NO. 84-490 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

IN RE THE MARRIAGE OF 

MARY ISABELLE SIRUCEK, 

Petitioner and Appellant, 

and 

ROBERT SIRUCEK, 

Respondent and Respondent. 

Appeal from: District Court of the Tenth Judicial District 

In and for the County of Fergus 

The Honorable Joel G. Roth, Judge presiding. 

Counsel of Record: 

For Appellant: 

Linnell, Newhall & Martin, Great Falls, Montana 

Norman L. Newhall, 111, Great Falls, Montana 

For Respondent: 

Swanberg, Koby, Swanberg & Matteucci, 

Great Falls, Montana 

Daniel Falcon, Great Falls, Montana 

Submitted on briefs: Sept. 6, 1986 

Decided: December 31, 1985 

- 

Clerk 
Mr. Justice Fred J. Weber delivered. the Opinion of the Court. 

Mary Isabelle Sirucek (wife) sought a dissolution of her 

marriage from Robert Sirucek (husband) in the Tenth Judicial 

District Court for Fergus County. The wife appeals from the 

division of the marital estate. We affirm the District 

Court. 

The issues on appea.1 are: 

1. Did the District Court err in adopting the Stanton 

appraisal of the ranch property, in particular the valuation 

of timberland? 

2. Did the District Court err in including the wife's 

teacher's retirement pension in the marital estate? 

3. If the teacher's retirement pension was properly 

included in the marital estate, did the District Court 

properly value that pension? 

4. Was the marital estate equitably divided between the 

wife and husband? 

5. Did the District Court err in failing to award the 

wife any share in the appreciation or equity build-up of the 

ranch during the course of the ma-rriage? 

6. Did the District Court err in adoptinq inconsistent 

discount rates for the ranch real property and the teacher' s 

retirement pension? 

7. Should the District Court have ordered the sale of 

the ranch and division of the sale proceeds? 

The following findings of the District Court are not 

disputed: The parties were married in 1970 and cohabited as 

husband and wife for 12% years. At the time of the divorce, 

the wife was 52 and the husband was 63. No children were 

born of the marriage. The wife had five children from a 
previous marriage. Three of her children lived on the 

Sirucek ranch for a number of years before reaching the age 

of majority. The husband had been married twice before and 

had three children of his prior marriages. One of his 

children also lived at the ranch after the parties' marriage. 

Neither the husband nor the wife adopted any of the other's 

children. There is no claim for child support or spousal 

~naintenance. At the time of marriage, the wife was teaching 

school in Lewistown, and the husband was living on his ranch 

about eight miles east of Lewistown. After the marriage, the 

wife and her three minor children moved to the ranch, where 

they lived as a family unit until. each of the children 

graduated from high school. The parties continued to live 

together until 1983, when the wife moved to Lewistown. 

The wife has a bachelor's degree in education and has 

taught school continuously in the rural schools of Montana 

since the early 1960's. She has taught in Lewistown since 

1967. The husband brought to the marriage ranch real 

property, farm machinery and various livestock. At the time 

of the marriage, the wife owned certain household items and a 

car. In 1973, the husband sold 230 acres of the ranch land, 

leaving approximately 1,393 acres of crop land, pasture and 

timberland. The ranch includes various improvements, 

including a ranch house. During the marriage, the wife 

earned approximately $162,000. During the same period of 

time, the ranch had a total income tax loss of approximately 

$119,000, including the non-cash expense of depreciation. 

The ranch operation was not and is not a profitable business 

venture. The District Court found that the ranch land had 

appreciated in value during the years of marriage as a result 

of inflation, not because of labor or money invested by 
either party. The husband desires to continue to run a 

cattle operation on the ranch. The wife requests that the 

ranch be sold and the proceeds divided between them. 

Of particular significance are the findings by the 

District Court that both the wife and the husband made 

substantial contributions to the marriage. The wife served 

as homemaker, did most of the cooking and general 

housekeeping, performed chores around the ranch, and held a 

job as full time teacher. The husband provided a home for 

the wife and her three children, was a stepfather for the 

three children, provided responsible paternal care and 

discipline, taught one of the wife's children how to operate 

ranch machinery, shared in the housekeeping duties and meal 

preparation, and was responsible for operating the ranch. 

The court found an equal and offsetting contribution by each 

of the parties to the marriage. The court also found that 

the wife was not entitled to a percentage of the increase in 

value of ranch land. 

In its extensive findings, the District Court considered 

the factors set forth in § 40-4-202, MCA, pertaining to the 

division of marital property. We will not list all of the 

factual findings in connection with the factors in that code 

section. However, we note that both parties were found to be 

in good health, the wife being 52 and the husband 63, and the 

parties' basic needs for food, clothing and housing were 

identical. The court further found that the wife has a 

greater opportunity for acquiring future income and capital 

assets because of her continually increasing teacher's 

salary, whereas the husband is faced with continuing ranch 

operation losses. The husband's ability to acquire capital 

assets is premised upon an inflationary increase in value of 
land and an opportunity to borrow additional money. The 

District Court valued the ranch land and improvements as a 

farm and ranch operation and did not consider dividing the 

ranch land and selling tracts for recreational, resid-ential 

sites. The parties' mutual debts to the Central Montana PCA 

and Federal Land Bank were deducted from the value of the 

marital assets. 

The District Court divided the marital assets between 

the parties as follows: 

TO ISABELLE 

Teacher's Retirement Pension 

TO ROBERT 

Vehicles (excluding Datsun pickup) $11,320.00 

Farm machine and equipment 28,425.00 

Horses 15,000.00 

Cattle 34,400.00 

Gold & silver 1,050.00 

Ranch land and improvements 290,000.00 

TOTAL $380,195.00 

Less Liabilities $114,516.34 

NET $265,678.66 

The wife appeals from this determination and 

distribution. 

Did the District Court err in adopting the Stanton 

appraisal of the ranch property, in particular the valuation 

of timberland.? 

The wife's primary objection is that the District Court 

essentially adopted the appraisal by Mr. Stanton, including 

his appraised value of $80 per acre for timberland. In 

contrast, the Thor appraisal, submitted by the wife, showed a 

value of $183 per acre for timberland. 
We have reviewed the evidence submitted by and through 

the appraisers. We have considered the testimony by the 

appraisers, who personally appeared before the court. The 

testimony of Mr. Stanton established his extensive 

qualifications for appraisal of farm and ranch lands in 

Montana. His testimony further demonstrated extensive work 

in reviewing the records, examining the land, and talking to 

knowledgeable realtors and other parties in the area. In 

addition, Mr. Stanton explained at length the basis for his 

conclusions that hayland on the Sirucek ranch should be 

valued at $350 an acre, open grazing land at $200 per acre 

and timber grazing land at $80 per acre. So far as the 

timberland is concerned, the Stanton appraisal established 

that the highest and best use was as a part of a ranching 

operation and that the limited grazing available on the 

timberland justified a valuation from one-third to one-fourth 

that of open grazing land. Mr. Stanton further explained why 

he disagreed with Mr. Thor's appraisal of $183 per timber 

acre. 

We conclude there is substantial evidence to support the 

Stanton appraisal of ranch property, including improvements, 

at a total value of $285,000. There is substantial evidence 

to support Mr. Stanton's conclusion that the timber grazing 

acreage should be valued at $80 per acre. 

As a result, we affirm the District Court's valua-tion of 

the ranch and improvements. 

I1 

Did the District Court err in including the wife's 

teacher's retirement pension in the marital estate? 

In substance, the wife argues that because she 

contributed in the course of the marriage so many dollars of 
her teacher's salary as compared to the ranching losses 

contributed by the husband, it is inequitable to include her 

teacher's retirement pension as a marital asset. 

We will discuss the detailed provisions of S 40-4-202, 

MCA, with regard to division of property in a subsequent 

issue. The portion of the pension included as a marital 

asset was the value of the pension rights earned during the 

12% years of the marriage. That value was established by the 

testimony of an economist. 

It is well established in Montana that retirement 

benefits are classed as a part of the marital estate. In Re 

Marriage of Rolfe (Mont. 1985), 699 P.2d 79, 83, 42 St.Rep. 

623, 627. The opportunity of each party to acquire capital 

assets and income in the future must be considered in 

apportioning the marital assets. Section 40-4-202(1), MCA. 

There is substantial evidence to support the finding of 

the District Court that this pension should be included in 

the marital estate. The wife has failed to meet her burden 

of showing that such finding is clearly erroneous. Where 

substantial credible evidence supports a finding of the trial 

court, that finding will be upheld. Rule 52 (a), M.R.Civ.P. 

We hold that the District Court properly included the 

wife's teacher's retirement pension in the marital estate. 

I11 

Did the District Court properly value the pension? 

The wife argues that at the time of the divorce, she had 

accumulated $16,726.69 in her retirement pension. She 

contends that that amount is the total amount of money 

presently available to her. She points out that $949.24 of 

that amount was earned prior to the marriage. She therefore 
contends that the valuation of the pension fund should be 

$15,777.45. 

The valuation of the teacher's retirement pension at 

$56,362.00 was based upon the extensive testimony and 

evidence submitted by an economics professor who testified as 

an expert for the husband. The professor's qualifications 

were clearly established. He testified at length as to the 

manner in which his valuation was prepared and the reasons 

for the various conclusions which he reached. The unrebutted 

testimony is that the procedure followed is a standard 

procedure used in his profession for work life and life 

expectancy estimates. We conclude there is substantial 

evidence to support the expert's valuation, which was 

accepted by the District Court. 

The wife argues that the only amount which should be 

included is the dollar amount in the pension fund at the time 

of the divorce. That is not the test which has been 

established in Montana. 

In Kis v. Kis (1982), 196 Mont. 296, 639 P.2d 1151, this 

Court included in the marital estate the retirement benefits 

of a game warden employed by the State of Montana. We held 

that the present value of the retirement benefits is the 

proper test. We pointed out that such present value might be 

affected by the contingency of retirement benefits failing to 

reach the levels used by the court. However, no evidence was 

offered showing what effect such a contingency would have in 

diminishing the present value of the husband's retirement 

benefits. We therefore concluded that the finding of 

valuation by the District Court must be upheld. 

In this case, the economics expert testified in this 

case that his objective was to establish the value of pension 
rights earned by the wife during the marriage. His testimony 

contains substantial evidence as to the present value of the 

pension interest. His testimony established that the present 

value of the total pension interest as of the date of trial 

was $111,476.00, and that the portion of that present value 

which was attributable to her 12+ years of marriage was 

$56,362.00. Thus the record contains substantial evidence to 

support the finding of the District Court that, for marital 

estate purposes, the value of the wife's pension was 

$56,362.00. 

There is no legal authority for using the amount paid in 

as of a particular date as the present value. The wife 

argues that Glasser v. Glasser (Mont. 1983), 669 P.2d 685, 40 

St.Rep. 1518, affords a basis for concluding that the amount 

paid in by the pension owner is the correct valuation. That 

is not a correct statement of the Glasser holding. In 

Glasser, this Court sta.ted that the present value is the 

proper test for determination of marital interest. The Court 

pointed out that evidence established that the wife had 

worked for a number of years. Sixty percent of her share of 

retirement benefits had vested. with a present value interest 

of $10,470.00. We therefore concluded that 60 percent of 

$10,470 should have been included in the marital estate. 

Glasser, 669 P.2d at 689, 40 St.Rep. at 1523. That 

conclusion does not contradict the. holding of - Kis, where 

retirement benefits had vested completely in the husband. 

We hold that the District Court properly valued the 

wife's teacher's retirement pension. 

IV 

Was the marital estate equitably divided? 
The wife points out that the District Court found that 

her income contributions to the ma.rriage were greater than 

her husband's and that she had made substantial nonmonetary 

contributions which were equal to those of the husband. The 

wife does not dispute those findings. She disputes the 

court's conclusion that in spite of her equal contribution to 

the marriage, it was equitable to award her less than 20 

percent of the net marital estate. She argues that the 

findings of fact do not support the court's conclusion as to 

an equitable distribution of marital property. 

Section 40-4-202, MCA requires that the court equitably 

apportion between the parties the property and assets 

belonging to either or both. In making that apportionment, 

the court required consider the duration the 

marriage, prior marriages, age, health, station, occupation, 

amount and sources of income, vocational skills, 

employability, estate, lia.bilities, needs and opportunity for 

future acquisition of capital assets and income. The court 

is also required to consider the contribution of a spouse as 

a homemaker or to the family unit. 

. . . Section 40-4-202 is flexible and its vests a 

good deal of discretion in the District Court. . . . We have stated, before and after the adoption 

of the statute, that each case must be looked at 

individually, with an eye to its unique 

circumsances. 

In Re Marriage of Sell (Mont. 1981), 630 P.2d 222, 225, 38 

St.Rep. 956, 959, quoting In Re Marriage of Aamenson (1979) , 

183 Mont. 229, 598 P.2d 1120 (citations omitted). 

The findings of the District Court establish that the 

court considered each of these factors. The discretion 

granted to the District Court in reaching an equitable 

division of a marital estate is broad and far-reaching. As 
this Court stated in In Re Marriage of Perry (Mont. 1985) , 

. . . In dividing property in a marriage 

dissolution, the District Court has far-reaching 

discretion and its judgment will not be altered 

without a showing of clear abuse of discretion. 

The test of abuse of d-iscretion is whether the 

trial court acted arbitrarily without employment of 

conscientious judgment or exceeded the bounds of 

reason resulting in substantial injustice. 

The District Court made findings as to the 11 year 

disparity in age, the comparative good health of the parties, 

and the significant difference in the opportunities of each 

for future acquisition of capital assets as well as income. 

The court pointed out that the husband's ability to acquire 

assets was premised upon a continued inflationary increase in 

land values and a resulting opportunity to borrow money on 

the land. The recent history of the value of Montana ranch 

lands does not support a conclusion that an inflationary 

increase in land should be presumed. The record does not 

establish that a sale of the ranch, which was distributed to 

the husband, would necessarily result in a net profit to the 

husband substantially equivalent to the retirement pension 

fund, which was distributed to the wife. In view of the 

limited income potential the ranch, apparent that 

the husband would not have a capacity to pay a significant 

amount of money out of future earnings to the wife or to 

establish an equivalent retirement fund for himself. The 

propriety of a forced sale of a family ranch of this type 

rests in the discretion of the District Court. 

Our review of the record establishes that there is 

substantial evidence to support the District Court's division 

of the marital estate. Finding no abuse of discretion, we 

affirm the court's division of the marital estate. 
v 

Did the District Court err in failing to award the wife 

any share in the appreciation or equity build-up of the ranch 

during the course of the marriage? 

In dividing property acquired prior to marriage and the 

increased value of such property, the District Court must 

consider nonmonetary contributions of the homemakers and the 

extent to which such contributions facilitated the 

maintenance of the property. Section 40-4-202, MCA. The 

court clearly did consider these factors. 

The wife argues that at the time of marriage, the 

husband had a net worth of approximately $110,000. The 

ranch-related assets and the gold and silver, less 

liabilities, totalled approximately $265,000 at the time of 

dissolution. The wife argues that this increase was 

essentially the result of inflation and appreciation in land 

values. She points out that the District Court found that 

she had made a contribution to the marriage equal in amount 

to that of her husband, yet she was not given any percentage 

of the increase in value of the ranch lands. 

It is clear that under the appropriate circumstances, 

the contribution of a spouse may entitle that spouse to a 

share of the marital estate. That legal question is not at 

issue. The issue is whether or not the proof of an 

inflationary increase in ranch value of necessity entitles a 

spouse, who has made an equal contribution to the marriage, 

to some share of that inflationary increase. 

We find it inappropriate to focus so heavily on the 

inflationary increase. We will not again list the various 

factors which the court must consider and balance in making 

an equitable distribution of property under the provisions of 
5 40-4-202, MCA. The right to share in particular property 

must be considered along with all of the other applicable 

factors. Our review of the record and the findings and 

conclusions of the District Court indicate that the District 

Court carefully considered each of the appropriate factors 

and attempted to balance the same. 

The husband is not unique in his attempt to operate a 

ranch at a continuing loss. That is one of the tragedies of 

farm and ranch management in this state in recent years. 

That also is a factor which the court could properly 

consider. 

Essentially, the District Court was required to consider 

all of the factors mentioned in the statute and use them as a 

basis for arriving at a final equitable apportionment. We 

will not attempt to take the place of the District Court in 

the exercise of discretion in fashioning an equitable 

distribution. 

We find substantial evidence to support the conclusions 

of the District Court. The wife has failed to demonstrate 

that the District Court abused its discretion. We affirm the 

apportionment of the ranch properties to the husband. 

VI 

Did the District Court err in adopting inconsistent 

discount rates for the ranch real property and the teacher's 

retirement pension? 

With regard to the present value of the wife's pension 

right, the University of Montana professor who testified as 

an expert for the husband used a discount rate of 5.4 percent 

based upon a 30 year earnings average. The expert testified 

that this was a factor commonly used by economists in making 

such a present value analysis. That testimony was not 
contradicted. The wife only argues that it was inconsistent 

to use that figure when a different discount percentage was 

used with regard to land valuation. 

It is true that Mr. Stanton, who also testified for the 

husband on the ranch valuation, used a discount in his 

consideration of comparable sales in the area of the ranch in 

question. He pointed out that some sales were for cash and 

others were upon various contractual arrangements. Mr. 

Stanton testified that at the time of the entry into the 

comparable sales, the sellers could have invested money 

safely at 12 percent and that he considered that factor in 

adjusting the comparable sales. Again, no evidence was 

submitted to negate that testimony. 

The wife has failed to present any evidence that the use 

of the two different rates is in fact contradictory. There 

is no evidence to support a conclusion that a 12 percent rate 

could properly have been factored in the pension computation; 

nor is there any evidence that a 5.8 percent rate would have 

been appropriate so far as the land was concerned. We 

conclude that there is no demonstrable reason that the court 

should have required any identity in the discount rates. 

We hold that the court did not abuse its discretion in 

allowing the use of the different discount rates. 

VII 

Should the District Court have ordered the sale of the 

ranch and division of the sale proceeds? 

The District Court had the power to require the sale of 

the ranch and the distribution of the proceeds between the 

parties, had it chosen in its discretion to do so. The wife 

argues that the court should be required to take that step. 

She a-rgues that the ranch was not an economic unit, and that 
all of the factors which traditionally mitigate in favor of 

keeping the ranch in tact have been eliminated. 

In substance, these contentions are another method of 

challenging the equitable apportionment of the marital estate 

under S 40-4-202, MCA. The District Court also considered 

the husband's desire to stay on the ranch and the fact that 

he had been a farmer and rancher all of his life. We do not 

find it necessary to again state our reasons for concluding 

that the District Court properly apportioned the marital 

estate. 

We affirm that apportionment and conclude that the 

District Court was not required to order a sale of the ranch 

and division of proceeds. 

The District Court is affirmed in all respects. 

We concur: 

hie£ Justice 
Mr. Justice John C. Sheehy, dissenting: 

1 dissent. The division or marita! assets, awarding 

$56,362.00 to the wife, and $265,678.00 to the husband is 

grossly unjust on its face. It is especial-ly unjust in this 

case. The Teacher's Retirement Pension which constitutes the 

sole marital asset given tc the wife was completely earned by 

the wife, through her own efforts. The portion of the 

marital estate swarded to the husband was preserved by the 

wife because she contributed 211 of her earnings during her 

marriage to the upkeep of the ranch which the husband now 

gets to keep in toto. I see this distribution as a flagrant 

abuse of discretion. 

The excuse ~ffered bcth by the District Court and this 

Court to sustain the award to the husband is that he can now 

go on operating his money losing venture, the ranch. Cne 

senses an unspoken hope both in the District Court and in 

this Court that the husband in fact will go broke by 

~o~tinuing to operate the ranch. 

Tt would make more economic sense, and he in accord with 

justice, to require the sale of the ranch and thereafter to 

2ivide the proceeds between the parties, taking into account 

the Teacher's Retirement Pension. Instead, this woman, 

having worked 12+ years for the good of her husband's estate 

is told she coul2. work for herself now. I do not see any 

justice in it. 

> L,." @<> . , 

Justice