No. 81-104 INTHE SUPREME COURT OF THE STATE OF MONTANA 1981

INRE 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 SilverBow 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, 1982Mr. JusticeFred J. Weber delivered the Opinion of the Court

# .

Leonard R. Hunter appeals from the property settlement provisions of a divorce decree entered inthe Second Judicial District, Silver Bow County. The following issues arepresented to this Court for review: 1) Whether the DistrictCourt erred inconsidering as part of themarital estate the sum of $51,000 which was deposited by the husband ina checking account inhis name during the 18months preceding trial, and expended by him prior to trial. 2) Whether the DistrictCourt erred in awarding and distributing themarital property without firstdetermining the net worth of the parties atthe 

### timeof the divorce. The husband, inhisbrief, raises a scattering of other challenges to the equi tabili ty of the valuation and distribution of theproperty, which 

### we willconsider in their turn. Weaffirm inpart and reverse inpart. Margaret and Leonard Hunter 

### weremarried in 1954. They have three sons, allof whom have reached their majority. In the twenty-six years of their marriage, the parties have amassed a considerable estate, primarily comprising real estate inand around the City of Butte. The property varies widely inperceived value according to 

### its development potential, and other factors considered by the appraising party

# . In the earlyyears of their marriage, the husband worked atmining and laying linoleum. Since 1978, he has been limited by his health to land contracting and developing.

###  is wife agrees thathe 

### was "an aggressive worker and a good provider." Hiswife lefther work as a telephone operator upon their marriage and devoted herself toraising their three sons. She was rehired by Mountain Bellin 1968, and worked just over eightyears, when a reorganization resulted inher being laid off rather than retrained. She collected unemployment for a 

### time, but has not returned towork 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 DistrictCourt ordered the husband to refrain from "transferring, encumbering, concealing or otherwise disposing of any property except inthe usual course of business or inthe necessities of life." The husband's own testimony revealed thathe thereafter sold 100 shares of Pabst Blue Ribbon stock and spent the proceeds. The wife produced bank records to show thathe deposited over $51,000 into a checking accountwith the FirstMetals Bank & Trust Co. of Butte, in the name of Leonard Hunter, and withdrew allbut a few dollars, inthe 

### timebetween the petition and the dissolution. A hearing was held on March 20, 1980, atwhich 

### time the wife's petition for dissolutionwas granted. Atthat 

### time and ata 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 allliens and encumbrances. In addition, inorder "to establish a more equitable distribution," the husband 

### is obligated topay the wife $9,000, 

### at $900 annually,

over a ten year period, and allof 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 smallestparticulars and the husband appeals to this Court. I. The husband argues thatMontana case law mandates reversal because the DistrictCourt 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 

### ismore, the District Court "awarded" the entire amount to the husband, although atthe 

### timeof the dissolution, themoney 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 DistrictCourt'

### s disposition of marital estatebecause that court included inthe marital estate $96,000 which the husband had allegedly squandered on an unwise business investment. Appellant now argues thatwe arebound by Lippert, wherein 

### we stated that (1)theworth of the maritalestatemust be determined ator near the time of dissolution, and (2) the 

### ~istrict Court may never award more than 100%of themarital estate, and (3) thepower of a spouse to freely contractwith others regarding marital property endures until lawfully moderated or terminated. Wewould remind appellant that, in the case atbar, the ~istrict Court 

# - didmoderate that above-mentioned spousal power, on September 26, 1978, the day the petition for dissolutionwas filed, by enjoining the husband from "transferring, encumbering, concealing or otherwise disposing of any property, except intheusual course of business or inthe necessities of life." The obvious purpose of the order was toprevent the husband, who controlled the reins and records of the family business, from dissipating or secreting marital assets inwhat promised to be a prolonged and bitter dispute

over distribution of those assets. Therefore, inthis case,

asdistinguished from Lippert, the husband's right to dispose of jointly owned property had been sharply circumscribed. Wewould alsopoint out to appellant that nowhere inLippert did this Court declare that the 

### timeof determining marital estatemust be the date of dissolution. In fact, 

### we stated thatno single event inthe dissolutionprocess necessarily establishes the 

### timefor proper valuation, whether 

### it be the date of filing, the date of trialor the date of the dissolution itself. In

### re Marriage of Lippert, Mont. at



### , 627 P.2d at1208, 38 St.Rep. at628. Clearly, although the date of filing

### is not determinative of the 

### timeof valuation, neither is it automatically beyond consideration

astoo remote. We have statedmany 

### times that, inconsidering appeals arising from disposition of marital property upon dissolution, 

### wewillconsider each case in lightof thefacts unique to 

### it. In reMarriage of Aanenson (1979), Mont. 598 P.2d 1120, 36 St.Rep. 1525. Here, before the transfer of $51,000 inand out of the husband's account, the DistrictCourt, in

### its September 26, 1978, injunction served the husband with fairwarning that he must be responsible for the disputed property inhis control. No such warning

was given inLippert; 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, thisCourt found there was no evidence that the funds had disappeared inany 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 collectingrent and swapping real estate during the period inquestion. 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 hispersonal account, allduring 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 listof expenses he himself had drawn up. He admitted to paying his wife no maintenance, although he did pay some utilitybills, 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 inthat account [withthe FirstMetals 

### Bank] since September of 1978, the last

### timeyou had any work? "A. I 

### don't know. "Q. 

### How about $51,175? "A. 

### That I 

### deposited inthere? "Q. Yes. "A. 

### If I 

### deposited inthere

## -- a lotof stuff I 

### would buy forpeople. Some of it 

### ismine. "Q. Well, 

### if the bank statements show that, inSeptember of '78 toFebruary of '80, you've run through that account, made deposits in

### it of $51,175 

## -- "A. A 

### lotof it I 

### took out of the bank, put in 

### my account topay billswith. "Q. Bills

### tohelp your wife? "A. To pay formy property; pay my taxes, things like that. "Q. 

### Where did you get the $51,000 todeposit inthe account if you didn't have a job? "A. It 

### allshows inthere. I 

### had different things.

"Q. 

### How much money do you have? "A. 

### You know what, I 

### don't know. "Q. 

### You've got a lotof money, don't you? "A. 

### No. Justwhat 

### is there, what is inthe escrow. Everything is 

### inmine and Margaret's name. "Q. Mr. 

### Hunter, this account that I've referred to is 

### an account inyour own name? 

### "A. Call the bank and Margaret Hunter can sign checks on it. "Q. 

### Did you ever 

### tell your wife to

### writechecks 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 towork? "THE COURT: 

### During what period of time? "Q. 

### From September of '78 until now. "A. 

### No. I 

### lostmoney, I 

### had money come to

### me before that I 

### made. I 

### drew 

### it out of the bank. I 

### paid billswith it." The District Court's findingof factNo. IV 

### states: "The Court finds that during the pendency of the above-entitled action, Leonard Hunter deposited inaccounts atthe FirstMetals 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 thatmany of the 

### itemsof money received and spentwere 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 tobe 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 DistrictCourt in issuing its 

### injunction dated September 26, 1978, was obviously toprotect themarital estate. 

### Its conclusion that the husband deposited ina personal account a large sum of money obtained by hismaking incursions into that estate

### is supported by substantial evidence, much of it supplied by the husband's testimony and inhis Exhibit "F." The husband

was given every opportunity topresent evidence in support of his bald statements that themoney 

### was spent on business



### or inmaintaining 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 inlightof the husband's own testimony thatbefore the distributionhe sold $1,000 worth of Pabst stock indefiance of the court's injunction, and proof that subsequent to the distributionhe appropriated the $5,000 real 

### estate contractwith the Dennises, which had been awarded tohis wife. We 

### affirmour statement inLippert, that findings and conclusions may not rely solely on a perceived lack of credibility, butmust be supported by evidence. Here, 

### we find ample evidence to support the trialcourt. The standard of review of property distribution on dissolution is

### well settled inMontana: "A districtcourthas far-reaching discretion inresolving property divisions and itsjudgment 

### willnot be altered unless a clear abuse of that discretion 

### is shown. The criteria for reviewing the DistrictCourt's discretion is: Did the court inthe exercise of 

### its discretion actarbitrarilywithout employment of conscientious judgment, or exceed the bounds of reason inview of allthe circumstances." Stratfordv. 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 orunreasonably, the District

### Court acted carefully and conscientiously toprotect the marital 

### estate initially, and to equitably apportion it subsequent todissolution. That the court considered the value of themarital estate prior todissolution is 

### not error inlight of the circumstances of this case. We 

### find no abuse of discretion inthe District 

### Court's inclusion of the $51,000 inthemarital estate; nor do 

### we find an abuse of discretion inthe court's award of that 

### sum tothe 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 tomake an explicit finding totalling allof 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 1975when the Marriage and Divorce Act was passed, considered many cases with regard toproper property division indissolution of marriage cases. We have adopted certain guidelines for the equitable distribution asmandated under section 40-4- 202, MCA. 

### "Several criteria stand out asmandates, first of which is thatthe DistrictCourt make findings of fact from which there can be established a networth of the parties. (Citations omitted). "The above cases generally hold that theremust be 

### complete findings 

### as tothe assets and liabilities of the parties and their values for establishment of a networth. This Court has allowed a failureto find a net worth to stand only where there has been a 50/50 split of the property. (Citations omitted).'' In the case atbar, the District

### Court's failure to statethe dollarvalue of the total estate is 

### purely a technical omission. Exhibits "A" 

### and "B" 

### are incorporated into finding of factnumber I, 

### which states: "The Court finds that allof the property described inExhibits '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 themarital assets, a determination of their value, and a total of the amount awarded to each of theparties. It 

### is evident that the purpose of the courtwas to divide the assets asequally aspossible. The values assigned the various 

### itemsof real estate and personal property are supported by evaluations of their worth offered by qualified appraisers orby the parties themselves. The transcript reveals that, contrary to the husband's claim, the value of

a greatmany 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 asraw land and the other weighed 

### itsdevelopment potential. Developers and appraisers themselves disagreed in their valuations. "The District Court, as the 

### trier of fact, in this trialwithout a jury, has the discretion to givewhatever weight 

### it 

### sees fitto 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 lightmost favorable to the prevailing party, 

### we find that there was sufficientevidence before the District Court to support the value it found applicable to those disputed lots and acres, Its valuation was not clearly erroneous: 

### itwas based upon substantial evidence and 

### willnot 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 explicitdollar value, equitably determined that they should be borne by the husband. On directexamination, 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 towhich they attached, when possible. For example, the 1979 Cadillacvalued by the husband at$12,000 (with $6,000 owing) and awarded tohim 

### was valued atonly $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 inExhibit "A" was togo toMargaret Hunter free and clear of allliens and encumbrances. The property inExhibit "B" 

### was togo toLeonard 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 toconsider the unsecured debts of the marital estatewas an abuse of discretion. In that case, however, therewas no evidence that the court considered the debts atall, and if the husband had received the burden of their payment, total liabilities from the estatewould have exceeded his share of the assets. Here, there 

### is convincing evidence that the court carefully considered the debts, incorporated them into itsvaluation 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 themarital 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 areconsidered and adequately 

### set forthby the trialcourt. In reMarriage 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 totalmarital estate, including the debts thereof, and did 

### itsbest toequitably apportion the assets between the parties. We find no abuse of discretion by the District

### Court, under the circumstances 

### set forth above, in 

### its failureto statenet worth and debts atexact 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 thewife and cites Tomaskie v. Tomaskie (1981), Mont. 

## , 625 P.2d 536, 539, 38 St.Rep. 416, 419, as declaring categorically, "That is

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

more than a legal breach inTomaskie, is not for a trial judge torely upon proposed findings, but for him torely too heavily on them, to the exclusion of a consideration of the facts and the exercise of his own judgment. There 

### is no merit inthe husband's allegation. In Tomaskie, the reversalturned upon the grossly inadequate findings of the 

### trial court, Here, the findings areextensive, detailed and comprehensive. Many of them reflect the husband's testimony

as tothe 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 

### DistrictCourt erred in finding that thewife was not qualified for employment because she was working 

### as lateas 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 feltthat her health prevented her from returning towork. It was well within the discretion of the DistrictCourt to find the wife's testimony had sufficient weight to support 

### its finding that she was not qualified towork. The husband did not argue on appeal, 

### as he did subsequent to the decree, that the attachment of a mortgage toallof his property, for the purpose of securing his $9,000 obligation tohis wife, was inequitable. He did, however, remark that the husband should leave themarriage "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 inthe 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 farmore reasonable tomortgage only one or two 

### items of property having sufficientvalue 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 inall respects except that lastmentioned. Weremand this case to the District Court with orders to amend the decree so as to retain a mortgage on only somuch of the husband's property

as 

### is necessary to secure the payment of $9,000 to thewife.

We Concur: 

## r" 

# 4 .7 Ud-.zz. 4