No. 90-188 

IN THE SUPREME COURT OF THE &ATE OF MONTANA 

1990 

IN RE THE MARRIAGE OF 

TOM GERHART, 

Petitioner and Respondent, 

and 

B.J. GERHART, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Thomas M. McKittrick, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

P 

rr: 

3 

o Daniel L. Falcon, Matteucci & Falcon, P.C., Great $ >< '., L- Fall, Montana 

2 , 

-1 LL-1 

qz "' For Respondent: " .- 0 - 

~d - - Keith Tokerud, Scott & Tokerud, Great Falls, Montana 2 --L) 

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Filed: 

Submitted on Brief: October 3, 1990 

Decided: November 8, 1990 

I 

Clerk 
Justice John Conway Harrison delivered the Opinion of the Court. 

In December of 1989, the Cascade County District Court entered 

a decree of dissolution of the marriage of Tom Gerhart and B.J. 

Gerhart. B.J. appeals from the property settlement. We affirm. 

The issues for review are: 

1. Whether the District Court clearly abused its discretion 

by failing to offer a coherent plan regarding distribution of the 

marital property. 

2. Whether the District Court created a reversible inequity 

by failing to value or divide interest accumulated from the 

parties1 joint investments between the date of valuation and the 

date of actual division. 

3. Whether the District Court abused its discretion by 

accepting valuations which were erroneous and inaccurate. 

4. Whether it is appropriate for the District Court to 

consider temporary maintenance as an asset of the marital estate. 

Tom filed a petition for dissolution and a hearing was held 

on January 16, 1989. The District Court issued its findings of 

fact, conclusions of law, and order on December 7, 1989. In this 

order, the District Court awarded B.J. (1) all of her pre-marital 

assets; (2) all of the inheritances she received during the 

marriage; (3) all the gain realized during the marriage on her premarital assets and inheritances; and (4) forty percent of the gain 

during the marriage from the ranching operation that Tom brought 

to the marriage. The District Court also awarded B.J. maintenance 

of $250 per month for five years and $7,500 for attorney's and 

2 
accountantts fees. B.J. entered post-trial motions with the 

District Court December 26, 1989, citing numerous alleged errors 

by the District Court. A hearing was held on March 2, 1990 on 

B.J.'s post-trial motions. All motions were denied except one 

which cited a typographical error. Thereafter, on March 5, 1990, 

the District Court entered its final judgment and decree from which 

B.J. now appeals. We affirm. 

Tom and B.J. were married in Great Falls, Montana, April 10, 

1976. No children were born during the marriage nor was B.J. 

pregnant at the time of the dissolution proceeding. 

B.J., age 60 at the date of dissolution, is of average good 

health. B.J. completed high school and two years of college. She 

most recently worked in the pharmacy of the Great Falls Clinic for 

fifteen years. Prior to that job she had worked in commercial 

establishments in Portland, Oregon. 

Tom was 54 at the date of dissolution. Tom had begun ranching 

south of Belt, Montana in 1963 and has continued ranching to the 

present date. 

Tom testified that the parties had been separated on and off 

for several years before 1987, when they did finally separate on 

September 30, 1987. Tom filed a petition for dissolution in June, 

1987. 

In its findings of fact, the District Court considered the 

partiest health and station in life. The District Court also 

considered the partiest property on the date of the marriage as 

well as the partiesu property acquired during the marriage and said 
property on their date of separation. 

B.J.ls accountant testified at trial that the marital estate 

had gained $221,800 during the marriage. The District Court 

rejected this value because the analysis was not based on the 

change in fair market value of the assets nor did it consider 

B.J.Is income or inheritance during the marriage. Tom1 s 

accountant, on the other hand, contended that the marital gain was 

$100,882.98. The District Court found the gain in the marital 

estate during the marriage to be $154,986. 

Additional facts will be discussed as needed. 

As her first assignment of error, B.J. claims the District 

Court abused its discretion in distributing property of the marital 

estate. Specifically, B.J. claims the lldivision fails to have any 

reasonable clarity and is plagued by internal conflicts and 

discrepancies. As a result it is not possible to determine how the 

marital estate was in fact divided.I1 

Conflicting evidence was before the District Court in the 

present case. When confronted with conflicting evidence, the court 

must use its fact-finding powers to determine which evidence is 

more credible. Having had the opportunity to observe the 

witnesses, the trial court is in a position superior to that of the 

appellate court to judge the credibility of the testimony. In re 

the Custody of Holm (1985), 215 Mont. 413, 418, 698 P.2d 414, 417. 

Absent a clear abuse of discretion by the trial judge, this Court 

will not overturn the distribution of marital property. In re the 

Marriage of Dirnberger (1989), 237 Mont. 398, 401, 773 P.2d 330, 
Section 40-4-202, MCA, sets forth factors which the court must 

consider when making a distribution of marital property. However, 

While articulation of these factors is 

encouraged, the absence of specific findings 

does not automatically warrant remand: 

"It is not the lack of specific findings which 

constitute reversible error, but the lack of 

substantial evidence to support the judgment. 

We look both to the District Court's express 

reasoning and the evidence in the record to 

determine whether ample evidence exists." 

In re the Marriage of Hundtoft (1987), 225 Mont. 242, 244, 732 P.2d 

401, 402, quoting In re the Marriage of Peterson (1984), 211 Mont. 

118, 683 P.2d 1304. The lower court need not articulate each 

factor separately as long as the findings are sufficient to allow 

nonspeculative review by this Court. 

Our ultimate test for adequacy of 

findings of fact is whether they are 

sufficiently comprehensive and pertinent to 

the issues to provide a basis for decision, 

and whether they are supported by the evidence 

presented. 

In re the Marriage of Jensen (Mont. 1981), 631 P.2d 700, 703, 38 

St.Rep. 1109, 1113. On review, this Court examines both the trial 

court's express reasoning as well as the evidence in the record. 

B.J. contended the gain in the marital estate was $221,800 

while Tom contended the gain to be $100,882.98. The court 

considered the testimony from each party's expert, rejected both 

valuations and found the gain in the marital estate to be $154,986. 

The court then awarded B.J. forty percent of this gain to be paid 

out of a joint investment fund made up of proceeds from the sale 
of cattle from the ranch. We have held that a district court is 

free to find a value for marital property within the range of 

evidence submitted. In re the Marriage of Kramer (1987) , 229 Mont. 

476, 747 P. 2d 865. Here the District Court valued the marital gain 

to be $154,986. The value is well within the range of evidence 

submitted and was thoughtfully arrived at by the District Court. 

We find no error. The District Court valued the marital gain, 

awarded B.J. forty percent of this gain and provided her a way to 

get it, namely out of the joint investment fund. We find that this 

valuation and distribution' is equitable and quite coherent. The 

record reflects the fact that the District Court considered the 

factors set out in 5 40-4-202, MCA, when making the distribution 

of marital assets. Furthermore, the distribution plan is plain, 

simple, short and clear. Upon review, it is apparent that the 

trial judge attempted to value the marital estate and to distribute 

the property equitably and to support his distribution with 

adequate findings. We find no abuse of discretion and uphold the 

District Courtls valuation and distribution of the marital gain. 

As her second assignment of error, B.J. claims the District 

Court erred by failing to value or divide interest accumulated from 

the parties1 joint investment between the date of valuation and 

the date of actual division. 

The District Court valued the marital estate as of September, 

1987 and specifically valued the marital gain as totalling 

$154,986. Thereafter, the District Court entered its dissolution 

decree on December 7, 1989 and awarded B.J. forty percent of the 
c 

marital gain to be paid out of the partiest joint investment fund. 

At this point note that B.J. was not awarded rights to the joint 

investment fund but rather was awarded forty percent of the marital 

gain to be paid out of the joint investment fund. From September, 

1987 until December, 1989, the partiest joint investments, which 

totalled $68,874.71 as of September 1987, accrued interest of over 

$10,000. B.J. argues, without citing any case law or statutory 

authority, that she is entitled to an equitable portion of this 

accumulated pre-judgment interest on the joint investment fund. 

We disagree. 

The correct rule in this jurisdiction is that interest is not 

allowable until the exact amount due is ascertained or is 

ascertainable. Daly v. Swift & Co. (1931), 90 Mont. 52, 300 P. 

265. In this case, the amount due B.J. was not ascertained (or 

ascertainable) until December 7, 1989, when the District Court 

entered its decree. Therefore, interest is allowable only from 

December 7, 1989. We hold that no reversible inequity exists in 

the record regarding prejudgment interest. 

B.J. Is third assignment of error is whether the District Court 

abused its discretion by accepting a number of valuations which 

were erroneous and inaccurate. B. J. first argues that the 

depreciation method used by Tom to value his machinery and 

equipment was fatally flawed in that the method only considered 

depreciation during the marriage rather than depreciation during 

the entire life of the machinery and equipment. 

Specifically, B.J. points out that the District Court valued 
4, 1. 

Tom's I1PTO balerg1 on the date of marriage, in 1976, for the same 

amount Tom had originally paid for it in 1963. B.J. contends that 

this constitutes an abuse of discretion of the District Court. We 

disagree. 

At trial, Tom testified without contradiction that he 

purchased the baler in 1963, at cost, for $2,700 while its fair 

market value was $4,500. Tom further testified that in 1976, as 

of the date of the marriage, the baler then had a fair market value 

of $2,700. However, by 1987, ranchers had switched to the new 

round balers, and Tom and his expert both testified that the 

obsolete "PTO balerw was only worth $150. As such, the record 

reflects that the depreciation method used by Tom considered 

depreciation during the entire life of the machinery and equipment. 

There was no abuse of discretion. B.J. next states that ''This 

erroneous method of depreciation was apparently implemented by Tom 

on all machinery purchased prior to the marriage." We find no 

evidence in the record which supports this claim. 

B.J. alleges other errors in the District Court's findings. 

In short, we have reviewed the entire record before us and find 

that there is no credible evidence to substantiate any of her 

claims that the District Court abused its discretion. We affirm 

the ~istrict Court. 

As her fourth and last assignment of error, B.J. asserts that 

the District Court erred by considering temporary maintenance as 

a marital asset. The District Court ordered Tom to pay $750 per 

month to B.J. during the course of the divorce because she had 
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access to only her funds. At a later date the District Court- foucd 

that B. J. s share of the property division should be reduced by the 

amount of this temporary maintenance paid by Tom. Accordingly, the 

District Court reduced B. J. Is share of the property division by 

$20,250. B.J. claims this was a reversible error because, in so 

doing, the District Court was essentially treating temporary 

maintenance as an asset of the marital estate. 

B. J. cites In re the Marriage of Lundvall (Mont. 1990) , 786 

P.2d 10, 47 St.Rep. 173, for the proposition that temporary 

maintenance payments cannot be considered as a marital asset. This 

is not what we held in Lundvall. In Lundvall we said that one of 

the factors the court should consider when making a maintenance 

award is whether the spouse seeking the award "will receive 

sufficient property to provide for the spousels needs ( 40-4- 

203 (1) (a) , MCA) , the term Isuff icient property1 means incomeproducing, not income consuming. Lundvall at 12, 47 St.Rep. at 

175. We then characterized the llassetu of temporary maintenance 

already received by the wife as not income-producing. Accordingly, 

we said that the total amount of temporary maintenance received by 

the wife from the husband is not to be considered a marital asset 

when makins a maintenance award. In this case, the District Court 

was making a property distribution and charged B. J. for the 

property already received in the form of temporary maintenance 

payments. We hold that this was an equitable arrangement and not 

an abuse of discretion on the part of the District Court. The 

District Court is hereby affirmed.