No. 81-425 INTHE SUPREME COURT OF THE STATE OF MONTANA 1982

INRE THE MARRIAGE OF SUSAN D. CONVERSE, Petitioner and Respondent,



### -vsEVERETT C. CONVERSE, Respondent and Appellant.

Appeal from: DistrictCourt of the ThirteenthJudicial District, 

### Inarid fortheCounty of Yellowstone, The Honorable Diane G. 

### Barz, Judge presiding.

Counsel of Record: For Appellant: Felt

### andMartin, Billings, Montana

For Respondent: Lynauyh, Fitzgerald & Skaggs, Billings, Montana

Submittedon Briefs: March 11, 1982 Decided: May 13, 1982Mr. JustlceGene B. Daly delivered the Opinlon of the Court. This 

### is an appeal from a judgment apportioning 

### marital assetsinthe District Court of the ThirteenthJudi

### cial Districtof the Stateof Montana, inand for the County of Yellowstone. On April 7, 1980, the wife, Susan D. Converse, petitioned the District Court for 

### a dissolution of marriage. The parties

### were unable toagree on a property distribution but did 

### allow the court 

### to enter 

### a decree of dissolution on May 27, 1980. In itsdecree the court reserved theright to hear, at a later date, 

### all other matters raised by the pleadings, including the division of marital property. An

evidentiary hearing on the remaining issues commenced on February 26, 1981. On April 14, 1981, the District Court issued 

### its findings of fact, conclusions of law and order, apportioning the 

### marital assets. The court awarded the husband 

### a net amount of $38,230 and the wife a net amount of $33,871. Judgment 

### was entered on April 24, 1981, and the husband, Everett C. Converse, now appeals. The parties 

### were married on May 13, 1972, in Billings, Montana. There 

### were no children born of the marriage, but the husband had 

### two children from a previous marriage whom he helped support, and the wife had one child from 

### a previous marriage who resided with the parties throughout the durationof theirmarriage. Prior tothe marriage, the wife worked as a bartender and 

### waitress. At the husband's request, the wife quit her job after they were married and worked with the husband in the construction business, kennel business and 

### as a home- ~naker. Since the divorce, the wife has returned 

### to her

### former occupation and makes approximately $500 per month. The wife entered the marriage in possession of 

### two horses, t-ack gear and a car. From 

### the marriage she retained the horses, the car, household 

### items, kennels and a rnotor home. The husband was a foreman in a construct.ion company when t-he parties married. Later, he became a partner in a construction company and in 1978, the part-iesstarted their

own constructionbusiness. The husband entered themarriage with 

### personal affects and a full array of carpentry tools. From the marriage he retained all the tools and assets of the const.ruct.ioncompany. He 

### has continued inthe construction business, and t.he District 

### Court determined t-hat the husband has the pot.entia1 to earn somewhere bet-ween $20,000 and $30,000 per year. The onlyreal property acquired by the parties was a twenty-acre tract of unimproved property, valued at$45,000 by the District Court. This property was awarded to the husband, provided he pay the wife $22,500 

### or, alt-ernatively, thepr0pert.ywas tobe sold and theproceeds divided equallybetween husband and wife. The issues raised by t.he husband on appeal are: 1. 

### Did the District Court 

### err by admit-t-inghearsay evidence? 2. 

### Did the District. 

### Court. err in 

### its valuation of themarital assets? 3. 

### Did the evidence fail to 

### support the findings of fact, conclusions of law and order entered by t.he District Court?The husband

## 's cont-ention that the District 

### Court. erredby admitting hearsay evidence 

### is notmeritorious. Thealleged hearsay evidence consisted of two instances where the court allowed the wife to testify 

### as to the value of certain

### marital assets. In the first instance, the wife testified as to the value of some Brittany Spaniels from the parties' kennel. She had based the appraisal on her own experience in operatingkennels and on 

### a letter, entered intoevidence for illustrative purposes, from 

### a Mr. Glenn who was apparently knowledgeable about Brittany Spaniels in general and familiarwith her dogs specifically. The second alleged error occurred when the wife testified 

### as 

### to the value of certain house plans in the husband's possession. She testified that the house plans

were wort12 about $50 each and that she had arrived at that value a£ ter conversing with numerous individuals involved in the constructionbusiness. While the 

### letter is indeed hearsay, it 

### was only used for illustrative purposes and not for the truth of the matter being asserted. Rule 801(c), Mont.K.Evid. Also, Montana has always allowed owners to testify

### as 

### to thevalue of their animals. Dutton v. Rocky Mountain Phosphates (1968), 151Mont. 54, 438 P.2d 674. Further, 

### as stated 

### at 31 Am.Jur.2d Expert and Opinion Evidence, 

### S 137 

### at 685: 

# ".

.. Purely hearsay evidence 

### as to the value of 

### a chattel has been held insufficientasbasis fortestimonypredicated thereon by the owner, but information received in part from othershas been held tobe unobjectionable, and the pricing of 

### similar articles 

### seems tobe an approved way of obtaining knowledge. 

# . ." Finally, as this Court held in In 

### re Marriage 

### of Schwartz (1979)

## , -Mont

# . - 

## , 602 P.2d 175,177, 36 St.Rep. 1980, "[elrrormay not be predicated upon 

### a ruling which admits or excludes evidence unless it affects

### a substant-ial right. of the object-ing party." Here, the evidence that 

### was admitt-ed was harmless 

### error and did not "substantiallyaffect" the rightsof thehusband. The valuation of the marit-a1 assets by the District Court. 

### was proper. This Court held in Levandowski 

### v. Levandowski (1981)

## , -Mont

# . , 630 P.2d 239, 38 St..Rep. 

### - 10U2, that.: "A DistrictCourthas far-reaching discretion in resolving property divisions, and 

### its judgment 

### will not be altered unless a clear abuse of discretion 

### is shown

# . . . The 

### test forreviewing the District Court's discretion is: Did t.he Dist.rict Court in the exercise of 

### its discretion 

### act arbitrarily wit-hout employment of conscientious judgment., or exceed the bounds of reason inview of allof the circumstances? [Citations omitted.

### 1

### " 630 P.2d at 241. See also: Zell v. Zell (1977), 174 Mont. 216, 570 P.2d 33; In re the Marriage of Brown (1978), 179Mont. 417, 587 P.2d

We also held in Dickerson v. Dickerson (1980), 

### - Mont

# . - 

## , 614 P.2d 521, 37 St.Rep. 1286, that: "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 inBiegalke, I.

# . .the trierof the factshas thediscretion togive whatever weight he 

### sees fit 

### to the testimony of the expert from 0 to

## loo%.' Biegalke, 172Mont. at317, 564 P.2d 

### at990. Unless a finding of fact 

### is clearly erroneous, it cannot be 

### set aside by this Court. See Rule 52(a), M.R.Civ.P." 614 P.2d 

### at 524. The husband

## 's cont-ention t-hat. the District Court. erred because it chose the wife's appraisals over his 

### is clearly without merit in light of the above rulings. The contention that the District Court erred because it valuedthe realproperty at$45,U00 by averaging the two appraisals 

### is 

### alsowithout

### merit. See, InRe Marriage of Kaasa (1979), Mont. 

## , 591 P.2d 1110, 36 St.Rep. 425; In Re the 

### - 

## - karriage of Jensen (1981)

## , -Mont

# . - 

## , 631 P.2d 700, 38 St.Rep. 1109. A review of the record reveals t.hat the figure of $45,000 

### was not chosen arbitrarily and 

### was well supported by t.he evidence. There was sufficient evidence present-ed to support the District. Court's findings of fact., conclusions of 

### law and order. In the recent decisionof St~ratford v. Stratford (1981)I 

## -Mont

# . - 

## , 631 P.2d 296, 38 St..Rep. 1093, 

### we stated:"Findings of fact and conclusions of law provide 

### a foundation for the court's judgment-. Marriage of Barron (1978), 177 Mont.. 161, 580 P.2d 936. This foundation need not consist of 

### a multitude of evidentiary fact-s, but. the findings of fact must 

### set forth 

### a recordation of the essential and determining facts upon which the court rested 

### its conclusions of law and without which t.he judgment would lack support. Jones v. Jones (1980), Mont., 620 P.2d 850, 37 St.Rep. 1973." 631 P.2d at298. When applying this st.andard to the case at. hand, it. 

### is clear that the findings of fact, conclusions of law and order

### were wellsupport-ed by the evidence. The husband contends thata different standard 

### is 

### set. out inIn

### re theMarriage of Peterson (1981),

## -Iqon

### t

# . - I 636 P.2d 821, 38 St.Rep. 1723. In Peterson, there 

### was roughly 

### a $600,000 difference in the various appraisers' values and 

### we stated: "In addition, the court should state 

### its reasons for determining valuation

# .

# .. However, 

### we will uphold 

### a proper exercise of discret-ion by the 

### trial court and if 

### a reasonable explanation exists for adopting the lower value, 

### it should be stated." 636 P.2d 

### at 824.

### In thiscase, while the District Court did not specifically 

### set. out an explanation for setting the valuation at 

### $45,000 for the land, the evidence presented at. 

### trial was sufficient, without explanation, to support the District 

### Court's figure. Both appraisers t.estified that the valuat.ion t-hey 

### were giving could vary up 

### or down somewhat depending on various factors. The fact that the District 

### Court chose a figure in the middle without further explanation is 

### easily ascertainable from the evidence and

was thereforenot. erroneous. The wife, t.he respondent herein, alleges that. t.he District 

### Court erred by not equitably distributing the property. She 

### raises thisissue not asa cross-appellant but instead attempts 

### to invoke Rule 14, M.R.App.Civ.P. We 

### cannot.reviewthe issuebecause respondent failstoproperly invoke the use of Rule 14, M.R.App.Civ.P. In Johnson v. Tindall (1981), -

### Mont. - 

## , 635 P.2d 266, 38 

### St.Kep. 1763, 

### we held: "Although Rule 14 provides for review of matters by cross-assignment of error, this does not eliminate the necessity for crossappeal by a respondent who seeks review of rulingsonmatt.ers separate and dist-inctfrom those sought 

### tobe reviewed by the appellant. Franciscov. Francisco (1948), 120Mont. 468, 470, 191P.2d 

### 317, 319. A 

### respondent who has not cross-appealed may not seek a determinationof the amount involved more favorable to him than t,hat made by the court below. Mechanics Universal Joint Co. 

### v. Culhane (1936), 299 

### U.S. 51, 58, 57 S.Ct. 81, 84-85, 81 L.Ed. 33, 38; 5 Am.Jur.2d Appeal and Error, 

### S 707." 635P.2d at268. The judgment of t.he District 

### Court is 

### hereby affirmed.

### We 

### concur:

Chief Justice