### No. 85-213 

### IN THE SUPREME COURT OF THE STATEOF MONTANA 1985



### EDWARD F. BECKER, JR.,



### Petitioner and 

### Appellant,

-vsSANDRA L. 

### BECKER, Respondent and 

### Xespondent.



### APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County 

### of Yellowstone, The Honorable Diane 

### G. Barz, Judgepresiding.
COUNSELOF RECORD:
ForAppellant: James J. 

### Sinclair,Billings,Montana

For Respondent: Wright, Tolliver & 

### Guthals; Kenneth D. Tolliver, Billings,Montana

Submitted: July 12, 1985 

### Decided: October 8, 1985

Filed: 

## oCr8 

# 1985Mr. Justice L. C. Gulbrandson delivered the Opinion of the Court.
Edward F. Becker, 

### Jr., petitioned for, and was granted,
a dissolution of marriage and now appeals the distribution of property ordered by the Yellowstone County District Court. The issue on appeal 

### iswhether the 

### DistrictCourt abused 

### its discretion in the distribution 

### of property. 

### We affirm. The husband 

### sets forth two specific issues: (1) Did the 

### District Court abuse 

### its discretion by including in the marital estate the husband's stock in one corporation while excluding the 

### wife's stock in a different corporation? (2) Did the

### District Court 

### err by failingto

### set forth thevalue of thewife's corporate stock? Although not stated asan issue on appeal, the husband also asserts that the 

### DistrictCourt incorrectly valued his corporate stock. Ed Becker, 

### Jr., appellant, married the respondent, Sandy Becker, 

### in May 1974. They have one child. Appellant previously worked forhis father atRecker's Glass Shop, Inc. (Becker, Inc.)

## , and earned a net monthly income of $1,717. Appellant was the vice-president and the shop foreman of Becker, Inc. His father fired him as a result of the filing of this divorce action. He had worked for his father for fourteen years. Prior tohismarriage, appellanthad received 1,000 shares of Becker, Inc., from his father. After his marriage, he received 21,000 shares of Becker, Inc., from his father. Appellant was employed by Becker, Inc., at the various 

### times he received these shares. He owns 42-43% of the stock 

### of Becker, Inc.Appellant's brother, 

### Jim, acquired stock j.n the corporationwhile hewas employed there. Apparently, 

### Jimdid not acquire any stock after leaving the corporation. At the 

### time of trial, appellant worked in the glass business for his brother and earned a net monthly income of $1,627. Hisjob 

### is seasonal. He has a bachelor's degree in business from EasternMontana College. Respondent 

### isemployed asa legal secretary and earnsa 

### net monthly income of about $1,300. She does not have a college degree. During themarriage, shewas given shares of stock inher parents' farm (theMillCreek Farm) aspart of her parents' estate planning efforts. Respondent testified that the stock has a totalvalue of $32,725. Respondent, in addition toher secretarial job, took care of the house, the cooking and thecleaning duringthemarriage. In February 1984, appellant filed a petition for dissolution of marriage. A non-jury trial was held in the
case inOctober 1984. The DistrictCourt issued 

### its findings of fact and conclusions of law in December 1984. Neither party objectstothedissolution of theirmarriage, the child support award, or the child custody decision. Appellant's only complaint 

### istothedivision of property. The 

### District Court found that 21,000 shares of appellant's stock in Becker, Inc., 

### were acquired during the marriage and while he worked for the company. The court concluded that those shares 

### were thp product of the marital effort and should therefore be included in the marital estate. The court valued those 21,000 shares of stock at $37,841.87. The court did not include in the marital estate that stock given to appellant prior to the marriage. The court based this valuation on a financial statement of

### Eecker, Inc., which had been supplied by the company's certified public accountant. The District

### Court found thatrespondent's stock inthe Mill 

### Creek Farm had been given toher as a gift and was not earned by her. The court further found that appellant and respondent had not enhanced ormaintained theMill

### Creek Farm
or respondent's interest in the farm. Therefore, the court did not include respondent's stock in the marital estate to be divided among the parties. The court did not 

### assign a value to this stock in 

### its findings of fact and conclusions of 

### law. The court's findings of 

### fact and conclusions of law
areotherwise detailed and complete. The marital estatewas valued at$159,144.27. Of this, respondent was awarded $74,097.40. She alsoreceived allof theMil.1 Creek Farm stock, which her uncontroverted testimony valued at $32,725 (for a total award of $106,822.40). Appellant received $85,516.87 from the marital estate. He 

### contends that the Becker, Inc., stock, which represents $37,841.87 of his total award, 

### is actuallyvalueless. As 

### the first issue, appellant contends that the DistrictCourt abused 

### itsdiscretionby including appellant's stock in the marital estate while excluding respondent's stock.The standard of review 

### is clear. In dividing property in a marriage dissolution the district court has far reaching discretion and 

### itsjudgment 

### will notbe alteredwithout a 

### showing of clear abuse of discretion. The 

### test of abuse of discretion 

### iswhether the trial court acted arbitrarily without employment of conscientious judgment or exceeded the bounds of 

### reason resulting in substantial injustice.

### In Re theMarriage of Rolfe (Mont. 1985), 699 P.2d 79, 83, 42 St.Rep. 623, 626; citing In

### re Marriage of Vert (Mont. 1984), 680 P.2d 587, 41 St.Rep. 895. Appellant's first issue essentially raises two questi0n.s; 

### (1)whether respondent's stock should have Seen included in the marital estate; and (2) whether appellant's stock should have been included in the marital estate. As thetrial courtrecognized, these aretwo distinct inquiries. Section 40-4-202, MCA, states inpart:



# . .

# .In dividing property acquired

# .

# .. by gift

# ..

# . the court shallconsiderthose contributions of the other spouse tothe marriage, including: (a) the nonmonetary contribution of a homemaker; (b) the extent to which such contributions have facilitated the maintenance of thisproperty

# .

# .. This Court has held that a district court, in determining the marital estate, 

### is not required to include qiftproperty given toone spouse duringthemarriage. Snell
r. Snell (Mont. 1983), 668 P.2d 238, 40 St.Rep. 1359; In 

### re the Marriage of Jorgenson (1979), 180 Mont. 294, 590 P.2d 606. In 

### re the of Herron (1980), 186Mont. 396, 608 P.2d 97, 

### set forth broad guidelines for the distribution of giftorbequest property. One such guideline 

### isthat: [i]fnone of thevalue of theproperty 

### is a product of contribution from the marital effort. [sic] the

### District Court can justifiably find that the non-acquiring spouse has no interest in theproperty. Herron, 186Mont. at404. Here, respondent received her stock inMillCreek 

### Farm
as a gift under her parents' estate planning scheme. Moreover, neither party worked on the 

### farm except for

### isolated odd jobs. At 

### trial, appellant replied "absolutely not" when asked if he felt he had made a significant contribution to the farm operation. He 

### also agreed with counsel's remark that appellantmade no claim toany interest in the family farm. Under Herron, the district court could justifiably find that appellant had no interest in respondent's stock. See alsoSnell, 668 P.2d 238; Jorgenson, 590 P.2d 606. We 

### hold that there was no abuse of discretion in excluding respondent's stock from the marital estate. In contrast to respondent's acquisition of stock, appellant acquired his stock in 

### Becker, Inc., when he was working for the company. Similarly, there 

### is evidence that hisbrother acquired his stock 

### inBecker, Inc.*when he worked 

### for the company. His

### sister did not 

### receive any stock in the company. These facts support a conclusion that appellant received the stock as compensation forworking and not as a gift. Additionally, appellant, by working, enhanced and maintained the value of the stock. Finally, respondent took
care of the family's cooking, cleaning and laundering while appellantwas working forBecker, Inc. Under these facts, 

### it
was not an abuse of discretion for the trial court to find that appellant's stock was a product of the marital effort and should, therefore, be included in the marital estate. Appellant further complains that the lower court erred in

### assigningvalue toappellant's shares of stock. Appellant argues that his stock 

### is valueless because: (1) the corporation leases 

### its building and land from appellant's father; (2) appellant's fathercan liquidate thecorporation at 

### will; and (3) appellant has no control over the corporation and cannot even work for the corporation. However, at trial, appellant admitted that he thought thestockwas worth something, thatRecker, Inc., has a good name and that the company has been there for a number of years. The 

### District Court, invaluing the stock, reliedupon figures supplied by Becker, Inc.'s, accountant, F.obert A. Everson, CPA. The court computed the stock's value by dividing the value of thecorporation's totalassets, 

### less liabilities, by the number of outstanding shares. This Court has expressly approved thismethod of valuing stock. Rurleigh

### v. Burleigh (Mont. 1982), 650 P.2d 753, 39 St.Rep. 1538. We uphold the trialcourt's valuation. Finally, appellant contends the 

### lower court erred in not making 

### a finding 

### as to the value of respondent's shares of stock. This Court has stated that the trial court must determine the net worth of the parties atthe 

### time of the divorce. 

### In 

### re the Marriage of Loegering (Mont. 1984)

## , 689 P.2d 260, 41 St.Rep. 1892; Beck 

### v. Beck (Mont. 1983), 661 P.2d 1282, 40 St.Rep. 565. That statement, however, has not been a 

### rule strictlyadhered toby thisCourt. We have also stated that: Failure toprecisely 

### set forth net worth of parties does not constitute abuse of discretion 

### so long as the findings asa whole are sufficient 

### to determine net worth, 

### In ReMarriage of Nunnally (1981)

## , Mont., 625 P.2d 1159, 38 St.Rep. 529, and the findings themselves will not be disturbed unless a preponderance of the evidence clearly mandates contrary determinations. Cameron v. Cameron (1978), 179 Mont. 219, 587 P.2d 939. Le Prowse 

### v. LeProwse (1982), 198 Mont. 357, 646 P.2d 526. Inthiscase, 

### itwas not reversible error for thetrial court 

### to not assign a value 

### to an asset not included in the marital estate. Here, although the court did not assign a value tothe stock, the court clearly considered the wife's stock and awarded 

### it toher. There was no dispute 

### as tothe

### stock's value. Respondent consistently admitted the stock
was worth $32,725. Appellant does not attack thisvaluation. Thus, asin LeProwse and Nunnally, the trialcourt's findings
as a 

### whole 

### are sufficient to determine net worth. The findingswere otherwise complete and equitable. We

### hold that the trial court did not commit an abuse of discretion in the distribution of property. The omission of a 

### valuation for respondent's stock was, atmost, harmless error. What this Court stated in In Re 

### the Marriage of Ziegler (Mont. 1985), 696 P.2d 983, 987, 42 St.Rep. 298, 302, bears repeating: We 

### do not wish to restrict the liberal, discretionary power vested in the district courts, by requiring rigid adherence to technical forms of property distribution orders. This Court recognizes that the trial court must evidence the basis of 

### its ultimate conclusion in the findings of fact. However, the statutory guidelines promulgated 

### in 40-4-202, MCA, 

### were not designed as requisite criteria to be individually itemized in every property distributiondecree. Affirmed

# . ,,"- ,'-

I 

### Justice'

We 

### concur:

Justices