NO. 82-30 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

IN RE THE MARRIAGE OF 

SHARON M. GARST, 

Petitioner and Appellant, 

-vsORAH W. GARST, 

Respondent and Respondent. 

Appeal from: District Court of the Sixteenth ~udicial District, 

In and for the County of Powder River, The Honorable Alfred B. Coate, Judge presiding. 

Counsel of Record: 

For Appellant: 

Lucas & Monaghan; Lance Tonn, Miles City, 

Montana 

For Respondent: 

Berger, ~inclair & Nelson; James Sinclair, 

Billings, Montana 

Submitted on Briefs: June 17, 1982 

Decided: August 11, 1982 

Filed: A~G 11 !9@ 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Sharon M. Garst appeals from a judgment apportioning 

marital property and from a denial of her post-trial motions 

in the District Court of the Sixteenth Judicial District in 

Powder River County. 

Sharon and Orah (the latter also known as Dub) were 

married at Hot Springs, Arkansas, on February 22, 1972. 

They have two children: Jason, born on April 21, 1973, and 

Shayna, born on June 10, 1976. 

Prior to their marriage, Sharon had worked as a secretary, 

and Dub had worked as a jockey, traveling to racetracks 

around the country. For the first three years of their 

marriage, Sharon and Dub traveled extensively, allowing Dub 

to continue working as a jockey. In 1975, Sharon and Dub 

moved to a ranch owned by Dub's parents in Powder River 

County, Montana. Dub worked as a ranch hand until September 

1977, At that time, Sharon and Dub bought the ranch from 

Dub's parents for $243,750. This purchase included a conveyance of one-half of the underlying minerals owned by 

Dub's parents. Sharon and Dub later conveyed one-half of 

their mineral interest to Dub's brother. 

Sharon and Dub lived and worked together on the ranch 

until July 1, 1980, when Sharon filed a petition for dissolution 

of marriage. Thereafter, Sharon and the couple's two children 

moved to Broadus, where Sharon became employed as a secretary. 

At this time, Dub gave Sharon $14,000 to buy a mobile home. 

Dub continued to work and live at the ranch, and supplemented 

his ranch income by working occasionally as a jockey and as 

a musician. 

On July 17, 1981, trial was held. Sharon called two 

witnesses who had made appraisals of the ranch machinery and 
ranch land. Bob Barthel, a farm machinery dealer, submitted 

an appraisal showing the total value of the machinery to be 

$68,025. Dennis Jurica, an appraiser and realtor from Miles 

City, testified that the ranch land was worth $500,000. 

Dub, on the other hand, testified that the value of the 

machinery was $37,850, and the value of the ranch was between 

$325,000 and $386,000. 

On September 10, 1981, the District Court entered its 

findings of fact and conclusions of law. Among other things, 

the District Court found that the value of the machinery was 

$74,025, and the value of the ranch land was $356,874.37. 

The District Court determined the marital net equity of the 

parties to be $56,744.32. This compared to Sharon's proposed 

finding of net equity to be $236,092.57 and Dub's submitted 

net equity figure of $93,095. 

The District Court divided the marital property as 

follows r 

SHARON GARST 

1. The mobile home with Dub to assume the obligation 

thereon. 

2. Twenty percent of the remaining livestock. 

3. Fifty percent of the oil, gas, and mineral interest. 

4. All of her personal property, including the 

automobile now in her possession. 

-- DUB GARST 

1. The land, machinery, balance of the livestock, 

balance of the oil, gas, and minerals, and 

the personal property in his possession. 

2. All liabilities incurred during the marriage. 

The basic issue boils down to this: Did the District 

Court abuse its discretion by failing to determine accurately 

the net worth of the marital estate? 

The discretion of the District Court is given primarily 

by the criteria set forth in section 40-4-202(1), MCA, which 

states in part: 
"In a proceeding for dissolution of marriage . . . the court . . . shall . . . finally 

equitably apportion between the parties the 

property and assets belonging to either or 

both, however and whenever acquired and 

whether the title thereto is in the name of 

the husband or wife or both . . ." 

In reviewing divisions of marital property, this Court 

must determine only whether the District Court, in exercise 

of its discretion, acted arbitrarily, unreasonably, or 

without regard to recognized principles resulting in substantial 

injustice. In Re Marriage of Kis (1982), - Mon t . - , 639 

P.2d 1151, 1154, 39 St.Rep. 119, 125. Only when the findings 

of a District Court are clearly erroneous will they be set 

aside. Rule 52 (a) , M.R.Civ.P. 

Sharon's primary complaint is that the District Court 

deviated from the evidence submitted by either party and 

valued assets significantly lower than the testimony justified. 

We agree with Sharon in some respects. 

For example, both parties' value of the land was higher 

than that determined by the District Court. In its findings 

of fact, the District Court indicated it arrived at the 

value of the land by increasing by ten percent per annum the 

purchase price of $243,750. This formula would raise the 

value of the land to $356,874.37. In another finding of 

fact, the District Court used extraneous factors such as 

"current production costs, drought, and prices for agricultural 

products," and "the current concern for unit train loadings 

from grain terminals" to justify its finding as to the value 

of the land. None of these extraneous factors were ever 

mentioned in the testimony or exhibits presented by either 

party. 

This Court stated in In Re Marriage of LeProwse (1982), 

Mont. , 646 P.2d 526, 529, 39 St.Rep. 1053, 1057, "No 
abuse of discretion can be found in findings of fact and 

conclusions of law that: carefully set forth the fair 

market value, outstanding obligations, and net value of each 

marital asset; develop the trier of fact's reasoning for 

accepting respondent's appraisals and estimates over those 

offered by appellant; and -- are fully supported -- by the record." 

(Emphasis added.) The District Court failed this test by 

using factors not supported in the record to determine 

the value of the land. 

Sharon next contends that the District Court erred when 

it did not include in the marital estate the sum of $74,875, 

which represents the appraised value of the residence, 

outbuildings, corrals, and other structures located upon Dub 

and Sharon's ranch. We do not agree with this contention. 

Testimony of both Sharon's appraiser and Dub indicated that 

the buildings were considered when reaching the appraisal 

values. In this case, it was clearly within the court's 

discretion to consider the buildings along with the land in 

determining the value of the ranch. 

Sharon also contends that the District Court erred in 

its valuation of the ranch machinery. Again, we cannot 

agree with this contention, since the record supports the 

District Court's finding. Bob Barthel's appraisal of the 

machinery listed the total value to be $68,025. However, 

Barthel's appraisal did not include a pickup truck, which 

Dub admitted under cross-examination was worth $6,000. The 

District Court added to Barthel's appraisal the value of the 

truck, and determined the value of the machinery to be 

$74,025. Such a finding was clearly supported by the record 

and will not be disturbed by this Court. 

Finally, Sharon disagrees with the manner in which the 

District Court calculated the marital indebtedness. The 
District Court entered the following findings of fact 

regarding the marital liabilities: 

"The parties have incurred the following 

liabilities: 

"Stockman's Bank 

Accrued Interest 

"Federal Land Bank 

Accrued Interest 

"Federal Land Bank 

Accrued Interest 

"Commodity Credit 

Accrued Interest 

"Department of Interior $20,000.00 

No Interest 

"Russell Garst 

Accrued Interest 

"Mobile Home Obligation $19,770.00 

$417,130.05 

The evidence shows that Dub was allowed to introduce as 

an exhibit an affidavit outlining the parties' assets and 

liabilities. This exhibit fully supports the District 

Court's finding concerning the marital liabilities. Therefore, substantial evidence exists in the record to support 

the District Court's finding. 

The magnitude of the District Court's failure to determine 

accurately the net worth of the marital estate can be shown 

by examining the net worth figures placed in evidence by the 

parties. Sharon's evidence indicated that the net marital 

equity totalled $236,092.57, and Dub's evidence indicated a 

net marital equity of $93,095. However, the District Court 

found that the marital net equity was $56,744.32. The 

court's figure is considerably less than the figures submitted 

by either of the parties. The court's marital equity finding 

is clearly erroneous and is not supported by the record. 
The District Court, therefore, abused its discretion in 

arriving at the marital net worth. 

The difference in net marital worth from the figure 

testified to by the husband and that found by the District 

Court is $36,350.68. The distribution to Sharon should be 

at least $18,000 more than awarded here, assuming the District 

Court was attempting to divide the marital estate equally. 

As a final matter, Sharon requests that Dub be required 

to account for the income he received from oil and gas 

leases during the period between the parties' separation and 

the entering of the decree by the District Court. Although 

the District Court did divide the record ownership of the 

mineral interests equally between Sharon and Dub, Sharon 

did not receive any of the income therefrom until after the 

decree was entered. We hold that Sharon is entitled to her 

share of the income during the pendency of the divorce. 

The District Court's judgment is affirmed in part and 

reversed in part, in accordance with this opinion. We remand 

to the District Court with instruction that, unless the 

parties agree in writing submitted to the District Court for 

a method of Dub paying Sharon money or property worth $18,000 

more than was awarded to her in the decree here appealed 

from, and an agreed accounting of the oil and gas lease 

income during the litigation, within 30 days of remittitur 

from this Court, that the District Court proceed to hold a 

new trial on the distribution of the marital estate. Costs 

awarded to Sharon. 

Justice i / 
We Concur: 

&A 4,&u4 

Chief rustice