NO. 96-018 INTHESUPREMECOURTOFTHESTATE OFMONTANA 1996

IN REMARRIAGE OF: CAROLM. BISHOP

Petitioner andAppellant, and ROBERTW.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.

COUNSELOFRECORD:

For Appellant: Fred E.Work, Jr., Work LawFirm, Billings, Montana For Respondent: Mark D. Parker, Parker LawFirm, Billings, Montana

Filed: Submitted onBriefs: May2, 1996 Decided: July 22, 1996Justice 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 asprecedent andshall bepublished byits filing asapublic document with the Clerk of this Court andbyareport of its result to State Reporter Publishing Company andWest Publishing Company. Appellant, Carol M.Bishop, appeals from the Findings of Facts and Conclusions of Law entered bythe Thirteenth Judicial District Court of Yellowstone County onAugust 25, 1995. Weaffirm 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 aspart 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 avalid 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 andCarol married in May1975. There are four children of the marriage; two daughters from Carol's previous marriage 2

### adopted byRobert, both ofwhomhaveobtained the ageofmajority,

andtwo sons, ages 17and-15at the time of trial. Carol wasa homemakerduring the course ofthemarriage, andRobert is aselfemployed mechanic, whoalso teaches at the Billings College of Technology. As part of his employment, Robert has a large collection of automotive repair tools. OnDecember 5, 1994, the Thirteenth Judicial District Court issued atemporary restraining order atCarol's request. This order

wassubsequently dissolved, after which Carol left thefamily home. Thetwominor children remained with Robert. Uponher departure, Carol removed all of the household goodsaswell asher personal property. Robert obtained aloan inorder toreplace thehousehold items at acost of $20,000: Apetition for dissolution wasfiled, andahearing washeld inJune 1995. Attrial, testimony washeard from the parties, Ms. DonnaBender, andMr. DennisWhitmore. Ms.Bender is anappraiser hired byCarol andworks locally asanauctioneer. Mr. Whitmore, is a friend of Robert's and his former business partner in Precision Power Trains. Mr. Whitmore bought Robert out of his interest in that business. Both Robert andMr. Whitmore offered appraisal values for several marital assets. The District Court entered its findings of facts and conclusion of lawinAugust 1995. Carol appeals. STA$lDARD

OFREVIEW Whenadistrict court's findings of fact regarding marital property distribution are not clearly erroneous, and when

3substantial credible evidence supports the findings andjudgment,

this Court will not alter the distribution of the martial property absent anabuse 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 aspart of the marital estate asset list? Onappeal, 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 onthe testimony of Robert andMr. 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 atotal 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 adistrict 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 asassets of the marriage. The court then assigned value to these tools. Despite the court's identification and

4subsequent valuation, it then failed to consider this amount when

it distributed the assets. SeeIn ceMarriage of Smith (19941, 264 Mont. 306, 310, 871P.2d 884, 886. Nowhere in either Carol's or Robert's assets lists are the tools mentioned. This oversight is clearly in error. Weconclude that the District Court erred in the division of the marital estate for its failure to include the value of Robert's tools. Wereverse on this issue and remand this case for areevaluation of the marital estate. Upon remand, the court should properly consider the provisions set forth in 540-4-202, 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 homeandremoved all of the furniture and her personal property. Following Carol's departure, Robert replaced the furniture and other property at acost of $20,000. Onappeal, 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 hadhis shop with his tools, that she, as ahomemaker, 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 aposition of having to replace everything. As long as 5the valuation of the property in adissolution is reasonable in

light of the evidence submitted, wewill not disturb the finding on appeal. Robinson, 888 P.2d at 897 (citing In re Marriage of Milesnick (1988), 235 Mont. 88, 94-95, 765P.2d 751, 755). It waswithin the discretion of the District Court to accept replacement costs asareasonable valuation of household goods. We affirm onthis 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 byMs. 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 anegative 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, 869P.2d at 255. Adistrict court hasfar reaching discretionary powers to determine the value of property in adissolution action. Its valuation can be premised on expert testimony, lay testimony, documentary evidence, or any combination thereof. Milesnick, 765P.2d at 755. The District Court did not abuse its discretion by accepting 6

### Robert's testimony andcorresponding valuations. Weaffirm onthis

issue. ISSUEFOUR Did the District Court abuse its discretion in valuing the tractor at $8,000? Carol disputes the court's valuation of atractor at $8,000. Carol asserts that thetractor isworth $15,690. Carol's appraiser arrived at this figure by taking 70%of the newcost, plus an additional $150for the tractor blade. In response to Carol's valuation, Robert stated that he had conferred with personnel knowledgeable intractor sales, after which heconcluded that the tractor wasonly worth $8,000 Again, the court is in-a position toaccept Robert's valuation ofthetractor. Rada

-I 869P.2dat255. "Becausethe District Court hashadthe opportunity to observe the demeanorof the witnesses,

wedefer to its resolution of any conflicting evidence." In re Marriage of Porter (1991), 247Mont. 395, 398, 807P.2d 192, 194. Thecourt did not abuse its discretion by accepting the $8,000 valuation. Weaffirm onthis issue. ISSUEFIVE Did the District Court abuseits discretion in finding that the $37,500 promissory note to Robert Bishop's mother wasavalid marital debt? The court found that Robert's mother, Audrey Bishop, lent Robert $37,500 tobuild the shopanddorenovations onthe family home. This amountwassubsequently charged to Robert asavalid debt inthe division of the marital estate.

7Onappeal, 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 andthis amount

was not applied to the debt. Furthermore, Carol alleges that she does not know if the loan money waseven 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 wassigned 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), 267Mont. 455, 884P.2d 789. It was within the court's discretion to determine the note was legitimate

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



### aof 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. Weaffirm onthis 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 animproper obligation and, accordingly, is

aclear 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 agreater 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 aparent'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; Seealso 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 bethe principal care-giver for the minor children and that this carried aresponsibility for 9higher education past high school. Aswasthe case in Hurlev, the

District Court inappropriately determined that the custodial parent should receive adisproportionate 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 onCarol to support the children beyond the age of majority. Hurlev, 721 P.2d at 1287. Weremand onthis 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), 270Mont. 263, 269, 891P.Zd 522, 526; In

reMarriage of Corey (1994), 266Mont. 304, 308, 880P.2d 824, 827. Throughout the marriage, Carol wasahomemaker. Shecontends that she has nomarketable skills. Furthermore, she argues that Robert has the capacity to both earn anincome and manage the conditions of amaintenance 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 10contract receivable from Precision PowerTrains. Subsequently, the

court denied an award of maintenance and found Carol had been awarded sufficient property to meet her needs. Weagree. Thefindings 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 wasworth over $90,000 andwill provide Carol with asteady stream of income. Weconclude that the court's decision not to award Carol maintenance was not clearly erroneous. Affirmed in part andreversed in part andremanded for further proceedings in accordance with this opi ion. 7

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