No. 23-122 

IN THE SUPREME COURT OF TIiE STATE OF MONTATJA 

1983 

IN RE THE YiRRIAGE OF 

CARLMA J. GLASSER, 

Petitioner and Xespondent, 

-vsWILLIAM B . SLASSER, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Fourteenth Judicial District, 

In and for the County of Feagher, 

The Honorable Nat Allen, Judge presiding. 

COUiqSEL OF RECORD. 

For Appellant: 

John V. Potter, Jr., White Sulphur Springs, 

Montana 

For Respondent: 

Galt & Swanberg: Robert F. Swanberg, Helena, 

Plontana 

Filed: 

-- ----- . .-.- -- - - 

Submitted on Briefs: June 30, 1983 

Decided: September 29, 1983 

-- Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

This is an appeal by William B. Glasser on the amended 

findings of fact and conclusions of law from the judgment in 

a dissolution proceeding. His wife, respondent, Carma Jean 

Glasser, brought an action for dissolution and division of 

the couple's property in the District Court of the 

Fourteenth Judicial District In an For the County of 

Meagher . 

The procedural facts in this case, are that the case 

was heard July 6, 1982, by the District Court sitting 

without a jury. On September 16, 1982, the court filed 

findings of fact and conclusions of law and on October 6, 

1982, entered a decree of dissolution and property division. 

The Wife filed a motion to amend the findings of fact and 

conclusions of law. The Husband filed a notion to correct a 

clerical mistake in the findings, in the alternative to 

amend findings, and to amend the judgment. Both Husband and 

Wife agree that the court was in error in stating the value 

of some of the property. After delays by the court, hearing 

was held November 16 on the above motions. On November 18, 

the court granted the Wife's motions to amend the findings 

and denied the Husband's motions. On November 20, the Wife 

filed a motion to appeal in order to preserve the right of 

appeal. The court thereafter entered an amended decree of 

dissolution and property settlement on November 26. Husband 

appealed from that decree, from the amended findings of fact 

and conclusions, and from the amended decree. BY 

stipulation, the parties agreed to name the Husband as the 
appellant and the Wife as the respondent. 

The parties were married in Butte, Montana, on 

September 8, 1955. During the years of the marriage, the 

Husband worked at various jobs and employment such as 

plumbing assistant, sawmill work, butcher, carpentery work 

and for a period of time was a partner in a building 

contractor business. At the time of this action the Husband 

worked for a school system performing maintenance work. The 

Wife, during the early years of the marriage, primarily 

reared their children and occasionally held part-time or 

temporary employment. In 1973 the wife secured full-time 

employment at the First National Bank at White Sulphur 

Springs. She remains employed there at the time of this 

action with an annual salary of $11,000 per year, plus 

fringe benefits that include a retirement employer 

profit-sharing plan. 

During the course of the marriage, the Wife's father, 

Alfred M. Edward, provided financial assistance to the 

Glassers. He permitted them to live at his residence for 

about a year, rent free. In 1970, he deeded a cinderblock 

house to Wife. The Glassers lived there until 1978; since 

that time they used the house for rental purposes. In 1974, 

Edwards established a ten-year reversionary trust, naming 

the Wife as beneficiary to the income from the trust. This 

trust income increased from a yearly amount of approximately 

$4,000 in 1974, to over $6,000 at the time of this action. 

The Wife used this money for vacations, investments, and as 

a primary source for paying expenses on a house the Glassers 

began building in 1978. 

There are three children of this marriage, all of whom 
have reached the age of majority prior to the date of 

commencement of this action. 

In 1958 the Husband purchased a small trailer home. 

In 1960, he traded it for a larger mobile home that cost 

$7,200 on an installment contract. In 1962, they purchased 

a lot located in White Sulphur Springs for $800 and 

maintained the mobile home on that lot. In 1970-1978, as 

mentioned, they moved into the cinderblock house that was 

given to the Wife by Edwards. During this period, Husband 

made repairs and improvements on the house. In 1978, they 

built a new principal family house on the lot that was 

purchased in 1962. At the time of the construction of that 

house, Husband was a partner in a constuction firm. The 

firm built the house. Husband donated his time towards the 

construction and was able to purchase housing materials 

through the firm at a discount. Husband, in 1979, purchased 

a house in the "Skunk Hollow Addition," [the title 

description lists this property in the Higgins Addition], in 

White Sulphur Springs, with an alleged partner, Lawrence 

Johnson. However, the deed reflects that Husband owns the 

property fee simple. 

This appeal arises over a dispute over the findings 

and conclusions on the following property: 

1. The cinderblock house located in White Sulphur 

Springs; 

2. The recently constructed principal family house 

located in White Sulphur Springs; 

3. The "Mulski" house, located in Skunk Hollow 

Addition; 

4. A coin collection valued at approximately $2,300. 
5. Wife's interest in a profit sharing plan that was 

60 percent vested at the date of this action with a value of 

$10,470 if entirely vested. 

The appellant raised two issues before this Court: 

1. Can the court, by motion to amend, make a 

wholesale adoption of findings of fact and conclusions of 

law submitted by respondent's counsel. 

2. Are the findings of fact and conclusions of law 

sufficiently supported by the evidence and thereby support 

the property division reached by the court. 

Husband first objects, that his motion for clerical 

corrections or amended findings and conclusions must be 

granted, because of the blatant errors in the original 

findings and conclusions. The court, in adopting Wif e' s 

amended findings and conclusions, made the necessary 

clerical corrections set forth to Husband. The court was 

also within its discretion to deny the Husband's amendments 

to the findings and conclusions. Therefore, we find no 

merit in this objection by the Husband. 

The Husband argues that the court was in error by 

"wholesale adoption" of the amendments proposed by the Wife. 

Appellant cites In Re the Marriage of Beck (Mont. 1981), 631 

P.2d 282, 38 St.Rep. 1054, for rejecting the courts 

"wholesale adoption" of one parties proposed findings of 

fact and conclusions of law proposed by Wife's counsel. 

This Court admonished the trial court's practice of 

rubberstamping the proposed findings of fact and conclusions 

of law given by one counsel, and not doing their own work. 

There, this Court found the findings to be clearly erroneous 

and therefore set aside the judgment. 
In Tomaskie v. Tomaskie (Mont. 1981), 625 P.2d 536, 38 

St.Rep. 416, the court vacated a judgment that was based on 

the Husband's proposed findings and conclusions adopted 

verbatim. Those findings and conclusions failed to provide 

the necessary information as specific in the statute, in 

which to base a proper judgment. The Court warned, "[i] t is 

becoming increasingly apparent to this Court, however, that 

the trial courts rely too heavily on the proposed findings 

of fact and conclusions submitted by the winning party. 

That is wrong!" Tomaskie, supra, 625 P.2d at 539, 38 St.Rep. 

In both of those cases, the findings and conclusions 

were either clearly erroneous or insufficient. But, the 

fact that the trial court adopted one side's proposal was 

not in itself reason for vacating the judgment. Kowis v. 

Kowis (Mont. 1983), 658 P.2d 1084, 40 St.Rep. 149, the court 

made "wholesale adoption" of findings and conclusions. 

However, in that case the findings and conclusions were 

"extensive and detailed [and] the court painstakingly 

explained its reasons for distribution." Kowis, supra, 658 

P.2d at 1087, 1088, 40 St.Rep. at 153. This Court refused 

to overturn the trial court base solely upon "wholesale 

adoption ," " [w] here, as here, findings and conclusions are 

sufficiently comprehensive and pertinent to the issue to 

provide a basis for a decision, and are supported by the 

evidence. They will not be overturned simply because the 

court relied upon proposed findings and conclusions 

submitted by counsel." Kowis, supra, 658 P.2d at 1088, 40 

St.Rep. at 154. 

In Speer v. Speer (Mont. 1982), 654 P.2d 1001, 1002, 
39 St.Rep. 2204, 2205, this Court said: 

"This Court has discouraged District 

Courts from the practice of adopting the 

prevailing party Is proposed findings of 

fact and conclusions of law virtually 

verbatim. . . . Such practice may lead to 

error. . . once findings and conclusions 

are adopted by the District Court, 

however, the 'clearly erroneous standard 

at Rule 52(a) supports them on appeal.'" 

In this case, the Court drafted the original findings 

and conclusions, but they contained some inaccuracies and 

clerical mistakes. When both Husband and Wife submitted 

amended findings and conclusions, the court adopted the 

amendments submitted by the Wife. These amendments 

substantially changed the original decreed property 

distribution. Without a showing that the amended findings 

and conclusions are clearly erroneous (see Rule 52(a), 

M.R.Civ.P.) then they will stand despite "wholesale 

adoption." Therefore, the findings and conclusions must be 

examined in light of the evidence to determine if the 

findings and conclusions were clearly erroneous. 

Husband claims the amended findings and conclusions 

regarding Wife's profit-sharing retirement plan were clearly 

erroneous. Husband asserts that, "[c]ontributions to the 

plan were made by Wife's employer during the marriage and 

were part of "employee benefits," and therefore part of the 

marital property. The court, however, found the 

"[plrofit-sharing program incidental to her employment at 

the bank . . .I1 and therefore the Wife's separate property. 

We find the trial court erred in its finding the 

profit-sharing plan to be the Wife's separate property. 

The president of the First National Bank of White 

Sulphur Springs, Michael Grove, explained this 
profit-sharing program as follows: 

"Q. Okay. Maybe I would be more correct 

in saying it is an incentive program 

because it is based on profits. If the 

bank is profitable, if the employees work 

well, they receive additional 

compensation in the form of a 

profit-sharing plan from the bank; would 

that be true? A. That's true, and in 

addition to that it is an incentive 

program to retain with the Bank. The 

longer they stay--that's the reason it is 

vested. The longer they are there, the 

more reason they have to be there, hoping 

that their-- 

"Q. So this is really money Mrs. Glasser 

has earned, by being a good and faithful 

employee, and working with others to 

insure the Bank a profit; wouldn't that 

be true? A. I would say. It has been 

contributed to the plan for her. She 

won't earn it, or it is not, I guess 

earned income that is available to her 

benefit, as you would say, until 

retirement age I hope." 

This line of testimony clearly indicates that the 

profit-sharting program is more than incidental to 

employment, it is a form of deferred compensation and should 

be treated in the same manner as retirement benefits (fnt. 

#2). The Internal Revenue Service permits companies to 

establish profit sharing plans for their employees that 

provide certain tax benefits. Internal Revenue Code Section 

401 et. seq.: "A profit-sharing plan within the meaning of 

401 is primarily a plan of deferred compensation, * * *.I1 

Federal Tax Regulation Section 1.401-l(b)(). In Kis v. 

Kis (1982), 639 P.2d 1151, 39 St.Rep. 119, we found that the 

husband's retirement benefits in the game warden's 

retirement fund were marital property and thereby subject to 

property distribution. 

Wife argues, if the profit-sharing plan is considered 

marital property and should be divided, then Husband would 
be entitled to one-half of the present value of her vested 

interest. We agree. In - Kis, supra, we stated that, 

" [plresent value is the 'proper test' for determination of 

marital interest. However, further evidence may demonstrate 

the value 'might be affected by the contingency of the 

retirement benefits failing to reach levels used by the 

court. I' Kis, 639 P.2d 1153, 39 St.Rep. at 123. In Kis, 

the Husband was vested in his retirement fund and therefore 

the court could use the entire amount of the present value 

of his retirement funds. 

Other states distribute retirement funds for property 

settlement purposes in different ways depending upon if the 

interest is vested, unvested, matured or not matured. 

In the Matter of the Marriage of Rogers and Rogers 

(1980), 45 0r.App. 885, 609 P.2d 877, a case involving an 

appeal by the Husband of the awarding of part of the 

retirement to the Wife, the court reviewed cases from 

different states involving property distribution 

retirement benefits and set forth the following guidelines: 

"For example: (1) The distribution 

should generally be based on the 

contributions made during the marriage. 

(2) The courts should continue to strive 

to disentangle the parties as much as 

possible by determining, where equitable, 

a sum certain to be paid rather than a 

percentage based upon expected future 

contingencies. (3) In determining 

whether a lump sum award is appropriate, 

courts should consider the burden it 

would place on the paying spouse in view 

of required child support, spousal 

support, and other property distribution. 

(4) Where courts determine that the 

parties will share in the benefits on a 

proportional basis, the parties should 

also share the risks of future 

contingencies, e.g., death of the employe 

spouse or delayed retirement of the 

employe spouse, and payment should be to 

the receiving spouse as the employe 
spouse receives the retirement pay. (5) 

Courts should consider, where 

appropriate, an award of a portion of 

retirement benefits where other property 

awarded is not adequate to make an 

equitable distribution." 609 P.2d at 882, 

883. 

It should be noted that in some cases federal statutes 

preempt the distribution of retirement benefits in a 

property division. For example, in Re Marriage of Knudson 

(Mont. 1980), 606 P.2d 130, 37 St.Rep. 147, the Court found 

that pension benefits under the Railroad Retirement Act may 

not be included in property distributions. However, where 

federal statute does not preempt, the retirement benefits 

should be considered part of the marital property. 

In this case, evidence was introduced that at the time 

of the hearing Wife had worked at the bank for nine years 

and was vested at 60 percent of her share with a present 

value interest of $10,470. Therefore, the amount of 

retirement benefit attributed to the marital property should 

be 60 percent of $10,470. 

The Husband next contends that the court erred in it's 

findings and conclusions regarding the real property 

acquired during the marriage. The court found that the 

cinderblock house was the Wife's separate property, the 

"Mulski" house the Husband's separate property and the new 

family residence to be 71.939 percent Wife's share and 

28.060 percent Husband's share. 

Husband objects to the cinderblock house being found 

to be the Wife's separate property. Although Edwards 

(Wife's father) gave the house to Wife, the Husband contends 

that his continued maintenance on the house during the eight 

years they lived there brings this property into the marital 
share. Husband relies upon Herron v. Herron (Mont. 1980), 

37 St.Rep. 387, 608 P.2d 97, to support his argument. In 

Herron, supra, the wife received gifted property from the 

wife's father. Both parties contributed to the maintenance 

of the property. The property appreciated in value. This 

Court held that " [bloth parties should share equally in the 

portion of the value of the gift property attributable to 

contributions from marriage and appreciation during the 

marriage." See also, In Re the Marriage of Balsam (1979), 

180 Mont. 129, 589 P.2d 652. 

It is not error for the court to give the Wife the 

entire amount of this property. This is within the 

discretion of the trial court. While we may disagree with 

the findings of the trial court; the Husband did not present 

sufficient contrary evidence to the record for these 

findings to be reversed. 

Husband next objects to the findings and conclusions 

regarding the new residence property distribution. He 

contends that the court should not have found Wife to have 

contributed a greater percentage to the value of the new 

residence. He argues that the money from the Wife's trust 

fund no longer was traceable after it was deposited in their 

joint bank account and therefore cannot be attributed as 

added value of the new residence. He relies on Metcalf v. 

Metcalf (1979), 183 Mont. 266, 598 P.2d 1140. In Metcalf, 

this Court expressed the view that if inheritance funds are 

not traceable, then they may not be considered as separate 

property of the spouse. In that case, the appellant 

inherited $5,000 and used it on expenses and assets of the 

marriage, and thereby making it impossible to trace the 
funds. 

In Herron, supra, this Court permitted the trial court 

to find a gift traceable, when it was originally applied to 

a down payment on a house in Seattle. Then, the Seattle 

house was sold and the proceeds used for a house in 

Connecticut. That house was sold in a similar arrangement 

for a house in New York. Finally, the proceeds of the sale 

of the New York house were applied to the purchase of 

Flathead Lake property. 

In the case at hand, the trustee paid income from the 

"Edwards" revisionary trust to the Wife beginning in 1974. 

Wife placed this money in certificates of deposits (CD1s). 

These CD's were cashed in and placed in savings or checking 

accounts and used for payments for costs incurred on the 

construction of a new residence. There is sufficient 

evidence to support the court's findings. Therefore, we 

will not disturb the court's findings on the new residence. 

Husband objects to the court's failure to find a 

contribution of additional hours worked, beyond the hours0 

recorded for business purposes, for his contribution to the 

new residence. Husband claims he worked weekends, and 

after business hours. He claims that the business records 

introduced do not reflect this contribution. We may 

disagree with the court's findings, but we will not overturn 

it. We see no abuse by the court in reaching this finding. 

Husband objects to the finding by the court that the 

"Mulski" house is entirely within his ownership. Husband 

testified at the hearing that he owns the property in 

partnership with a Lawrence Johnson. However, the evidence 

introduced indicates otherwise. A copy of the deed to the 
property named Husband as the sole owner of the property. 

Husband objects to the court's findings and 

conclusions regarding "other property." Except for the 

"coin collection," we find no error in the findings. 

However, findings and conclusions regarding the "coin 

collection" appear contradictory. The court, in finding no. 

16 states: "the coins were acquired with Wife's wages 

during the marriage and therefore constitute marital 

property subject to division." However, in amended finding 

no. 30, the court failed to include the value of the coin 

collection as part of the list of property subject to 

division. Then, in the amended decree at dissolution and 

property division, the court awarded the coin collection to 

the Wife. Clearly, there was error in awarding the coin 

collection to the Wife without first including its value in 

the marital property and adjusting the property division 

accordingly. 

The amended decree should be vacated and this case is 

remanded for further action consistent with this Opinion. 

We concur: U 

94du, 

Chief Justice