No. 88-527


### IN THE SUPREME COURTOF THE STATE OF MONTANA 1989

IN RE THEMARRIAGE OF SYLVIA GAY JOHNS, petitioner andAppellant, and
WILLIAM J. JOHNS, Respondent and Respondent.

APPEAL FROM: District Courtof the Second Judicial~istrict, In and for the County of SilverBOW, TheHonorableFrank Davis,Judgepresiding.
COUNSELOF RECORD:
ForAppellant: ~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, 1989Mr. 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 BowCounty. We affirm. The issues raised on appeal are: 1. Whether sufficient evidence supported the District Court's valuation of the parties' realproperty. 2. Whether the ~istrict Court adequately determined the parties' networth. 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 maritalproperty. When dividing the martial property, the ~istrict Court considered several factorsas 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 DistrictCourtnoted that in addition towife having ahigher monthly net income than husband, wife's pension plan had a present value in excess of $24,000 while husband's pensionplan had only a futurepotential value of $247per month upon retirement. Although it is unclear from the record how the valuation of thepensionswasmade, 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 ~istrictCourt's valuation of the parties' real property. Specifically, wife argues that the family home awarded to husband in the distribution was undervaluedby the DistrictCourt 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 $56,000while 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 appraisalbecause 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 itsdiscretion. 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 thatwhere 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 theMarriage of LeProwse (1982),198Mont. 357, 362, 646 P.2d 526, 529. Moreover, the ~istrictCourt 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 ~arriageof 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 forwhich the ~istrict Courtmay 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 courtmust use its fact-finding powers to determine which evidence ismore 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 notbe disturbed on appeal.The District Court's $40,000 valuation of the parties' home was reasonable in light of the testimonypresented and the rationale set forth in the District Court's findings. Therewas 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 inheritanceas her property in the distribution. The net worth of a marital estate must be determined prior to division of the estate. In re the ~arriageof 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 ~istrictCourt 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 Courtmay have erred had it not made such a consideration. In re the~arriage ofAlt (19851, 218 Mont. 327, 334, 708 P.2d 258, 262. We hold that the DistrictCourtproperly consideredwife's inheritance when it determined the parties networth. Affirmed.

/JusticesMr. Justice 

### L. C. Gulbrandsondissenting.



### Irespectfully dissent. The majority sets forth correctly the duty imposed upon
a trial judge to determine the net worth of amarital estate prior to entry of a decree dividing said estate. However, the majority has ignored the fact that the networth 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 amonth 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 reconsiderationof the treatment ofwife's inheritance, which

was found to be wife's sole property, but was treated as marital property for divisionpurposes.

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