No. 84-365 

IN THE SUPRFPE COURT OF THE STATE OF MONTANA 

1985 

IN RE THE MARRIAGE OF 

JACK R. ZIEGLER, 

Petitioner and Appellant, 

and 

SUZAiqNE ZIEGLER, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Thomas Olson, Judge presiding. 

COUIilSEL OF RECORD: 

For Appellant: 

Larry W. Moran, Bozeman, Montana 

For Respondent: 

Bryan & Atkins; John P. Atkins, Bozeman, Montana 

Submitted on Briefs: Jan. 10, 1985 

Decided: March 11, 1985 

6 j; 9 :: "" '* .,,.A> . 

Filed: ' ' 

i9BS 

Clerk 
Mr. Justice Frank B. Morrison, Jr., delivered the opinion of 

the Court. 

Jack F.. Ziegler filed a petition for dissolution of 

marriage in March 1983. Judge Thomas Olson entered an order 

dated May 24, 1983, dissolving the marriage, granting temporary custody of the four minor children to Suzanne Ziegler, 

establishing temporary support and maintenance, and ordering 

temporary distribution of certain items of personal property. 

Hearings on the issue of final child custody and distribution 

of the marital estate were conducted in April and December of 

1983. The trial court entered findings of fact and conclusions of law on June 15, 1984, and issued its final order on 

June 22, 1984, granting permanent custody to Suzanne Ziegler, 

and dividing the marital assets. Jack Ziegler appeals child 

custody and distribution of the marital estate. 

Jack and Suzanne Ziegler married on May 6, 1967. At the 

time of the dissolution of their marriage, they had been 

married over fifteen years and were the natural parents of 

four minor daughters: Tami (age 12) ; Kristi (age 10) ; Cindi 

(age 5) ; and Sheri (age 2) . 

Early in their marriage, Jack and Suzanne started a 

retail lumber business in Bozeman, Montana. Both invested 

start-up capital in the business. The Zieglers ' efforts 

liquidated all the initial debts of the proprietorship and 

made Zig's Building Materials a successful, self-sustaining 

enterprise. 

Since the inception of Zig's Building Materials, Jack 

devoted his energies and managerial talents to promoting the 

family lumber company. He routinely worked ten hours per 

day, six days a week. During the course of their marriage, 

Suzanne never worked outside the family home. She managed 
the family needs, and cared for their daughters which allowed 

Jack to devote his full time to the family business. 

After domestic difficulties became irreconcilable, Jack 

petitioned for dissolution of marriage in March 1983. The 

trial court's temporary order dated May 24, 1983, dissolved 

the marriage, granted temporary custody of all four daughters 

to Suzanne, gave Suzanne possession of the family residence 

and one of the family vehicles and ordered Jack to remit $800 

per month in child support and $1,750 per month in maintenance. Payments commenced June 1, 1983, and are to continue 

until this case is resolved on appeal. 

The case came before the trial court for hearings on 

final resolution of child custody and distribution of the 

marital estate in April and December of 1983. Conflicting 

testimony was introduced to the trial court on both issues. 

The case was taken under advisement pending the trial court's 

decision. 

Granting the petitioner's motion, the trial judge ordered the Department of Social and Rehabilitation Services to 

conduct an investigation of the households of Jack and 

Suzanne Ziegler and to provide the trial court with a report 

concerning the custodial arrangement for the parties' minor 

children. The report dated May 2, 1984, concluded, "Jack and 

Suzy both appear to care for the children and either one 

could physically care for the children but it seems (after 

wading through all the allegations) that Jack could. possibly 

better meet the children's emotional needs in the long run." 

This report was filed with the trial court on July 3, 1984. 

No hearing was conducted on the custodial investigation; no 

copy of the report was sent to appellant. 

The trial judge entered final. findings of fact and 

conclusions of law on June 15, 1984, and issued. a final order 
on June 24, 1984. Without discussing the investigator's 

recommendation, the trial court granted permanent custody to 

Suzanne. 

On appeal Jack Ziegler presents the following issues: 

1. Did the trial court comply with proper I-egal standards in determining the child custody issue? 

2. Did the trial court value marital property consistent with the evidence? 

3. Was the trial court's division of the marital property an abuse of discretion and/or a violation of the public 

policy of the State of Montana? 

Appellant contends that the trial judge made its final 

decision absent any indication that it considered the custody 

report during its deliberation. We agree. 

The relevant portions of 5 40-4-215, MCA, provide: 

"(1) In contested custody proceedings and in other 

custody proceedings if a parent or the child's 

custodian so requests, the court may order an 

investigation and report concerning custodial 

arrangements for the child . . . 

"(3) The court shall mail the investigator's 

report to counsel and to any party not represented 

by counsel at least 10 days prior to the hearing . . ." (emphasis added) 

The mandatory language of this statute requires district 

courts to provide copies of a custody investigation report to 

the parties involved. No discretionary power of the trial 

court is evoked. Once the trial judge considered it appropriate to order an investigation of the custodial arrangement, the controlling statute mandates that copies of the 

report be distributed by the trial court to counsel and 

parties. 

Not only did the trial court fail to send copies of the 

report, but no hearing was held to permit testimony on the 
issue. The final order dated June 24, 1984, was entered 

approximately nine days before the investigative report was 

filed with the court. If the trial court found it appropriate to order the custody investigation, it abused its discretion by not considering the report in the process of reaching 

its final custody decision. 

Appellant's second and third issues address the matter 

of distribution of marital assets and are discussed in 

tandem. 

Fundamental to this Court's appellate review is the 

broad discretion vested in trial courts for purposes of 

distributing marital property upon dissolution of marriage. 

We may only disturb the decision of a trial court when abuse 

of discretion is clear. In Re the Marriage of Gies (Mont. 

1984) , 681 P. 2d 1092. 

Appellant correctly points out a simple mathematical 

error committed by the trial court. When assigning a numerical figure to the net value of Zig's Building Materials in 

its findings of fact, the trial court transferred the sum of 

$596,939.76 which represented the personal net assets of the 

Zieglers instead of $594,721.18, the net value of Zig's 

Building Materials. The $594,721.18 figure was introduced 

into evidence on the December 31, 1982, balance sheet of the 

business as "Proprietor's Equity." Although minuscule relative to the total valuation of the marital estate, the excess 

evaluation of $2,218.58 must be corrected by the trial court. 

We are not convinced by appellant's argument that the 

trial court augmented the value of marital assets by double 

accounting for certain items. Appellant accuses the trial 

judge of "fictitiously inflating" the value of Zig's Building 

Center when it "split out and added back separately" the 

following items: $322,902 for cash on hand, $85,000 for 
value of stock, $4,000 for a vehicle and $1,000 for a lawn 

mower. Appellant contends that the addition of these erroneous duplications to the already incorrect valuation of 

$596,939.76 resulted in an erroneous value of $1,009,841.76 

assigned by the trial court for Zig's Building Naterials. 

Maintaining $594,721.18 as the proper value for the business, 

appellant claims the trial judge overestimated this asset by 

The undisputed testimony of appellant's own accountant, 

Mr. Ed Orazem, refutes this contention. On crossexamination, Mr. Orazem testified on the fair market value of 

Zig's Building Materials as follows: 

"Q. I'd like to establish a - - dealing with your 

direct - - your testimony that you offered on 

direct examination that you feel that the fair 

market value of Zig's Building Materials is 

$550,000? 

"A. Excluding cash on the balance - - 

"Q. Excluding cash? 

"A. That is correct. 

"Q. The cash on the balance sheet at the time Mr. 

Carlisle did his calculations is $319,000? 

"A. That is correct. 

"Q. And, does the figure of 550 that you ha.d also 

include the value for the stock that llr. Ziegler 

owns in Zig's Building? 

"A. No, it does not. 

"Q. What is your bottom figure value - - figure 

for that stock? 

"A. ~'d say $100,000. 

"Q What is the book va.lue of that stock, I mean 

you are aware of that, right? 

"A. The book value would be, of that stock, would 

be 100,000 less $35,000 loss, would be the equity 

that would show, it would be about 70 - $75,000. 

"Q. So, your valuation of Zig's Building Materials 

and Zig's Building Center would be that figure, 

$969,000, is that correct? 
"A. That's correct." 

In light of the disparity of the values submitted by 

both parties for individual assets of the marital estate, the 

noticeable discrepancy between those values recorded in 

testimony and the values assigned by the trial judge in the 

final distribution is not surprising and of no consequence to 

the contested, issue. Testimony by appellant's accountant 

supports the trial court's method of adding $322,000 for cash 

on hand and $85,000 for stock in the business (plus other 

less significant amounts) to the figure of $594,721.18, when 

calculating the valuation of the Zig's Building Material 

enterprise. 

Appellant's next contention alleges that the trial 

court's "most significant shortcoming lies in its failure to 

make required 'findings' in support of its distribution of 

marital assets." Citing, Johnsrud v. Johnsrud (1978), 175 

Mont. 117, 572 P.2d 902, as authority, appellant contends 

that the trial court is required to make specific findings in 

support of its reasoning and in reference to that evidence 

which it considered in reaching its final decision. We agree 

with respondent that the more current standard of review for 

division of marital assets is enunciated in Larson v. Larson 

(Mont. 1982), 649 P.2d 1351, 1354. In Larson this Court 

held: 

"Item-by-item findings are not required in property 

division cases, but findings nevertheless must he 

sufficiently adequate to ensure that this Court 

need not succumb to speculation while assessing the 

conscientiousness or reasonableness of the District 

Court's judgment." 

We do not wish to restrict the liberal, discretionary 

power vested in the district courts, by requiring rigid 

adherence to technical forms of property distribution orders. 

This Court recognizes that the trial court must evidence the 
basis of its ultimate conclusion in the findings of fact. 

However, the statutory guidelines promulgated in 40-4-202, 

MCA, were not designed as requisite criteria to be individually itemized in every property distribution decree. 

From the confusing crossfire of conflicting evidence on 

the valuati-on of marital assets, the trial court issued 

twenty-five findings of fact in an effort to substantiate the 

basis upon which his subsequent conclusions of law were 

entered. In Concl.usion No. 7, the tria.1 judge explained the 

reasoning for using one method of valuing the family business 

over the other and wrote: 

I' 7. Respondent ' s valuation of the business using 

the investment model - what investment sum would. 

earn interest equal to the earning of Zig's if 

invested in. a bank - is not a relevant indicator of 

the value beca.use it ignores the risks inherent in 

a lumberyard and the skill of the manager. Petitioner's valuation - what a prudent purchaser would 

pay for the business taking into account financing 

the purchase from earnings - is a reasonable, 

relevant and reliable means of valuing the 

business." 

Relative to the work contribution. of both parties to the 

business and family, in Finding of Fact No. 10, the trial 

judge found: 

"Since the inception of the business in Bozeman, it 

was the petitioner who devoted all of his energies 

and talents to the business. Respondent, for her 

part, managed the family home and cared for the 

children. " 

We find no abuse of cliscretion. The trial court's 

findings of fact and conclusions of law are sufficiently 

responsive to the statutory guidelines enacted in 40-4-202, 

MCA . 

Appellant's final contention embraces a public policy 

argument against the method of payment specified in the trial 

court's order. 

Concluding that the marital assets were to be divided 

equally between the parties, the trial court calculated a net 
value of marital assets, subtracted the amount for personal 

property and other marital assets awarded the respondent, and 

ordered the petitioner to pay the respondent's residual 

equity in the marital estate in the following manner: 

"10. That the petitioner shall execute a promissory note secured by the business, in the amount of 

one half of the difference of $1,067,416.75 and 

S145,075.00, which equals the sum of $922,341.75, 

one half amounting to the sum of $461,170.87, the 

balance amortized over ten (10) years, bearing 

interest at two percent (2%) below prime as used by 

the local banks." 

Appellant complains that such a method of payment violates public policy because of its "indefiniteness and ambiguity, (regarding when payments are due, . . . and right to 

prepay, etc., whether local banks even have a 'prime' interest rate). . . . " Such an order, the appellant claims ma.kes 

him an "indentured servant" whose "life is placed on 'hold' 

while he is forced to become an income source for his 

ex-wife, . . . " He argues that the lack of specificity 

regarding the interest rate places appellant on "an unpredictable roller coaster of payments" preventing him to "plan 

for any month." 

In essence, appellant does not contest the fifty-fifty 

division as an inequitable distribution of the marital estate, but disputes the method of payment. The trial court's 

order does not prevent appellant from refinancing his obligation to acquire more satisfa-ctory terms. We find no abuse of 

discretion in the trial court's prescribed method for appellant to satisfy his financial responsibility to respondent. 

This Court remands the case on the limited issue of 

custody of the four minor daughters with the instruction to 

the District Court to address the recommendations submitted 

to the lower court in the custody investigation report. The 

order distributing the marital estate is affirmed, subject to 
the trial court correcting the net asset figure previously 

discussed. 

We concur: A 

/ J/V'-+ 4 

ief Justice 
Mr. Justice L. C. Gulbrandson, specially concurring. 

The trial judge, in his order of June 14, 1984, in 

finding of fact no. 3, found that "the parties in their 

proposed findings both agree that respondent should be the 

custodial parent." However, after the proposed findings had 

been filed, the petitioner requested on January 23, 1984, and 

the trial court ordered on February 16,1984, a home study 

investigation. Counsel for appellant alleges that he did not 

receive a copy of the home study report, dated May 2, 1984, 

as required by section 40-4-215(3), MCA. Because the record 

does not disclose whether the trial judge considered the 

report, I concur in the remand on the custody issue. In my 

view this issue has arisen because the petitioner's request 

for an investigative report was made long after the custody 

hearing was held, while the statute involved anticipates a 

report prior to the custody hearing. 

The home study report contained only general 

observations, without recommendations as to custody, and, in 

my view, would not override the trial court's findings of 

fact no. 3. I would, therefore, only require a statement by 

the trial judge that the home study report had in fact been 

considered by him in deciding the c