No. 87-101 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

IN RE THE MARRIAGE OF 

HELEN MOUAT, 

Petitioner and Respondent, 

and 

DONALD MOUAT, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Sixteenth Judicial District, 

In and for the County of Treasure, 

The Honorable Alfred B. Coate, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Harris & Seidler; Linda L. Harris, Billings, Montana 

For Respondent: 

Michael M. Morse, Billings, Montana 

Filed: 

Submitted on Briefs: Aug. 20, 1987 

Decided: September 24, 1987 

- - 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal from a dissolution of marriage heard 

before the Honorable Alfred B. Coate in the Sixteenth 

Judicial District. The District Court directed the division 

of the marital estate by issuing findings of fact, 

conclusions of law, and an order dated November 25, 1986. 

Appellant, Donald Mouat, appeals the property division of the 

martial estate. The sole issue presented for review is 

whether the District Court committed error by failing to make 

specific findings of fact and conclusions of law considering 

the elements of 5 40-4-202, MCA, resulting in an abuse of 

discretion in distributing the marital estate. We affirm the 

decision of the District Court but remand for the correction 

of a minor error. 

Donald and Helen Mouat were married in 1949 and had 

four children. All of the children have reached the age of 

majority. 

At the time of dissolution, the marital estate included 

the following real property: (1) the Mouat farm, including a 

house; (2) an 80 acre pasture; (3) a country home; and 

(4) a home in Hysham, Montana. The farm was purchased from 

Donald Mouat's parents in 1962. The farm was leased to 

another individual beginning in the mid 1970s. The house 

located in Hysham was purchased in approximately 1974 from 

Donald's brother. Other major assets in the marital estate 

included livestock and a significant amount of machinery and 

equipment. 

Helen Mouat has worked as a secretary for the Hysham 

Public School since 1973. Prior to that date, Helen devoted 

her efforts to raising the Mouat children, acting as 

housewife, and assisting with the farm operation. Donald 
spent the majority of his efforts maintaining and operating 

the family farm until the time it was leased. He has also 

worked in maintaining a dragline business. The record and 

the District Court's findings of fact indicate both Helen and 

Donald made substantial contributions to the marital estate. 

Following a hearing, the District Court issued findings 

of fact and conclusions of law dividing the marital estate. 

The major assets and liabilities were identified and valued. 

According to that valuation, the District Court distributed 

the marital estate so that Helen and Donald each effectively 

received approximately fifty percent of the total value of 

the estate. Specifically, finding of fact number 43 found 

that the marital estate should be divided in the following 

manner: 

Respondent 

(Donald Mouat) 

Farm land $67,981.00 

80 acres grazing 

land 800.00 

farm home 37,500.00 

balance of 

machinery 14,300.00 

1 herd bull 500.00 

15 heifers with 

8 calves 5,410.00 

$126,491.00 

Less debt 

Petitioner 

(Helen Mouat) 

Country home $31,200.00 

Town home 28,500.00 

1964 Ford pickup 300.00 

Shasta trailer 500.00 

Sears riding 

mower 300.00 

32 cows with calves l8,4OO.OO 

3 dry cows 1,050.00 

PERS Account 3,187.00 

Petitioner's bank 

account 

Plus cash 

Less cash -10,043.11 

$92,545.10 

Respondent's bank 

account 1,235.00 

$93,780.10 

As indicated, Donald was ordered to pay $10,043.11 so as to 

create a division which would give each party roughly fifty 

percent of the value of the total estate. Donald appeals 
from this property division alleging the District Court 

failed to consider certain requirements of S 40-4-202, MCA, 

and therefore abused its discretion. 

The standard of review which must be implemented 

regarding an issue of this nature has been stated many times: 

In dividing property in a marriage 

dissolution the district court has far 

reaching discretion and its judgment will 

not be altered without a showing of clear 

abuse of discretion. The test of abuse 

of discretion is whether the trial court 

acted arbitrarily without employment of 

conscientious judgment or exceeded the 

bounds of reason resulting in substantial 

injustice. In re Marriage of Vert 

(Mont. 1984), 680 P.2d 587, 41 St.Rep. 

895. 

In re the Marriage of Rolfe (Mont. 1985), 699 P.2d 79, 83, 42 

St.Rep. 623, 626. See also, In re the Marriage of Manus 

(Mont. 1987), 733 P.2d 1275, 1278, 44 St.Rep. 398, 403; In re 

the Marriage of Tonne (Mont. 1987), 733 P.2d 1280, 1282, 44 

St.Rep. 411, 412-413; and In re the Marriage of Hundtoft 

(Mont. 1987), 732 P.2d 401, 402, 44 St.Rep. 204, 205. 

Section 40-4-202(l), MCA, states, in pertinent part, 

that: 

[Tlhe 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. 

(Emphasis added.) 

Specifically, Donald Mouat asserts the District Court failed 

to consider nine items: (1) duration of the marriage; (2) 
health of the parties; (3) the occupation of Helen; (4) 

amount and sources of income; (5) actual skills of Donald; 

(6) employability of the parties; (7) opportunity for 

future acquisition of real property and assets; (8) source 

of marital property; and (9) needs of the parties. 

We have considered similar claims on many past 

occasions. In distributing the marital estate, the district 

court must consider those factors explicitly set out in 

5 40-4-202, MCA. In re the Marriage of Tomaskie (Mont. 

1981), 625 P.2d 536, 538, 38 St.Rep. 416, 418. Further, we 

have stated: 

This Court recognizes that the trial 

court must evidence the basis of its 

ultimate conclusion in the findings of 

fact. However, the statutory guidelines 

promulgated in 40-4-202, MCA, were not 

designed as requisite criteria to be 

individually itemized in every property 

distribution decree. 

In re the Marriage of Ziegler (Mont. 1985), 696 P.2d 983, 

987, 42 St.Rep. 298, 302. 

In the case of In re the Marriage of Hundtoft (Mont. 

1987), 732 P.2d 401, 402, 44 St.Rep. 204, 205, 206, we 

stated: 

While articulation of these factors is 

encouraged, the absence of specific 

findings does not automatically warrant 

remand: 

"It is not the lack of specific findings 

which constitutes reversible error, but 

the lack of substantial evidence to 

support the judgment. We look both to 

the District Court's express reasoning 

and the evidence in the record to 

determine whether ample evidence exists. 

In re the Marriage of Peterson (Mont . 1984), 683 P.2d 1304, 1307, 41 St.Rep. 

1252, 1256 (quoting Frazier v. Frazier 
(Mont. 1984), 676 P.2d 217, 219-20, 41 

St.Rep. 233, 236). 

The above cited cases dictate that while the district court 

must conscientiously consider all the elements of 

$ 40-4-202(1), MCA, it need not itemize and explain each 

separate element. With these rules in mind, we examine 

Donald's contentions: 

1. Duration of the marriage. This contention is 

without merit. The District Court made a specific finding 

regarding the date Donald and Helen were married. Donald 

also indicates here that Helen's contribution to the marital 

estate during portions of their 37 years of marriage was less 

than substantial. However, there is substantial credible 

evidence demonstrating that both Helen and Donald contributed 

substantially to the marital estate. 

2. Health of the parties. Here it is contended that 

there was no consideration of the health of either of the 

parties. This contention borders on frivolous. The findings 

of fact specifically address the health of both parties. 

These findings are made from evidence presented within the 

record. 

3. Occupation of Helen. Donald contends the District 

Court placed little emphasis on Helen's occupation and her 

future income. This contention is without merit since the 

findings made specific reference to Helen's occupation and 

that both parties are severely limited in their employability 

outside their present occupations. 

4. Amount and sources of income. Donald states his 

future income will be severely limited by the division. 

However, the record indicates the District Court considered 

other potential sources of income including the farm lease, 

cattle sales, draqline work, and future social security 

benefits. 
5. Actual skills of Donald. Donald contends the 

District Court failed to consider that Helen has established 

an occupational skill, while he has few skills outside 

farming. No abuse of discretion exists regarding this 

contention since the District Court specifically eluded to 

the employability and present occupations of both Helen and 

Donald. 

6. Employability of the parties. This contention 

tends to overlap with the previous three contentions. As 

stated above, there is no indication that the District Court 

failed to consider the employability, occupation or skills of 

either party. 

7. Opportunity for future acquisitions of real 

property and assets. There is no evidence that either Helen 

or Donald will realize any particular advantage from the 

division regarding future acquisitions of real property and 

assets. Donald fails to demonstrate that this was not 

considered by the District Court or that an abuse of 

discretion was committed. 

8. The source of the marital property. Donald states 

the source of the marital property was not properly 

considered after approximately 37 years of marriage. Donald 

contends the District Court failed to consider that the 

family farm and the Hysham home were both purchased from 

members of his family at a price which was below fair market 

value. However, finding of fact number 17 specifically notes 

that the farm and house were purchased and that both parties 

were to share equally in any benefits realized due to terms 

and conditions which might have been favorable. We find no 

evidence that the District Court failed to consider the 

source of the marital property. 

9. Needs of the parties. No elaboration or 

explanation is offered as to the allegation that the District 
Court failed to consider the needs of the parties. This 

contention tends to overlap with several previous 

contentions. Since no abuse of discretion is demonstrated, 

we will not consider this contention further. 

Finally, Donald contends that the District Court 

improperly accepted Helen's offered appraisals, while denying 

his proposed appraisals. Donald's contention centers on the 

value of the real property contained in the marital estate. 

Donald contends the correct total valuation of the real 

property is $153,250. Helen's proposed appraisal set the 

value at $165,181 and was accepted by the District Court. At 

a hearing prior to the dissolution proceeding, the District 

Court suggested that both parties submit their appraisal 

reports by stipulation. The court indicated this would be 

more economical and suggested that each party could submit 

their objections based on each written appraisal. The 

District Court's findings of fact state the parties did 

stipulate that the appraisals could be introduced into 

evidence without the necessity of calling each appraiser to 

testify. Donald contends he relied on the trial judge's 

suggestion and submitted a written appraisal without 

supporting testimony from the appraiser. In contrast, Helen 

submitted a written appraisal with supporting testimony from 

the appraiser despite the stipulation that the testimony was 

not required. The trial judge preferred the appraisal 

presented by Helen and stated in the findings of fact that, 

[Hlaving heard ample testimony concerning 

the qualifications, methods, and 

conclusions of [Helen's appraiser], and 

having heard no such testimony as 

concerns Respondent's appraisal, it is 

deemed appropriate to adopt the real 

property values set forth in [Helen's 

appraisal]. 
Donald argues that the court was inconsistent when it 

suggested that the written appraisals be simply admitted by 

stipulation and without supporting testimony, but then 

preferred Helen's appraisal because it was supported with the 

appraiser's testimony. 

Although the course of events may have confused 

Donald's counsel, both parties had the right to submit 

supporting testimony at the time of trial. Only Helen chose 

to do so and the trial court preferred her suggested 

appraisal because of that supporting testimony. There is 

substantial credible evidence supporting the valuations 

listed in the property distribution. Helen's appraiser, Jack 

Chapman, testified as to the appraisal at the trial and was 

subject to cross examination. Mr. Chapman was a qualified 

appraiser and his testimony was supported by his extensive 

written appraisal which was introduced at trial. We find no 

evidence that the trial court acted arbitrarily without 

employment of conscientious judgment. 

An additional reason why we choose to affirm the 

District Court's finding is that the appraisals do not 

represent widely conflicting valuations. In In re the 

Marriage of Vance (1983), 204 Mont. 267, 664 P.2d 907, a 

house and forty acres of land was appraised at $160,000 by 

one litigant's expert and $140,000 by the other litigant's 

expert. The district court accepted the $160,000 appraisal 

without stating any specific reasons. This Court affirmed 

that decision because the valuations were not widely 

conflicting. Vance, 664 P.2d at 911. The same rationale 

should apply under these facts. 

Donald also contends that his suggested appraisal 

should be preferred since it was completed only four months 

prior to trial, while Helen's suggested appraisal was 

completed seven months prior to trial. While the timeliness 
of an appraisal is important, an appraisal will not be 

preferred solely because it was completed closest in time to 

the hearing. There is no evidence indicating that the trial 

court failed to consider the timing of each appraisal. 

We do find what appears to be a typographical or 

inadvertent error. The District Court accepted Helen's 

proposed appraisal, but valued the Mouat farm land at $67,981 

and valued the total of the real property at $165,981. 

Helen's appraisal valued the Mouat farm land at $67,181 and 

valued the total of the real property at $165,181. 

Therefore, it appears that the implemented valuation is $800 

greater than that proposed by Helen. This inconsistency must 

be corrected and we remand for this purpose only. For the 

foregoing reasons, the remainder of the District Court 

decision is affirmed.