No. 81-275 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

IN RE THE MARRIAGE OF: 

ZELDA SANGRAY HILL, 

and 

ROBERT A. HILL, 

Petitioner and Appellant, 

Respondent and Respondent. 

Appeal from: District Court of the Eighth Judicial District, 

In and for the County of Cascade 

Honorable H. William Coder, Judge presiding. 

Counsel of Record: 

For Appellant: 

Christensen and McLean, Stanford, Montana 

Jack M. McLean argued, Stanford, Montana 

For Respondent: 

Graybill, Ostrem, Warner and Crotty, Great Falls, Montana 

Leo Graybill, Jr. argued, Great Falls, Montana 

Submitted: January 12, 1982 

Decided : MI4 j.5 'a2 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

This is an appeal frorn a judgment of the District 

Court, Eighth Judicial District, State of Montana, Cascade 

County, arising out of a dissolution of marriage. Appellant 

wife was granted a dissolution of marriage on October 21, 

1976, with the question of disposition of property reserved. 

On December 17, 1980, a hearing on the disposition of 

property was held in the District Court, The trial judge 

entered judgment disposing of the marital assets, and from 

that judgment wife appeals. 

The issues presented on appeal are: 

1. Was there sufficient evidence for the District 

Court to find that respondent husband owned one-half 

interest as a tenant in common in the "Galloday Place"? 

2. Was there sufficient evidence for the District 

Court to find that the property known as the "Richardson 

Place" had a fair market value of $160,000 as of the date of 

the dissolution of marriage? 

3. Was there sufficient evidence for the District 

Court to find that the property known as the "Home Place" 

had a fair market value of $260,00I?I as of the date of 

dissolution of marriage? 

4. Was there sufficient evidence for the District 

Court to conclude that the remainder interest which 

respondent received from his father's estate was a vested 

remainder subject to divestment? 

5. Should a vested remainder interest be included in 

the marital estate for purposes of property distribution? 

6, Was there sufficient evidence for the District 

Court to conclude that the property known as the "Woodbury 
Pldce" should not be included in the marital estate? 

7. Did the District Court err in deducting child 

support from the appellant's share of the marital assets 

when respondent failed to petition for child support? 

Respondent and appellant were married in Geyser, 

Montana, on June 14, 1959. Three children were born as 

issue of the marriage, but their custody is not in dispute. 

The dissolution of the parties' marriage was granted October 

21, 1976, with the disposition of property reserved. 

Respondent is a farrner and cattle rancher. During 

most of the parties' seventeen-year marriage, they lived on 

a ranch near Raynesford, Montana, which respondent farms in 

conjunction with his mother, Anna Hill, and his brother 

LeRoy Hill. The ranch has always been a family operation. 

Respondent inherited a one-fourth remainder interest 

in one-half of his parents' ranch pursuant to a decree of 

distribution entered on October 16, 1958, about eight months 

prior to the parties' marriage. This property existed in 

two separate parcels known as the Home Place and the 

Richardson Place, Respondent's brother resided on the Home 

Place which contains about 2,956 acres. Respondent and 

appellant resided on the Richardson Place which contains 

1,199 acres. Respondent and his brother each worked the 

parcel of land on which he resided, 

On July 25, 1963, respondent and his brother purchased, as tenants in common, about 795 acres of land known 

as the Galloday Place. The land was financed by a mortgage 

on all of the land owned by the Hills, including Anna and 

LeRoy Hill. 

At the time of the dissolution respondent operated 
the Galloday Place as his own property. Appellant testified 

that while LeRoy, the husband's brother, had a one-half 

interest in the Galloday Place, it was in order that one day 

the husband would have the Richardson and Galloday Places 

and his brother would have the Home Place. Appellant also 

testified that respondent's brother did not have anything to 

do with the Galloday Place but was helping pay for it so he 

could get the Home Place. 

In addition, in 1972 the property was mortgaged to 

buy more land. At that time respondent's two sisters signed 

a quitclaim deed to their interests over to their mother. 

Respondent testified this was done as a convenience to the 

Federal Land Bank to obtain the loan and that the sisters 

still have their equitable interests coming to them. The 

mortgage of all the Hill lands was increased again when the 

brother purchased other lands. 

This case was some four years in coming to trial. It 

was not until the present trial judge insisted and set time 

periods to ready the case for trial that it finally was 

tried. One of the problems at trial arose from an order of 

the court, issued November 14, 1980, shortening the time for 

response to appellant's interrogatories concerning the real 

property in which the husband claimed an interest and a 

request for a list of exhibits and permission to enter upon 

tile property for inspection purposes. This order was not 

timely complied with, causing appellant problems at the 

trial. At trial, respondent introduced his 1976 income tax 

return into evidence, and appellant alleges she did not have 

time to inspect it. Appellant also alleges that because of 

the lateness of its submission, she could not properly 
cross-examine respondent on the contents of the return. 

Subsequently, appellant requested the District Court 

to take judicial notice of respondent's claimed one-half 

interest in 2,270 acres of land acquired in 1972 known as 

the Woodbury Place. However, no findings of fact or conclusions of law were made regarding this property. 

Respondent did not petition for child support. The 

District Court, however, issued findings of fact and conclusions of law on the matter. The judgment entered on March 

31, 1981, deducted $7,126 for child support payments from 

appellant's property award. 

The District Court found appellant's share of the 

inarital estate to be $30,432.51, less $7,126 for child support and $1,125 for appraisal. 

The first issue is whether there was sufficient 

evidence for the District Court to find that the husband 

owned a one-half equitable interest in the property known as 

the Galloday Place. The Galloday Place was purchased in 

1963 and recorded in the names of respondent and his brother 

as tenants in common. As previously noted, testimony indicated that the record owners of the Hill properties are not 

always the equitable owners. The respondent's sisters quitclaimed their remainder interest in certain properties to 

their mother to assist in getting a loan from the Federal 

Land Bank. While the respondent is the legal one-half owner 

of the property as a tenant in common, according to the 

appellant, he considered himself the owner of the entire 

property. 

The Galloday Place consists of 795 acres. The Black 

Place, which was part of the original Galloday Place, con- 
sisted of five acres. The respondent argues that while the 

Galloday Place was bought by him and his brother to be held 

in common ownership he does farm the property and has at 

times listed it in his financial statement. However, as 

previously noted, in this family ranch, operating much like 

a partnership, it was not uncommon when borrowing from a 

bank to include all the Hill family land which was to stand 

good for the loan. All the Hill lands were farmed together, 

and each place made a contribution whenever possible to the 

payment on the Federal Land Bank mortgage. Therefore, 

respondent argues, the trial court had reasonable evidence 

before it on which it could draw its conclusion, 

The rule in Montana for our review of a property 

division of marital cases is whether the District Court 

acted arbitrarily, without employment of conscientious 

judgment or exceeded the bounds of reason in view of the 

circumstances. Kuntz v. Kuntz (1979), 181 Mont. 237, 593 

P.2d 41, 36 St.Rep. 662. 

On review, the court's findings do not appear to be 

arbitrary or beyond reason concerning this issue. The 

District Court's findings appear to be supported by substantial credible evidence, and the findings of the District 

Court concerning the Galloday Place are sustained, 

Issues two and three, concerning the sufficiency of 

the evidence to support the District Court's findings on 

the value of the properties known as the Richardson Place 

and the Home Place, will be considered together. 

The District Court found that the Richardson Place 

had a fair market value of $160,000 at the time of the dissolution and that the Home Place had a fair market value of 
$260,000 at that time. However, the court failed to set 

forth in its findings of fact how the net worth of the 

parties was determined, as required by Nunnally v. Nunnally 

(1981) , Mont . , 625 P.2d 1159, 38 St.Rep. 529. 

The court found the fair market value of the Richardson Place was $160,000. This value was based entirely upon 

the respondent's testimony of per acre valuation. Respondent 

testified as to the per acre value of hay and grazing land. 

However, no testimony was presented as to how many acres of 

crop, hay or grazing land there were on the Richardson Place 

or on the Home Place. The only explanation that we can 

arrive at for the District Court's valuation is that it 

adopted the respondent's proposed findings of fact on these 

matters verbatim. 

Appellant argues that in the distribution of property 

Hamilton v. Hamilton (1980), Mont. , 607 P.2d 102, 

37 St.Rep. 247, is controlling. In Hamilton, Arabian horses 

were appraised in the property distribution without a finding as to the total number of horses in the marital estate. 

This Court held that the total number of horses was necessary to place a value on them. The situation is similar here 

for it appears that the District Court ignored the testimony 

of a competent cour t-appointed appraiser, who valued the 

property some $68,000 higher than the value given by the 

respondent. 

Viewing the total record, we conclude that the trial 

court erred in its valuation of both the Richardson Place 

and the Home Place. The court failed to consider the number 

of acres of each type of land which was used in the valuation. While respondent's Exhibit B refers to 1,200 acres on 
the Richardson Place, there is no reference to the acreage 

breakdown so we are unable to determine what part of the 

land was crop land, hay land, or grazing land. As a result, 

we conclude that the valuations of the Richardson Place and 

the Home Place are not supported by the evidence. 

Respondent argues that his remainder interest in both 

the Richardson Place and the Home Place should not be 

included as a part of the marital estate and that their 

valuations are therefore not relevant. This contention is 

based on respondent's claim that his remainder interest in 

the Home Place and the Richardson Place is subject to 

divestment in the event that he dies before his mother, 

Respondent bases this contention on the wording of the will 

of his father, J. Elmer Hill. That contention disregards 

the decree of distribution in the estate of J. Elmer Iiill, 

dated October 16, 1958, which in pertinent part provided: 

"IT IS HERE ADJUDGED AND DECREED, that . . . the residue of said Estate of J. Elmer Hill, 

. . . hereinafter particularly described. . . be and the same is hereby distributed as 

follows, to-wit: 

"Real estate: To Anna Mae Hill, for and 

during her lifetime, with full control, use, 

possession, proceeds, and income therefrom, 

and without liability for any injury, 

destruction, damage, loss or waste thereto, 

with remainder share and share alike to 

Robert A. Hill [respondent] . . .[description 

of Richardson Place and Home Place] ." 

The contentions of the respondent ignore the settled 

law in this state. Even prior to the enactment of the 

Uniform Probate Code, a decree of distribution is conclusive 

upon the rights of devisees under a will. As stated in In 

re Bell's Estate (1958), 134 lvlont. 345, 350, 331 P.2d 517, 

"A decree of distribution is conclusive upon 
the rights of heirs, legatees or devisees, 

subject only to be reversed, set aside or 

modified on appeal. R.C.M. 1947, section 91- 

3902; In Re Estate of Murphy, supra [other 

cases cited]. A decree of distribution has 

the same force and effect as does a final 

judgment." 

The respondent's remainder interest is correctly described in the decree of distribution and cannot be changed 

by a collateral attack in which the respondent suggests that 

the will required a different type of decree of distribution. We therefore conclude that the District Court's finding that respondent's remainder interest was a vested interest subject to divestment is not supported by the evidence. 

The next issue is whether the vested remainder interest of respondent should be included in the marital estate 

for purposes of property distribution. At the time of the 

marriage dissolution on October 21, 1976, the respondent had 

a remainder interest with a present value, a property 

interest which will ripen into a full one-fourth interest in 

all of the land upon the death of his mother. 

At least three jurisdictions, Kansas, Wisconsin and 

Kentucky, have held that a spouse's vested remainder interest in real property should be considered in the disposition 

of a marital estate. A similar problem was considered in 

the case of McCain v. McCain (1976), 219 Kan. 780, 549 P.2d 

896. There, the court noted that the husband owned specific 

undivided future interests in two quarter sections of land. 

Neither of these would ripen into a possessory interest 

until the termination of the estate of the life tenant of 

each tract. Nonetheless, his interests were vested remainders which could be sold. They had present value. The 

court, speaking of a remainder interest subject to life 
estate, said that it held in Woolums v. Simonsen (1974), 214 

Kan. 722, 522 P.2d 1321: 

". . . the appellant and her children have a 

remainder interest in real property subject 

to a life estate in the mother of the appellant, Considering the age of the appellant's 

mother, the probability that the appellant 

and her children will survive her mother. . . is a good prospect, Because of this probability the appellant has a saleable property 

right of considerable present value . . . 

"Under the law of this state, the general 

rule is that any interest a person may have 

in property, vested or contingent, legal or 

equitable , . , may be levied upon and sold 

under execution. [Citing cases.] Another 

case holding that the interest of a remainderman , . . is saleable is Markham v. 

Waterman, 105 Kan. 93, 181 P. 621." McCain, 

549 P.2d at 900. 

See also: Jordan v. Jordan (1969), 44 Wisc.2d 471, 171 

N.W.2d 385; Rompf v. Rompf (Ky. 1968), 433 S.W.2d 879. 

In addition, several other jurisdictions have reached 

the same conclusions when considering other future interests 

of marital estates, See, Trowbridge v. Trowbridge (1962) , 

16 Wisc.2d 176, 114 N.W.2d 129; Maxwell v. Maxwell (1921), 

106 Neb. 689, 184 N.W. 227; Hughes v. Hughes (1975) , 132 

Montana statute requires the District Court, in disposiny of property following a dissolution of marriage, to 

"finally, equitably apportion between the parties the property and assets belonging to either or both, however and 

whenever acquired and whether the title thereto is in the 

name of the husband or wife or both." Section 40-4-202, 

MCA. 

While the right to possession of a vested future 

interest is postponed, it is still a property interest that 

can be distributed. See sections 70-1-315 and 70-1-317, MCA. 
We agree with the court in McCain, supra, where it 

found that since such vested interest could be sold or 

t 

otherwise alienated, transferred or mortgaged, the property 

had a present value and should be included. 

Respondent attempts to distinguish McCain because 

Kansas has not adopted the Uniform Marriage and Divorce Act. 

However, the Kansas statute on the division of marital 

property is similar to that of Montana: 

"The decree shall divide the real and personal property of the parties, whether owned 

by either spouse prior to marriage, acquired 

by either spouse in the spouse's own right 

after marriage, or acquired by their joint 

efforts, in a just and reasonable manner 

... I' Section 60-1610 (d) , Kansas Statutes 

Annotated. 

We find that the District Court erred in not 

including respondent's vested remainder interest in the 

marital estate for the purpose of distribution. 

The next issue is whether there was sufficient evidence for the District Court to conclude that the property 

known as the Woodbury Place should not be included in the 

marital estate. 

We have previously noted in setting forth the facts 

in this case that one of the problems that arose during 

trial was respondent's failure to co~nply with the court's 

order to allow shorter time to respond to interrogatories. 

This included respondent's 1976 federal income tax return 

about which the appellant complained she did not have 

sufficient time to properly cross-examine or analyze. This 

return contained information about the Woodbury Place. In 

view of the fact that this case nust be returned to the 

District Court for reconsideration of the assets of the 

marital estate, we direct that on reconsideration appellant 
be allowed to pursue examination as to the Woodbury Place. 

We also note that this Court does not condone respondent's 

failure to comply with the District Court order or any other 

frustration of discovery. Owen v. F. A, Buttrey & Charles 

Revson (1981), - Mont, - , 627 P.2d 1233, 38 St.Rep. 714. 

The final issue is whether the court erred in deducting child support from appellant's share of the marital 

assets when respondent failed to petition for such support, 

Appellant left the family home in January 1973 and went to 

Great Falls where she attended a Vo-Tech school for eleven 

months. The record indicates that respondent paid for her 

tuition and expenses and that the children remained on the 

ranch with him during this period. Appellant returned to 

the family home on December 21, 1973, but left the ranch 

again and did not return until several months before the 

dissolution. During that time the children remained with 

respondent at the ranch. 

The decree of dissolution, dated October 21, 1976, 

provides, among other things, that "custody, support and 

visitation of the minor children was reserved," Appellant 

in her complaint asked that the parties be granted "mutual" 

custody, and respondent alleges that the question of necessary child support and custody of the children was thereby 

placed in issue. The District Court concluded that, "the 

reasonable cost of support of the minor children of the 

parties from October 21, 1976, through their respective 

majorities, is $14,252. One-half of this sum, or '$7,126' 

is the responsibility of [appellant] to the support of the 

minor children from her share of the marital estate." 

The court heard no evidence on the children's finan- 
cia1 resources or standard of living before the dissolution 

or on the financial resources of the appellant. These 

factors must be considered in determining child support 

under section 40-4-204, MCA. We find, therefore, that the 

District Court's decision was not supported by evidence and 

constitutes an abuse of discretion. When the matter comes 

before the District Court on remand, these matters may be 

considered with proper testimony by both parties to arrive 

at an equitable solution. 

The cause is remanded to the District Court with 

directions to comply with the provisions of this opinion. 

We conc