No. 87-101

INTHE SUPREME COURTOF THE STATEOF MONTANA
1987



### INRE THEMARRIAGE OF

HELENMOUAT, Petitioner and Respondent, and

DONALDMOUAT,Respondent and Appellant.

APPEAL FROM: District Court of the Sixteenth Judicial District, Inand for theCounty of Treasure, The HonorableAlfred B. Coate, Judgepresiding.

COUNSELOF RECORD:

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

ForRespondent: MichaelM. Morse,Billings, Montana

Filed: SubmittedonBriefs: Aug. 20, 1987 Decided: September 

### 24, 1987

- - ClerkMr. Justice JohnConway Harrison delivered theOpinion of the Court.

This is an appeal from a dissolution ofmarriage 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,DonaldMouat, appeals the property divisionof the martial estate. The sole issue presented for review is whether the District Court committed errorby failing tomake specific findings of fact and conclusionsof 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 aminor error. Donald and Helen Mouat were married in 1949 and had four children. All of the childrenhave reached the age of majority. At the time ofdissolution,themarital estate included the followingrealproperty: 

### (1) theMouat farm, including a house; (2) an 80 acre pasture; (3) a country home; and

(4) a home in Hysham,Montana. The farmwaspurchased 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 themarital estate included livestock and a significant amount ofmachinery 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. Donaldspent 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 DistrictCourt's findingsof 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 liabilitieswere 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 (DonaldMouat)

Farm land $67,981.00 80 acresgrazing land 800.00 farmhome 37,500.00 balance of machinery 14,300.00 1herd bull 500.00 15 heiferswith 8 calves 5,410.00 $126,491.00

Lessdebt Petitioner (Helen Mouat) Country home $31,200.00 Townhome 28,500.00 1964Ford pickup 300.00 Shasta trailer 500.00 Sears riding mower 300.00 32cows with calves l8,4OO.OO 3dry cows 1,050.00 PERSAccount 3,187.00 Petitioner'sbank account

Plus cash

Less cash -10,043.11 $92,545.10 Respondent'sbank 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 appealsfrom this property division alleging the District Court failed to consider certain requirements of S 40-4-202,MCA, and thereforeabused its discretion. The standard of review which must be implemented regarding an issue of thisnature hasbeen statedmany times: In dividing property in a marriage dissolution the district court has far reaching discretionand its judgmentwill not be alteredwithout a showing ofclear abuse of discretion. The test of abuse of discretion iswhether the trial court acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reasonresulting in substantial injustice. In re Marriage ofVert (Mont. 1984), 680 P.2d 587, 41 St.Rep. 895.



### Inre theMarriage ofRolfe (Mont. 1985), 699P.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), 732P.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, amountand 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 to maintenance; and the opportunity of each for future acquisitionof capital assets and income.

(Emphasisadded.) 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 ofmaritalproperty; and (9) needsof theparties. We have considered similar claims on many past occasions. In distributing themarital 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 distributiondecree.

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.

Inre theMarriage 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 themarital estate duringportions of their 37yearsofmarriagewas less than substantial. However, there is substantial credible evidence demonstrating thatboth 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 contentionborders 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 theirpresent 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 isno indication that the DistrictCourt failed to consider the employability, occupation or skills of eitherparty. 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 discretionwas committed. 8. 

### The source of the maritalproperty. Donald states the source of the marital property was not properly considered after approximately 37

### years ofmarriage. 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, findingof fact number 17 

### specifically notes that the farm and house were purchased and thatboth 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

sourceof themaritalproperty. 9. 

### Needs of the parties. No elaboration or explanation is offered as to the allegationthat theDistrict

### 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,

wewill not consider this contention further. Finally, Donald contends that the District Court improperlyacceptedHelen'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 $165,181andwas acceptedby theDistrictCourt. 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 supportingtestimony 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, [Hlavingheard 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 appraisalbecause it was supportedwith the appraiser'stestimony. 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 theproperty 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 whichwas introduced at trial. We find no evidence that the trial court acted arbitrarily without employmentofconscientious 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 fourmonths prior to trial, while Helen's suggested appraisal was completed sevenmonths prior to trial. While the timelinessof an appraisal is important, an appraisal will not be preferred solelybecause itwas 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 implementedvaluation is $800 greater than thatproposed 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.