No. 14728 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1979 

IN RE THE MARRIAGE OF 

VERNA B. JACOBSON, 

Petitioner and Respondent, 

-vsTHEODORE F. JACOBSON, 

d~i);c~nNiRespondent and Resptxderrt. 

Appeal from: District Court of the Third Judicial District, 

Honorable Robert J. Boyd, Judge presiding. 

Counsel of Record: 

For -~etibi&& , IPoore, Roth, Robischon & Robinson, Butte, Montana 

For Respondent: 

Corette, Smith, Dean, Pohlman & Allen, Butte, Montana 

James J. Masar, Deer Lodge, Montana 

- --

Submitted on briefs: August 2, 1979 

Decided : 

iJCI - 5 fgj 

Clerk 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

 his is an appeal from a judgment of the District Court 

of the Third Judicial District dissolving the marriage of 

Theodore and Verna Jacobson and distributing the marital 

property of the parties. The husband appeals from that 

portion of the decree affecting the property distribution. 

The parties were married in Butte, Montana, on March 

16, 1952. At the time of trial, Verna Jacobson was 47 years 

of age and Theodore Jacobson was 49. The parties have two 

children, a son aged 22 residing in Alaska, and another son 

aged 18 who graduated from high school in 1978 and resides 

on the family ranch near Deer Lodge, Montana, in Powell 

County. Ted Jacobson was raised on the ranch and his sole 

occupation has been ranching. His formal education ended in 

the ninth grade. Verna Jacobson is a high school graduate 

who worked as a secretary prior to her marriage to Ted. 

In 1948 Ted and his brother formed a partnership to 

operate the ranch. In that year they leased a portion of 

the ranch from their father for the purpose of raising 

potatoes. In 1953 the brothers and their wives leased the 

entire home ranch and bought some cattle from their father, 

and in 1959, they purchased the ranch on a contract for 

deed. The partnership continued until 1969. Thus, when the 

parties were married in 1952, Ted and his brother were 

already in the process of taking over the operation of the 

ranch. The District Court found that "Ted Jacobson was and 

is a hard-working and able rancher." Through his efforts 

and knowledge of the business, the value of the Jacobson 

ranch increased substantially both during the time it was 

operated in partnership with his brother and after the 
partnership terminated in 1969. Throughout the marriage of 

the parties, Ted did the outside work on the ranch. In 

addition to the usual ranch work he made substantial improvements to an existing house located on the ranch, and he and 

his brother later assisted in building a new house in which 

the parties resided. A significant part of the increased 

value of the ranch can be attributed to the installation of 

a lateral irrigation system by Ted and his brother in 1966 

and the installation of a sprinkler irrigation system by Ted 

in 1975. 

For her part, Verna performed the duties of a ranch 

wife and homemaker for over 25 years. Although she did not 

participate in the outside work, she spent great amounts of 

time caring for her two sons, the elder of whom had heart 

problems discovered at an early age, and the younger, who 

was found at an early age to have a serious physical ailment. She spent a considerable amount of time working with 

the younger son to assist him in completing school. Until 

1969 Verna boarded the hired hands, generally feeding them 

three meals a day in the family home. In addition to these 

contributions, she did the bookkeeping for the ranch after 

the partnership between Ted and his brother terminated in 

1969, maintaining the ranch record books and accounts, 

keeping track of ranch income and expenses, paying the 

bills, paying the ranch help, keeping the records necessary 

for ranch income withholding, social security, and workers' 

compensation, and delivering this information to their 

accountant each year for the purposes of preparing income 

tax returns. She also occasionally drove to town to pick up 

ranch supplies. 
The District Court, after reciting the contributions to 

the marriage made by each of the parties, concluded that 

the parties had made equal contributions to the marital 

estate and that the wife had acquired a vested one-half 

interest in all property acquired by the parties during 

their marriage. 

"None of the property now owned by the parties 

was acquired directly or indirectly through inheritance or gift and the Court finds that the 

wife's contribution as a homemaker and mother, 

along with the husband's contribution in doing 

work on the ranch, is entitled to equal weight 

and the Court finds that Mrs. Jacobson acquired 

a vested one-half (1/2) interest in the property 

accumulated by the parties during the marriage." 

(Emphasis supplied. ) 

Pursuant to this finding the District Court's judgment 

entered on January 25, 1979, gives the husband the option to 

purchase the wife's interest in the marital property. The 

total marital property, consisting primarily of the family 

ranch, was found to have a value of $1,147,786. Within 

three months of the decree, the husband has the option to 

either pay to the wife one-half of the total sum or to pay 

20 percent down with the balance payable in thirty equal 

annual installments with interest at the rate of 7 percent 

per annum. These installments are to be secured by a mortgage on all real property. If the husband fails to exercise 

his option to purchase the wife's interest, the property is 

to be sold on the market for cash at a price agreeable to 

the parties. If no buyers are secured, the property is to 

be sold at a public sale within a further three months from 

the date of the decree. 

The appellant husband raises two issues on appeal: 

1. Did the District Court abuse its discretion and 

fail to equitably apportion the marital assets by neglecting 

to consider the more substantial contributions of the husband 
to the development and maintenance of the marital property? 

2. Did the District Court abuse its discretion in 

providing as an alternative a purchase by the husband of 

one-half of the parties' marital assets at an interest rate 

of 7 percent per annum? 

Section 40-4-202, MCA, states in relevant part: 

"In a proceeding for dissolution of a marriage 

. . . the court . . . shall . . . finally equitably apportion between the parties the property 

and assets belonging to either or both, however 

and whenever acquired and whether title thereto 

is in the name of the husband or wife or both. 

In making apportionment the court shall consider 

the duration of the marriaqe - and [other factors] 

. . . The court shall also consider. . . - the 

contribution -- of a spouse as a homemaker or to -- -- 

- the family unit." - (Emphasis supplied.) 

The standard for review of a District Court's disposition of marital assets upon a dissolution of marriage is 

well settled: 

"A District Court has far-reaching discretion in 

resolving property divisions, and its judgment 

will not be altered unless a clear abuse of discretion is shown. Kaasa v. Kaasa (1979), 

Mont. , 591 P.2d 1110, 1113, 36 St.Rep. 425, 

428; Kramer v. Kramer (1978), Mont. I 

580 P.2d 439, 35 St.Rep. 700; Eschenburg v. 

Eschenburg (1976), 171 Mont. 247, 557 P.2d 1014. 

The test for reviewing the District Court's discretion is: Did the District Court in the exercise of its discretion act arbitrarily without 

employment of conscientious judgment, or exceed 

the bounds of reason in view of all the circumstances? Kuntz, 593 P.2d at 43; Jorgensen, 

supra; Kramer, supra; Zell v. Zell (1977), 

Mont. , 570 P.2d 33, 34 St.Rep. 1070; Berthiaume v. Berthiaume (1977) , Mont. I 

567 P.2d 1388, 34 St.Rep. 921." Aanenson v. 

Aanenson (1979), Mont. I P.2d 

, 36 St.Rep. 1525, 1528. 

The duty of the District Court is to consider the 

statutory criteria and equitably apportion the marital 

assets. Each case must be looked at individually with an 

eye to its unique circumstances. Aanenson, supra; Jorgenson 

Jorgenson Mont. 
36 St.Rep. 233, 237; Cook v. Cook (1972), 159 Mont. 98, 104, 

495 P.2d 591. "An equal division under normal conditions of 

property accumulated through joint efforts is not regarded 

as unreasonable." Cook, 159 Mont. at 103, 495 P.2d at 594, 

quoting Johnson v. Johnson (1960), 137 Mont. 11, 17, 349 

P.2d 310. See also Zell v. Zell (1977), Mont. 

570 P.2d 33, 34 St.Rep. 1070; Roe v. Roe (1976), 171 Mont. 

79, 83, 556 P.2d 1246, 1248. 

In the present case the District Court detailed the 

respective contributions of the parties in its findings of 

fact. There is substantial evidence in the record to support the District Court's equal distribution as an equitable 

apportionment of the marital property. There was no abuse 

of discretion by the lower court, which followed the statutory mandate of section 40-4-202, MCA, to "consider . . . 

the contribution of a spouse as a homemaker or to the family 

unit." 

Appellant's second contention is more troublesome. 

Appellant states that it has always been the policy of the 

courts of this state that a farm or ranch should be kept 

intact and operated as a unit. Appellant argues that the 

option afforded to him by the District Court to purchase his 

former wife's interest in the family ranch by paying 20 

percent down and thirty annual installments at 7 percent 

interest is not an economically realistic alternative. He 

contends that the ranch does not generate sufficient income 

to support such payments, that it will have to be sold to 

satisfy the District Court decree, and thus, that it will be 

lost to the sons of the parties who are opposed to its sale, 

particularly the younger son, who is now working on the 

ranch. It is alleged, therefore, that the District Court 

abused its discretion. 
It is clear that a District Court may make an equitable 

distribution of the marital property and yet abuse its 

discretion in carrying out the award. In Kruse v. Kruse 

(1978) , - Mont. , 586 P.2d 294, 298, 35 St.Rep. 1502, 

1507, the trial court properly made an equal apportionment 

of the marital assets, but abused its discretion in failing 

to consider the assets at their current market value which 

resulted in the wife receiving less than her equal share. 

Montana cases have accepted the premise that a ranch or 

farm should be kept intact and operated as a unit. A policy 

to that effect is reflected in decisions involving the 

disposition of farming and ranching property: Kaasa v. 

Kaasa (1979) , Mont. , 591 P.2d 1110, 1113, 36 

St.Rep. 425, 428; In re Marriage of Brown (1978), Mont. 

, 587 P.2d 361, 35 St.Rep. 1733; Biegalke v. Biegalke 

(1977), 172 Mont. 311, 564 P.2d 987; Hunnewell v. Hunnewell 

(1972), 160 Mont. 125, 500 P.2d 1198, 1202. 

Biegalke involved facts similar to those in the present 

case. In referring to the District Court's property distribution whereby the husband was given the opportunity to 

purchase his former wife's marital interest in the family 

farm by making a down payment and paying the remaining 

balance in annual installments, this Court stated, "[tlhe 

division was based on the premise that the ranch be kept 

intact and operated." Biegalke, 172 Mont. at 314. Likewise 

in Hunnewell, where the couple moved onto the ranch which 

had been owned by the husband's father and where the husband 

had been a rancher all his life, the court gave the husband 

the option to meet all bids to purchase his former wife's 

interest in the marital estate by making a down payment and 

paying the remaining balance in annual installments, stating 
"[tlhe purpose of this provision is to permit [the husband] 

to continue to ranch and farm the premises without being met 

with a sudden emergency to raise money, the Court being 

aware that all the property is presently mortgaged and such 

an emergency demand might cause hardship." Hunnewell, 500 

P.2d 1202. 

The District Court valued the marital estate, consisting primarily of the family ranch, at $1,147,786 and found 

that Verna Jacobson was entitled to one-half of that property 

as her marital share. Pursuant to this finding, the District 

Court's judgment gives Ted Jacobson the option to purchase 

Verna's interest in the marital property. Within three 

months of the decree, the husband must purchase her share by 

paying her one-half of the total sum in cash, or exercise 

his option to pay her 20 percent down with the balance 

payable annually in 30 equal installments with interest at 7 

percent, the installments secured by a mortgage on the real 

property. Otherwise, the ranch will be sold on the market 

or at a public sale to generate cash to satisfy Verna's 

marital share. 

Translated to dollar amounts, the installment option 

entails annual installments of approximately $34,000. 

Appellant contends that this amount is practically equivalent to the total annual cash income of the ranch before 

purchases of equipment are taken into consideration. He 

argues that after the purchase of necessary replacement 

equipment, annual cash income for the ranch has averaged 

about $16,000 per year. Therefore, according to appellant, 

the ranch does not generate sufficient income to support the 

installment payments that would be required under the purchase option given him by the District Court, and so the 

District Court allegedly abused its discretion. 
The District Court, while it did make extensive findings of fact concerning the marital assets and each party's 

contribution thereto, did not make a finding to the effect 

that it would be financially possible for appellant to 

satisfy the judgment short of selling the ranch. It is, 

however, implicit in the District Court's judgment that the 

court considered the alternatives in the decree to be economically realistic considering the ranch's income-producing 

capacity and its borrowing capacity. There is sufficient 

evidence in the record to support such a conclusion; therefore, there was no abuse of discretion. 

The evidence in the record supporting the conclusion 

that the installment purchase option is an economically 

realistic alternative is as follows: (1) the ranch is unencumbered save for the District Court decree, from which the 

court may have inferred that its borrowing capacity is high; 

(2) the husband's brother and former partner in the ranch is 

a rancher and a banker who might be able to procure a loan 

or lend money for the purchase of the wife's interest; (3) 

there is a cash asset held in trust by one of the attorneys 

for the wife in the amount of $33,792 less certain expenses, 

representing the balance of the sale of cattle in the previous year; (4) the cash income of the ranch has averaged 

approximately $35,000 a year before equipment purchases, and 

$16,000 after purchases of equipment; and (5) the parties' 

accountant testified that the maximum annual payment that an 

operator of the ranch could reasonably be expected to pay 

out of ranch income to purchase an equity in the ranch would 

be the total cash flow income of the ranch. 

~t must be remembered that the primary right to be 

considered in disposing of marital property is the right of 
each party to an equitable apportionment of the marital 

assets. While it is the policy of the courts of this state 

to avoid splitting up a ranch or forcing its sale where 

there is any reasonable alternative, that policy, however 

commendable, cannot be used to override the wife's right to 

an equitable share of the marital property. In the present 

case, the District Court gave the husband the option to 

purchase his former wife's share by paying 20 percent down 

and paying the remaining balance in annual installments over 

thirty years at 7 percent interest. The wife is 47 years of 

age. A payment schedule of more than thirty years would not 

allow her to receive the equal marital share to which she is 

entitled within her life expectancy. The 7 percent interest 

rate is below that charged by commercial and governmental 

lending institutions, The case of In re Marriage of Brown 

(1978) Mont. , 587 P.2d 361, 367, 35 St.Rep. 1733, 

merely suggested that the District Court could order the 

remaining balance paid without interest. It did not say 

that the trial court could not allow interest, and the 

allowance of interest lies within the court's sound discretion. 

The judgment of the District Court s affirmed. /4 

We concur: