No. 86-339

IN THE SUPREME COURT OF THE STATE OF MONTANA
1987

INRE THEMARRIAGE OF ARLIE HANCOCK, Petitionerand Appellant, and
WATSON LEROY HANCOCK, Respondent and Respondent.

APPEAL FROM: DistrictCourt of the Fourth JudicialDistrict, In and for the County ofMissoula, The Honorable JamesB. Wheelis,Judgepresiding.
COUNSEL OF RECORD:
ForAppellant: Tipp,Hoven, Skjelset & Frizzell;Douglas G. Skjelset, Missoula, Montana
For Respondent:
Edward A. Cummings,Missoula,Montana

Submitted on Briefs: Feb. 5, 1987 Decided: 

### April 16, 1987
Filed: 

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### 1987Mr. Justice L. C. Gulbrandson delivered the Opinion of the Court.

Arlie Hancock (the wife) appeals a Missoula County District Court order which divides the main marital asset (a ranch) between the parties in this dissolution of marriage action. The single issue on appeal is whether in dividing the ranch the lower court abused its discretionby requiring the respondent,Mr. Watson Hancock, to divide the ranch into two parts and allowingMrs. Hancock the choice ofwhich part shewanted. We affirm. This appeal is the culmination of ten years of bitter dispute over the division of the ranch. InMarch 1977,Mrs. Hancock filed a petition for dissolution of marriage. In February 1978, the DistrictCourt entered adecree dissolving the marriage. In September 1978, the court entered judgment dividing most of the marital assets between the parties and providing for the division of the ranch. That judgment

(1) ordered the parties to obtain a survey and a plat partitioning the ranch into two parcels; (2) provided that Mrs. Hancock could choose whichever parcel she desired for her own; and (3) ordered the ranch sold within 120 days of the judgment if the parties could not agree on partition. Unfortunately, the parties could not agree on how to partition the ranch nor, apparently, on an asking price for the ranch. Thus, for years the parties made no progress in either dividing or selling the ranch. In September 1985, after a number of hearings, the Missoula County District Court issued an orderwhich stated that (1) the parties had insufficient funds topay a surveyortodivide the ranch into two tractsofequal value; (2)a judicial sale might bring in less than fair market value or might permit one party to purchase the ranch at a low cost; and (3) an equitable meansofpartitioning the ranchwould be forMrs. Hancock todivide the land into two parts and for Mr. Hancock to choose the parcel he desired. The court gave theparties an opportunity to comment on the proposed procedure. In response, Mrs. Hancock's counsel proposed that each of the parties should recommend a dividing line for the property. The court could then select the plan of one of the parties and the other party would choose one of the two parcels. Mrs. Hancock's counsel also objected to the court's proposed plan by pointing out that the September 1978 judgment provided that she (rather than Mr. Hancock) would get her choice of the parcels. Counsel complained that the court had taken this right away from Mrs. Hancock. In January 1986, the court modified its September 1985 order by providing that Mr. Hancock would propose a division of the property and Mrs. Hancock would choose whichever parcel she wanted. On January 31, 1986, the parties appeared in court. Mr. Hancock drew a line on amap dividing the ranch into two parcels. The court recessed and, after approximately one hour and 45 minutes of contemplation,Mrs. Hancock chose one of theparcels. Severaldays later,Mrs. Hancock filed apro
se motion to reconsider, stating that she made a mistake in selecting her half of the ranch. The courtdenied hermotion and filed an order dividing the ranch in accordance with the choice Mrs. Hancock made on January 31, 1986. This appeal followed. [A] District 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 aDistrictCourt's discretion is: Did the District Court, in the exercise of its discretion act arbitrarily without employment of conscientious judgment, or exceed thebounds of reason in view of all the circumstances? (Citationomitted.)
Buxbaum v. Buxbaum (Mont. 1984), 692 P.2d 411, 414, 

### 41 St.Rep. 2243, 2246-2247. Under thepeculiar circumstances of this case,we hold that the District Court did not abuse its discretion in dividing the ranch between the parties. The DistrictCourt found thatneither party could afford topay a surveyor to divide the ranch into two equal parcels. Mrs. Hancock doesnot attack this finding. Moreover,prior to the partition, Mrs. Hancock did not complain of the basic plan proposed by the court. Rather,Mrs. Hancock's objectionwas that in September 1985 the court ordered her to draw the dividing line with Mr. Hancock having his choice instead of vice versa. She did not object to the method but rather to who got the choice of land. Accordingly, the court ordered Mr. Hancock to draw the line with Mrs. Hancock having her choice. The court allowed her ample time to choose her half of the ranch and shewas advisedby counsel,her daughter and

a friend. Further,we agree with the lower court that there
was no evidence that Mrs. Hancock's mental status was impaired at the time of her choice. We also agree with the lower court that simply ordering the ranch sold at auction could result in a substantial loss for the parties. Lastly, it is apparent from the record that the parties were completely unable to agree onhow they could divide the ranch between themselves. The method employed by the lower court will generally result in an equal division. Theparty drawing the dividing line is essentially forced to make an equal partition. Otherwise, he risks receiving the smaller parcel left after the other party chooses. The ranch in this case was fairly small (265 acres) andwas familiar toboth parties. The line drawn was relatively straight and does not demonstrate anattempt to confuse Mrs. Hancock. Mrs. Hancock's choice was n simple. We find no abuse of discretion. Affirmed. I stice / We Concur: A 

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Chief Justice

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