No. 81-431 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

IN RE THE MARRIAGE OF 

DOROTHEA J. SCBULTZ, 

Petitioner and Appellant, 

- VSJACOB SCHULTZ, 

Respondent and Respondent. 

Appeal from: District Court of the Thirteenth Judicial District, 

In and. for the County of Big Morn, The Honorable 

Diane G. Barz, Judge presiding. 

Counsel of Record: 

For Appellant: 

Anderson, Edwards & Molloy, Billings, Montana 

For Respondent : 

Kronmiller and Seykora, Hardin, Montana 

Submitted on Briefs: June 17, 1982 

Decided: AU~US~ 11, 1982 

Filed: BUG 11. 59fjz 
Mr. 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 couple Is property. 

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 parties1 wide difference in educations, Dorothea handled the 

management and finances of the operations while Jake concentrated 

on the day-to-day functions. The record shows both Jake and 

Dorothea were hard workers and attempted to make the best of 

their debt-ridden business. 

At the time appellant filed her petition for dissolution of 

marriage, and parties were farming and ranching north of Hardin, 

Montana, on 160 acres known as the home place which they 

purchased from Dorotheal s 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 DJ Bar, registered to Jacob and Dorothea Schultz; 

3. Bar CB, registered to Patricia Thomas; 

4. Slash CC, registered to Robert and Dorothea Schultz; 
The ownership of these four brands is disputed. The Bar D 

Lazy K brand was first established in 1950 by 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 the brand has always been registered in the 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 

Little Horn Bank to pay 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 cattle were 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 

law the court found the total net worth of the parties to be between $94,116.51 and $153,599.51. The difference in amount is due 

to different appraisals of the real estate and cattle. The 

District Court's finding is as follows: 

RECAP 

ASSETS 

Real Property $242,375.00 to $276,060.00 

Less sale of 59% interest - 59,000.00 - 59,000.00 

Machinery 

Crops 

Livestock 

Brand 

-Dz Brand 38,730.00 to 45,300.00 

/CC Brand 9,450.00 to 10,900.00 

- 0 J 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, sale of 

59% interest - 59,000.00 - 59,000.00 

TOTAL ASSETS 

LIABILITIES 

FHA $180,030.17 

Little Horn State Rank 14,722.65 

Miscellaneous 

TOTAL LIABILITIES 

NET WORTH OF PARTIES TOGETHER 

Assets $296,614.33 to $356,097.33 

TOTAL 

In the j udgmen t 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 the marital estate .I' 

From this judgment petitioner appeals . 

The issues presented for review 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 Patricia Thomas. 

2. Whether the court abused its discretion and acted 

contrary to the evidence when it included with the marital estate 
the 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 to forced 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 is registered in the name of the daughter, Patricia Thomas, or 

that the brand, Slash CC is registered in the names of the son, 

Robert Schultz and Dorothea Schultz. 

Appellant cites section 1-1-101, MCA: 

"A person, firm or corporation in whose name a 

mark or brand is recorded is entitled to the 

exclusive use of the mark or brand on the species of animal and in the position designated 

in the record. A copy of the record certified 

by the department is prima facie evidence of 

this right, -- and the certificate -- is also prima 

facie evidence -- that the person, --- firm or corperation entitled ----- to use the mark or brand 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 evidence of ownership, and that it was error to admit the oral 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 cannot 
be rebutted. In Bohart v. Songer et al. (1940), 110 Mont. 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 facie evidence 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 

are presumed the owners. 

Respondent now claims he has an "interest1' in the disputed 

brands because he fed and watered the cattle and took care of 

them on his land. He cites no authority which 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 argue he 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 

equitable payment. We find no merit in respondent'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 in Montana. 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 substantially inequitable 

division of the marital assets resulting in substantial 

injustice. In Re Marriage of Brown (1978), 179 Mont. 417, 587 

P.2d 361, 364; In Re Marriage of Blair (1978), 178 Mont. 220, 583 

P.2d 403, 405; Vivian v. Vivian (1978), 178 Mont. 341, 583 P.2d 

1072, 1074. The duty of the District Court is to consider the 
statutory criteria and equitably apportion the marital assets. 

Each case must be looked at individually with an eye to its unique circumstances. In Re Marriage of 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, 

Section 40-4-202, MCA states : 

"In a proceeding for dissolution of a marriage 

. . . the court , . . shall . . . finally 

equitably apportion between the parties the - - 

property- and assets belonging - to either 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 -- to the family unit." 

( 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 

equitably apportion the assets no matter in whose name lies title 

or for what source acquired. The section is not ambiguous. When 

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

District Court's ruling we find no abuse of discretion but rather 

a correct interpretation of the law. 

Appellant argues section 40-2-201, MCA, supports the wife Is 

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 in her personal brand of cattle and so expressed in a bill of sale of which 

purported to relinquish his interest in virtually all of the 

marital estate. Section 40-4-202, MCA, calls for an equitable 
division 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) , ---- Mon t . ---- 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 questionable bill of sale which passed all of 

the husband's personal property to the wife has no bearing on the 

division of property mandate of section 40-4-202, MCA. Aside 

from the inclusion of the children's cattle in the marital estate 

we find no abuse of discretion by the District Court in its property division. 

Finally, appellant argues the District Court abused its 

discretion by failing to give her the right to purchase the home 

ranch before subjecting it to forced litigation. Paragraph 5 of 

the District Court ' s j udgmen t 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 parties can do so, giving respondent his portion 

of the marital estate." 

It does not appear that forced sale of the ranch was the only 

alternative as the appellant claims. 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 their own terms as they are in a better position 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 sale was not ordered 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 to modify the property division by excluding the children's 

cattle from the marital estate. 
We concur: 

%bcwa4&-eQ 

Chief ~usticeK 

U...dL 4 i 9P~ul.""I, 

Justices /