No. 83-473 INTHE SUPREMECOURTOF THE STATE OF MONTANA 1984

INRE THEPIARRIAGEOF ROSALYN H. PETERSON,2etitionerand Respondent, and ROBERT C. PETERS014

## , Respondent andAppellant.

APPEAL FROM: District Courtof theThirteenth Judicial District, Inand for the County of Yellowstone, TheHonorable DianeG. Barz,Judgepresiding.

COUNSELOF RECORD: ForAppellant: JockB. West,Billings, Montana

ForRespondent: LindaL. Harris,Billings, Montana

SubmittedonBriefs: March 23, 1984 Decided: June 28, 1984

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

Thisappeal is from a distribution ofproperty made by the DistrictCourt of the Thirteenth Judicial District, in a proceeding to dissolve the marriage of the parties. Appellant Robert C. Peterson objects to several aspects of the property distribution. We affirm the ruling of the District Court with a slightmodification. Robert C. Peterson, hereinafter husband, and Rosalyn H. Peterson, hereinafter wife,weremarried onNovember 17, 1978 in Worland,Wyoming. Both parties were employed during the entire course of themarriage. Husband was employed by the United States Postal Service with a net pay of $626.13 every two weeks. At the time of the dissolution proceedings, wife was employed asa secretarywith anetpay of $361.43 every two weeks. No children wereborn of this marriage. However,wife had two minor sons from prior marriages who lived with the parties during the marriage. Husband did not adopt the children, but all of the financial support for their needs came from the combined income of the parties. Wife collected none of the support payments due for the children, which she testified amounted to approximately $10,000 over the term of themarriage. The focus of this dispute is on the mobile home in which theparties resided and the ten acresof real property upon which it sits. The real property was purchased by the husband in 1974, at a purchase price of $12,500. A down payment of $2,500 was made and the remaining $10,000 financed through Valley Credit Union. Fifty-five monthlypayments were made by husband until the parties opened a joint checking account. Prior to the marriage, husband improved the property by drilling a well, building a barn, corral and fences, running electricity and water lines to the trailer and installing a septic tank. The total cost of these improvements was $3,810, which was paid by husband. During the marriage, a garage was constructed on the property at a cost of $3,400 to the parties. The mobile home was purchased in April 1977 by husband, at a cost of $15,741. A $2,500downpayment and sixteen monthly payments were made by husband prior to themarriage. The parties each brought certain livestock to the marriage. Husband brought two geldings to the marriage, which were sold and the proceeds used to buy two brood mares, "Sis"and "Leo's Rapid Cat." Wife brought two horses to the marriage, "Justin" and "Blondie." During the marriage Blondie had two colts, "Whiskey" and "Peaches." Also during the marriage five horses were purchased, "Bonny," "Rita,"

### FOX^," "StarJet," "Sis"and "Rio." To consolidate payments, the parties borrowed $10,000 from the BillingsU.S. Employees CreditUnion. In September of 1981, $3,859.61 of this was paid to Valley Credit Union to satisfy themortgage on the realproperty. Approximately $2,100 was used to purchase a Fiat automobile, and $200 for

a camper. The remainder of the $10,000was used topurchase the above listed horses and to cover other miscellaneous expenses. The wife filed a petition for dissolution of the marriage in the District Court of the Thirteenth Judicial District on September 21, 1982. The decree of dissolutionand judgment were entered on June 16, 1983. The marital property was distributed between the parties as part of the judgment. Wife received, among other items, the Fiat automobile, and the horses, Sis, Rita and Bonny. Husband was also required topay wife $12,633.45 for her interest in the mobile home and real property. Husband received the camper, the horses Star Jet,Rio and Foxy and was to assume the obligation for the remaining balance of the $10,000 loan and the remaining balance of the loan for the mobile home. The respective balances of these two are $6,989.20 and $9,379.10. From this distribution appeal is taken. Three issues are raised by thehusband:

(1)Did theDistrictCourt err innot finding that the wife made anegative contribution to the marriage? (2)Did the District Court err by failing to give

reasons for selecting the wife's expert's appraisal of the realproperty? (3)Did theDistrict Court err in failing to assess to thewife the value of certain realproperty received by her? The husband's first contention is that the District Court did not properly consider the nature of the wife's contibution to themarital estate. Specificallyhe contends that she should not receive any distribution representing the appreciation invalue of either the real property or the mobile home, because of what he terms her "negative contribution" to the maintenance of the property. He alleges this "negative contribution" occurred because the wife and her two sons consumed 3/4 of the marital income, yet she only contributed 1/3 of the income. Thus he theorizes that any appreciation of the marital assetsresulted not because of but in spite of the wife's efforts and she should not receive any benefit therefrom. Individing marital property, theDistrict Court is to take into consideration, "[Tlhe contribution or dissipation of value of the respective estates and the contribution of a spouse as a homemaker or to the family unit." Section 40-4-202(1), MCA. Obviously this consideration will depend

on the extant facts. The determination of thevalue of such contribution or dissipation is thus a question of fact for the trial court. In such a case we will defer to the discretion of the lower court unless it has exercised an abuse of discretion. Eschenburg v. Eschenburg (1976), 171 Mont. 247, 557P.2d 1014. In the present case, the trial court considered both the monetary and non-monetary contributions of the parties. Itspecifically found, "That other than as herein provided, the parties to this action contributed equally to the acquisitions of interests in real and personal property during the course of their marriage. A1though Respondent's income exceeded that of the Petitioner during the course of their marriage, Petitioner's contribution [was] equal to that of theRespondent." There is nothing in the scant record of this case to dispute the above finding. The husband alleges in his appeal brief that, "No authority need be cited to establish that two minor boyswill causewear and tear to the home, in addition to the consumption (of marital income)." While thismay be trueas ageneral rule,trial courts do not consider generalities as dispositive of fact questions in individualcases. Each must be examined on its own merits and disposed of on the prevailing facts. InMontana a married person is not bound to support his spouse's children by a former marriage. However, if he receives them into his home and supports them, it is presumed that he does so as a parent and thus they arenot liable to him for their support nor he to them for their services. SeeSection40-6-217, MCA. The husband presented hisarguments totheDistrictCourt, though he made nothing

more than assertionsthatthewife and her childrendidnot contribute to the maintenance of the property. The wife admitted that it costmore than shewas earning tofeed and clothe the children, but testified that her non-monetary contributions to the household made up thedifference. The husband's evidence did not rebut the presumption that his support was given as a parent. This being the case, the District Court clearly acted properly in finding that the parties contributed equally to the acquisition of interests inthemobilehome and realproperty duringthemarriage. The husband next contends that the District Court erred by not giving reasons for adopting the appraisal of the real property and improvements submitted by the wife. The wife testified that she had the property appraised at $57,000, and listed the factors the appraiser had articulated in arriving at that figure. The husband testified that he had the property appraised at $30,000 without the improvements which cost over $7,000. The husband asserts that this discrepancy is sufficient to mandate the District Court to give express reasons for choosing one appraisal over theother. The husband's argument is based on certain language contained in In re the Marriage of Peterson (1981), 195Mont. 157,636P.2d 821. Peterson involved thevaluation of

a marital estate where the District Court adopted one appraisal over another without expressing its reasons. In remanding for specific findingswe stated: "The District Court is free to follow one appraisal and reject another. However, here there is a wide disparity in valuation, and we are unable to review for abuse ofdiscretion in the absenceof findings by the trial court supporting the valuation selected. 

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# . . Upon review of the record, we cannot say the District Court properly exercised itsdiscretion in selecting the value it did without some indication of its reasons for doing so." 195 Mont. at 162,636P.2d at 823-4. However the failure to articulate reasons for adopting one appraisal over another does not automatically require a remand of the case to District Court. It was the lack of supporting evidence in the Peterson record which made a remand necessary. As was explained in Frazier v. Frazier (Mont. 1984), 676 P.2d 217, 41 St.Rep. 233, when we review findings of fact where the lower court adopts one appraisal

over another, "Itisnot the lack of specific findings which constitutes 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 

### GJ7 6 record to determine whether ample evidence exists." J,3&gi. P.2d at 219-20, 41 St. Rep. at 233. The record in the present case clearly shows why the wife's appraisal was adopted. The husband's appraisal was for the real property only,excluding the improvements. He testified to the costof the improvements,but thebare cost of the improvements and their value once they are set in place are different. This is especially true where hetestified that he did almost all the labor himself. The wife's appraisal was clearly more reliable because it considered theproperty asa whole the way it existed. Finally, the husband points to several items of personal property which he contends were inequitably distributed by the trial court. With two exceptions, these allegations of error are a thinly veiled attempt to seek a de novo distribution of themarital property by this Court. We have reviewed each and find ample evidence to support the trial court's distribution. "Theapportionment made by the District Courtwill not be disturbed on review unless there has been a clear abuse of discretion as manifested by a substantially inequitable division of the marital assets resulting in substantial injustice." InRe the Marriage of Brown (1978),179 Mont. 417, 587 P.2d 361. No substantial injustice hasbeen donehere. However, two adjustmentsmust be made by the District Court. First, the parties agree that the proper amount of the wife's equity in the mobile home is $1,365.03, not $2,110.45 as originally calculated by the District Court in its finding of fact number 15. Finding number 15 should be changed accordingly. Second, the District Court improperly valued the parties' life insurance policy. The husband testified that they owned an insurance policy, which was whole life as to himself, but term as to the wife and her two children. He estimated its cash valuewas approximately $400. Thewife, who was unable to testifyas to the type of policy, estimated its cash value was approximately $2,500. However the DistrictCourt ignared both estimates and found its value to be $0, distributing it to the wife. Thisfinding is clearly wrong, and must be corrected on remand. If additional evidence is needed, the District Court should require submission of such evidence from the parties. After the proper value is found, any necessary adjustments in the distribution of marital property shouldbemade. Affirmed in part,modified in part, and remanded for valuation of the life insurancepolicy.

We concur:

Y ,"