No. 84-315 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

IN RE THE +WRRIAGE OF 

ELOISE ELAINE GLASS, 

Petitioner and Respondent, 

and 

NEIL ARLEN GLASS, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Tenth Judicial District, 

In and for the County of Fergus, 

The Honorable Byron Robb, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Mark Stermitz; Law Office 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!!-; , ]g@$ 

Filed: 

b" 

Clerk 
Mr. Justice Frank B. Morrison delivered the opinioiz of the 

Court. 

Eloise Glass filed a petition for dissolution of marriage on May 19, 1982. A decree dissolving the marriage 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 

law and a judgment on February 14, 1984. 

On April 4, 1984, Charles Glass & Sons, a partnership in 

which Neil holds a. 50 percent interest, moved to intervene in 

the proceedings. The partnership filed motions to amend the 

findings, to alter or amend judgment, or for a new trial. 

Neil Glass made similar post-trial motions. 

On April 17, 1984, the District Court denied all 

post-trial motions. Neil and Eloise both appeal from the 

February 14, 1984, judgment distributinq the marital property. Neil also appeals the April 17, 1984, motion denying his 

post-trial motions. Charles Glass & Sons appeals the decision of the District Court denying its motion to intervene on 

the basis that the motion was not timely filed. We affirm 

all judgments and orders issued by the District Court in this 

cause. 

Neil and Eloise Glass were married on November 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 in various aspects. 
Eloise suffers from cerebral palsy. 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 the marriage. 

The partnership acquired a large land holding in 1968, 

the Ward Ranch. The partnership has since continuously grown 

and expanded, while remaining consistently in debt. 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 40 percent. Neil now contends that 

in order to meet the scheduled payments to Eloise, the partnership will have to be sold. 

Further facts will be developed as required for resolution of the specific issues raised. Those issues are: 

Intervention 

1. Whether the District Court abused its discretion in 

denying the motions of the partnership, Charles Glass & Sons. 

Appeal 

1. Whether the District Court abused its discretion in 

distributing the marital property? 

2. Whether the District Court 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 the method of distribution. 
2. Whether the District Court erred in not considering 

the wife's severely limited future earnings capacity in 

allocating the marital estate. 

INTERVENTION BY 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 judge had 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's motion, stating that a motion to intervene filed after 

a judgment is not timely. We cannot agree. Although not 

often granted, motions to intervene made after judgment are 

not per se untimely. 3B Moore'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 is used to avoid 

delay, circuity and multiplicity of actions. Grenfell v. 

Duffy (1982) , 198 Mont. 90, 95, 643 P. 2d 1184, 1187. If the 
partnership were allowed to intervene, it would 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. 

DISTRIBUTION OF THE MARITAL 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 initial payment of $38,650 and ten 

annual payments of $35,595, to pay Eloise for her 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 marital property. Specifically, Neil 

contends that the ranch partnership will have to be liquidated in order to pa.y to Eloise her share of the marital 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. The valuation 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 7 percent interest rate 

allows Neil the use and benefit of the partnership property 

from which 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 for Neil 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 THE IJIARITAL ESTATE 

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.ence which 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 information until learning of the trial judge's valuation of the estate. We affirm 

the denial by the trial judge of Neil's post-trial motions. 

On appeal, Neil raises the following errors in the trial 

court's valuation of the marital estate: 

1. The court relied too heavily on Eloise's expert 

appraiser, whose findings contain many errors; 

2. The value of Glass cattle was extremely inflated. and 

not based on proven fact; 
3. The full value of Federal Land Bank stock should not 

have been included as a partnership asset; 

4. It was error to find that Neil Glass's partnership 

capital account was $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 

inf lated. 

Neil has failed to show that the valuations by 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 order presented 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. The Glasses' banker, D.A. 

McRae, stated that good farm land in the area was 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, which was a 

complete, realistic and impartial evaluation thereof; that said appraisal determines value by the 

income, cost and market 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 

for his selection. In re the Marriage of Wolfe (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 of discretion. 

2. The same argument applies to the trial court's 

valuation of the partnership's cattle. At trial, Kenneth 

Glass estimated the value of their cow/calf pairs 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. Eloise presented the court 

with a valuation by Doug Best, an employee of Billings Auction Yards, of $650 per head for the cows. Neil presented 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 little worth." Finding of fact 

#16b. 
Therefore, the trial judge did not abuse his discretion when 

he adopted the value placed on the partnership's cows by Doug 

Best. 

3. As a prerequisite to borrowing money from the Federal Land Bank, the partnership was required to purchase Federal Land Bank stock in the amount of 5 percent 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, although Neil 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 Kenneth had 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 liabilities of the partnership and Charles Glass's testimony that neither of his sons paid to get into the business. 

Once again, the trial judge is free to believe the testimony 

of whichever witness he finds most credible. 
5. We find no merit whatsoever to Neil's contention 

that the court mishandled 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 its present 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. 

Eloise worked 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 

employment and ranch responsibilities as he was 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 THE MAP.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-ication of 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 the marital estate. 

Eloise's initial contention is based on finding of fact 

#26, where the trial judge states in part: 

"26. The court finds that Montana is still primarily an agricultural region, and because the family 

held ranch is a form of business worth encoura.ging, 

that it is a desirable and declared policy in this 

state to preserve 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 contributed 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 four years, the marital estate 

should -- not be divided equally, but that --- the husband 

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, the policy 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 cannot be 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, 600 P.2d 1183, 1188, the policy .against splitting up the 

ranch or forcing its sale will 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 secured by 

a judgment lien. Conclusion of law M states: 

"That in the event the husband fails, neglects or 

refuses to make the payments herein provided 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.bsolutely no merit to Eloise's second contention that the trial judge failed to consider her handicap. 

The trial judge states in finding of fact #lo: 

"That the wife is now about 39 years old, has 

suffered from cerebral palsy since birth, and is 

impa.ired by 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 as writing and typing. Prior to 

the marriage, however, Eloise finished about two 

years of college at KSU in Bozeman, Montana, afterwards she performed volunteer work with church and 

youth groups and did a little babysitting, and in 

the last few years 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 finding 
employment, 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 job market, 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 rehabilitation counselor, Bob Morgan. 

Eloise's physical condition and its effect on her ability to earn a living is again considered by the trial judge in 

conclusion of law H: 

"H. That by reason of the len.gth of the marriage, 

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 maintenance for herself until her receipt of the 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 the marital estate between the parties 

is affirmed. 

Affirmed. 

We concur: