No. 81-425 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

IN RE THE MARRIAGE OF 

SUSAN D. CONVERSE, 

Petitioner and Respondent, 

-vsEVERETT C. CONVERSE, 

Respondent and Appellant. 

Appeal from: District Court of the Thirteenth Judicial District, 

In arid for the County of Yellowstone, The Honorable 

Diane G. Barz, Judge presiding. 

Counsel of Record: 

For Appellant: 

Felt and Martin, Billings, Montana 

For Respondent: 

Lynauyh, Fitzgerald & Skaggs, Billings, Montana 

Submitted on Briefs: March 11, 1982 

Decided: May 13, 1982 
Mr. Justlce Gene B. Daly delivered the Opinlon of the Court. 

This is an appeal from a judgment apportioning 

marital assets in the District Court of the Thirteenth Judicial District of the State of Montana, in and 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 to agree on a property distribution 

but did allow the court to enter a decree of dissolution on 

May 27, 1980. In its decree the court reserved the right to 

hear, at a later date, all other matters raised by the 

pleadings, including the division of marital property. An 

ev identiary 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 duration of their marriage. 

Prior to the 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-ies started their 

own construction business. The husband entered the marriage 

with personal affects and a full array of carpentry tools. 

From the marriage he retained all the tools and assets of 

the const.ruct.ion company. He has continued in the 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 only real 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, the pr0pert.y was to be sold and the proceeds divided 

equally between husband and wife. 

The issues raised by t.he husband on appeal are: 

1. Did the District Court err by admit-t-ing hearsay 

evidence? 

2. Did the District. Court. err in its valuation of 

the marital 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. 

erred by admitting hearsay evidence is not meritorious. The 
alleged 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 

operating kennels and on a letter, entered into evidence for 

illustrative purposes, from a Mr. Glenn who was apparently 

knowledgeable about Brittany Spaniels in general and 

familiar with 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 construction business. 

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 the value 

of their animals. Dutton v. Rocky Mountain Phosphates 

(1968), 151 Mont. 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 insufficient as basis for testimony predicated 

thereon by the owner, but information received in part from 

others has been held to be unobjectionable, and the pricing 

of similar articles seems to be 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, " [el rror may 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 

"substantially affect" the rights of the husband. 

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 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 . . . The test 

for reviewing 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 in view of all of 

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), 179 Mont. 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 in Biegalke, I. . . the trier of 

the facts has the discretion to give whatever 

weight he sees fit to the testimony of the 

expert from 0 to loo%.' Biegalke, 172 Mont. 

at 317, 564 P.2d at 990. 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 valued 
the real property at $45,U00 by averaging the two appraisals 

is also without merit. See, In Re 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 decision of 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 at 298. 

When applying this st.andard to the case at. hand, it. 

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

order were well support-ed by the evidence. 

The husband contends that a different standard is set. 

out in In re the Marriage 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 this case, 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.estif ied 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 therefore not. erroneous. 

The wife, t.he respondent herein, alleges that. t.he 

District Court erred by not equitably distributing the 

property. She raises this issue not as a cross-appellant but 

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

cannot. review the issue because respondent fails to properly 

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 

rulings on matt.ers separate and dist-inct from 

those sought to be reviewed by the appellant. 

Francisco v. Francisco (1948), 120 Mont. 468, 

470, 191 P.2d 317, 319. A respondent who has 

not cross-appealed may not seek a determination of 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." 635 P.2d at 268. 

The judgment of t.he District Court is hereby 

affirmed. 
We concur: 

Chief Justice