No. 84-315 IN THE SUPREMECOURT OF THE STATEOF MONTANA 1985

IN RE THE +WRRIAGEOF ELOISE ELAINE GLASS, Petitioner and Respondent, and NEIL ARLEN GLASS, Respondent and Appellant.

APPEAL FROM: District Court of the Tenth Judicial District, Inand for the County of Fergus, TheHonorable Byron Robb, Judgepresiding.

COUNSEL OF RECORD:

ForAppellant: Mark Stermitz; LawOffice of John R. Christensen, Stanford, Montana

For Respondent: Kenneth C. Tolliver; Wright, Tolliver & Guthals, Billings, Montana For Intervenor: Carey E. Matovich, Billings, Montana (Glass& Sons)

Submitted on Briefs: Dec. 20, 1984 Decided: March 21, 1985 \$i!!-;

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ClerkMr. Justice Frank B. Morrison delivered the opinioiz of the Court. Eloise Glass filed a petition for dissolution of marriage onMay 19, 1982. A decree dissolving themarriage was entered April 25, 1983, with disposition of the marital property reserved for a later date. Following 

### a two-day trial, the District Court of the Tenth Judicial District, County of Fergus, entered findings of fact, conclusions of lawand a judgment on February 14, 1984. OnApril 4, 1984,Charles Glass & Sons, apartnership in which Neil holds a.50percent interest,moved to intervene in the proceedings. The partnership filedmotions to amend the findings, to alter or amend judgment, or for a new trial. Neil Glass made similarpost-trialmotions. On April 17, 1984, the District Court denied all post-trial motions. Neil and Eloise both appeal from the February 14, 1984, judgment distributinq themarital property. Neil also appeals theApril 17,1984,motion denyinghis post-trial motions. Charles Glass & Sons appeals the decisionof theDistrict Court denying its motion to interveneon the basis that the motion was not timely filed. We affirm all judgmentsand orders issuedby the DistrictCourt in this

cause. Neil and Eloise Glassweremarried onNovember 28, 1-964. They have two children, a son born in 1965 and a daughter born in 1969. Both were raised in the Denton area by families engaged in ranching. At the time of the marriage, the partnership owned some farm land,a truck, a trailer and some

cows. Eloise brought bonds and cash totalling $11,000 into the marriage. Each family has since contributed to the marriage invarious aspects.Eloise suffers from cerebralpalsy. Therefore,she does not have significant prospects for gainful employment in the future. She worked on the ranch and. reared two children during the course of themarriage. The partnership acquired a large land holding in 1968, the Ward Ranch. Thepartnership has since continuously grown and expanded,while remaining consistently indebt. Two days of testimony concerning the value of the partnership, the value of Neil's interest in the partnership, the contributions of both parties to the marriage, the contributions of both parties' families to the marriage, the needs of the children a-nd the needs of Eloise, resulted in a property distribution decree awarding Neil 60 percent of the net marital estate and Eloise 40percent. Neil now contends that in order tomeet the scheduled payments to Eloise, thepartnershipwill have to be sold. Further factswill be developed as required 

### for resolution of the specific issues raised. Those issues are: Intervention 1. Whether the DistrictCourt abused itsdiscretion in denying themotions of the partnership,CharlesGlass & Sons. Appeal 1. Whether the District Court abused its discretion in distributing themaritalproperty? 2. Whether the DistrictCourt abused its discretion in valuing the marital estate? Cross-Appeal 1. Whether the District Court improperly applied the policy in favor of preserving Montana's family farms in determining the allocation of the marital estate rather than only in themethod of distribution.2. Whether the DistrictCourt erred in not considering the wife's severely limited future earnings capacity in allocating the marital estate. INTERVENTIONBY THE PARTNERSHIP Charles Glass & Sons moved to intervene following trial and decision by the District Court, pursuant to Rule 24, P4.R.Civ.P. The partnership's primary contention was that the trial judgehad overvalued the partnership. It sought to present "new" evidence concerning the value of the partner-- ship's land holdings and cow/calf pairings. Further, it contended that the trial judge had improperly treated gifts given to Neil and Eloise by their families. These same arguments were presented to the trial judge in Neil Glass's post-trial motions. Rule 24, M.R.Civ.P., requires that an application to intervene be timely. The trial judge dismissed the partnership'smotion, stating that amotion to intervene filed after

a judgment is not timely. We cannot agree. Although not often granted,motions to intervene made after judgment are notper se untimely. 3BMoore's Federal Practice 24.13, at 24-154

## - 24-157. (2d.ed. 1984) A determining factor in granting a post-judgment motion to intervene is whether the motion seeks to reopen or relitigate an issue already determined. McDonald v. E.J. Lavino Co. (5th.Cir. 1970), 430 F.2d 1065, 1072. Here, the entire purpose of the motion is to reopen litigation in order to permit the partnership to present "new" evidence on the value of the partnership. Further,Rule 24,M.R.Civ.P. is a discretionary, judicial efficiency rule. It isused to avoid delay, circuity and multiplicity of actions. Grenfell v. Duffy (1982)

## , 198Mont. 90, 95, 643 P. 2d 1184, 1187. If thepartnership were allowed to intervene, itwould seek only to relitigate issues about which the parties have had every opportunity to present evidence at trial. Therefore, we affirm the denial by the trial court of the partnership's motion to intervene. DISTRIBUTIONOF THEMARITAL ESTATE The net value of the marital estate was found to be $71.1,961,with $678,633 of that amount being Neil's interest in the partnership. Neil was awarded 60 percent of the marital estate, or $427,176. Eloise was awarded 40 percent,

or $284,785. The trial judge allowed Neil ten years at 7 percent interest,with an initialpayment of $38,650 and ten annual payments of $35,595,topay Eloise forher interest in the marital estate. Neil contends that the trial judge abused his discretion by failing to give sufficient consideration to Montana's public policy favoring the preservation of the family ranch when he distributed the maritalproperty. Specifically, Neil contends that the ranchpartnershipwill have to be liquidated in order topa.yto Eloise her shareof themarital estate. However, Neil offers no proof in support of this contention. Instead,he compares his situation with several other Montana dissolution cases involving family ranches and concludes that he has received unfair treatment. Thevaluation and distribution of a marital estate in any one case must be based solely on the facts and circumstances unique to that case. In re the Marriage of Aanenson (1979)

## , 183 Mont. 229, 234, 598 P.2d 1120, 1123. The trial judge recognized Montana's public policy favoring the preservation of family ranches in finding of fact #26 and conclusion of law I. His distribution scheme,which recognizes this public policy, is well reasoned and supported by specific findings. The 7percent interest rate allows Neil the use and benefit of the partnership property fromwhich the settlement is to be paid and allows Eloise to receive interest at least equivalent to that earned by ordinary savings accounts. Finding of fact #30. Ten years is a reasonable time forNeil to complete his purchase of Eloise's interest through the use of the farm assets, which form a part of the marital estate. Finding of fact #26. The distribution of the marital estate by the trial judge is affirmed. VALUATION OF THEIJIARITALESTATE Neil Glass contends both in his post-trial motions for relief and on appeal that the trial judge abused his discretion in valuating the marital estate. The only basis for granting a new trial in this situation is the discovery of

new evid.encewhich the party could not, with reasonable diligence, have discovered in time for trial. See, 5s 25-11-102 and 103,MCA. Neil presented no "new"evidence in support of his post-trial motions, only belated evidence. Although perfectly capable of doing so, Neil refused to obtain appraisals, records and other informationuntil learning of the trial judge's valuation of the estate. We affirm the denial by the trial judge of Neil's post-trialmotions. On appeal, Neil raises the following errors in the trial court'svaluation of themarital estate: 1. The court relied too heavily on Eloise's expert appraiser,whose findings containmany errors; 2. Thevalue ofGlass cattlewas extremely inflated. and notbased onproven fact;3. The fullvalue of FederalLand Bank stock should not have been included as apartnership asset; 

### 4. It was error to find that Neil Glass's partnership capital accountwas $16,605 in excess of the other partners; 5. The court mishandled evidence of gifts from both parties'parents; 6. The value of Eloise's non-monetary contribution to maintenance of the marital estate was unrealistically inflated. Neil has failed to show that thevaluationsby the trial judge are clearly erroneous. We therefore affirm those valuations. In re the Marriage of Gomke (Mont. 1981)

## , 627 P.2d 395, 396, 38 St.Rep. 578L, 578N. 

### In affirming, we address each issue in the orderpresented by appellant. 1. Eloise Glass presented testimony at trial by an expert appraiser, Robert L. Kellogg, on the value of the ranch lands owned by the partnership. Kellogg estimated the value of the ranch land at $1,310,000,or over $207 an acre. Neil and his brother/partner,Kenneth, estimated the average value of the land at $100 an acre. TheGlasses'banker,D.A. McRae, stated that good farm land in the areawas worth $550

an acre. McRae valued land owned by the partnership from $65 to $550 an acre. The trial judge adopted Kellogg's value, stating: "Petitioner wife obtained an extensive, well-documented written appraisal of the partnership lands by Robert L. Kellogg, of Norman C. Wheeler & Associates, Bozeman,Montana,whichwas a complete,realistic and impartial evaluation thereof; that said appraisal determines value by the income,cost andmarket approach,utilizes comparable sales, and accurately expresses fair market value of the property at $1,310,000.00 

# .. .." Finding of fact #16d.The trial judge is free to select and reject appraisal values as he wishes, so long as there is substantial credible evidence in support of the values he selects. In re the Marriage of Peterson (1981), 195 Mont. 157, 162, 636 P.2d 821, 823. However,where the values presented at trial are widely conflicting, the trial judge must state the reasons forhis selection. In re theMarriage ofWolfe (Mont. 1983), 659 P.2d 259, 262, 40 St.Rep. 211, 214. Where, as here, the trial judge states his reasons for selecting one appraisal over the others,there is no abuse ofdiscretion. 2. The same argument applies to the trial court's valuation of the partnership's cattle. At trial, Kenneth Glass estimated thevalue of their cow/calfpairs at $400 to $500. On the firm's financial statement, he valued them at $550. The court granted both parties leave to supplement the record on this issue after trial. Eloisepresented the court with a valuation by Doug Best, an employee of Billings AuctionYards,of $650per head for the cows. Neilpresented no evidence to refute this valuation, nor did he present any other valuation of his own. Further, regarding the Glass brothers' valuation of their property, the trial judge stated: "Respondent and his brother, Kenneth Glass, were recalcitrant and evasive witnesses in numerous respects, especially as to values of land, livestock and grain sales, and even failed to produce various current partnership records and statements attempted to be subpoenaed by petitioner and 1982 income tax data. Such omissions and derelictions by the brothers have substantially impaired their credibility on all material issues herein, and rendered their personal opinions as to land and livestock values of littleworth." Findingof fact #16b.Therefore, the trial judge did not abuse his discretion when he adopted the valueplaced on the partnership's cowsby Doug Best.3. As aprerequisite to borrowing money from the Federal Land Bank, the partnership was required to purchase Federal Land Bank stock in the amount of 5percent of the loan,or $13,200. The trial judge included the value of this stock in the marital estate. In his post-trial motions, and again in this appeal, Neil requests the value of the stock be discounted to reflect the fact that it will be tied up for the life of the loan. Unfortunately, althoughNeil certainly had the opportunity to do so,he failed to present any evidence at trial on how the stock should be discounted. We find no

error in the trial court's denial of the post-trial motion as Neil's request is not based on new evidence, or any other ground set forth in § 25-11-102,MCA. Further,we will not entertain issues raised for the first time on appeal. 4. Based on the testimony of the partnership's accountant, that Neil had drawn less money from the partnership account than had his brother, the trial judge found that Neil's partnership account contained $16,605 more than did Kenneth's partnership account. In so finding, the trial judge disregarded testimony by Kenneth Glass that the discrepancy existed because Kennethhad contributed over $10,000 to the partnership from a personal injury settlement. We find no error in this decision. Kenneth's statement is contrary to both the December 31, 1981, statement of assets and liabilitiesof thepartnership and CharlesGlass's testimony that neither of his sonspaid to get into the business. Once again, the trial judge is free to believe the testimony ofwhichever witnesshe findsmost credible.5. We find no merit whatsoever to Neil's contention that the courtmishandled evidence of gifts to the parties by their parents. Neil alleges that the trial judge failed to consider the fact that were it not for Charles Glass, the Glass partnership would not have attained itspresent financial status. Specifically, Neil contends the trial judge erred in failing to consider the effect the nominal leasing of the Ward Place by Charles to Neil and Kenneth had on appreciating the value of the marital estate. The fact is, Charles did not lease the Ward Place to his sons. The partnership purchased the Ward Place in 1968. Other beneficial gifts from Charles to the partnership were offset by the donation of the use of a house by Eloise's parents to Neil and Eloise. 6. Finally, Neil contends that the trial judge unrealistically inflated the value of Eloises' non-monetary contribution to the marital estate. Again, we do not agree. Eloiseworked on the ranch for several years. Even after she moved to town, she still contributed to the marital relationship as homemaker, wife and mother. As we stated in In re the Marriage of Larson (Mont. l982), 649 P.2d 1351, 1355, 39

"Though petitioner's homemaking services and non-monetary contributions may not have been rendered in the ranch context, they nevertheless continued as petitioner had custody and primary responsibility for the physical and emotional needs of the parties' minor children. This no doubt facilitated respondent's ability to maintain his employmentand ranch responsibilitiesas hewas not required to take time from these activities to ensure that the childrens' [sic] basic needs were being met." We affirm the valuation of the marital estate by the trial judge

# .ALLOCATION OF THEMAP.ITAL ESTATE Eloise, on cross-appeal, contests the allocation of the marital estate by the trial judge. Basically, Eloise contends that the tria.1 judge erred in his appl-icationof Montana's public policy in favor of preserving the family ranch and in failing to consider the effect of her handicap on her ability to acquire future earnings when allocating themarital estate. Eloise's initial contention is based on finding of fact #26,where the trial judge states inpart: "26. The court finds thatMontana is stillprimarily an agricultural region, and because the family held ranch is a formofbusinessworth encoura.ging, that it 

### is a desirable and declared policy in this state topreserve the integrity and continuation of the family farm and ranch operation, if reasonably possible. Therefore, to give the respondent 

## -husband herein 

### - a chance tokeep the family ranch and 

## - to purchase the wifers interest in the marital 

### - -- estate over a period of time, and because he con

### -- 

## -- tributed several years of effort and labor to the ranch operation before the parties married and one year after the parties separated, because the wife's possibility of inheritance from her parents appears commensurate with the husband's potential. inheritance from his parents, and because the husband will also be obligated for child support for another three or fouryears, themarital estate should 

### -- notbe divided equally, but that thehusband 

### --- should receive 60% thereof and the wife 40%." 

## - ---- (emphasis supplied)

# . Eloise correctly contends that the trial judge erred in considering Montana's policy in favor of preserving family ranches when allocating the marital estate between the parties. This policy is not included as a criteria to be considered when dividing martial property under § 40-4-202(1)

## , MCA, Montana's equitable property distribution statute. Rather, thepolicy is only to be considered upon distribution of the marital property, after it has been allocated. However, in light of the other statutory reasons given for the 60-40 split, we find this error to be ha-rmless."[Tlhe policy of keeping a family ranch intact cannotbe used to deprive a spouse of his or her equitable share of the marital estate." In re the Marriage of Garst (Mont. 1983)

## , 669 P.2d 1063, 1067, 40 St-Rep. 1526, 1531. Eloise has not been deprived of her equitable share of the marital estate. Keeping in mind Eloise's handicap, employment situation, contribution to the 'family ranch, potential. inheritance and needs, the trial judge awarded her 40 percent of the marital estate. Further, conclusions of law J and M insure that,pursuant to In re the Marriage of Jacobson (1979)

## , 183 Mont. 516, 525, 600P.2d 1183, 1188,thepolicy .againstsplittingup the ranch or forcing its salewill yield to Eloise's right to an equitable share of the property. Conclusion of law J provides that Eloise's interest in the ranch shall- be securedby

a judgment lien. Conclusion of lawM states: "That in the event the husband fails, neglects or refuses tomake thepayments hereinprovided for to the wife, the Charles GI-ass & Sons partnership should be legally wound up and liquidated, the assets sold, and any balance due the wife paid to her. " There is a.bsolutelyno merit to Eloise's second contention that the trial judge failed to consider her handicap. The trial judge states in findingof fact #lo: "That the wife is now about 39 years old, has suffered from cerebral palsy since birth, and is impa.iredby an asthmatic condition and a degenerated cervical disk, all of which severely limits and restricts her employability and the type of work she can do. The cerebral palsy affects her fine motor skills and precludes effectively performing tasks such aswriting and typing. Prior to the marriage, however, Eloise finished about two years of collegeatKSU inBozeman, Montana,afterwards sheperformed volunteer work with church and youth groups and did a little babysitting, and in the last fewyears she has sought vocational rehabilitation, but she has no work experience outside the ranch and home, and no skills or educational certification that would assist her in findingemployment,especially in the small town and rural area of Denton. Due to petitioner's physical condition and lack of vocational experience, she would require substantial training or education in order to function in the jobmarket, and even then her ability to hold steady employment and become self-supporting is highly questionable." This finding is supported by the testimony of Eloise's vocational rehabilitationcounselor,Bob Morgan. Eloise'sphysical conditionand its effecton her ability to earn a living is again consideredby the trial judge in conclusionof lawH: "H. That by reason of the len.gthof themarriage, the wife

## 's contributions to the husband's farming and trucking business and their accumulation of property, her contributions as a homemaker and mother to the parties [sic] two children, 

### -- and.her severe physical disabilities and limitations for employment, the wife is entitled not only to main- - tenance for herself until her receipt ofthe first lump sum toward property settlement as herein specified,but also to a substantial portion of the husband's partnership interest in .Charles Glass & Sons as herein set forth." (emphasis supplied) We find no basis for Eloise's complaint concerning this matter. The allocation of themarital estate between theparties is affirmed. Affirmed.

We concur: