No. 86-192 IN THE SUPREME COURT OF THE STATE OF MONTANA 1986

INRE THEMARRIAGE OF MARY ELLENMcCORMACK, Petitioner andAppellant, and SAM 0.McCORMACK, Respondent and Respondent.

APPEAL FROM: District Court of the First JudicialDistrict, In and for the County of Lewis & Clark, TheHonorable Henry Loble, Judgepresiding.

COUNSELOF RECORD:

ForAppellant: C. W. Leaphart, Helena,Montana

For Respondent: Charles Graveley, Helena,Montana

Submitted on Briefs: ,July 31, 1986 Decided: October 9,1986 

## t-19-1986, Filed:

&#ClerkMr. Justice L. C. Gulbrandson delivered the Opinion of the Court.Mary Ellen McCormack appeals a Lewis and Clark County District Court order dividing the property of the parties. Three issues are raised on appeal:

(1) Whether the District Court erred in rejecting the appraisal ofAllen Jones as to the value of the residence at the time of the marriage. (2) Whether it was error to reject the only expert testimonyas to thevalue of the mining claims. (3) Whether it was error to evenly divide the appreciated equity in the residence between the parties. We affirm. Thepartiesweremarried onNovember 24, 1976 and lived together until they separated in September, 1983. Both parties brought some property into themarriage. Thewife's net worth at the beginning of the marriage was appraised at $25,275 compared to $8,202.45 for the husband. Before the marriage, the wife purchased ten acres of land and partially completed a house on the property. During themarriage, the parties made improvements to the property worth $20,439. At trial two appraisalsof the house and the ten acres,
as of the time of themarriage,were received into evidence. The appraisalswere $45,300and $56,000. The District Court accepted the $45,300 appraisal prepared by Joseph J. Zirnrnerman, finding that he was a highly qualified appraiser whose evidence was more credible than that of the other appraiser. The court found that the wifewas entitled to the value of the house at the beginning of the marriage but that the parties should split the appreciation in thenetvalue of thehouse since the appreciation was a product of their joint efforts and contributions. The court accepted Zimrnerman's appraisal of $95,500 as the market value of the house in 1985, the time of the divorce. The debt owing on the house

was $23,500, leaving a net value or equity of $72,000. Subtracting the 1976 net value of the house of $18,800 from the net value of $72,000 at the time of the divorce leaves a balance of $53,200, which is the increasedvalue of thehouse during the marriage. The court rejected the wife's claim that the husband was only entitled to half of the total improvementsmade on the property during the marriage, which amounted to $20,439. The court therefore awarded the house to the wife, but ordered her to pay the husband $26,600 within ten years and assume the $23,500 debt on the house. A court with jurisdiction to dispose of marital property isguided by § 40-4-202(1),MCA: [Tlhe court

# . . . shall

# . . .equitably apportion between the parties the property and assets belonging to either or both, however and whenever acquired and whether the title thereto is in the name of the husband orwife orboth. In making apportionment, the court shall consider the durationof themarriage and prior marriage of either party; antenuptial agreementof the parties; the age, health, station, occupation, amount and sourcesof income, vocational skills, employability, estate, liabilities, and needs of each of the parties; custodial provisions; whether the apportionment is in lieu of or in addition tomaintenance; and the opportunity of each for future acquisitionof capital assets and income. 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. In dividing property acquired prior to the marriage; property acquired by gift, bequest, devise, or descent; property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, bequest, devise, ordescent; the increased value of property acquired prior tomarriage;

# ..

# . The standard of reviewwas stated in In Re Marriage of Garst (Mont. 1983), 669 P.2d 1063, 1067, 40 St.Rep. 1526,

The District Court has far-reaching discretion in making property divisions. The reviewing court does not substitute its judgment for thatof the trial court, and will not alter a judgment unless it finds an abuse of discretion, i.e.

## , that the trial court acted arbitrarilywithout employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice. Kowis, 658 P.2d at 1087, 40 St.Rep. at 153. The first issue iswhether the District Court erred in rejecting Allen Jones' appraisal of the parties' residence. In Dickerson v. Dickerson (1980), 188 Mont. 492, 497, 614 P.2d 521, 524, we said "the trier of the facts has the discretion to give whatever weight he sees fit to the testimony of the expert from 0 to loo%." Biegalke 

### v. Biegalke (1977), 172 Mont. 311, 317, 564 P.2d 987, 990. In Marriage of Peterson (1981), 195 Mont. 157, 162, 636 ~.2d 821, 823, we held that "the District Court is free to follow

one appraisal and reject another." The District Courtmust make findings supporting the valuation selected where there is awide disparity in the appraisalsoffered. Peterson, 636

In this case the District Court received into evidence appraisals from Joseph Zirnmerman and Allen Jones and found Zimmerman's appraisaltobe more credible. The courthad the discretion to give full weight to either appraisal. Moreover, the court found Zimmerman to be a "highly qualified" appraiser. We conclude that the District Court did not abuse itsdiscretion.The second issue iswhether itwas error to rejectM.W. Ratcliff's appraisal of the Rimini mining claims. Ratcliff appraised the claims on behalf of the wife at a figure between $18,250 and $20,000. We followDickerson, 614 P.2d 521, and hold that the District Court, as the trier of fact, had the discretion to give whateverweight it saw fit to the testimony of the wife's expert. The court found the appraisal of the mining claims to be unreliable because no proof of any commercial value in the claims had been shown. The appraiser did not knowwho owned the ground,he did not test it,drill it,or look at theproduction records. He did not know of anyonewhowould buy the land. Instead he relied

on what others had told him about the claims. The District Court acted well within its discretion by adopting the husband's estimate that the claimshad ahobbyvalue of $250. The third issue is whether it was error to evenly divide the appreciated equity in the residence between the parties. In Torma v. Torma (1982), 198 Mont. 161, 168, 645 P.2d 395, 399, we held that "a property division should at least reflect the relative contributions of the parties, as well as entitle each to a proportionate share of the appreciation in property values in the wake of divorce." The District Court found the parties to be in approximately the same position, each having contributed an equal amount to the marriage. From a finding that the appreciated property value of $53,200 was a product of the parties' joint efforts, the court divided the appreciation equally between them. We agree with the judgment of the DistrictCourt. The wife argues that since she brought the house into the marriage and since title to the house is inher name, sheshould receive more than 50% 

### of the appreciation in property values. We have said that property acquired before marriage is still a marital asset subject to division and that there is

no definite rule as tohow the trial court is to consider the asset. Each case is to be decided on its own facts. InRe Marriage of Keepers (Mont. 1984), 691 P.2d 810, 41 St.Rep. 2163. We find Keepers persuasive when read in conjunction with S 40-4-202(1), MCA,which reads inpart: [Tlhe court

# .. . shall

# .. .equitably apportion between the parties the property and assets belonging to either orboth, however and whenever acquired, and whether thetitle thereto is in 

## thename of the husband or wife or-both. 

## - (~mphasis added.) The District Court is vested with wide discretion in these matters and we see no facts to indicate that it abused itsdiscretion. Affirmed.

\

We concur: