No. 79-99 IN THE SUPREMECOURT OF THE STATE OF MONTANA 1980

MILON 

### L. DICKERSON, Petitioner and Appellant,
VS

# . ANN S. DICKERSON, Respondent and Respondent.
Appeal from: District Court of the Eighteenth Judicial District, In and For the County of Gallatin. Honorable Joseph B. Gary, Judge presiding. Counsel of Record: For Appellant: Berg, Morgan, Coil and Stokes,Bozeman,Montana For Respondent: Bennett and Bennett, Bozeman,Montana

Filed: 

## JULM i$@ Submitted on briefs: April 25, 1980 Decided: 

## JBt261980Mr. Justice John C. Sheehy delivered the opinion of the Court.
This is an appeal by Milon L. Dickerson from the property distribution in the parties' decree of dissolution of marriage granted by the Hon. Joseph B. Gary in the Eighteenth Judicial District Court, Gallatin County. Milon L. Dickerson and Ann S. Dickerson were married at Bozeman, Montana onApril 6, 1957. They have three children: two daughters, Merianne Dickerson and Carrie Dickerson, and
one son, Bruce Dickerson. All of the Dickerson children are
over eighteen years of age. Before the dissolution of their marriage, the Dickersons
were a typical Montana ranch family, sharing in the duties of maintaining a hay/cattle operation and a dairy ranch fifteen miles southwestof Bozeman, Montana. Milon Dickerson handled most of the farmwork. Ann Dickerson did farm chores and supplemented the family's income by working as a bookkeeper. The Dickersonsbegan their ranch in 1961by leasing ranch property from the parents ofAnn Dickerson. In 1971, Ann Dickerson's mother, Jean Stimson, transferred the ranchproperty to Ann, half by gift and half at the value of $200per acre, securedby a mortgage upon which Ann and Milon Dickersonwere liable. This mortgage was paid by the Dickersons after it was partially forgivenby gifts by Stimson to the Dickersons. The Dickerson ranch property presently includes approximately 200 acres of land held partially in joint tenancy and the remainder by Ann ,Dickersonalone. In addition to the ranchproperty, the Dickersons own livestock valued at $144,880.00, equipment valued at $13,314.55,
a truck and automobilevalued at $1,800.00 each and miscellaneous personalproperty. Each of the Dickersons separately -2-own personal property. Milon Dickerson owns his own tack, shop tools, bank accounts,A. I. inventory and livestock feed. Ann Dickerson owns her own bank accounts and is the solebeneficiary of a trust established by her mother. The Dickersons owe $69,861.76 in debts. Milon and Ann Dickersonwere unable to agree on a property division. After a trialwithout jury, judgment was entered on October 9, 1979, dissolving the Dickersonmarriage and incorporating the findings of fact and conclusions of lawpreviously made by the court. The District Court ordered thatMilon and Ann Dickersonbe individually awarded the property separately owned by each of them. Milon Dickerson
was awarded the parties' truck and Ann Dickerson was awarded the automobile. Except for a $40,000.00 gift of property to Ann Dickerson, the District Court held the remaining Dickerson property was marital property and should be divided equally. The District Court received conflicting testimony as to the value of the Dickerson ranch land. Ann Dickerson testified the landwas worth $1,000.00 per acre. Norman C. Wheeler of Belgrade, Montana, a local real estate appraiser and consultant, testified inbehalf of Milon Dickerson, estimating that a portion of the Dickerson ranchwas worth $3,000.00 per acre and the restof the ranch was worth $2,000.00 per acre. Wheeler testified that there is a high demand in the Gallatin Valley for gentlemen-type farms and ranches and that this demand establishes the area real estate market. The DistrictCourt adopted the $1,000.00 per acre value for the ranch property and in finding of factno. 11, the court divided the marital property as follows: ANN DICKERSON Real estate (160acres) $160,000.00 Household furniture 2,250.00Jewelry Cash fromhusband TOTAL TO WIFE MILON DICKERSON Real estate (40acres) Livestock Equipment

Less: Debts $69,861.76 Cash to

wife - 916.00 70,777.76 TOTAL TO HUSBAND $125,166.79 In a memorandum to the finding of fact and conclusions of law, the District Court explained its selection of a $1,000.00 per acrevalue for the ranchproperty. The District Court provided: "Inarriving at the appraisal of $1,000per acre, the Court adopted the appraisal of the respondentas the major owner of the real estate. Iwill grant that the petitioner's appraiser appraised theproperty considerably in excess of this, ranging from $2,000 to $3,000 per acre,but thiswas subject to an assumption that itwould be sold for subdivision purposes.

# . . .

"Atthe post-trial conference, counsel for the petitioner indicated a displeasure with the concept that the Courtwas adopting and felt that adopting the appraisal of theproperty utilized by the respondentwas improper. However, if you examine the income tax records, it is obvious that the property does not have an earning capacity based on any $2,000 to $3,000per acre valuation.. 

# .."
One issue ispresented by appellanton appeal: Did the District Court err in its valuation of the ranchproperty, resulting in a substantially inequitabledivision of the marital assets? The disposition of property owned by a husband and wife in a dissolution of their marriage is governed by section 40-4-202, MCA."Ina proceeding for dissolution of a marriage



# .

# . . the court

# . . . shall

# . . . finally equitably apportion between theparties the property and assets belonging to either or both, however and whenever acquired and whether the title thereto is in the name of the husband orwife or both. 

# .." This Court's scope of review of a District Court dissolution ofmarriage property division was recently restated as follows: 

### "ADistrict Court has far-reaching discretion in resolving property divisions, and its judgment will not be altered unless a clear abuse of discretion is shown. (Citationomitted.) The test for reviewing the District Court's discretion is: Did the District Court in the exercise of its discretion act arbitrarilywithout employment of conscientious judgment, or exceed the bounds of reason inview of all the circumstances?"

(Citationomitted.) In Re Marriage of Jacobson (1979) I 

### -Mont

# . , 600 P.2d 1183, 1186, 36 St.Rep. 1773,176. This Court has ordered the District Court to reconsider its property division if the District Court was clearly unadvised of the currentvalue of the parties' assets, or if the District Court ordered a substantially inequitable division of the parties' assets. In Re Marriage of Brown

(1978), 

### -Mont. 

### - 

## , 587 P.2d 361, 35 St.Rep. 1733;Kruse
v. Kruse (1978), Mont

# . , 586 P.2d 294, 35 St.Rep.

In Downs v. Downs (1976),170Mont. 150, 551 P.2d 1025,
we directed the DistrictCourt to hold a new trial because the evidentiary record contained no reliable estimate of the husband's net worth. In Martinez v. Martinez (1978), Mont. 

### , 573 P.2d 667, 35 St.Rep. 61,we vacated the disposition of property ordered by the District Court and remanded the case for a new hearing because the District Court had failed to ascertain the present values of property owned by theparties.Substantially inequitable property divisions were reversed by this Court in In Re Marriage of Berthiaume

(19771,173Mont. 421, 567 P.2d 1388; and In Re Marriage of Brown, supra. In Brown, the DistrictCourt awarded the wife $25,000.00 for her interest in a $350,000.00 ranch, the major marital asset. In Berthiaume, the District Court found that the parties' marital property should be equally divided,but the court awarded the husband over $17,000.00 of themarital property and awarded the wife less than $1,000.00 of the property. In both cases, one spousewas awarded over 90percent of the marital property. Both property decrees were held to be substantially inequitable and were reversed. The case now before the Court is different from Downs, Martinez, Brown or Berthiaume. In this case, evidencewas presented to the District Court regarding the present net worth of theparties' property. Extensive evidencewas received by the court including the testimony of the parties, copies of the parties' tax returns, a listing of the parties' property, and an appraisalof the partiesfreal property. No substantially inequitable division of property was ordered by the District Court. The court, after ascertaining the parties' networth, awarded the wife assets worth approximately $165,000.00 and awarded the husband assets worth approximately $195,000.00 while ordering him to pay the debts. Except for the $40,000.00 gift to Ann ~ickerson, the Dickersonmarital property was divided equally. This property division is not substantially inequitable. Theproperty valuation issue presented in this case is similar to the property valuation issuepresented in ~iegalke


### v. Biegalke (1977),172Mont. 311, 564 P.2d 987. In ~iegalke, the appellant contended that an inaccurateproperty appraisal -6-was used by the DistrictCourt to divide the parties property. In the casenow before us, the record indicates that the District Court was presented with conflicting evidence of the value per acre of the Dickerson ranch. Testimony regarding the per acre value of the ranchwas given by the respondent and by an appraiser,an expert witness testifying in behalf of thepetitioner. The District Court, as the trier of fact in this trial without a jury, accepted the value of the respondent and rejected the expert's valuation. This is not reversible error. As we explained in Biegalke, 

# ".

. . the trier of the facts has the discretion to give whatever weight he sees fit to the testimony of the expert from 0 to loo%." Biegalke, 172Mont. at 317, 564 P.2d at 990. Unless a finding of fact is clearly erroneous, it cannotbe set aside by this Court. See, Rule 52(a), M.R.Civ.P. The judgment of the District Court is affirmed.

,*-- Justice

We Concur:

Chief Justice