No. 81-104 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

IN RE THE MARRIAGE OF 

MARGARET K. HUNTER, 

Petitioner and Respondent, 

and 

LEONARD R. HUNTER, 

Respondent and Appellant. 

Appeal from: District Court of the Second Judicial District, 

In and for the County of Silver Bow 

Honorable Arnold Olsen, Judge presiding. 

Counsel of Record: 

For Appellant: 

Knight, Dahood, McLean and Everett, Anaconda, Montana 

For Respondent: 

Corette, Smith, Pohlman and Allen, Butte, Montana 

Submitted on briefs: October 22, 1981 

Decided: January 14, 1982 
Mr. Justice Fred J. Weber delivered the Opinion of the 

Court . 

Leonard R. Hunter appeals from the property settlement 

provisions of a divorce decree entered in the Second Judicial 

District, Silver Bow County. 

The following issues are presented to this Court for 

review: 

1) Whether the District Court erred in considering as 

part of the marital estate the sum of $51,000 which was 

deposited by the husband in a checking account in his name 

during the 18 months preceding trial, and expended by him 

prior to trial. 

2) Whether the District Court erred in awarding and 

distributing the marital property without first determining 

the net worth of the parties at the time of the divorce. 

The husband, in his brief, raises a scattering of other 

challenges to the equi tabili ty of the valuation and distribution 

of the property, which we will consider in their turn. 

We affirm in part and reverse in part. 

Margaret and Leonard Hunter were married in 1954. They 

have three sons, all of whom have reached their majority. 

In the twenty-six years of their marriage, the parties have 

amassed a considerable estate, primarily comprising real 

estate in and around the City of Butte. The property varies 

widely in perceived value according to its development 

potential, and other factors considered by the appraising 

party . 

In the early years of their marriage, the husband 

worked at mining and laying linoleum. Since 1978, he has 

been limited by his health to land contracting and developing. 
 is wife agrees that he was "an aggressive worker and a good 

provider." His wife left her work as a telephone operator 

upon their marriage and devoted herself to raising their 

three sons. She was rehired by Mountain Bell in 1968, and 

worked just over eight years, when a reorganization resulted 

in her being laid off rather than retrained. She collected 

unemployment for a time, but has not returned to work because 

of her health and her limited qualifications. 

In September of 1978, the wife petitioned for dissolution 

of her marriage. The separation was acrimonious, and the 

parties were unable to reach a mutually acceptable property 

settlement. On September 26, 1978, the day the petition for 

dissolution was filed, and again on July 31, 1979, the 

District Court ordered the husband to refrain from "transferring, 

encumbering, concealing or otherwise disposing of any property 

except in the usual course of business or in the necessities 

of life." The husband's own testimony revealed that he 

thereafter sold 100 shares of Pabst Blue Ribbon stock and 

spent the proceeds. The wife produced bank records to show 

that he deposited over $51,000 into a checking account with 

the First Metals Bank & Trust Co. of Butte, in the name of 

Leonard Hunter, and withdrew all but a few dollars, in the 

time between the petition and the dissolution. 

A hearing was held on March 20, 1980, at which time the 

wife's petition for dissolution was granted. At that time 

and at a subsequent hearing held June 19, 1980, the ~istrict 

Court heard extensive testimony regarding the amount and 

value of the property owned by the parties. The findings of 

fact, conclusions of law and judgment were entered, with 

regard to the dissolution, on July 10, 1980, and, with 

regard to the property distribution, on July 17, 1980. he 
~istrict Court in its amended decree of distribution, filed 

October 6, 1980, awarded the husband real property and 

other marital assets amounting to $203,236.00. The award to 

the wife amounted to only $178,200.00, but the award to her 

is free and clear of all liens and encumbrances. In addition, 

in order "to establish a more equitable distribution," the 

husband is obligated to pay the wife $9,000, at $900 annually, 

over a ten year period, and all of his real property is 

mortgaged to secure this obligation. No maintenance award 

was made to the wife, despite the trial court's finding that 

she is not qualified for employment. The husband's motion 

to amend the judgment with regard to the property distribution 

was granted only in its smallest particulars and the husband 

appeals to this Court. 

I. 

The husband argues that Montana case law mandates 

reversal because the District Court included in the marital 

estate the $51,000 the husband had deposited in the Butte 

bank over an eighteen month period subsequent to the wife's 

petition for dissolution. What is more, the District Court 

"awarded" the entire amount to the husband, although at the 

time of the dissolution, the money was no longer part of the 

estate, and the husband claimed to have spent it on business 

matters and for his own maintenance. The husband relies 

upon In re Marriage of Lippert (1981), - Mont. , 627 

P.2d 1206, 38 St.Rep. 625, wherein this Court overturned the 

District Court' s disposition of marital estate because that 

court included in the marital estate $96,000 which the 

husband had allegedly squandered on an unwise business 

investment. Appellant now argues that we are bound by 

Lippert, wherein we stated that (1) the worth of the marital 
estate must be determined at or near the time of dissolution, 

and (2) the ~istrict Court may never award more than 100% of 

the marital estate, and (3) the power of a spouse to freely 

contract with others regarding marital property endures 

until lawfully moderated or terminated. 

We would remind appellant that, in the case at bar, the 

~istrict Court - did moderate that above-mentioned spousal 

power, on September 26, 1978, the day the petition for 

dissolution was filed, by enjoining the husband from "transferring, 

encumbering, concealing or otherwise disposing of any property, 

except in the usual course of business or in the necessities 

of life." The obvious purpose of the order was to prevent 

the husband, who controlled the reins and records of the 

family business, from dissipating or secreting marital 

assets in what promised to be a prolonged and bitter dispute 

over distribution of those assets. Therefore, in this case, 

as distinguished from Lippert, the husband's right to dispose 

of jointly owned property had been sharply circumscribed. 

We would also point out to appellant that nowhere in Lippert 

did this Court declare that the time of determining marital 

estate must be the date of dissolution. In fact, we stated 

that no single event in the dissolution process necessarily 

establishes the time for proper valuation, whether it be the 

date of filing, the date of trial or the date of the dissolution itself. In re Marriage of Lippert, Mont. at 

, 627 P.2d at 1208, 38 St.Rep. at 628. Clearly, although 

the date of filing is not determinative of the time of 

valuation, neither is it automatically beyond consideration 

as too remote. We have stated many times that, in considering 

appeals arising from disposition of marital property upon 

dissolution, we will consider each case in light of the 
facts unique to it. In re Marriage of Aanenson (1979), 

Mont. 598 P.2d 1120, 36 St.Rep. 1525. Here, before 

the transfer of $51,000 in and out of the husband's account, 

the District Court, in its September 26, 1978, injunction 

served the husband with fair warning that he must be responsible 

for the disputed property in his control. No such warning 

was given in Lippert; indeed, in that case, all transfers to 

the husband's accounts from shared property were completed 

before the petition for dissolution was filed. In Lippert, 

this Court found there was no evidence that the funds had 

disappeared in any way but through bad investments, and 

there was substantial evidence that they were thus dissipated. 

Here, the wife submitted abundant evidence in the form of 

bank statements showing the deposit and withdrawal of substantial 

sums of money, although the husband admittedly was doing no 

work other than collecting rent and swapping real estate 

during the period in question. That real estate, according 

to the husband's own testimony, was in the name of both 

parties. The evidence indicates that he would obtain his 

wife's signature, sell the property, and bank the money in 

his personal account, all during the time that the injunction 

was in force. Furthermore, although the husband testified 

that the money was spent primarily on business, and living 

expenses, he produced no cancelled checks, no receipts, no 

evidence whatsoever to support his claim, except a list of 

expenses he himself had drawn up. He admitted to paying his 

wife no maintenance, although he did pay some utility bills, 

and occasionally signed some small checks over to her during 

the separation period prior to the dissolution. When questioned 

by the wife's counsel as to the origin and disposition of 

the $51,000, his responses were evasive in the extreme. An 

example follows: 
"A. . . . '78 was the last time I was doing any 

work . . . September of '78. . . I made some 

work here and there. But it was the last time 

I did any physical, manual labor. . . 

"Q. How much money have you deposited in that 

account [with the First Metals Bank] since 

September of 1978, the last time you had any 

work? 

"A. I don't know. 

"Q. How about $51,175? 

"A. That I deposited in there? 

"Q. Yes. 

"A. If I deposited in there -- a lot of stuff 

I would buy for people. Some of it is mine. 

"Q. Well, if the bank statements show that, 

in September of '78 to February of '80, you've 

run through that account, made deposits in it 

of $51,175 -- 

"A. A lot of it I took out of the bank, put in 

my account to pay bills with. 

"Q. Bills to help your wife? 

"A. To pay for my property; pay my taxes, things 

like that. 

"Q. Where did you get the $51,000 to deposit 

in the account if you didn't have a job? 

"A. It all shows in there. I had different 

things. 

"Q. How much money do you have? 

"A. You know what, I don't know. 

"Q. You've got a lot of money, don't you? 

"A. No. Just what is there, what is in the 

escrow. Everything is in mine and Margaret's 

name. 

"Q. Mr. Hunter, this account that I've referred 

to is an account in your own name? 

"A. Call the bank and Margaret Hunter can sign 

checks on it. 

"Q. Did you ever tell your wife to write checks 

on this account? 
"A. No. I had a checking account for her at 

the Security so we didn't get it mixed up. 

"Q. Have you made any money on investments 

where it didn't require you to work? 

"THE COURT: During what period of time? 

"Q. From September of '78 until now. 

"A. No. I lost money, I had money come to me 

before that I made. I drew it out of the bank. 

I paid bills with it." 

The District Court's finding of fact No. IV states: 

"The Court finds that during the pendency of 

the above-entitled action, Leonard Hunter deposited in accounts at the First Metals Bank & Trust 

Company approximately fifty-one thousand ($51,000), 

which was received from various sales of property 

and from other unidentified sources. Respondent's 

Exhibit 'F' shows that many of the items of money 

received and spent were from the sale of properties 

owned by the parties and not accounted for to 

Margaret Hunter. " 

the basis of that finding, the trial court found the 

$51,000 to be a marital asset and awarded the asset to the 

husband. The husband now contends that such an award is 

reversible error. 

We disagree. The purpose of the District Court in 

issuing its injunction dated September 26, 1978, was obviously 

to protect the marital estate. Its conclusion that the 

husband deposited in a personal account a large sum of 

money obtained by his making incursions into that estate is 

supported by substantial evidence, much of it supplied by 

the husband's testimony and in his Exhibit "F." The husband 

was given every opportunity to present evidence in support 

of his bald statements that the money was spent on business 

or in maintaining himself and his wife. No such evidence 

was presented. Clearly, the District Court was unpersuaded 

by the husband's claim that his personal accumulation and 
disposition of $51,000 was a blameless series of business 

transactions. That court's skepticism appears well-founded 

in light of the husband's own testimony that before the 

distribution he sold $1,000 worth of Pabst stock in defiance 

of the court's injunction, and proof that subsequent to 

the distribution he appropriated the $5,000 real estate 

contract with the Dennises, which had been awarded to his 

wife. We affirm our statement in Lippert, that findings and 

conclusions may not rely solely on a perceived lack of 

credibility, but must be supported by evidence. Here, we 

find ample evidence to support the trial court. 

The standard of review of property distribution on 

dissolution is well settled in Montana: 

"A district court has far-reaching discretion 

in resolving property divisions and its judgment will not be altered unless a clear abuse 

of that discretion is shown. The criteria for 

reviewing the District Court's discretion is: 

Did the court in the exercise of its discretion 

act arbitrarily without employment of conscientious judgment, or exceed the bounds of 

reason in view of all the circumstances." 

Stratford v. Stratford (1981), Mont. I 

631 P.2d 296, 298, 38 St.Rep. 1093, 1095; In 

re Marriage of Aanenson (1979), Mont. I 

598 P.2d 1120, 36 St.Rep. 1525; In re Marriage 

of Kramer (1978), 177 Mont. 61, 580 P.2d 439; 

Zell v. Zell (1977), 174 Mont. 216, 570 P.2d 

33. 

A review of the record indicates that, far from acting 

arbitrarily or unreasonably, the District Court acted carefully 

and conscientiously to protect the marital estate initially, 

and to equitably apportion it subsequent to dissolution. 

That the court considered the value of the marital estate 

prior to dissolution is not error in light of the circumstances 

of this case. We find no abuse of discretion in the District 

Court's inclusion of the $51,000 in the marital estate; nor 

do we find an abuse of discretion in the court's award of 

that sum to the husband. 
The husband argues that the District Court's failure to 

determine the net worth of the estate constitutes reversible 

error, requiring remand for retrial. He bases his argument 

upon the District Court's failure to make an explicit finding 

totalling all of the marital assets and expressly allocating 

the liabilities. 

The well-settled principle is set forth clearly in 

Schultz v. Schultz (1980), Mont. , 613 P.2d 1022, 

"This Court has, since 1975 when the Marriage 

and Divorce Act was passed, considered many 

cases with regard to proper property division 

in dissolution of marriage cases. We have 

adopted certain guidelines for the equitable 

distribution as mandated under section 40-4- 

202, MCA. 

"Several criteria stand out as mandates, first 

of which is that the District Court make findings of fact from which there can be established a net worth of the parties. (Citations 

omitted). 

"The above cases generally hold that there must 

be complete findings as to the assets and 

liabilities of the parties and their values 

for establishment of a net worth. This Court 

has allowed a failure to find a net worth to 

stand only where there has been a 50/50 split 

of the property. (Citations omitted).'' 

In the case at bar, the District Court's failure to 

state the dollar value of the total estate is purely a 

technical omission. Exhibits "A" and "B" are incorporated 

into finding of fact number I, which states: 

"The Court finds that all of the property 

described in Exhibits 'A' and 'B' attached 

hereto and by reference made a part hereof, 

were acquired by the parties during their 

marriage and are part and parcel of the 

marital assets of the parties." 

Those exhibits constitute a painstakingly complete and 

careful list of the marital assets, a determination of their 

value, and a total of the amount awarded to each of the 
parties. It is evident that the purpose of the court was to 

divide the assets as equally as possible. The values assigned 

the various items of real estate and personal property are 

supported by evaluations of their worth offered by qualified 

appraisers or by the parties themselves. The transcript 

reveals that, contrary to the husband's claim, the value of 

a great many of the items was determined by his own testimony. 

It is true that the views of husband and wife diverged 

sharply as to the value of certain real property, largely 

because one viewed the property as raw land and the other 

weighed its development potential. Developers and appraisers 

themselves disagreed in their valuations. 

"The District Court, as the trier of fact, in 

this trial without a jury, has the discretion 

to give whatever weight it sees fit to the 

testimony of land appaiser witnesses. Dickerson v. Dickerson (1980), Mont., 614 P.2d 521, 

37 St.Rep. 1286. Unless the valuation is 

clearly erroneous, it shall not be reversed 

on appeal. Rule 52 (a) M.R.Civ.P." In re 

Marriage of Jensen (1981), Mont. , 631 P.2d 700, 702, 38 St.Rep. 1109, 1111. 

Viewing the evidence in the light most favorable to the prevailing party, we find that there was sufficient evidence before 

the District Court to support the value it found applicable 

to those disputed lots and acres, Its valuation was not 

clearly erroneous: it was based upon substantial evidence 

and will not be overturned. See Cameron v. Cameron (1978), 

179 Mont. 219, 227-228, 587 P.2d 939, 945. 

Likewise, there is ample evidence that the District 

Court carefully considered the liabilities of the estate, 

and, while not giving them an explicit dollar value, equitably 

determined that they should be borne by the husband. On 

direct examination, the husband was asked whether the debts 

listed on his Exhibit "H" were his obligation: 
"A. Well, I plan on paying them. 

"Q. All right. Are they your responsibility? 

"A. Yes." 

The District Court subtracted the debts from the property 

to which they attached, when possible. For example, the 

1979 Cadillac valued by the husband at $12,000 (with $6,000 

owing) and awarded to him was valued at only $6,000 by the 

court. 

The court clearly intended that the husband pay the 

debts. His property award was greater than the wife's and 

the court did not award her maintenance. Furthermore, in 

its findings and conclusions the decree clearly stated that 

the property in Exhibit "A" was to go to Margaret Hunter 

free and clear of all liens and encumbrances. The property 

in Exhibit "B" was to go to Leonard Hunter; there is no 

clause indicating that his award is not subject to creditors' 

claims. 

In In re Marriage of Xetcalf (1979), Mont . , 598 

P.2d 1140, 36 St.Rep. 1559, this Court found that the District 

Court's failure to consider the unsecured debts of the 

marital estate was an abuse of discretion. In that case, 

however, there was no evidence that the court considered the 

debts at all, and if the husband had received the burden of 

their payment, total liabilities from the estate would have 

exceeded his share of the assets. Here, there is convincing 

evidence that the court carefully considered the debts, 

incorporated them into its valuation of marital property 

when possible, and decided that their payment should be the 

husband's responsibility. There is no abuse of discretion 

by the District Court and no unreasonable burden placed on 

the husband, whose share of the marital estate amounts to 

over $200,000. 
This Court has held that the cumulative effect of the 

findings can be equivalent to a finding of net worth when 

relevant factors are considered and adequately set forth by 

the trial court. In re Marriage of Bosacker (1980), 

Mont. , 609 P.2d 253, 256, 37 St.Rep. 469, 471. The 

record clearly indicates that the trial court assessed the 

value of the total marital estate, including the debts 

thereof, and did its best to equitably apportion the assets 

between the parties. We find no abuse of discretion by the 

District Court, under the circumstances set forth above, in 

its failure to state net worth and debts at exact dollar 

value. 

111. 

We turn now to the several other allegations of error 

raised by the husband on appeal. 

The husband claims that the District Court unfairly 

awarded the wife both the family residence and "the Duffy 

place" where he had stayed since the separation. We point 

out that in its amended decree dated October 6, 1980, the 

District Court awarded "the Duffy place" residence to the 

husband. 

The husband also claims that the District Court relied 

upon the proposed findings submitted by the wife and cites 

Tomaskie v. Tomaskie (1981), Mont. , 625 P.2d 536, 

539, 38 St.Rep. 416, 419, as declaring categorically, "That 

is wrong!" What is wrong, and it is considered an ethical 

more than a legal breach in Tomaskie, is not for a trial 

judge to rely upon proposed findings, but for him to rely 

too heavily on them, to the exclusion of a consideration of 

the facts and the exercise of his own judgment. There is no 

merit in the husband's allegation. In Tomaskie, the reversal 
turned upon the grossly inadequate findings of the trial 

court, Here, the findings are extensive, detailed and 

comprehensive. Many of them reflect the husband's testimony 

as to the value of specific property and facts surrounding 

the marriage and the dissolution. Every page of the findings 

reflects consideration of the facts presented and the areas 

of dispute. There is no abuse of discretion here. 

The husband argues that the District Court erred in 

finding that the wife was not qualified for employment 

because she was working as late as 1978, and presented no 

medical evidence of incapacity. We point out that the wife 

testified that she suffered from high blood pressure and a 

bad back and leg, and felt that her health prevented her 

from returning to work. It was well within the discretion 

of the District Court to find the wife's testimony had 

sufficient weight to support its finding that she was not 

qualified to work. 

The husband did not argue on appeal, as he did subsequent 

to the decree, that the attachment of a mortgage to all of 

his property, for the purpose of securing his $9,000 obligation to his wife, was inequitable. He did, however, remark 

that the husband should leave the marriage "with a fair 

degree of dignity." As a court of equity, we must consider 

the effect upon the husband of mortgaging assets worth many 

times the amount of his obligation. The husband is in the 

business of trading real estate. To freeze his assets for 

ten years would deprive him of his occupation and his income. 

That is unreasonable and inequitable. It would be far more 

reasonable to mortgage only one or two items of property 

having sufficient value to secure the obligation; for example 

No. 7 of Exhibit "B" of the amended decree, half-interest in 
a duplex, valued at $22,500.00, could be mortgaged. 

The judgment of the District Court is affirmed in all 

respects except that last mentioned. We remand this case to 

the District Court with orders to amend the decree so as to 

retain a mortgage on only so much of the husband's property 

as is necessary to secure the payment of $9,000 to the wife. 

We Concur: 

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