NO. 96-018 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

IN RE MARRIAGE OF: 

CAROL M. BISHOP 

Petitioner and Appellant, 

and 

ROBERT W. BISHOP, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Diane G. Bars, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Fred E. Work, Jr., Work Law Firm, Billings, Montana 

For Respondent: 

Mark D. Parker, Parker Law Firm, Billings, Montana 

Filed: 

Submitted on Briefs: May 2, 1996 

Decided: July 22, 1996 
Justice William E. Hunt, Sr. delivered the Opinion of the Court. 

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 

1995 Internal Operating Rules, the following decision shall not be 

cited as precedent and shall be published by its filing as a public 

document with the Clerk of this Court and by a report of its result 

to State Reporter Publishing Company and West Publishing Company. 

Appellant, Carol M. Bishop, appeals from the Findings of Facts 

and Conclusions of Law entered by the Thirteenth Judicial District 

Court of Yellowstone County on August 25, 1995. 

We affirm in part and reverse and remand in part. 

Appellant raises the following issues, which we restate as 

follows: 

1. Did the District Court abuse its discretion in excluding 

Robert Bishop's tools as part of the marital estate asset list? 

2. Did the District Court abuse its discretion in valuing 

Carol Bishop's furniture at $20,000? 

3. Did the District Court abuse its discretion in valuing 

automobiles at $7,200? 

4. Did the District Court abuse its discretion in valuing the 

tractor at $8,000? 

5. Did the District Court abuse its discretion in finding that 

the $37,500 promissory note to Robert Bishop's mother was a valid 

marital debt? 

6. Did the District Court abuse its discretion in the division 

of the marital assets? 

7. Did the District Court abuse its discretion in denying 

Carol Bishop maintenance? 

Robert and Carol married in May 1975. There are four children 

of the marriage; two daughters from Carol's previous marriage 

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adopted by Robert, both of whom have obtained the age of majority, 

and two sons, ages 17 and -15 at the time of trial. Carol was a 

homemaker during the course of the marriage, and Robert is a selfemployed mechanic, who also teaches at the Billings College of 

Technology. As part of his employment, Robert has a large 

collection of automotive repair tools. 

On December 5, 1994, the Thirteenth Judicial District Court 

issued a temporary restraining order at Carol's request. This order 

was subsequently dissolved, after which Carol left the family home. 

The two minor children remained with Robert. Upon her departure, 

Carol removed all of the household goods as well as her personal 

property. Robert obtained a loan in order to replace the household 

items at a cost of $20,000: 

A petition for dissolution was filed, and a hearing was held 

in June 1995. At trial, testimony was heard from the parties, Ms. 

Donna Bender, and Mr. Dennis Whitmore. Ms. Bender is an appraiser 

hired by Carol and works locally as an auctioneer. Mr. Whitmore, 

is a friend of Robert's and his former business partner in 

Precision Power Trains. Mr. Whitmore bought Robert out of his 

interest in that business. Both Robert and Mr. Whitmore offered 

appraisal values for several marital assets. 

The District Court entered its findings of facts and 

conclusion of law in August 1995. Carol appeals. 

STA$lDARD OF REVIEW 

When a district court's findings of fact regarding marital 

property distribution are not clearly erroneous, and when 

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substantial credible evidence supports the findings and judgment, 

this Court will not alter the distribution of the martial property 

absent an abuse of discretion. In re Marriage of Binsfield (1995), 

269 Mont. 336, 888 P.2d 889. 

This court recognizes that a district court has broad 

discretion in determining value of property in marriage 

dissolution. In re Marriage of Robinson (1994), 269 Mont. 293, 

296, 888 P.2d 895, 897; In re Marriage of Rada (1994), 263 Mont. 

402, 405, 869 P.2d 254, 255. 

ISSUE ONE 

Did the District Court abuse its discretion in excluding 

Robert Bishop's tools as part of the marital estate asset list? 

On appeal, Carol argues that the District Court abused its 

discretion when it failed to list several items as assets of the 

parties in the court's findings. In finding of fact no. 10, the 

court noted that the parties disputed the value of Robert's tools. 

Based on the testimony of Robert and Mr. Whitmore, the court then 

valued Robert's lathe at $3,500, his mill at $2,500, his hand tools 

at $5,000, and other miscellaneous tools at $4,500, for a total of 

$15,500. Carol argues that although these items were valued and 

awarded to Robert in the court's findings, they were not listed as 

assets in the marital estate. 

Before a district court divides the marital estate it must 

first determine the net worth of the marital assets. Robinson, 888 

P.2d at 897. In this case, the court identified several of 

Robert's tools as assets of the marriage. The court then assigned 

value to these tools. Despite the court's identification and 

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subsequent valuation, it then failed to consider this amount when 

it distributed the assets. See In ce Marriage of Smith (19941, 264 

Mont. 306, 310, 871 P.2d 884, 886. No where in either Carol's or 

Robert's assets lists are the tools mentioned. This oversight is 

clearly in error. 

We conclude that the District Court erred in the division of 

the marital estate for its failure to include the value of Robert's 

tools. We reverse on this issue and remand this case for a reevaluation of the marital estate. Upon remand, the court should 

properly consider the provisions set forth in 5 40-4-202, MCA. 

ISSUE TWO 

Did the District Court abuse its discretion in valuing Carol 

Bishop's furniture at $20,0.00? 

After the court dissolved the restraining order against 

Robert, Carol left the family home and removed all of the furniture 

and her personal property. Following Carol's departure, Robert 

replaced the furniture and other property at a cost of $20,000. 

On appeal, Carol argues that the household goods removed are 

actually worth $2,844, not the $20,000 replacement value placed on 

these items by the court. She argues the household goods she 

removed were over fifteen years old and had little value. She 

further asserts that in the sense that Robert had his shop with his 

tools, that she, as a homemaker, had her household items. 

In this case, Carol chose to leave the family home and take 

all of the household items with her. Given that Carol chose to 

remove all of the items from the home upon departure, this left 

Robert in a position of having to replace everything. As long as 

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the valuation of the property in a dissolution is reasonable in 

light of the evidence submitted, we will not disturb the finding on 

appeal. Robinson, 888 P.2d at 897 (citing In re Marriage of 

Milesnick (1988), 235 Mont. 88, 94-95, 765 P.2d 751, 755). 

It was within the discretion of the District Court to accept 

replacement costs as a reasonable valuation of household goods. We 

affirm on this issue. 

ISSUE THREE 

Did the District Court abuse its discretion in valuing 

automobiles at $7,200? 

At trial, Carol's appraiser, Ms. Bender, estimated the value 

of Robert's various automobiles at $26,800. On appeal, Carol 

contends that Ms. Bender's valuations were based on the widely 

accepted "Kelly Blue Book" values. 

Robert submitted evidence rebutting the valuations presented 

by Ms. Bender. Robert explained that several of the cars valued by 

Ms. Bender actually belonged to the minor children of the marriage. 

Robert further testified that several cars sat in total disrepair 

and, in fact, held a negative value. 

The suggested retail prices in the blue book are simply 

suggestions. Again, the court has wide discretion in determining 

the value of marital assets of the marriage. m, 869 P.2d at 255. 

A district court has far reaching discretionary powers to determine 

the value of property in a dissolution action. Its valuation can 

be premised on expert testimony, lay testimony, documentary 

evidence, or any combination thereof. Milesnick, 765 P.2d at 755. 

The District Court did not abuse its discretion by accepting 

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Robert's testimony and corresponding valuations. We affirm on this 

issue. 

ISSUE FOUR 

Did the District Court abuse its discretion in valuing the 

tractor at $8,000? 

Carol disputes the court's valuation of a tractor at $8,000. 

Carol asserts that the tractor is worth $15,690. Carol's appraiser 

arrived at this figure by taking 70% of the new cost, plus an 

additional $150 for the tractor blade. In response to Carol's 

valuation, Robert stated that he had conferred with personnel 

knowledgeable in tractor sales, after which he concluded that the 

tractor was only worth $8,000 

Again, the court is in-a position to accept Robert's valuation 

of the tractor. Rada -I 869 P.2d at 255. "Because the District Court 

has had the opportunity to observe the demeanor of the witnesses, 

we defer to its resolution of any conflicting evidence." In re 

Marriage of Porter (1991), 247 Mont. 395, 398, 807 P.2d 192, 194. 

The court did not abuse its discretion by accepting the $8,000 

valuation. We affirm on this issue. 

ISSUE FIVE 

Did the District Court abuse its discretion in finding that 

the $37,500 promissory note to Robert Bishop's mother was a valid 

marital debt? 

The court found that Robert's mother, Audrey Bishop, lent 

Robert $37,500 to build the shop and do renovations on the family 

home. This amount was subsequently charged to Robert as a valid 

debt in the division of the marital estate. 

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On appeal, Carol argues that the loans are suspicious. She 

contends that the $37,500 represents several loans that occurred 

over the course of 20 years, and that subsequent to the loans, 

Robert has received a $10,000 gift from his mother and this amount 

was not applied to the debt. Furthermore, Carol alleges that she 

does not know if the loan money was even used to enhance the value 

of the couple's marital assets. 

At trial, however, Carol testified that the couple did not 

discuss marital finances. Thus, the fact that Carol does not know 

how Robert may have spent the money lent by Ms. Bishop is not 

compelling. In addition, evidence that Robert may have received 

subsequent gifts from his mother neither indicates nor confirms the 

invalidity of the previous loans from his mother. 

Carol also argues that the debt is not valid because the 

promissory note reflecting the $37,500 debt was signed in 1987, and 

therefore Robert could raise a statute of limitations defense 

against his mother. This argument was not raised at trial, 

subsequently this Court wiL1 not consider the issue for the first 

time on appeal. In re Marriage of Craib (1994), 266 Mont. 483, 

496, 880 P.2d 1379, 1387; Binsfield, 888 P.2d at 893. 

The record contains a copy of the promissory note Robert 

signed over to his mother for $37,500, the note substantiates the 

court's conclusion that the debt to Robert's mother is valid. See 

In re Marriage of Neal (1994), 267 Mont. 455, 884 P.2d 789. It was 

within the court's discretion to determine the note was legitimate 

as the "assessor of the credibility of witnesses." In re Marriage 

a 
of Ruff (1991), 247 Mont..486, 490, 807 P.Zd 1345, 1348. The 

District Court did not abuse its discretion in determining that the 

debt to Ms. Bishop was valid, and, therefore, chargeable to the 

marital estate. We affirm on this issue. 

ISSUE SIX 

Did the District Court abuse its discretion in the division of 

the marital assets? 

Carol argues that the District Court improperly considered 

higher education expenses of the minor children in the division of 

the marital estate. Carol asserts that under Montana case law, 

this finding represents an improper obligation and, accordingly, is 

a clear abuse of discretion. In re Marriage of Hurley (1986), 222 

Mont. 287, 721 P.2d 1279. . 

In Hurley, this Court concluded that the district court erred 

when it awarded the wife a greater portion of the marital estate 

using as one of the factors in its decision the college education 

of the parties' son. Hurlev, 721 P.2d at 1286. This Court held 

that a parent's obligation for support ends at the age of majority, 

unless there has been some sort of voluntary agreement to provide 

for further education beyond that age. Hurlev, 721 P.2d at 1287; 

See also In re Marriage of Hewitt (1990), 242 Mont. 389, 791 P.2d 

444 (distinguishes court ordered child support payments). 

In the instant case, the court did not order child support. 

Instead, the court stated "this award is disproportionately 

distributed in Robert's favor." The court then stated that it was 

considering the fact that Robert would be the principal care-giver 

for the minor children and that this carried a responsibility for 

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higher education past high school. As was the case in Hurlev, the 

District Court inappropriately determined that the custodial parent 

should receive a disproportionate share of the marital estate in 

consideration of the children's college expenses. In choosing to 

award Carol less on this basis, the court effectively placed an 

improper obligation on Carol to support the children beyond the age 

of majority. Hurlev, 721 P.2d at 1287. 

We remand on this issue for the District Court to apportion 

the parties' marital assets without regard to higher education 

expenses. 

ISSUE SEVEN 

Did the District Court abuse its discretion in denying Carol 

Bishop maintenance? 

Finally, Carol argues that the court should have awarded her 

maintenance. The standard of review for maintenance awards is 

whether the district court's findings are clearly erroneous. In re 

Marriage of Smith (1995), 270 Mont. 263, 269, 891 P.Zd 522, 526; In 

re Marriage of Corey (1994), 266 Mont. 304, 308, 880 P.2d 824, 827. 

Throughout the marriage, Carol was a homemaker. She contends that 

she has no marketable skills. Furthermore, she argues that Robert 

has the capacity to both earn an income and manage the conditions 

of a maintenance award 

Following the dissolution of a marriage, maintenance is 

awarded when the spouse seeking the award both lacks sufficient 

property to provide for his or her reasonable needs and is unable 

to support himself or herself through appropriate employment. 

Section 40-4-203 (1) I MCA. Here, the court awarded Carol a 

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contract receivable from Precision Power Trains. Subsequently, the 

court denied an award of maintenance and found Carol had been 

awarded sufficient property to meet her needs. 

We agree. The findings indicate that the court considered the 

statutory factors listed in § 40-4-203, MCA. Corev, 880 P.2d at 

827. The Precision Power Trains contract was worth over $90,000 

and will provide Carol with a steady stream of income. We conclude 

that the court's decision not to award Carol maintenance was not 

clearly erroneous. 

Affirmed in part and reversed in part and remanded for further 

proceedings in accordance with this opi ion. 

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