NO. 90-598 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

IN RE THE MARRIAGE OF 

MICHAEL H. KEEDY, 

Petitioner and Appellant, 

and 

CAROL SUE KEEDY, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Jeffrey Sherlock, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Katherine R. Curtis; McEwan, Weaver, Kaplan & 

Curtis, Columbia Falls, Montana 

For Respondent: 

James A. Manley; Manley Law Offices, Polson, Montana 

Filed: 

Submitted on Briefs: April 18, 1991 

Decided: June 13, 1991 
Justice Karla M. Gray delivered the Opinion of the Court. 

The appellant, Michael Keedy, appeals from the property 

distribution of the Eleventh Judicial District Court, Flathead 

County, in this marital dissolution action. We affirm in part, 

reverse in part and remand for further proceedings. 

The appellant raises the following issues on appeal: 

1. Did the District Court err in including the appellant's 

entire baseball card collection as a marital asset? 

2. Did the District Court err in its valuation and 

distribution of the appellant's retirement benefits? 

3. Did the District Court err in disregarding the values of 

certain marital assets disposed of by the parties following their 

separation but prior to the dissolution? 

The appellant and the respondent, Carol Keedy, were married 

on May 27, 1973, in Lincoln, Nebraska. At the time of the 

marriage, Michael's education consisted of a bachelor's degree and 

a juris doctorate degree; Carol possessed a bachelor's degree in 

education. Two children were born to the marriage: a son, born on 

October 29, 1974, and a daughter, born on November 23, 1977. 

Throughout the marriage, Michael has been employed as a 

lobbyist, attorney, legislator and, for the past seven years, 

district court judge. During the marriage, Carol worked primarily 

as a homemaker; she currently teaches at a private school. 

The parties separated on April 1, 1989, and brought this 

matter before the District Court on April 30, 1990. The District 

Court entered its Amended Findings of Fact, Conclusions of Law, and 

2 
Order on August 3, 1990. Michael appeals. 

The first issue raised on appeal is whether the District Court 

erred in including the entire baseball card collection as a marital 

asset. 

The baseball card collection consists of approximately 100,000 

baseball cards. Michael testified that he began the collection as 

a boy in 1954 and continued to collect the cards up through 1963. 

He resumed his card collecting again in 1971 and continued 

collecting baseball cards after his marriage to Carol in 1973. At 

trial he introduced into evidence various lists of cards in an 

attempt to demonstrate which cards he had acquired prior to the 

marriage and which cards he had acquired after the marriage. 

Carol hired an appraiser who estimated the value of the entire 

collection at $208,000. Michael testified that he believed the 

5 

collection to be worth $100,000. After struggling with the 

evidence before it, the District Court abandoned its attempt to 

determine which cards were brought into the marriage or to place 

a value on the baseball cards. The court required Michael to 

divide the collection into two equal piles and allow Carol to 

select one pile of cards. 

Michael argues, first, that the District Court erred in 

including in the marital estate those baseball cards he brought 

into the marriage. He also contends that the current value of such 

cards is not a product of contribution from the marital effort and 

should be excluded from the marital estate as his separate 

property. 
This Court has repeatedly held that distribution of marital 

assets by a district court, where based upon substantial credible 

evidence, will not be overturned absent a clear abuse of 

discretion. In re Marriage of McFarland (1989), 240 Mont. 209, 

Section 40-4-202(1), MCA, requires the courts to, 

[Elquitably apportion between the parties the property 

and assets belonging to either or both, however and 

whenever acquired. . . . In dividing property acquired 

prior to the marriage; . . . property acquired in 

exchange for property acquired before the marriage . . . ;[and] the increased value of property acquired prior 

to marriaqe; . . . the court shall consider those 

contributions of the other spouse to the marriage, 

including: 

(a) the nonmonetary contribution of a homemaker; 

(b) the extent to which such contributions have 

facilitated the maintenance of this property; and 

(c) whether or not the property division serves as an 

alternative to maintenance arrangements. (Emphasis 

added. ) 

The District Court properly determined that the baseball card 

collection was a marital asset, however, it erred in not crediting 

Michael with the value, at the time of the marriage, of the cards 

he brought into the marriage. 

The value of the premarital cards at the time of the marriaqe 

was undisputed between the parties. Michael testified that the 

value of the collection at the time of the marriage, or shortly 

thereafter, was approximately $5,000. Carol herself proposed in 

her Trial Memorandum, that in order "to equitably divide the 

property, the [District] Court should award $5,000.00 to the 

Petitioner to represent the value of the baseball card collection 
that he brought into the marriage.## 

In considering the factors presented in S 40-4-202(1), MCA, 

it becomes apparent that the value of the premarital cards is not 

properly a part of the marital estate. The undisputed amount of 

$5,000 could not have been contributed to in any way by Carol. 

However, the appreciation in value of the cards, including the 

premarital cards, properly could be included in the marital estate 

under 5 40-4-202(1), MCA, if the evidence supported spousal 

contribution to that appreciated value. Michael argues that the 

increase in value of the premarital baseball cards was not related 

to any marital contribution from Carol. We disagree. 

In the present case, substantial credible evidence exists to 

support the finding that Carol contributed to the maintenance and 

growth of the collection. Evidence shows that she encouraged 

Michael to collect the cards, participated in the collection by 

buying foods associated with particular cards, and, on at least one 

occasion, protected the cards from a flood while Michael was away 

from home. Testimony also indicated that Michael's card purchases 

strained the family budget at times, with the family sacrificing 

other items in order to build the collection. 

It was not erroneous, under these circumstances, for the 

District Court to find that Carol contributed to the maintenance 

and growth of the card collection and, therefore, that she is 

entitled to share in the postmarital appreciation in value. 

Thus, we hold that it was proper to include the baseball card 

collection as part of the marital estate, but that the District 
Court erred in failing to credit Michael with the undisputed value 

of $5,000 for the baseball cards he brought into the marriage. 

The second issue on appeal is whether the District Court erred 

in its valuation and distribution of Michael's retirement benefits. 

Both parties produced expert witnesses to testify as to the 

present value of Michael's retirement benefits as a district court 

judge; both present value calculations assumed that Michael would 

retire at the age of sixty-five as a judge. Carol Is expert witness 

testified that as of April 30, 1990, the present value of Michael Is 

retirement benefits was $91,364. Michael's expert witness 

testified that the present value of Michael's retirement as of 

April 30, 1990, was $85,630. 

Michael's expert witness also testified that the current value 

of Michael's retirement benefits, if he decided to withdraw the 

entire amount on April 30, 1990, was $28,115. Michael contended 

that this value was the appropriate amount to be distributed 

between the parties. 

The District Court concluded that Michael's retirement was 

worth $91,364, the figure proposed by Carol Is expert. The court 

distributed that value equally between the parties and ordered 

Michael to pay Carol her half of the $91,364 as part of an 

equalizing payment. We find the distribution of Michael's 

retirement benefits, although based upon substantial evidence, to 

be an abuse of discretion. 

Carol's expert testified that his valuation of the retirement 

would be meaningless if, for any reason, the assumption that 
Michael retire at age sixty-five as a judge became invalid. Thus, 

if Michael dies, resigns from the bench, is defeated in a reelection campaign, or for any other reason is not a judge at age 

sixty-five, the expert's valuation is invalid. Given the 

significant span of years involved, Michael's uncertainty about 

future plans and other factors, it was error for the District Court 

to rely on the present value methodology, thus placing all of the 

risks of future contingencies on Michael. 

This Court stated in Glasser v. Glasser (1983), 206 Mont. 77, 

669 P.2d 685, that, although present value of retirement benefits 

is the proper test in determining marital interest, further 

evidence may demonstrate that the value Itmight be affected by the 

contingency of the retirement benefits failing to reach levels used 

by the court.It (Citations omitted.) Glasser at 85, 669 P.2d at 

689. We noted several guidelines that are helpful in distributing 

retirement funds, including: that the court should disentangle the 

parties, where possible and equitable, by fixing a sum certain to 

be paid, and where the court determines that the parties will 

proportionately share the benefits, the parties should also share 

the risks of future contingencies, such as the employee spousets 

death or delayed retirement, and payments to the receiving spouse 

should be made as the employee spouse receives the retirement pay. 

In addition, in determining if a lump sum award is appropriate, 

the court should consider the burden it would place on the paying 

spouse in view of the financial circumstances. Glasser at 85, 

669 P.2d at 689. 
In the present case, the District Court failed to consider 

these guidelines. By requiring immediate payment of Carol's onehalf interest based on the present value methodology, Carol does 

not share at all in the substantial risks that the present value 

amount never will be realized. Furthermore, an immediate pay out 

of half the benefits places an unreasonable burden on Michael in 

view of his financial standing. 

If Carol wishes to receive a present lump-sum distribution as 

her share of the retirement benefits, it should be based upon the 

$28,115 accrued contributions with interest allowed by law as of 

April 30, 1990. These funds represent the actual accrued value of 

the retirement benefits during the marriage and the amount 

available to Michael today should he leave the bench and withdraw 

the benefits. To require him to pay Carol half of that amount does 

not impose an unreasonable burden on him. 

On the other hand, Carol may wish to share in the risk of 

future contingencies. If so, she is entitled to her proportionate 

share of the future benefits at such time as Michael actually 

receives the retirement benefits. 

The test for determining the value of a retirement pension is 

present value. Kis v. Kis (1982), 196 Mont. 296, 639 P.2d 1151. 

However, where there are substantial future risks involved in the 

calculations of the value, both parties should share those risks. 

The District Court abused its discretion in failing to 

consider the future risks relative to the benefits. That abuse of 

discretion was compounded by the District Court's not considering 
the financial burden placed on Michael by requiring immediate 

payment. The two alternatives of distributing the benefits set 

forth above take into account these considerations. Carol should 

be allowed to select which of the two methods of distribution she 

prefers. 

The final issue is whether the District Court erred in 

disregarding the values of certain marital assets disposed of by 

the parties following their separation but prior to the 

dissolution. 

The District Court found that various items of property had 

been sold by the parties during the period that they were 

separated. It concluded that the proceeds had been used to pay 

normal living expenses and, consequently, the proceeds from those 

marital assets were not included in the marital estate. 

Michael insists that the District Court has allowed Carol to 

unaccountably liquidate and dissipate marital assets. In so doing, 

according to Michael, the District Court is encouraging dissipation 

of marital assets following separation. 

We find that substantial evidence exists in the record to 

support the findings of the District Court. Carol testified that 

the money was used to pay marital debts. Michael introduced no 

evidence to disprove Carol's testimony. As the District Court 

noted, Michael's argument was merely speculative. 

We hold that the District Court did not abuse its discretion 

in concluding that the proceeds of the disposed marital property 

had been used for family debts and normal living expenses. 
Affirmed in part, reversed in part, and remanded to the 

District Court for further proceedings consistent with this 

opinion. I 

We concur: 
Justice Terry N. ~rieweiler concurring in part and dissenting in 

part. 

I concur with those parts of the majority opinion which 

reverse the ~istrict Court's distribution of appellant's 

retirements benefits, and which affirm the ~istrict Court's 

exclusion of certain assets from the marital estate. 

I dissent from that portion of the majority opinion which 

includes any portion of appellant's baseball card collection 

acquired prior to the marriage as a marital asset. 

The majority correctly points out that the disposition of 

property acquired prior to marriage is controlled by B 40-4-202 (1) , 

MCA. However, conspicuously absent from the majority opinion are 

any of our recent decisions which have applied that statute. 

Our previous decisions would exclude the appreciated value of 

Michael's pre-marriage baseball cards, without some showing that 

Carol contributed to their appreciation. In Re Marriage of Herron, 

186 Mont. 396, 608 P.2d 97 (1980); Becker v. Becker, 218 Mont. 229, 

707 P.2d 526 (1985); In Re Marriage of Sirucek, 219 Mont. 334, 712 

P.2d 769 (1985); In Re Marriage of Fitzmorris, 229 Mont. 96, 745 

P.2d 353 (1987) ; In Re ~arriage of McFarland, 240 Mont. 209, 783 

P.2d 409 (1989). 

For example, in Herron the District Court also divided marital 

property on a 50/50 basis, even though the majority of the property 

had been given to Mrs. Herron by her father. The Supreme Court 

found, however, that gifted property, like pre-acquired property, 
is governed by 5 40-4-202 (1) , MCA, and based upon that statute 

concluded: 

If none of the value of the property 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 the property. 

. . . Both parties here should share equally in the 

portion of the value of the gift property attributable 

to contribution fromthe marriage and appreciation during 

marriage. The Herrons should not, however, share equally 

in the total value of the property since the marital 

assets came to the marriage principally as gifts for Mrs. 

Herron's benefit. 

Herron, 186 Mont. at 404-05. 

Here, the majority justified giving half of the appreciated 

value of Michael's baseball cards to Carol because nCarol 

contributed to the maintenance and growth of the c~llection.'~ The 

majority also relies on the following facts: 

Evidence shows that she encouraged Michael to collect 

the cards, participated in the collection by buying foods 

associated with particular cards, and, on at least one 

occasion, protected the cards from a flood while Michael 

was away from home. ~estimony also indicated that 

Michael's card purchases strained the family budget at 

times, with the family sacrificing other items in order 

to build the collection. 

All of these observations missed the point. None of these 

efforts on Carol's part had anything to do with the value of those 

cards which were acquired by Michael prior to his marriage. All 

of those efforts relate directly to those cards which were acquired 

by Michael after his marriage. The appellant agrees that those 
cards acquired after his marriage to Carol should be included as 

a marital asset and divided equally between the parties. 

Even those cards which were saved from a flood by Carol were 

cards which were acquired after the marriage. Any appreciation 

that occurred to pre-marriage baseball cards occurred simply by the 

passage of time and increased national interest in old baseball 

cards. It had nothing to do with any contribution by Carol. 

The District Court's decision to include all of the baseball 

cards as a marital asset was primarily based upon the difficulty 

of determining which cards were in the estate before the marriage 

and which ones were not. 

There was testimony from Michael, including corroboration from 

his records, which would have enabled the District Court to make 

that determination. However, presuming the District Court was 

dissatisfied with the conclusiveness of that testimony, and 

understanding that District Judges do not have the time to 

personally review a collection of 100,000 baseball cards, it would 

have been preferable to appoint a master or referee for that 

purpose, rather than divide the collection inequitably. 

For these reasons, I dissent from that portion of the majority 

opinion which includes all but $5000 worth of appellant's baseball 

card collection as a marital asset. I would exclude all of those 

cards which the evidence established were acquired by appellant