No. 85-311 INTHE SUPREME COURTOF THE STATEOF MONTANA 1986

INRE THEMARRIAGE OF DONALD E. BELL, Petitioner and Respondent, and DOROTHYBELL,Respondent andAppellant.

APPEAL FROM: District Courtof the Thirteenth Judicial, In and for theCounty 

### ofYellowstone, The HonorableNatAllen, Judgepresiding.

COUNSEL OF RECORD:

ForAppellant: LindaHarris,Billings,Montana

For Respondent: Nye & Meyer; JoanMeyer Nye, Billings,Montana

SubmittedonBriefs: Oct. 10, 1985 Decided: February 6,1986

ClerkMr. Justice L. C. Gulbrandson delivered the Opinion of the Court.Dorothy Bell appeals the property division ordered by the YellowstoneCounty District Court in this divorceaction. The issues on appeal are I whether the District Court abused its discretion in dividing the marital estate between the parties, and (2) whether the District Court erred in denyingwife'smotion fornew trial. We affirm. In March 1984, after almost thirty-one years of marriage, Donald Bell (respondent) petitioned for the dissolution of his marriage to appellant. Respondent is a farmer working a relatively small, highly encumbered farm. During the marriage, appellant took care of the family home and performed various farm chores. Appellant began an antique business in 1983 and had sales of approximately $3,500 in 1984 in thatbusiness. Thepartieshave one child, a son,who farms on ].eased land close to the family home and helps out on his parents1 farm. The son stated that he thought the court should award the farm to his father so that he a.ndhis father couldwork on it together. Clyde Rader, a trained fa.rmland appraiser, testified that the current market value of the Bell farm,allowing for

a salewithin sixmonths,was $300,000. Rader testified that that was the top price the Bells could receive. Raderls estimate of $300,000 included the fixtures on the farm but excluded two mobile homes on the farm. At one point, Rader mentioned that the $300,000estimatewas based on a sale for cash within a reasonable length of time. Rader also mentioned that Bellsmight receive moremoney for the farm if the buyers arranged for "constructive financing." Woody Shore, the vice president/senior loan officer of the LittleHorn State Bank in Hardin, Montana, testified that he had a rough idea of land values in Big Horn County and that a fair market value forBells' irrigated landwould be $900an acre. Based on $900 an acre, the farm (including improvements) would be worth approximately $300,000. Respondent also testified that the current fairmarket value of the farmwas $300,000. Respondent testified that he owned about $1,600 of Farmers Union stock shares but that he would receive the value for those stocks only upon his retirement or his leaving the county, neither of which he was planning on doing. Respondent has also acquired shares of Federal Land Rank stock but he will receiveno value for that stock until he pays off his substantial loan with that bank. Lastly, respondent has Big Horn County Electric Cooperative Capital Creditsofapproximately $1,000. These credits are repaid to the farmers approximately twenty years after being paid in and respondent has received about $58 a year the last three years.In January 1985, the District Court filed its findings of fact, conclusions of law, and a final decree of dissolution. The court found that Bells had.assets worth $456,374 and total liabilities of $325,762.18, leaving them with a netmarital estateworth $130,611.82. The Bells have farm debts on their la.ndand farm equipment of $319,491.82. The courtvalued the farm land at $300,000. In dividing the marital estate, the District Court awarded thebulk of the estate to respondent. To respondent, the court awarded the farm, the farm equipment, various vehicles, and other items for a total value of $426,402. Respondent was made responsible for liabilities totaling$321,762, leaving him with $104,640 more in assets than in liabilities. The court awarded appellant $13,972 in assets

over and above the liabilitiesthe court made her responsible for. To eliminate any disparity in the awards, the court ordered the respondent to pay appellant $45,334 with the result that each would receive a net award of $59,306. The court ordered the respondent to pay $10,306 to appellant within sixty days of the decree and to pay 120 monthly payments of $292 to appellant. The court ordered that these "equity" payments to the wife shall be a lien on the farm land,but a lien subservient to the mortgages, and renewals of mortgages, on the land. 

### In February 1985, appellant filed a motion for new trial. The motion was based principally upon what appellant termed newly discovered evidence which purportedly rendered the property settlement inequitable and impossible of performance. The newly discovered evidencewas a letter from the Little Horn State Bank which declined respondent's request for a loan toprovide operating expensesand to renew respondent's carry-over debt. The letter requested that respondent satisfy his existing debt with the bank. The trial court denied the motion for new trial and the wife appeals from this denial and from the property division. Appellant argues that the District Court abused its discretion in several ways in distributing the marital estate. The standard ofreview i-sclear. TheDistrictCourt has far reaching discretion in resolving property divisions and this Court will not alter the lower court's judgment unless we find a clear abuse of discretion. The test for abuse of discretion is if the trial court has acted arbitrarily without employment of conscientious judgment orhas exceeded the bounds of reason resulting in substantial injustice. In Re the Marriage of Rolfe (Mont. 1985), 699

Appellant contends that distributing the marital estate, the District Court erred by failing to consider the factors detailed in S 40-4-202(1), MCA. In part, this section states:



# . . . In making apportionment, the court shall consider the duration of the marriage and prior marriage of either party; antenuptial agreement of the parties; the age, health, station, occupation, amount and sourcesof income, vocational skills,employability,estate, liabilities, and needs of each of the parties; custodial provisions; whether the apportionment is in lieu of or in addition to maintenance; and the opportunity of each for future acquisition of capital assetsand income. The court shall also consider the contribution or dissipation of value of the respective estates and the contribution of a spouse as a homemaker or to the familyunit

# . . . This section only requires the DistrictCourt to consider the enumerated factors, and the court is not required to make a finding of fact as to each factor. See In Re Marriage of Sell (Mont. 1981), 630 P.2d 222, 38 St.Rep. 956; In Re Marriage of Caprice (1978), 178Mont. 455, 585 P.2d 641. We find that the District Court's findings of fact and conclusions of law, taken as a whole, demonstrate that the court adequately considered the factors set forth in 5 40-4-202,MCA. Appellant also charges that the District Court abused. its discretion in valuing the farm land and in failing to place a value on certain assets (FederalLand Bank stock, Farmers Union Credits, Big Horn County Electric Cooperative Capital Credits). Appellant complains that the court'svaluation of the farm land was based upon Clyde Ra.derls estimate of what the land would bring in a "cash" sale. Rader's testimony, as a whole, shows that his estimate was notbased on a "distress"salebut ratheronwhat be believed was the fair market value of the land. The testimony of Rader, respondent and Woody Shoreprovides an adequate basis for the court's valuation of the land. Furthermore, the court explained its reasons for not placing a value on certain assets and the evidence supportsa finding that these assetshad little orno value to respondent. Appellant also complains that the DistrictCourt abused its discretion in failing to order the sale of the farm and the divisionof the proceedsbetween theparties. ThisCourt has established apolicy that a family farm or a ranch should be kept intactand operated as aunit upon a marriage dissolution whenever there is a reasonable means of providing a wife her equitable share of the marital property shortof selling the land. Gomke 

### v. Gomke (Mont. 1981), 627 P.2d 395, 396, 38 St.Rep. 578L, 578N; citing In R.eMarriage of Jacobson (19?9), 183 Mont. 517, 600 P.2d 1183. 

### The policy is especially valid where, as here, the parties1child desires to take over the farm and family members "want to insure the continuity of a family heritage." Gomke,

### at 397; see also In Re Marriage of Knudson (1980),186 Mont. 8, 606P.2d 130. Here, the lower court order provided that appellant will receive her equitable share of the marital property. Under the order, the respondent must make a $10,306 payment to appellant by March 22, 1985 and monthly payments thereafter. We note that appellant does not complain that respondent did not 

### make the initial payment. Furthermore,from the record it appears that the monthly payments of $292

are within respondent's ability to pay. The lower court's plan results in a fifty-fifty split of the marital estate between the parties and provides that appellantwill have a lien on the farm in the amount of the payments. We have approved similar plans in both Gomke and Knudson. In light 

### of the foregoing, we find that the lower court provided a reasonable means of giving the wife her equitable share of the marital property and that the District Court did not abuse its discretion in allowing respondent to buy out appellant's interest in the land. Appellant also quarrels with the lower court's valuation of certain farm equipment and other assets. We need only state that there is sufficient evidence to support thevaluationsplaced on themarital estateassets. Finally,the appellant contends that theDistrict Court erred indenyinghermotion for new trial. InFebruary 1985, appellant filed amotion fornew trial on the basis ofnewly discovered evidence. This evidence was a letter from respondent's bank to respondent declining to loan him more money or to renew his carryover debt. The letter also requested him to liquidate his present loan at the bank. Appellant was apparently contending that respondent would have to sell the farm to pay off the loan and she would not receive her equitable share of the farmbecause her interest was subjectto themortgages on the land. In March 1985,the lower court held a hearing and testimony was given by the parties on appellant'smotion. From other documents in the record, it appears that respondent may have refinanced the debt on the farm with a loan from the Farmers Home Administration.Although appealing the denial of her motion for new trial, appellant has not provided this Court with a transcript of the hearing on the motion. In denying the motion, the lower court specifically referred to theparties' testimony at the hearing. "Itis the duty of aparty seeking review of a judgment to present this Court with a record sufficient to enable us to pass upon the question raised." Harringtonv. Harrington (1979),181Mont. 541, 542, 594P.2d 319, 320; citing e.g., Rule 9,M.R.App.Civ.P. Appellanthas failed her duty as to this issue. We cannot consider the merits of this issue without a satisfactory record of the evidence presented at the hearing on the motion for new trial. Therefore, the wife's appeal is dismissed as to this issue. See Harrington, supra,and Yetterv. Kennedy (1977)

## , 175Mont. 1, 571 P.2d 1152. This Court has considered respondent's request for attorney's fees and costs on appeal and the same is denied. Affirmed.