### No. 81-275 INTHE SUPREMECOURT OF THE STATEOFMONTANA 1982

INRE THEMARRIAGE OF: ZELDASANGRAYHILL,

and ROBERTA. HILL, PetitionerandAppellant,

Respondent and Respondent.

Appeal from: District Courtof theEighth JudicialDistrict, Inand for the County ofCascade HonorableH. WilliamCoder,Judgepresiding. CounselofRecord: For Appellant: ChristensenandMcLean, Stanford, Montana JackM. McLean argued, Stanford, Montana ForRespondent: Graybill,Ostrem,Warner and Crotty,GreatFalls,Montana

LeoGraybill,Jr. argued, GreatFalls,Montana

Submitted: January 12,1982 Decided: 

### MI4j.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, arisingout of a dissolutionof marriage. Appellant wife was granted a dissolution of marriage on October 21, 1976, with the question of dispositionof 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 thatjudgment wife appeals. The issuespresented on appeal are: 1. Was there sufficient evidence for the District Court to find that respondent husband owned one-half interest asa tenant incommon in the "GallodayPlace"? 2. Was there sufficient evidence for the District Court to find that the property known as the "Richardson Place" had a fairmarket valueof $160,000 asof the dateof the dissolutionof 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 dissolutionof 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 todivestment? 5. Should a vested remainder interestbe included in themarital estate for purposes of property distribution? 6, Was there sufficient evidence for the District Court to conclude that the property known as the "WoodburyPldce" 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 failedto petition for child support? Respondent and appellant were married in Geyser, Montana, on June 14, 1959. Three children were born as issue of themarriage, but their custody 

### is not in dispute. The dissolutionof the parties' marriage was granted October 21, 1976, with thedispositionof 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 alwaysbeen a familyoperation. Respondent inherited a one-fourth remainder interest in one-half of his parents' ranch pursuant to a decree of distribution enteredon October 16, 1958, about eightmonths 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 acresof land known

asthe 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 operatedtheGalloday Place ashisown property. Appellant testified that while LeRoy, the husband's brother, had a one-half interest intheGalloday Place, itwas inorder thatone 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. Atthat time respondent's two sisterssigned

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 allthe Hilllandswas increased again when the brother purchased other lands. This casewas some four years incoming to trial. It

was not until the present trialjudge insisted and set time periods to ready the case for trial that it finally was tried. One of the problems attrial 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 appellantallegesshedid not have time to inspect it. Appellant also allegesthat because of the lateness of its submission, she could not properlycross-examine respondent on the contentsof 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 theWoodbury Place. However, no findingsof factorconclusionsof law were made regarding thisproperty. Respondent did not petition for child support. The DistrictCourt, however, issued findingsof factand conclusions of law on the matter. The judgment entered on March 31, 1981, deducted $7,126 for child support payments from appellant'sproperty 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 intheproperty known as the Galloday Place. The Galloday Place was purchased in 1963and recorded inthenames of respondent and hisbrother

as tenants in common. As previously noted, testimony indicated that the record owners of the Hillproperties are not always the equitableowners. The respondent's sistersquitclaimed their remainder interest in certain properties to their mother to assist in getting a loan from the Federal Land Bank. While the respondent 

### isthe legalone-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 consistsof 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 hisbrother tobe held in common ownership he does farm the property and has at times listed it in his financial statement. However, as previously noted, in thisfamily ranch, operating much like

a partnership, it was not uncommon when borrowing from a bank to include allthe Hillfamily land which was to stand good for the loan. Allthe Hilllandswere farmed together, and each placemade a contributionwhenever 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 

### itsconclusion, 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 DistrictCourt's findingsappear tobe supported by substantial credible evidence, and the findings of the District Court concerning theGalloday 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, willbe considered together. The District Court found that the Richardson Place had a fairmarket value of $160,000 atthe timeof the dissolution and that the Home Place had a fairmarket 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, asrequired by Nunnally v. Nunnally (1981)

## , Mont

# . ,625 P.2d 1159, 38 St.Rep. 529. The court found the fairmarket value of theRichardson Place was $160,000. This value was based entirelyupon the respondent's testimony of per acre valuation. Respondent testified as to the per acrevalue of hay and grazing land. However, no testimony was presented astohow many acres of crop, hay or grazing land therewere on theRichardson 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 mattersverbatim. Appellant argues that inthedistribution of property Hamilton 

### v. Hamilton (1980), Mont. 

## ,607 P.2d 102, 37 St.Rep. 247, 

### iscontrolling. In Hamilton, Arabian horses

were appraised in the property distribution without a finding asto the total number of horses in the marital estate. This Court held that the total number of horses was necessarytoplace avalue on them. The situation is similar here for it appearsthat theDistrictCourt ignored the testimony of a competent court-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 thenumber of acres of each type of land which was used in the valuation. While respondent's Exhibit B refers to 1,200 acresonthe Richardson Place, there 

### is no reference to the acreage breakdown so we are unable to determine what part of the land was cropland, hay land, orgrazing land. Asa result,

we conclude that the valuations of the Richardson Place and theHome Place arenot supported by the evidence. Respondent arguesthathisremainder interest inboth 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 thiscontention 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 inpertinent part provided: "IT IS HERE ADJUDGED AND DECREED, that

# . . . the residue of said Estate of J. Elmer Hill,



# .

# ..hereinafter particularlydescribed.

# .. 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 contentionsof the respondent ignore the settled law in this state. Even prior to the enactment of the Uniform Probate Code, a decreeof distributionisconclusive 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 uponthe rights of heirs, legatees or devisees, subject only to be reversed, set aside or modified on appeal. R.C.M. 1947, section91- 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 correctlydescribed in the decree of distribution and cannot be changed by a collateral attack inwhich the respondent suggeststhat the will required a different type of decree of distribution. We thereforeconclude thattheDistrictCourt's finding that respondent's remainder interestwas a vested interestsubject todivestment isnot supported by the evidence. The next issue 

### iswhether thevested remainder interest of respondent should be included in the marital estate for purposes of property distribution. At the time of the marriagedissolutionon October 21, 1976, therespondent had

a remainder interest with a present value, a property interestwhich willripen into a fullone-fourth interest in allof the land upon thedeathof hismother. At least three jurisdictions, Kansas, Wisconsin and Kentucky, have held that a spouse's vested remainder interestinreal property should be considered inthedisposition 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, thecourtnoted that thehusband owned specific undivided future interests in two quarter sectionsof 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 lifeestate, said that itheld inWoolums 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 lifeestate in themother of the appellant, Considering the age of the appellant's mother, the probability that the appellant and her childrenwillsurvive her mother.

# . . is a good prospect, Because of this probabilitythe appellanthas a saleable property right of considerablepresent 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, 105Kan. 93, 181

### P. 621." McCain, 549 P.2d at900. 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, severalother jurisdictionshave reached the same conclusions when considering other future interests of marital estates, See, Trowbridge v. Trowbridge (1962)

## , 16Wisc.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, equitablyapportion 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

canbe distributed. See sections70-1-315 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 DivorceAct. However, the Kansas statute on the division of marital property is 

### similar to thatof Montana: "The decree shall divide the real and personal property of the parties, whether owned by either spouse prior tomarriage, 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 maritalestateforthepurpose 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~nplywith 

### 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 appellantbe allowed to pursue examination as to the Woodbury Place. We also note that this Court does not condone respondent's failuretocomply 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 indeducting 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 atthe 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 partiesbe granted "mutual" custody, and respondent allegesthat 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 shareof themarital estate." The court heard no evidence on the children's finan-

### cia1resourcesor 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 DistrictCourt's decisionwas not supported by evidence and constitutes an abuse of discretion. When thematter comes before the District Court on remand, these matters may be considered with proper testimony by both parties to arrive atan equitable solution. The cause is 

### remanded to the District Court with directionstocomply with

### the provisions of thisopinion.

We conc