No. 81-431 INTHE SUPREME COURT OF THE STATE OF MONTANA 1982

INRE THE MARRIAGE OF DOROTHEA J. SCBULTZ, Petitioner and Appellant,



### -VSJACOB SCHULTZ,Respondent and Respondent.

Appeal from: DistrictCourtof theThirteenthJudicialDistrict, Inand. fortheCounty of Big Morn, The Honorable Diane G. Barz, Judge presiding.
Counsel of Record: ForAppellant: Anderson, Edwards & Molloy, Billings, Montana
For Respondent: Kronmiller and Seykora, Hardin, Montana

Submittedon Briefs: June 17, 1982 Decided: AU~US~ 11, 1982

Filed:

## BUG11.59fjzMr. Justice John Conway Harrison delivered the Opinion of the Court.
Action commenced by wife seeking dissolution of marriage and
a property division. Petitioner filed in the District Court of the Thirteenth Judicial District in and for the County of Yellowstone. Findings of fact and conclusions of law were entered April 22, 1981, followed by judgment. Appeal followed directed specifically to the disposition of coupleIsproperty. The parties to this action 

### were married in 1936. For the 43-year duration of their marriage they farmed and ranched at various locations in south-central Montana. Respondent (hereinafter Jake) has a second grade education. Appellant (hereinafter Dorothea) 

### was graduated from high school. Due to the parties1wide difference in educations, Dorothea handled the management and financesof theoperations whileJake concentrated
on the day-to-day functions. The record shows both Jake and Dorothea 

### were hard workers and attempted 

### to make the best of theirdebt-ridden business. At the time appellant filed her petition for dissolution of marriage, and partieswere farming and ranching north of Hardin, Montana, on 160 acres known as the home place which they purchased from Dorotheals father. Later, another 117

### acres were purchased with the help of their son, Robert Schultz, known as the Orser Place. The parties improved and equipped the home place by borrowing substantial amounts of money from the FHA and the PCA. In addition they used funds which Dorothea received in
a personal injury settlement and from money inherited from her uncle. The parties accumulated a herd of cattle on the ranch which included four separate brands: 1. Bar D Lazy K, registered to Dorothea Schultz; 2. Lazy DJBar, registered to Jacob and Dorothea Schultz; 3. Bar CB, registered 

### to PatriciaThomas; 4. SlashCC, registered toRobert and Dorothea Schultz;The ownership of these four brands is disputed. The Bar D Lazy K brand 

### was firstestablished in 1950by Dorothea Schultz. In 1971, Dorothea transferred the brand 

### to a joint brand with Jake upon request by the FHA to qualify for a loan. When the loan 

### was released Jake assigned his interest back to Dorothea. The Lazy DJ Bar is jointly owned by Dorothea and Jake without dispute. The 

### cattle branded Bar CB were purchased in 1961 by Dorothea and then sold 

### to the daughter Patricia Thomas. Since then thebrand has always been registered inthe daughter's name. When the brand Bar CB cows 

### were calved-out through the years,


### some of the calves 

### were sold and the proceeds used by Jake and Dorothea in their operations. The 

### cattle branded Slash CC 

### were purchased by Dorothea in 1975. Dorothea obtained a loan from the LittleHorn Bank topay for the cattle. When she couldn't repay the loan, the son, Robert Schultz, repaid the bank and Dorothea gave him a bill of sale for the cattle. The cattlewere branded Slash CC and the brand 

### was registered in the names of Robert and Dorothea Schultz. In the District Court's findings of fact and conclusions of lawthe court found the 

### total networth of thepartiesto be between $94,116.51 and $153,599.51. The difference inamount is due to different appraisals of the real estate and cattle. The DistrictCourt's finding is 

### as follows: RECAP
ASSETS RealProperty $242,375.00 to$276,060.00 Less saleof 59%interest 

### - 59,000.00 

### - 59,000.00 Machinery Crops Livestock Brand -DzBrand 38,730.00 to 45,300.00 /CC Brand 9,450.00 to 10,900.00

0J Brand 16,500.00 to 18,650.00 

### -Check 8,729.33 to 

### -- 8,729.33
Sub-Total 355,614.33 

### to 415,097.33 Less $59,000.00, saleof

59%interest 

### - 59,000.00 

### - 59,000.00
TOTAL ASSETS

LIABILITIES FHA $180,030.17 LittleHorn StateRank 14,722.65 Miscellaneous TOTAL LIABILITIES
NET WORTH OF PARTIES TOGETHER Assets $296,614.33 to $356,097.33

TOTAL
In the judgment the District Court ordered: 

# ".

. 

# . that the property of the marital estate, both real and personal, including CB and /CC brand cattle shall be sold, and after payment of 

### all indebtedness herein the net proceeds shall be divided between the parties except petitioner 

### is entitled 

### to be paid $25,000 over and above respondent's share..

# . "Sale of property set forth in the previous paragraph shall be accomplished by mutual agreement of the parties presented 

### to this Court. If no agreement 

### is reached, the court shall set the guidelines for the 

### sale. The court would ratify an agreement allowing the petitioner's 

### to retain the 'home place,' if the parties can do 

### so, giving respondent his portion of themarital 

### estate.I' From thisjudgment petitioner appeals

# . The issuespresented forreview

### are: 1. Whether the court had jurisdiction to include within the marital estate and to divide and order sold the cattle owned by and branded in the names of the adult children, Robert Schultz and PatriciaThomas. 2. Whether the court abused its discretion and acted contrary to the evidence when it included with themarital 

### estatethe cattle with the wife's separate and personal brand, Bar D Lazy K. 3. Whether the court abused its discretion in failing to give the wife the right to purchase the home ranch before subjecting it toforced litigation. Appellant argues the District Court erred by including the brands Slash CC and Bar CB, registered in the children's names, into the marital 

### estate. There is no dispute that the brand, Bar CB isregistered inthe name of thedaughter, PatriciaThomas, or that the brand, Slash CC is registered in the names of the 

### son, Robert Schultzand DorotheaSchultz. Appellant

### cites section 1-1-101, MCA: "A person, firmor corporation inwhose name a mark 

### or brand is recorded is entitled to the exclusiveuse of themark 

### or brand on the species of animal and in the position designated inthe record. A copy of the record certified by the department is prima facie evidence of thisright, 

### -- and the certificate -- 

### is alsoprima facie evidence 

### -- that the person, firm

### or cor

### --- peration entitled 

### touse themark 

### orbrand is 

### ----- theer

### -- of all animals on which it appears in the position and on thespeciesof animal 

### -- --- - stated in the certificate.I1 (Emphasis supplied

# .) - This section 

### was originally enacted as Section 5, Ch. 144 Laws of Montana (1921), codified as Section 3305, R.C.M. 1921. The language has remained unchanged since its enactment. In the
case of State v. Keays (1934)r 97 Mont. 404, 34 P.2d 855, this Court cited the section and stated: "Defendant argues that the certificates mentioned in the above section were the best evidenceof ownership, and thatit

### was errorto admittheoral testimony of Rafesty upon this question. It is true that the certificates specified by the statutes would have been the best evidence. The admission of the oral testimony in the place of such certificates did constitute at least a technical error." This being a criminal case, the Court found other grounds upon which 

### we could reverse. However, the rule that the certificate 

### is the best evidence of ownership has never been overruled. That does not mean that the presumption of ownership cannotbe rebutted. 

### In Bohart v. Songer 

### et al. (1940), 110Mont. 405, 101 P.2d 64, we stated: 

### "[n]ow the recorded brand establishes prima facie proof of ownership on which such brand appears. Of course, the prima facieevidence of ownership can be overcome by satisfactory evidence of transfer or relinquishment of a particular animal." In the present 

### case there 

### was no evidence of transfer or relinquishment of the disputed brands. The brands have always been in the children's names and thus the children
arepresumed theowners. Respondent now claims he has an "interest1' in the disputed brands because he fed and watered the cattle and took care of themon hisland. He cites no authoritywhich substantiates this claim of ownership. Respondent acknowledged that the children
were the registered owners of the brands and never contested their ownership until the dissolution proceeding. The record shows the parents sold calves from the daughter's brand, Bar CB, and the proceeds 

### were used in the operation of the ranch. The record does not show that the daughter 

### was repaid for these calves. Respondent cannot arguehe watered, fed and pastured the children's cattle without compensation as it 

### seems the parents
use of the proceeds from the daughter's calf sales provided equitablepayment. We find nomerit inrespondent's contentions. Appellant next argues the District Court abused its discretion when it included the wife's personal brand of 

### cattle with the marital 

### estate. The standard for reviewing the property division in a dissolution decreed by a District Court is 

### well settled inMontana. The apportionment made by the District Court will not be disturbed on review unless there has been a clear abuse of discretion as manifested by a substantiallyinequitable division of the marital assets resulting in substantial injustice. In Re Marriage of Brown (1978), 179Mont. 417, 587 P.2d 361, 364; In Re Marriageof Blair (1978), 178Mont. 220, 583 P.2d 403, 405; Vivian v. Vivian (1978), 178Mont. 341, 583 P.2d 1072, 1074. The duty of the District Court 

### is to consider thestatutory criteria and equitably apportion the marital assets. Each 

### case must be looked at individuallywith an eye to its unique circumstances. InReMarriageof Jacobson (1979), Mont

# . -

-

### - 

## , 600 P.2d 1183, 1186, 35 St.Rep. 1773, 1776; Aanenson v. Aanenson (1979),

### -- Mont. 

## ,598 P.2d 1120, 36 St.Rep. 1525,

Section40-4-202, MCA states: "In a proceeding fordissolution of amarriage



# . .

# . the court ,

# .

# . shall

# . .. finally equitably apportion between the parties the
- - 

### property-and assets belonging 

### - toeither 

### or both, however 

## - and whenever acquired 

### and whether title thereto 

### - is in the name of 

### the 

### ---- husband 

### or wife or both. In making apportionment,the court shall consider the duration of the marriage and [other factors]



# . . 

# . The court shall 

### also consider the contribution 

### or dissipation of value of the respective 

### estates 

### -- and the contribution of a 

### -- spouse 

### as a homemaker or

### -- tothe familyunit." (Emphasis added.) This section makes it clear that the source of and title to marital property is irrelevant as 

### to the division of such property upon dissolution of marriage. In Re Marriage of Brown, supra. The statute specifically 

### states the District Court must equitablyapportion the 

### assetsno

### matter inwhose name lies 

### title
or forwhat source acquired. The section isnot ambiguous. When


### we apply section 40-4-202, MCA, the relevant case 

### law to the District Court's ruling

### we find no abuse of discretionbut rather
a correct interpretationof the 

### law. Appellant argues section 40-2-201, MCA, supports the wifeIs claim of ownership to her brand of cattle, the Bar D Lazy K. This section 

### states, "Neither husband nor wife has any interest in the property of the other, except as mentioned in section 40-2-102, but neither can be excluded from the other's dwelling unless enjoined by a court." Section 40-2-201, MCA, does not apply in a proceeding for disposition 

### of property. Appellant claims that respondent had no interest inherpersonalbrand of 

### cattle and so expressed ina billof saleof which purported to relinquish his interest in virtually all of the marital 

### estate. Section 40-4-202, MCA, calls for an equitabledivision of the marital estate by the court, regardless of however or whenever acquired or in whose name the property is held. In Re Marriage of Houtchens (1979)

## , ---- Mont

# . ----I 592 P.2d 158, 160, 36 St.Rep. 501, 503. Whether 

### or not a particular brand of cattle 

### was registerd in the wife's name, or whether there

### was a questionablebillof salewhich passed allof thehusband's personal property to the wife hasnobearing on the division of property mandate of section 40-4-202, MCA. Aside from the inclusion of the children's 

### cattle inthemarital estate


### we find no abuse of discretionby the District Court in itspropertydivision. Finally, appellant argues the District Court abused its discretionby failing to give her the right 

### to purchase the home ranch before subjecting it to forced litigation. Paragraph 5 of the District Court

## 's judgment reads 

### as follows: "5. Sale of property 

### set forth in the previous paragraph shall be accomplished by mutual agreement of the parties presented 

### to this court. If no agreement 

### is reached, the court shall 

### set the guidelines for the 

### sale. The court would ratify an agreement allowing Petitioner to retain the 'home plant if par

### ties can do so, giving respondent hisportion of themarital estate." Itdoes not appear thatforced 

### sale of the ranch 

### was theonly alternative

### as the appellantclaims. The District Court clearly allowed the parties 

### room to negotiate a buy-out on their own 

### terms. It seems the parties would have an interest in negotiating theirown 

### terms asthey 

### are ina betterposition to know what they can afford and what they feel their interest is worth. Their incentive should be to avoid a forced 

### sale which might not be as fruitful 

### as a sale from one party 

### to the other. Here forced salewas notordered unless the parties could not reach an agreement. We find no 

### error in the District Court's ruling. For the above reasons, 

### we remand the case to the District Court tomodify thepropertydivisionby excluding the children's 

### cattle from themarital

### estate.Weconcur: 

# %bcwa4&-eQ Chief~usticeK



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# 4 i

## 9P~ul.""I,

Justices 

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