No. 90-139 IN THE SUPREME COURT OF THE STATE OF MONTANA 1990

IN RE THE MARRIAGE OF SANDRA L. ARROTTA, Petitioner and Respondent, and LARRY P. ARROTTA, Respondent and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District, In and for the County of Cascade, The Honorable Peter L. Rapkoch, Judge presiding.

COUNSEL OF RECORD:

m %or Appellant: LI') 0 >d

## * 4 ~i- Randy 

### K. Dix; Dix & Hunt Law Firm; Helena,Montana L*.!ll!:r EZ L/ ,For Respondent: 0 

### c -1.: W - .,.
, " .-> -1 a3 :$ u> Marcia Birkenbuel, Great Falls, Montana 

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Filed: Submitted on Briefs: August 23, 1990 Decided: September

I)Justice Fred J. Weber delivered the Opinion of the Court. Inadissolution proceeding,theDistrict Court for theEighth Judicial District, Cascade County, awarded primary custody of the parties1daughterto the wife and distributedthemaritalproperty. Thehusband appealstheDistrictCourt'svaluation ofhis insurance business and the award ofprimary custody of their daughter to the wife. We affirm. The issues for our considerationare: 1. 

### id the District Court properly admit the expert testimony of Nicholas Bourdeau as to the value of Larry Arrotta's insurance business? 2. Did the District Court properly exercise its discretion to achieve an equitable distribution of themarital estate? 3. Did the District Court abuse its discretion by awarding primary custody of theparties' daughter to themother in light of the child's expressed preference to live with her father? Larry and SandraArrotta were married in Great Falls in 1969. One child, Nikole, was born of the marriage. At the time of their marriage Sandra had completed a year of business college and was employed by a bank. Sandra continued working and has advanced with her employer to the position of office manager. The District Court found that Sandra had no accrued pension benefits. Larry completed his education degree at Eastern Montana College while Sandra worked. Upon graduation, Larry became employed with Farmer's Union Insurance where he continued to workuntil he startedhis own insurance agency. Larryhas remainedwith his insurance agency which operates as a partnership. The District Court found that at the time of the marriage, neither party owned any real property and owned little personal property. The parties separated in September of 1988. Larry left the family home and moved into a rented home in Great Falls. Sandra and Nikole remained in the family home. In May of 1989, Nikole moved in with her father,where she was still living at the time of the hearing. ~ikole told her attorney and the District Court that she preferred to live with her father. Sandra hired a Certified Public Accountant (CPA), Nick Bourdeau, to determine thevalue of Larry's insurance business and testify to his findings. Prior to the hearing, Larry filed a motion in liminewith the ~istrict Court requesting the exclusion of any work done or testimonyby Nick Bourdeau as to the value of Larry's insurancebusiness. The District Court denied themotion. From that decison and the decision to award primary custody of Nikole to Sandra, Larry appeals.I Did the District Courtproperly admit the expert testimony of Mr. Bourdeau as to thevalue of LarryArrotta's insurancebusiness? Larry contends thatMr. Bourdeauwas not qualified to testify

as an expert because he has no knowledge of the insurance industry and because he had not previously valued a small, independent insurancebusiness. Heurges that thegoodwill of thebusiness wasgrossly over-valued. Sandra maintains that Mr. Bourdeau was well qualified to testify. She points out that not only is he a CPA, but that he has worked in private accounting; in financial investigations; in forensic or litigation accounting; that he has attended several litigation accounting courses; and that his status as a CPA requires him to complete 40 hours of continuing professional education per year. The District Court noted that although Larry disputed Mr. Bourdeaulsvaluation of his business, he failed to introduce any evidence of his own as to value. It also noted that "the expert opinionwas approximatelythe same as thevaluationmethod set out in the partnership agreement's provision for valuation of a partner's share upon retirement or withdrawal." We defined the concept of goodwill in In re ~arriage of Hull (1986), 219 Mont. 480, 712 P.2d 1317. We stated: Goodwill isproperty of an intangible nature and is commonly defined as the expectation of continued patronage. Amony the elements which engender goodwill are continuity of name, location, reputation for honest and fair dealing, and individual talent and ability. 

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# . . The determination of its value can be reached with the aid of expert testimony and by consideration of such factors as the practitioner's age, health,past earning power, reputation in the community for judgment, skill, and knowledge,andhis comparative professional success.



# ...Inview of exigenciesthat are ordinarily attendant upon amarriage dissolutionthe amount obtainable in the marketplace mightwell be lessthanthe true value of the goodwill. ~oodwill is not applicable only toprofessional practices. Itmay also exist in a business founded on personal skill or reputation. See Baldwin

### v. Stuber (1979), 182 Mont. 501, 597 P.2d 1135.The determination of the qualification of an expert witness is a matter of discretion for the trial court. Absent a showing of abuse of that discretion, the decision will not be disturbed. See Statev. Oliver (1987), 228Mont. 322, 742 P.2d 999;Grahamv. Richardson (1967), 150Mont. 270, 435 P.2d 263. We conclude that the District Court did not abuse its discretionwhen it found Mr. Bourdeau qualified to testify as an expert witness on thevalue of goodwill. We hold that the District Court properly admitted the expert testimonyof Mr. Bourdeau as to the value of LarryArrottat s insurance business.

Did the District Court properly exercise its discretion to achieve an equitable distribution of themarital estate? Larry contends that the distribution of the marital estate

was inequitable. He bases this contention largely on the value assigned tohis insurancebusiness by Mr. Bourdeau and theDistrict Court. He urges that the over-valuation of the business resulted in an inequitable distribution of marital property. Sandra argues that the division was equitable and that the District Court properly apportioned the property pursuant to 540-4-202,MCA. The District Court is vested with broad discretion in distributing property in dissolution proceedings. When the District Court's judgment was based upon substantial credible evidence, itwill notbe alteredunless a clear abuse ofdiscretion is shown. In re Marriage of Cannon (Mont. 1990), 790 P.2d 479, 47 St.Rep. 752. The District Court's clear and complete findings offact reflect that it carefully considered the factors set out in 540-4-202,MCA. Furthermore, in light of our holding under Issue I that Mr. Bourdeaulstestimony was proper and uncontradicted, Larry's argument that the value was erroneous and caused an inequitable distribution of property is without merit. We hold that the District Court properly exercised its discretion to achieve an equitable distribution of the marital estate.

Did the District Court abuse its discretion by awarding primary custody of theparties' daughter to themother in light of the child's expressed preference to live with her father? The District Court made the following pertinent findings fact regarding custody of Nikole: 8. [Sandra] and the parties1 daughter, Nikole Arrotta, remained in the familyhome when [Larry] left. Nikole stayed with her mother until May 16, 1989, at which time the parties agreed she would spend some time with her father. Nikole has lived with her father,

[Larry], fromthat time to thepresent. Inher interview with the Court and her attorney she indicated a desire to live with her father. 9. The parties dispute who should have primary custody of the child. However, the Court finds that [Sandra] has been the primary caretaker for the child and has a more stable structured and supervised home environment for Nikole than does [Larry]. It is therefore in thebest interest of thechild that [Sandra] have primary custody of Nikole with [Larry] having the righttophysical custodyofher on alternatingweekends, alternating holidays, and for a continuousperiod of six weeks during the summer, commencind July 5, 1990.

[Larry's] alternating weekend periods of custody shall commence the firstweekend afterthedateof theJudgment based on these Findings and Conclusions. [Sandra] has agreed that if the Court finds that the child desires a joint custody arrangement, which allows her to spend equal timewith eachparent, [Sandra] would agree to such a plan. It is apparent, however, that at this time afixed schedule of custody and visitation is needed and is in Nikole's best interest. (emphasisadded). Larry argues that Finding 9 is erroneous becaues it fails to consider the factors for determining the best interests of the child set forth in 840-4-212, MCA. He further urges that the District Court erred by ignoring Nikole's express desire to live with her father absent evidence that he is anything other than a good parent. The ~istrict Court need not make specific findings on each statutory element. Rather, it must demonstrate only that it has considered each elementby making specific findings as to thebest interests of the child. In re ~arriageof Keating (1984), 212 Mont. 462, 689 P.2d 249. The ~istrict Court made the appropriate findings and considered the best interests of ~ikole. The judge interviewed Nikole in chambers. The transcript reveals that Nikole testified that she would go to the same school no matter which parent she livedwith. Shetestifiedas toher relationship withherparents, her adjustments inher home life and her school life. Thus, it is clear from the record that the District Court considered the factors of 540-4-212, MCA, before making its determination as to Nikole's best interests. Larry's argument that the lower court isbound by the child's wishes absent a finding of his unfitness is not persuasive. The District Court is not required to award custodybased on a child's preference. The fitness of either party as a parent is only one factor tobe consideredby the court in granting custody. ~ier v. 7Sherrard (1981), 623 P.2d 550, 38 St.Rep. 158. We hold that the District Court did not abuse its discretion by awarding primary custody of the parties1 daughter to the mother in light of the child1sexpressed preference to live with her father. Affirmed.

We Concur: .4

Chief Justice 

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