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: 

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4 ~i- Randy K. Dix; Dix & Hunt Law Firm; Helena, Montana L*.!ll! 

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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. 

In a dissolution proceeding, the District Court for the Eighth 

Judicial District, Cascade County, awarded primary custody of the 

parties1 daughter to the wife and distributed the marital property. 

The husband appeals the District Court's valuation of his insurance 

business and the award of primary custody of their daughter to the 

wife. We affirm. 

The issues for our consideration are: 

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 the marital estate? 

3. Did the District Court abuse its discretion by awarding 

primary custody of the parties' daughter to the mother in light of 

the child's expressed preference to live with her father? 

Larry and Sandra Arrotta 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 work 
until he started his own insurance agency. Larry has remained with 

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 the value of Larry's insurance business and 

testify to his findings. Prior to the hearing, Larry filed a 

motion in limine with the ~istrict Court requesting the exclusion 

of any work done or testimony by Nick Bourdeau as to the value of 

Larry's insurance business. The District Court denied the motion. 

From that decison and the decision to award primary custody of 

Nikole to Sandra, Larry appeals. 

I 

Did the District Court properly admit the expert testimony of 

Mr. Bourdeau as to the value of Larry Arrotta's insurance business? 

Larry contends that Mr. Bourdeau was 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 

insurance business. He urges that the goodwill of the business was 
grossly 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. 

Bourdeauls valuation of his business, he failed to introduce any 

evidence of his own as to value. It also noted that "the expert 

opinion was approximately the same as the valuation method 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 is property 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. . . . 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, and his comparative professional success. . . . In view of exigencies that are ordinarily attendant 

upon a marriage dissolution the amount obtainable in the 

marketplace might well be less than the true value of the 

goodwill. 

~oodwill is not applicable only to professional practices. It may 

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 State v. Oliver (1987), 228 Mont. 322, 742 P.2d 999; Graham v. 

Richardson (1967), 150 Mont. 270, 435 P.2d 263. We conclude that 

the District Court did not abuse its discretion when it found Mr. 

Bourdeau qualified to testify as an expert witness on the value of 

goodwill. We hold that the District Court properly admitted the 

expert testimony of Mr. Bourdeau as to the value of Larry Arrottat s 

insurance business. 

Did the District Court properly exercise its discretion to 

achieve an equitable distribution of the marital estate? 

Larry contends that the distribution of the marital estate 

was inequitable. He bases this contention largely on the value 

assigned to his insurance business by Mr. Bourdeau and the District 

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, it will not be altered unless a clear abuse of discretion 

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 of 
fact 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. Bourdeauls testimony 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 the parties' daughter to the mother 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 family home 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], from that time to the present. In her 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 the best interest of the child that [Sandra] 

have primary custody of Nikole with [Larry] having the 

right to physical custody of her on alternating weekends, 

alternating holidays, and for a continuous period of six 

weeks during the summer, commencind July 5, 1990. 

[Larry's] alternating weekend periods of custody shall 

commence the first weekend after the date of the Judgment 

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 time with each parent, [Sandra] would agree to such 

a plan. It is apparent, however, that at this time a 
fixed schedule of custody and visitation is needed and 

is in Nikole's best interest. (emphasis added). 

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 element by making specific findings as to the best 

interests of the child. In re ~arriage of 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 

lived with. She testified as to her relationship with her parents, 

her adjustments in her 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 is bound by the child's 

wishes absent a finding of his unfitness is not persuasive. The 

District Court is not required to award custody based on a child's 

preference. The fitness of either party as a parent is only one 

factor to be considered by the court in granting custody. ~ier v. 

7 
Sherrard (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 

child1s expressed preference to live with her father. 

Affirmed. 

We Concur: .4 

Chief Justice /Y