No. 86-192 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

IN RE THE MARRIAGE OF 

MARY ELLEN McCORMACK, 

Petitioner and Appellant, 

and 

SAM 0. McCORMACK, 

Respondent and Respondent. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Henry Loble, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

C. W. Leaphart, Helena, Montana 

For Respondent: 

Charles Graveley, Helena, Montana 

Submitted on Briefs: ,July 31, 1986 

Decided: October 9, 1986 

t-1 9-1986, 

Filed: 

&# 

Clerk 
Mr. 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 of Allen Jones as to the value of the residence at 

the time of the marriage. 

(2) Whether it was error to reject the only expert 

testimony as to the value of the mining claims. 

(3) Whether it was error to evenly divide the 

appreciated equity in the residence between the parties. 

We affirm. 

The parties were married on November 24, 1976 and lived 

together until they separated in September, 1983. Both 

parties brought some property into the marriage. The wife'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 the marriage, the 

parties made improvements to the property worth $20,439. 

At trial two appraisals of the house and the ten acres, 

as of the time of the marriage, were received into evidence. 

The appraisals were $45,300 and $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 wife was entitled to the value 

of the house at the beginning of the marriage but that the 

parties should split the appreciation in the net value of the 
house 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 increased value of the house 

during the marriage. The court rejected the wife's claim 

that the husband was only entitled to half of the total 

improvements made 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 is guided 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 or wife or both. In 

making apportionment, the court shall 

consider the duration of the marriage and 

prior marriage of either party; 

antenuptial agreement of the parties; the 

age, health, station, occupation, amount 

and sources of 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 to maintenance; 

and the opportunity of each for future 

acquisition of 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, or 
descent; the increased value of property 

acquired prior to marriage; . . . 

The standard of review was 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 that of the trial court, 

and will not alter a judgment unless it 

finds an abuse of discretion, i. e. , that 

the trial court acted arbitrarily without 

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 is whether 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 Court must 

make findings supporting the valuation selected where there 

is a wide disparity in the appraisals offered. Peterson, 636 

In this case the District Court received into evidence 

appraisals from Joseph Zirnmerman and Allen Jones and found 

Zimmerman's appraisal to be more credible. The court had 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 its discretion. 
The second issue is whether it was error to reject M.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 follow Dickerson, 614 P.2d 

521, and hold that the District Court, as the trier of fact, 

had the discretion to give whatever weight 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 know who owned the ground, he did not 

test it, drill it, or look at the production records. He did 

not know of anyone who would 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 claims had a hobby value 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 

District Court. 

The wife argues that since she brought the house into 

the marriage and since title to the house is in her name, she 
should 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 to how the trial court is to consider the 

asset. Each case is to be decided on its own facts. In Re 

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 in part: 

[Tlhe court . . . shall . . . equitably 

apportion between the parties the 

property and assets belonging to either 

or both, however and whenever acquired, 

and whether thetitle thereto is in 

the name 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 

its discretion. 

Affirmed. 

\ 

We concur: