### No. 82-20 IN THE SUPREME COURTOP 

### THE STATEOF 

### MONTANA

INRE THEMARRIAGEOF BARBAJPA J. 

### KRAUSE, PetitionerandAppellant, and LARRY KRAUSE, Respondentand Respondent.

Appeal from: District Court of theThirteenth Judicial District, Inand for theCounty ofYellowstone Honorable William Speare,Judgepresiding. Counsel of Record: ForAppellant: Stephens & 

### Cole,Billings,Montana ForRespondent: GaryL. Beiswanger,Billinqs,Montana

Submittedonbriefs: June 24, 

### 1982 Decided: September 23, 1982 Filed:

## 8EP

# 23

# "1382Mr. Justice John Conway Harrison delivered the Opinion of the Court. This is an appeal from a judgment of the District Court of the Thirteenth Judicial District, State of Montana, in and for the County of Yellowstone, dividing the marital assets of the parties. The wife appeals. The parties 

### were married on October 18, 1974, at Billings, Montana. It was the second marriage for both parties. There

were no children born of the marriage, however, each of the parties has children from their previous marriage. Barbara Krause

was trained to be 

### a registered nurse but has not worked in that capacity since 1970. LarryKrause presentlyworks asa petroleum engineer. InFebruary of 1977, Barbara petitioned fora divorce. A decree of dissolution was signed by the District Judge on May 17, 1978. The decree did not make a property disposition, rather the District Court expresslyreserved jurisdiction to make thedispositionata laterdate. During the marriage the parties pooled their 

### assets and made investments. Principally, they invested in oil and gas properties, three kinds of common stock, and real property located on the Boulder River. Only the above-mentioned assets

were disputed at the trial; the parties having previously agreed

on a division of the balance of the property. By stipulation of the parties the District Court appointed a Special Master, a certified public accountant, for purposes of reporting to the Court on the following issues: 1. Ascertaining the networth of the respectiveparties including a determination of all assets owned 

### or acquired by the respective parties; Determining those assets of the parties .at were acquired during the course of the rriage and tracing the application of the premarital 

### assets of the respective parties and theirapplication for acquisition of 

### maritalassets 

### or post-marital 

### assets; 3. Providing a written report to the Court specificallydetermining the sources 

### or derivation of the assets of the respective parties.(2)whether the District Court erred by failing to value assets at the 

### time of the dispositional hearing; and (3)whether there



### was a want of candor and disclosure regarding financial information relating

### to the oiland gas interests? Inrelation 

### to the firstissue, the appellant contends that: (1 ) her husband

### 's non-monetary contributions 

### were wrongly considered as monetary contributions, and (2)thather non-monetary contributions were not considered. We do not agree with either assertion. Regarding her first assertion she points to her husband's contribution to the oiland gas interests. During the marriage, LarryKrause 

### was given the option 

### to take a decrease inearnings in return for the opportunity to participate inworking oil and gas interests. In 1975 he took a cut of $6.25 from his hourly consultants fee. Then in 1977he took another cut of $2.90 per hour. These foregone earningsof the husband coupled with a cash contribution of the wife resulted inthe acquisition of the oil and gas interests. The District Court found that the cost of acquiring these interests 

### was $36,847; with $29,088 attributable to the husbandIs foregone earnings and $7,759 attributable tothewife's cash contribution. The appellant/wife contends it is 

### error 

### to "give anymonetary weight 

### to non-monetary contributions.

# .. " In other words, she argues that the foregone earnings

### were non-monetary contributions and the District Court improperly assigned to them a dollar value. In all of our previous cases when we spoke of non-monetary contributions we were referring to those contributionswhich are difficult to quantify in dollars and cents. For example, in Eschenburg v. Eschenburg (1976), 171Mont. 247, 557 P.2d 1014,



### we noted that a marriage is much 

### more than a business relationship, thuscontributions to the 32-year marriage included raising four children, managing the household, entertaining at social activities, and volunteering services to activitiesThe SpecialMaster completed hisreport onJanuary 31, 1981. The report set out the original acquisition 

### cost of the various properties and the contribution of each party. Also, the fair market value at or near the 

### time of divorce is indicated and divided between the parties proportionate 

### to the amount of their contribution at the time of acquisition. The pertinent part of the report is setoutbelow: Larry Barbara Total Krause Krause - ----- --- - -- 2000 SharesEnergy

Resources Stock $ 4,109.85 2,339.81 1,770.04 Value 5/17/78 18,000.00 10,247.40 7,752.60 300 Shares Continental

Group Stock 8,599.68 2,010.89 6,588.79 Value 5/17/78 9,375.00 2,191.88 7,183.12 100Shares Simplicity

Pattern 1,639.50 383.37 1,251.63 Value 5/17/78 1,375.00 321.48 1,053.52 Boulder Property Value 5/17/78 OilProperties Value 1/1/79 TotalCostValues 66,169.66 41,322.56 24,869.60 TotalFairMarketValue @ 5/31/78 $119,164.00 78,924.37 40,239.63 On March 3, 1981, the property distribution part of their

case was heard before the District Court. The court made findings of fact and conclusions of 

### law on June 22 and entered its 

### j

udgment on September 16. The court awarded 65 percent of the interest in the oil and gas properties to LarryKrause and the balance 

### to Barbara Krause; each was awarded 50 percent of the Boulder River property; and 

### twoof the common stocks, Energy Resources and Continental Group,

were split65percent and 35 percent toLarry and Barbararespectively. The remaining stock, Simplicity Pattern, was awarded to Barbara. The petitioner

## , Barbara Krause

## , was unsatisfied with thisdistributionand appeals to thisCourt. The appellant raises three issues: (1)whether the District Court erred in 

### it's consideration of non-monetary contributions;related to the husband's career. In the case of Biegalke v. Biegalke (1977), 172 Mont. 311, 316, 564 P.2d 987, 990, nonmonetary contributions of the wife included "wearing out her wedding band chopping wood, turning bales in the field, [and] chasing cattle on foot.

# .

# ." Again, in In Re Marriage of Kaasa (1979), 181 Mont. 18, 23, 591 P.2d 1110, 1113 non-monetary contributions 

### were described as follows: 

### "she helped move cattle out to pasture, hauled cattle by trucks, helped with branding, cooked for the 

### crews, raised chickens and 

### was responsibleforthe familygarden

# ."

We believe it is these kinds of contributions that the legislature had inmind when they enacted section40-4-202, MCA, which mandates consideration of "contribution[s] of a spouse as a homemaker or to the family unit." Wedo not intend to precisely define non-monetary contributions

# . Such determinations 

### are the province of the District Court. Wehold thatthe DistrictCourt properly considered the respondent's foregone earnings as monetary contributions toward the acquisition of the oil and gas interests. Indeed, they 

### are measured accurately in dollars and cents and it is difficult to conceive of them as anything but monetary. The appellant further contends that her non-monetary contributions were not considered. At the trial the appellant testified thatduring the 

### term of the marriage shemaintained the house, kept it clean, provided 

### meals, didthe shopping, cared for the children, did ironing, helped with lawn 

### care, and 

### was active insocial functionsrelated tothe husband Isbusiness. Obviously these contributions are substantial. However, 

### we find no 

### error. This Court has stated innumerable times that the District Court had broad discretion in dividing the marital estate. "The test 

### for reviewing the District Court's discretion is: Did the District Court in the exercise of its discretion act arbitrarily without employment of conscientious judgement

## , or exceed the bounds of reason inview of allthe circumstances?" Converse v.Converse (1982), ---.- Mont

# . I ---- - --- .- ---

### , 645 P.2d 413, 415, 39 St.Rep, 887, 889; Levandowski v. Levandowski (1981),

-- Mont

# . - -.

-.

--.-

## , 630 P.2d 239, 38 St.Rep. 1002; In Re Marriage of Brown (1978), 179 Mont. 417, 587 P.2d 361; Ze11 v. Ze11 (1977), 174 Mont. 216, 570 P.2d 33. We find no error with the DistrictCourt in its evaluation of the various contributions to themarriage. The appellant further contends "the court1 s findings did not address itself to the effect 

### or the weight that was to be given Barbara1 s non-monetary contributions

# ." Presumably the appellant considers such an omission as reversible error. Wedo not agree. 

### "'Findings of factand conclusions of law provide a foundation for the court's judgment. Marriage of Barron (1978), 177Mont. 161, 580 P.2d 936. This foundation need not consist of a multitude of evidentiary facts, but the findings of fact must set forth a recordation of the essential and determining facts upon which the court rested 

### its conclusions of law and without which the judgment would lack support. Jones v. Jones (1980)f Mont

# .

----

## ,620 P.2d 850, 37 St.Rep. 197T.-i-"- Converse, supra, 645 P.2d at 416, 39 St.Rep. at 890. --- As the second issue, the appellant alleges 

### error by the District Court in failing to consider the oil and gas interests properly. Error is alleged through a two-pronged argument, first, "for failure to consider the income thatwas derived from the marital oil and gas properties and, second; that the court erred infailing to consider anyvalue foradditional oil and gas assets acquired as a result of income earned from what was an agreed marital asset

# ." This situation is one of first impression, consequently a more detailed view of the facts is necessary. Asnoted above, when the partieswere divorced inMay of 1978 theDistrictCourt reserved jurisdiction to apportion themarital property. From the divorce 

### to the hearing on property distribution, thirty-four months elapsed. During this thirtyfour month period the husband had control over the 

### oil and gas properties. The properties consisted of "working interests" intwenty-three oil and gas wells, twenty of which were producing. The propertiesgenerated income and 

### more "working interests"

### were purchased. LarryKrause testified that afterthe divorcehe had purchased interests inten 

### to twenty additional wells. The funds topurchase these additional interestscame from two sources; his income as a consultant, and from income generated from the original twenty producing wells. Itwas the wife's contention atthe trial court that she be allowed 

### to share equally in both the income realized from the original twenty wells and the additional interests purchased with the income of the original twenty. Before addressing this contention we find it necessary 

### to evaluate the circumstances which generated this issue. Thisproblem arisesbecause therewas a timelapse of thirtyfour months between the date of dissolution and the hearing on property distribution. The record does not provide any justification for such a lengthy delay. Even if the timedelay had not caused complications in the valuation of the property, this situation should not occur. Here the parties were divorced for nearly three years yet they stillowned property as if they 

### were husband and wife. A District Court may postpone disposition of the marital property. The authority is found in section 40-4-104, MCA, which reads inpart: "The District Court shall enter a decree of dissolution if: 

# ".

.. the court has considered, approved, or made provision for

# ..

# . the disposition of 

### prope;ty or provided -- - for a separate, --- later hearing - tocomplete thesematters." (Emphasis added.) The comments to thissectionstate: "The phrase

## , considered

### , approved, 

### or provided for' in subsection 

# . . . (l)(d) is intended to confer upon the court the authority 

### to refuse 

### to make any award, if the evidencejustifies an outrightdenial, 

### as well asthe authority

### to make such allotmentasthe facts require. To avoid any doubt, the court is authorized expressly to provide for a 

### later hearing 

### to complete action on these matters, - if 

### - necessary." (Emphasis added.) CommissionerlsNote, ~hnotations to MCA, Title 40, FamilyLaw, p. 49.Once before 

### we have focused on the language of subsection (l)(d). InMiller v. Miller (1980), -- .- Mont

# . ----I 

### ,616 P.2d 313, 318, 37 St.Rep. 1523, 1528; the appellant claimed that it 

### was 

### error 

### to separate the dissolution aspect of the marriage from the property disposition. This Court denied that claim and stated: "the interestsof justice and judicial economy 

### are best served by giving District Courts broad discretion inthe conduct of theirproceedings and the severanceof the variouselementsof dissolutiondecrees." Nonetheless 

### we do not view the statute and comments 

### as allowing an indefinite postponement of the property disposition. The language is straightforward. The court canpostpone 

### matters only if it has "provided for a separate later hearing." In our view, "provide for" means 

### to make arrangements for. Making arrangements includes the setting of a date or a time period which is agreeable between the parties. To do otherwise is 

### to unnecessarily punish the parties. An indefinite postponement merely places the parties in limbo and creates appellate problems. Furthermore, a postponement should not be a routine 

### matter. The comments note thatpostponement is authorized "if necessary." Certainly there are cases where postponement of property distribution orothermatters is in the best interestsof the parties. However, it should be clear that delay is "necessary." Present Colorado 

### law suggests 

### a balanced approach. Their statute also 

### allows District Court discretion in postponement of property distribution, yet that discretion is limited. Their comparable version of our subsection (l)(d)reads: "The district court shall enter a decree of dissolutionof marriagewhen: "(b)Inconnection with everydecreeof dissolution 

# . 

# . . the court shall consider, approve, or make provision for 

# . 

# . . the disposition of property; but the entry of a decree with respect to

# ..

# . dispositionoF 

### -- property 

### -- may be deferred by the court until a time subsequent to the decree of dissolution of marriage -- upon a finding thatsuch deferral 

# -- - -- is necessary in the best interests of the

-- - - -- - -parties." Colo.Rev.Stat. section 14-10-106 (1973)

# . This requires the Colorado courts to make specific findings of necessity before deferring property distribution. "It is clear that the reason for the requirement for a specific finding

on this issue is to prevent unwarranted delays in dividing property indissolution of marriage cases." In Re Marriage of Rose (1977)r 40 Co10.App. 176, 177, 574 P.2d 112, 113. Insummary, we encourageDistrict Courts

### to conclude all

### matters upon entry of a decree of dissolution. In those unusual

cases where the trial court is not able to provide for the property disposition at the time of dissolution, the District Court must make written findings that a postponement of the property disposition is in the best interests of the parties. Furthermore, the District Court must "provide for a separate later hearing" by either setting a specific hearing date to complete 

### matters or by setting a time period within which the parties must come before the court for final disposition. We do not intend 

### to setprecise 

### time limits. Such decisions



### arewithinthe discretionof theDistrictCourt. Furthermore, 

### we do not hold that an unwarranted delay will result in a faulty District Court judgment. However, inthis case, the unwarranted delay coupled with valuation factors resulted in an abuse of discretion. Part of the problem results from the District Court's timing of the property valuation. The District Court relied on the Special Master's report which valued the 

### oil and gas interests effectiveJanuary 1, 1979, seven months after the dissolution. All of the other contested property was valued effectiveMay 17, 1978, the dateof dissolution. As to the time of valuation we have said, 

### "[tlhe time for proper valuation cannot be tied to any single event in the dissolution process. The filing of a petition, trial of the matter, oreven the granting of the decree of dissolutiondo not control the proper point of evaluation by the District Court." Lippertv. Lippert (1981), - .- Mont

# . ---I 

## ,627 P.2d 1206,1208, 38 St.Rep. 625, 628. Furthermore, we indicated that there

can be several valuation points rather than one single point for all of the property. This is so because 

### some assets may fluctuate in value. Although

A Lippert did not involve a postdissolution property distribution the 

### same rule applies and extends beyond the dissolution date. Thus, in these facts, the time of the dispositional hearing on March 3, 1981, 

### was a feasible and allowable point to determine valuation. Furthermore, it was the preferable point in view of the often stated rule that the partiesgnetworth must be determined ator

near the 

### time of the divorce. See Hamilton 

### v. Hamilton (1980), Mont

# . -- 

## ,607 P.2d 102, 37 St.Rep. 247; Vivian v. Vivian (1978), 178 Mont. 341, 583 P.2d 1072; In Re Marriage of Kramer (1978), 177 Mont. 61, 580 P.2d 439; Downs v. Downs (1976)I 170 Mont. 150, 551 P.2d 1025. The crux of the above-cited 

### cases 

### is that property valuation should occur at the 

### time of property distribution, or in other words, emphasis is on current valuations. This reasoning is evident in Herring v. Herring (19791I Mont

# . ,602 P.2d 1006, 1007, 36 St.Rep. 2052, 2054, where 

### we remanded since "there 

### was no attempt to place a present, fairmarket value upon these items or

### to determine the net worth of the parties at the 

### time of their divorce." Additionally, in Evert v. Evert (1982)f Mont

# . -------

## , 645 P.2d 417, 39 St.Rep. 860, we remanded to the District Court for failure to "place current values on the partiesg assets." In thatcase theDistrict Court awarded 

### a house and a 2% 

### acre parcel of land based only upon the equity built by the parties rather than anyvaluation figure. From the foregoing discussion several principles are evident; (1)proper valuation is not tied to a specific event, (2)there may be more than one valuation point, depending upon the kind of property involved, and (3)preferably, valuation should occur at the time of distribution, or, stated another way, present fair market values should be used. In given fact situations, theseprinciples con£lictwith each other. When one considers the many different kinds of 

### marital property and the associated problems of valuation it is obvious that a hard and fastrule should not be imposed. Thus, 

### we cannot rule that District Courts must always valueproperty atthe time of distribution. Time and time again 

### we have said it 

### is the District Court that has broad discretion inproperty distribution. InSellv. Sell (1981), -- Mont. 630 P.2d 222, 224, 38 St.Rep 956, 958, 

### we stated: 

### "[tlhis court has a limited scope of appellate review and will not intervene except when the District Court has departed substantially from the norms of equity." "The exercise of discretionby theDistrict Court is necessarywhen determining the worth of marital 

### assets which fluctuate invalue." Lippert, 627 P.2d at 1208, 38 St.Rep. at 628. In thiscase 

### we find that the District Court abused its discretion in the valuation of the contested marital property. The record indicates substantial differences in the value of some of the property from the District Court's valuationdates to the 

### timeof the dispositional hearing. For example, the Energy Resources stock 

### was valued at $18,000 on May 17, 1978, the date of dissolution. The District Court used this value in its determination. Testimony at the dispositional hearing showed 

### its present value at $31,000. Failure to recognize these kinds of value fluctuations 

### is error. On remand the District Court should accept evidence on current valuations of all of the contested marital property. Specifically, the appellant alleges error for the District Court's failure to consider both the oil and gas income and the additional acquisitions. In appellant's view, these assets are partof themarital estate. Weagree. The case of Lippert is cited in support of this contention. There the husband took $96,000 of the marital property to invest in a business. The business went bad and the investment was lost. The District Court considered the $96,000 as part of the marital estate even though it

### was not inexistenceatthe timeofdissolution. The judgment ordered the husband to pay the wife a

sum of $48,000, one-half of the amount that was lost. We reversed stating that "the award ignores fundamental legal principles of marital status; spousespossess mutual powers, obligations and interests which endure until lawfully modified or terminated. One of those powers is the power 

### to freelycontract with others regarding marital property." -- Lippert, 627 P.2d at 1209, 38 St.Rep. at 629. That reasoning applies 

### to this situation. The appellant 

### was never divested of her interest in themarital property. She retained a mutual interesteven though the respondent 

### was in control of the property. It cannot be disputed; the appellant held an interest in income-generating property. That income, of which she had an interest, 

### was reinvested 

### to acquire 

### more assets. It follows that she 

### also has an interest in those additional assets. In effect, the District Court failed 

### tovalue allof the

### marital assets, consequentlythe

case must be remanded. Tefftv. Tefft (1981), Mont. I 628 P.2d 1094, 38 St.Rep. 837; Hamiton v. Hamilton (1980), Mont

# . - - - .- 

## ,607 P.2d 10 2, 37 St.Rep. 247. The record indicates that the additional interests were purchased in part from the respondent's own earnings. Also, it may be that the respondent acquired the additional interests through careful and prudent management. These contribut ions deserve carefulconsideration. Finally, the appellant contendsthattherewas a lackof candorand disclosureon thepartof the respondent infailing to or intentionally refusing to provide in£ ormation concerning the additional oil and gas interests. The record does not substantiate such a claim. Presumably the appellant hoped to get this information on the day of trial through the testimony of Robert Nance

## , the respondent's business associate. It was learned the day before trial that Mr. Nance could not attend, thus hurried arrangements 

### were made 

### to take hisdeposition. During the depositionthe followingexchange occurred:"Q. Has Larry Krause acquired oil and gas interests in addition 

### to these that 

### are set out in these three exhibits that 

### are before you since the date of the 

### last acquisition of the interests listed there? A. Oh, boy, I would say yes, but I don't know that for a fact because I don't keep up with Larry's endeavors as far as our participation is concerned. I would have togo back and checkour blow sheets as towho got what inwhat wells. I don't keep that right on the tip of my tongue. "Q. Who would have access to those records to determine the additional interests thatLarry would have acquired, say since May of 1978? A. Well,my bookkeeper would. "Q. What is hername? A. Marlene Conrad

# ." Then, the morning of the trial, Mr. Nance's bookkeeper was served with a subpoena duces tecum. However, the bookkeeper did not appear with the desired documents because she felt she did not have the authority toproduce the records of Mr. Nance. The appellant further sought this information from the respondent during trial where the following exchange occurred: "8. Have you acquired additional producing interests from income that

### was generated from those original 20 wells? A. Income from those wells and income thatI've made on consulting, yes. I have acquired additional wells. "Q. Do you know howmany additional interests you have acquired? A. Not just offhand. I would be guessingwhat it is,because I really don'

### t know for sure. "Q. Would it be 

### more than 20? A. No. "Q. Would it be less than ten? A. I would say between 10 and 20, somewhere in that range." These facts taken together certainlydo not substantiate a lack of candor or disclosure. A review of the District Court's file certainly shows otherwise. Similar information was sought by the appellant early in the action through the use of interrogatories. The respondent's answers 

### were very complete in those early instances and there is nothing to suggest that at trial he would not have been as complete given adequate 

### time to prepare the in£ormation. The judgment 

### is vacated and remanded forfurtherproceedings

# .We concur: