When confronted with conflicting evidence, the 

court must use its fact-finding powers to determine 

which evidence is more credible.. . . Unless there 

is a clear preponderance of the evidence against 

the District Court's valuation, its findings, where 

based on substantial though conflicting evidence, 

will not be disturbed on appeal. 
The District Court's $40,000 valuation of the parties' 

home was reasonable in light of the testimony presented and 

the rationale set forth in the District Court's findings. 

There was no abuse of discretion. 

The second issue raised on appeal is whether the 

District Court adequately determined the parties net worth. 

Specifically, wife alleges that the determination was 

improper since the ~istrict Court considered wife's $30,000 

inheritance as her property in the distribution. 

The net worth of a marital estate must be determined 

prior to division of the estate. In re the ~arriage of 

Shultz (1980), 188 Mont. 363, 365, 613 P.2d 1022, 1024. In 

determining the net worth, the District Court must make 

complete findings and include all assets and liabilities. In 

re the Marriage of ~irnberger (Mont. 1989), 773 P.2d 330, 46 

St.Rep. 898. 

In this case, the ~istrict Court set forth wife's 

$30,000 inheritance in its findings of fact as a marital 

asset. In Dirnberger, we held that the ~istrict Court was 

required to take inheritance into consideration when dividing 

marital assets. In fact, the Court may have erred had it not 

made such a consideration. In re the ~arriage of Alt (19851, 

218 Mont. 327, 334, 708 P.2d 258, 262. We hold that the 

District Court properly considered wife's inheritance when it 

determined the parties net worth. 

Affirmed. / 
Justices 
Mr. Justice L. C. Gulbrandson dissenting. 

I respectfully dissent. 

The majority sets forth correctly the duty imposed upon 

a trial judge to determine the net worth of a marital estate 

prior to entry of a decree dividing said estate. However, 

the majority has ignored the fact that the net worth was not 

determined in this case, and there is no adequate basis for 

this Court to review the property division. Specifically, I 

am unable to determine if the trial judge correctly 

characterized wife's $24,000.00 deferred savings plan as a 

better pension plan than husband's vested pension plan of 

$247.00 a month upon retirement, where there was no testimony 

regarding ages of the parties or costs of a comparable 

annuity. 

I would remand for additional net worth findings and 

reconsideration of the treatment of wife's inheritance, which 

was found to be wife's sole property, but was treated as 

marital property for division purposes. 

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