NO. 81-493
INTHE SUPREME COURT OF THE STATE OF MONTANA 1983

IN RE THE MARRIAGE OF HAZEL J. VANCE, k/n/a SUE STARFORD,Petitioner and Respondent, vs. RUSSELL L. VANCE, Appellant and Respondent.

Appeal from: District Court of the Eighteenth Judicial District, In and for the County of Gallatin Honorable Joseph B. Gary, Judge presiding. Counsel of Record: For Appellant: Steven D. Nelson argued, Bozeman, Montana For Respondent: Steven Barrett argued, Bozeman, Montana

Submitted: March 4, 1983 Decided: June 6, 1983

Piled: 

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## 5983Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of the Court.

The District Court of the Eighteenth Judicial District issued an order September 29, 1980, dissolving the marriage of Hazel J. Vance and Russel L. Vance and changing Hazel's

name to Sue Starford. Findings of fact, conclusions of law and an orderdistributing the marital estate were issued June 24, 1981. Amended findingsand conclusions were issued July 15, 1981,pursuant to a motion by Russel Vance. Now, Russel Vance appeals the July 17, 1981, judgment which incorporated those amendments. Sue Starford and Russel Vance were married in Tampa, Florida,onDecember 12, 1974. Itwas the thirdmarriage for each of them, the second to each other. They moved to Montana immediately after theirmarriage and lived in several places temporarily before locating permanently in Bozeman, Montana, inJuneof 1976. Mr. Vance was voluntarily retired at the time of the marriage and held only occasional odd jobs throughout the marriage. His time was spent managing his considerable financial assets, performing household chores, tending his ranch and hunting. Ms. Starford was unemployed until February of 1977,when she began working as a secretary at Montana State University. Her entire earningswere used for family expenses. Substantial testimony was presented to the District Court concerning the assets each party brought into the marriage, the changes in those assets, the assets accumulated during the marriage and the value of all the assets at the time ofdissolution. At the time of the marriage,Ms. Starford owned a house in Tampa, Florida. Her house payments were approximately $65.00 a month, as she had acquired the house at a very lowinterestrate. When shemoved toMontana,Ms. Starford began renting her Florida house. Net rental income of approximately $150.00 per month was used for family expenses until 1978 when the house was sold for a net profit of $27,200.00. Mr. Vance used those proceeds to pay a portion of the debt in his Merrill Lynch account in Tampa. The sum represented twenty-four percent of the total securities in the account. Mr. Vance brought assets into the marriage totalling $292,968.00. Of that amount, $159,974.00 consisted of the amount outstanding on a contract for the sale of a Culligan business Mr. Vance had owned from 1957 until 1975. The remaining $132,994.00 consisted primarily of stocks, bonds and vehicles. Once settled in Bozeman,Ms. StarfordandMr. Vance made the major purchase of their marriage, a house and out buildings on forty acres of land. The house and land were purchased in 1976 for approximately $85,000.00. Mr. Vance borrowed $30,000.00 from his mother for the down payment. The monthly payments were paid out of the principal portion of the Culligan contractpayments. There is abalance due on the house of $42,000.00. At the time of dissolution, $83,700.00 remained outstanding on the Culligan contract. The District Court held that balance to be a separate asset of Russel Va.nce, freeand clear of any claimsby Sue Starford. Further, at the time of dissolution, the parties entered into the following stipulationregarding thevalue ofmany of theirmarital assets:

ASSETS FAIR MARKET VALUE INDEBTEDNESS NETVALUE Itemized and Appraised $ 17,977.00 -0- 17,977.00Personal PropertyMandeville AppraisalItemized andAppraisedPersonal PropertyCindyNelson Appraisal Additional Personal Property Items StocksOwned by the Parties

The valuation of the remaining assets was disputed by the parties. Specifically, those assets are: the Bozeman home and accompanying forty acres; 1400 shares of Sunbird Aviation stock; a 1979GMC "Jimmy";Ms. Starford's retirement fund; and the crop of hay harvested from the Bozeman land after the parties separated. Each of the parties hired a professional appraiser to determine the value of the Bozeman house and forty acres. Ms. Starford's appraiser placed the value at $160,000.00 while Mr. Vance's appraiser valued the property at $140,000.00. Ms. Starford testified that she believed the property to be worth $160,000.00. Mr. Vance thought it was worth $110,000.00. The District Court, stating no reasons, adopted the $160,000.00 value. Mr. Vance testified at length regarding the financial history of Sunbird Aviation. Because of the company's financial difficulties,he valued the stock at $5000.00. No opposing testimony was presented. The District Court adopted the $5000.00 value. The GMC "Jimmy" was valued at $7300.00 with an indebtedness of $7300.00, for a net value of $0.00. Therefore, the "Jimmy" added no value to the marital estate. Since Mr. Vance was awarded the "Jimmy",if its net value is greater than $0.00, he received awindfall and has no grounds for complaint. Ms. Starford's retirement fund and the cut hay have values of $2,025.00 and $500.00, respectively. Although not 4mentioned in the original findings,theywere included in the marital estate in the court's amended findings and conclusions of July 15, 1981. In the original order of June 24, 1981, the following distribution of marital assetswasmade:

FAIR MARKET VALUE INDEBTEDNESS NETVALUE 

### -- TOWIFE: Cash received for stock at separation Personalproperty to he retainedby petitioner Wife's personal effects Stocks or cash to be transferred towife TOTAL TOHUSBAND: Balance ofpersonal property-Mandeville, Exhibit #16,Cindy Nelson & Stipulated Exhibit #11 $33,149.00 -0- 33,149.00 SunbirdAviation Stock 5,000.00 5,000.00 1979 Jimmy vehicle 7,800.00 7,800.00 -0- Husband's personal effects -0- -0- -0- Familyhome & 40 acres $160,000.00 $42,000.00 $118,000.00 Balance of stocks 98,465.00 -0- 98,465.00

TOTAL $304,414.00 $49,800.00 $254,614.00 On July 1,1981,Mr. Vance filed amotion requesting the District Court to correct or amend several aspects of its order. Specifically,he requested that: 1. The net value of the family home and forty acres be adjusted to reflect the $30,000.00 owed by Mr. Vance to his mother for the down payment she loanedhim.2. The fair market value of the family home be amended to $150,000.00, the average of the two professional appraisals. 3. Ms. Starford's retirement benefits be included in themarital estate. 4. The cash received by Ms. Starford for stock be amended to the correct amount as reflected in the exhibits presented at trial, $24,424.00, not $22,449.00. That amount represents twenty-four per cent of the total securities in theMerrill Lynch account. 5. The distribution of the stocks ownedby the parties be changed to accurately reflectthe total stock ownedby the parties, $173,469.61, not $200,914.00. In response, an amended order was filed July 17, 1981, distributing the marital estate between the parties as follows: FAIRMARKET NET VALUE INDEBTEDNESS VALUE TOWIFE: Cash received for stock at separation Personal Property tobe retainedby petitioner

(Exhibit#14) 6,155.00 Wife's personal effects -0- RetirementFund 2,025.00 Stocksor cash tobe transferred towife 76,000.00 TOTAL TOHUSBAND: Balance ofpersonal property-Mandeville, Exhibit #16,Cindy Nelson, & stipulated Exhibit #11 $33,149.00 SunbirdAviation Stock 5,000.00 1979 Jimmyvehicle 7,300.00 Husband's personal effects -0-Familyhome & 40 acres $160,000.00 72,000.00 88,000.00

Balance of stocks 73,045.00 -0- 73,045.00 TOTAL $278,994.00 $79,300.00 $199,694.00

In his appeal of the amended order, Mr. Vance alleges five specific abuses of discretion by the District Court. 1. The court incorrectly valued the family home and forty acres. 2. The court incorrectly treated the property acquired prior tomarriage. 3. The court failed to properly apply the criteria mandated by section 40-4-202(1),MCA. 4. The court considered irrelevant factors or factors not supported by the record in dividing themarital estate. 5. The court improperly divided the marital estate in its amended order. The total decrease in the amended value of the marital estate was deducted from the portion of the marital estate originallyawardedMr. Vance. Finally, Mr. Vance asserts that the division of the marital estate violated his constitutional right of equal protection under Montana law. We findno abuse of discretionby the DistrictCourtand no violation of Mr. Vance's right of equal protection. The amended findings, conclusions and order of July 15 and 17, 1981, are affirmed. The District Court did not abuse its discretion when it adopted the appraised figure of $160,000.00 as the value of the family home and forty acres. We held in Wolfe v. Wolfe

(19831, Mont

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## , 659 P.2d 259, 262, 40 St.Rep. 211, 214, that: "Where there are 'widely conflicting valuations' between different appraisers, the District Court shall give reasons why one value is selected over the others." InWolfe, the "widely conflicting valuations"were 7$1,649,166.00, $1,184,725.50 and $450,000.00. The District Court chose the $450,000.00 figure. Ourdecision inWolfe was predicated upon another recent decision,Petersonv. Peterson (1981), Mont

# . -I I 636 P.2d 821, 823, 38 St.Rep. 1723, 1726,where we stated: "At trial the parties presented conflicting evidence regarding the value of the home ranch. Appellant offered the testimony and appraisal report of a professional certified appraiser who concluded the value of the home ranch to be $740,000 as of September 1980. The respondent offered the testimony of a local rancher and real estate buyer. He valued the ranch at $402,500. The District Court, without stated reasons, accepted the lower figure. The District Court is free to follow one appraisal and reject another. However, here there is a wide disparity in valuation,andwe areunable to review forabuse of discretion in the absence of findingsby the trial court supporting thevaluation selected." In comparison, the appraisals in the instant case are not "widely conflicting valuations." Under these circumstances, it is not necessary for the District Court set forth specific reasons. Further, appellant's eight assertions of error in the adopted appraisalhave nomerit. Thevaluationwaspresented by a professional appraiser. She thoroughly discussed her reasons forarriving at the $160,000.00 figure. The appraisal

was supported by substantial credible evidence. The appraised value of the property adoptedby theDistrict Court isaffirmed. Appellant's second, third and fourth allegations of abuse of discretionby the DistrictCourt concern the court's application of section 40-4-202(1), MCA to the instant facts. Section 40-4-202(1)

## ,MCA, states inpart: "In disposing of property acquired prior to the marriage 

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# . the court shall consider those contributionsof the other spouse to the marriage, including: (a) the nonmonetary contribution of a homemaker;(b) the extent to which such contributions have facilitated the maintenance of this property; and (c) whether or not the property disposition serves as an alternative to maintenance arrangements." In distributingproperty acquired prior to themarriage, the court is not limited solely to consideration of the above listed factors. Those considerations are set forth to specificallybenefit the homemaker who does not work outside the home. The court is also free to consider the other factors set forth in section 40-4-202(1), MCA. It did so. In awarding Ms. Starford $76,000.00 in stocks or cash as her equitableportion ofMr. Vance's stocks,the court considered all of Ms. Starford's contributionsto the familyunit. She completed her fair share, if not more, of the household chores. She also worked fulltime outside the home, thus enabling Mr. Vance to devote his time to the management of his financialaffairs. Mr. Vance would like to have his marriage to Sue Starford treated as a business relationship. It was not. Equitable distribution of the assets of a marriage depends upon more than just each party's initial financial contribution to the relationship. Many other relevant factors are found in section40-4-202(1),MCA. It is evident from the court's orders and accompanying memorandums of June 24, 1981 and July 15, 1981, that it considered those statutory factors indistributingthemarital estate. Consideration was given to the parties' occupations, amounts and sources of income, vocational skills, employability, estates, needs and opportunities for future acquisition of capital assetsand income. The District Court specifically refused to consider any allegations regarding Mr. Vance's marital misconduct. We find no abuse of discretion and affirm the distributionof themarital estate between theparties. 9Next,Mr. Vance contends the court abused its discretion when it deducted the total amended decrease in the value of the marital estate from the portion originally awarded him. Again, we do not agree. The court stated in itsmemorandum accompanying the amended order that the court originally "made error in computation"and that the court "was in error in the amount of stocks still in the hands of the respondent [Mr. Vance]

# ." Clearly, the court was merely correcting errors which had unintentionally benefited Mr. Vance. Finally, the District Court judge stated: "It is still

a man's world as far as income is concerned and I have recognized this fact in the distribution of assets." That statement is a description of the present relative economic status of men and women. It is a realistic observation. Applying the observation to the distribution of the marital estate between these parties did not violate Mr. Vance's constitutional right of equal protection. His contention is meritless. Affirmed.

We concur: 

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Chief Justice

file awrittendissent later.