No. 81-335 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

IN RE THE MARRIAGE OF: 

NORMA JEAN LePROWSE, 

Petitioner and Appellant, 

and 

ROBERT EDGAR LePROWSE, 

Respondent and Respondent. 

Appeal from: District Court of the Fourth Judicial District, 

In and for the County of Missoula 

Honorable John Henson, Judge presiding. 

Counsel of Record: 

For Appellant: 

Goldman and Goldman, Missoula, Montana 

For Respondent: 

Datsopoulos, MacDonald & Lind, Missoula, Montana 

Submitted on briefs: March 5, 1982 

Decided: June 11, 1982 
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of 

the Court. 

Norma Jean LeProwse, appellant, appeals from decree and 

judgment entered by the Missoula County District Court 

dissolving the parties' marriage, determining child custody 

and support, and dividing the marital assets. The issues 

raised here concern the valuation and division of property 

as found and ordered by the trial court. 

The parties were married twenty-nine years. During 

their marriage they accumulated property including a house 

in Missoula, a cabin at Flathead Lake, a travel trailer, a 

boat with motor, a 1975 Chevrolet automobile, furnishings in 

the house and lake cabin, and Champion International stock. 

Additionally, in April of 1977, approximately eight months 

before commencement of this proceeding, appellant received 

an eleven thousand dollar ($11,000.00) inheritance, six 

thousand dollars of which remained at time of trial. 

A licensed real estate broker testified for appellant 

regarding the value of the jointly-owned real property. 

Using comparable sales, he appraised the Missoula residence 

at fifty-three thousand five hundred dollars ($53,500.00) 

and the Flathead Lake property, including improvements, at 

fifty-five thousand dollars ($55,000.00). The broker used a 

listing price, rather than a sales price, for one of the 

comparable sales for the lake property; another comparable 

sales reference was property twice the size of the subject 

property that varied considerably from the subject property 

in terms of square footage and lake front footage. In 

determining the replacement costs of the improvements on 

the lake property the broker did not allow for any depreciation 

in valuing the nine-year-old improvements. 
Respondent's appraisal was presented by a MAI-designated 

real estate appraiser who used replacement cost and market 

data methods to value the property. He appraised the Missoula 

residence at fifty-four thousand nine hundred dollars ($54,900.00) 

and the lake shore property at forty-five thousand dollars 

($45,000.00). The comparable sales used by respondent's 

appraiser were verified sales of similar acreage, front 

footage and square footage value. Respondent's appraiser 

used the same lot as appellant's broker for one of his 

comparable sales but where the broker used a recent listing 

price as his reference point, the appraiser used an actual 

sales price that was some twenty-one thousand five hundred 

dollars ($21,500.00) lower than the subsequent listing. The 

appraiser arrived at a similar replacement cost valuation of 

the improvements located on the lake property, however, he 

made a downward depreciation adjustment to account for the 

age of the improvements. 

Appellant provided no testimony as to the market value 

of the personal property in the marital estate. Respondent 

provided the court with his opinion, which was in part based 

upon a previous appraisal of an insurance agent, as to the 

estimated value of the travel trailer, the boat, the home 

and lake furnishings, and the stock. 

Both parties testified that they had present and future 

ability to participate in medical insurance and retirement 

programs. Appellant is a twenty-year employee of the united 

States Forest Service, with an annual gross income in excess 

of nineteen thousand dollars ($19,000.00). Respondent has 

similar longevity with Champion International and a current 

annual gross income of approximately twenty-eight thousand 
dollars ($28,000.00). Appellant also testified that she had 

rheumatoid arthritis which required corrective surgery but 

that similar operations had been successful in the past. 

She had accumulated ample sick leave to allow for her 

convalescence. 

The findings of fact entered by the court on January 

12, 1981, included that the parties had similar retirement 

benefits, that with the exception of appellant's remediable 

arthritic condition, the parties were in relatively good 

health, and that the inheritance received by appellant 

should be specifically excluded from the marital estate. 

The lower court valued and distributed the marital assets as 

follows: 

Fair Net - 

Assets to Appellant Market Value Indebtedness Marital Equity 

Missoula Residence $54,200.00 $9,000.00 $45,200.00 

Furnishings in Missoula 

Residence $12,500.00 

1975 Automobile $ 2,000.00 

Assets - to Respondent 

Lakeshore Property $45,000.00 

Furnishings at Lake $ 500.00 

Travel Trailer $ 1,200.00 

Boat and Motor $ 1,500.00 

Champion International 

Stock $ 4,000.00 

Total $59,700.00 

Total $52,200.00 

On February 27, 1981, the Missoula County Clerk of 

Court sent parties' counsel notice of entry of judgment; 

notice was not mailed but delivered to parties via boxes 
located in the clerk's office and designated for local 

counsel. Upon informing the trial judge t5at counsel for 

appellant had not picked up the notice until March 6, 1981, 

appellant was granted until March 19, 1981, to file posttrial motions. Appellant filed a motion for reconsideration 

March 18, 1981. No hearing was set nor had on the motion 

before March 29, 1981. On April 29, 1981, counsel for both 

parties appeared before the District Judge to discuss the 

applicability of M.R.Civ.P., Rule 59(d) to appellant's 

motion. At that time the court formally deemed the motion 

denied. Appellant's notice of appeal was filed the same 

day. Respondent's counsel made no attempt to have the 

appeal dismissed as untimely. 

Before this Court, appellant's principal claim is that 

the trial court abused its discretion in allocating the 

marital assets. The bases for appellant's contention include 

the court's failure to determine net worth of the parties, 

the wholesale adoption of respondent's findings of fact and 

conclusions of law as proposed, the court's failure to 

properly apply the factors of section 40-4-202, MCA, and the 

court's failure to account for appellant's arthritic condition 

in the distribution of assets, absent a provision for maintenance. 

Additionally, appellant presents as error the failure of the 

~istrict Court to mail the judgment and decree and notice of 

entry of judgment to appellant's counsel. 

There is no need for this Court to review the manner in 

which the Missoula County District Court transmits its 

orders to local counsel. Neither at the trial level nor the 

appellate level has appellant been harmed by the Missoula 

County ~istrict Court's practice of depositing orders in 

designated boxes in the court clerk's office. ~ppellant's 
motion for reconsideration was duly considered by the District 

Court and this Court now considers the substantive issues 

raised by appellant. Absent a showing of prejudice this 

Court will not interfere with the internal operating rules 

of the Missoula County District Court. 

The standard for review of a District Court's findings 

and conclusions is the same whether the District Court has 

prepared them or has adopted a party's proposed findings and 

conclusions: the lower court's findings are to stand if 

supported by the law and evidence. City of Billings v. 

Public Service Commission (1981), Mont. , 631 P.2d 

1295, 38 St.Rep. 1162, 1165. Although the practice is disapproved, 

the fact that the District Court substantially adopted the 

findings proposed by respondent's counsel does not change 

the standard of review by this Court. 

The oft-stated rule in reviewing property distributions 

in dissolution proceedings is that the District Court is 

afforded broad discretion. Abuse of discretion is the 

touchstone in determining whether a particular property 

distribution is inequitable. For an abuse of discretion to 

be found appellant must show that the District Court "act[ed] 

arbitrarily without employment of conscientious judgment, 

or exceed[edl the bounds of reason in view of all the circumstances." 

Zell v. Zell (1977), 174 Mont. 216, 220, 570 P.2d 30. 

Failure to precisely set forth net worth of parties does not 

constitute abuse of discretion so long as the findings as a 

whole are sufficient to determine net worth, In re Marriage 

of Nunnally (1981), Mont. , 625 P.2d 1159, 38 

St.Rep. 529, and the findings themselves will not be disturbed 

unless a preponderance of the evidence clearly mandates 

contrary determinations. Cameron v. Cameron (1978), 179 Mont. 

219, 587 P.2d 939. 
Despite the potpourri of matters raised in appellant's 

brief, the essence of appellant's argument on appeal is that 

the findings and conclusions are not supported by the evidence 

on record. We cannot agree. No abuse of discretion can be 

found in findings of fact and conclusions of law that: 

carefully set forth the fair market value, outstanding 

obligations, and net value of each marital asset; develop 

the trier of fact's reasoning for accepting respondent's 

appraisals and estimates over those offered by appellant; 

and are fully supported by the record. 

It is the trial court's function to assess the witnesses' 

qualifications, experience and demeanor when it makes its 

determinations regarding the evidence before it; this Court's 

function is to review the lower court's findings in light 

of the record to make certain the findings are not clearly 

erroneous. Jensen v. Jensen (1981) , Mont. , 629 

P.2d 765, 38 St.Rep. 1109. We find no clear error in the 

property valuations adopted by the trial court. The lower 

court's judgment is affirmed. 

As a final matter respondent has requested that this 

Court adjudge this appeal to be frivolous and award respondent 

costs and damages. 

Where the question of sufficiency of evidence to support 

a lower court's decision or the issue of the lower court's 

abuse of discretion is reasonably in issue, this Court has 

said that a respondent is not entitled to recover damages 

under Rule 32, M.R.App.Civ.P. Martens v. Martens (1981), 

Mont. , 637 P.2d 523, 38 St.Rep. 2135. That rule 

must control the instant case. Albeit appellant's case was 

not strong and this decision is of little precedential 

value, the appeal itself is not so unwarranted or unreasonable 
to invoke this Court's powers under Rule 32. 

'J 

'L f' &! g,c. 

Justice / 

We Concur: 

add & ~-a 

Chief Justice 
Mr. Justice Daniel J. Shea concurring: 

I join in the decision of the majority, but I express 

reservations to the trial court's wholesale adoption of the 

findings and conclusions of the prevailing party. In Tomaskie 

v. Tomaskie (1981), - Mon t . - , 625 P.2d 536, 538, 38 St.Rep. 

416, we stated that ". . . [i]t is wise practice for the trial 

court to prepare and file its own findings and condus'ions" and 

that "[ilt is becoming increasingly apparent to this Court, however, 

that the trial courts rely too heavily on the proposed findings 

and conclusions submitted by the winning party. That is wrong! 

See Canon 19, Canons of Judicial Ethics, 144 Mont. at xxvi-xxvii." 

Notwithstanding this message, the trial courts are still 

too often engaged in the wholesale adoption of the prevailing 

party's proposed findings and conclusions, and yet, we seem to 

do nothing about it. I look at this practice no differently 

than I would a practice of this Court to ask each party to submit 

a proposed opinion to this Court along with its briefs, and then 

to adopt verbatim the proposed opinion of the prevailing party. 

I can just imagine the uproar of the trial bar and the public, 

and rightly so, if we were to do this. 

I have previously expressed in detail my position on 

proposed findings and conclusions in .my concurring opinion to 

Jensen v. Jensen (1981), - Mont . - , 631 P.2d 700, 704, 38 

St.Rep. 1109, 1113, and I see no need to belabor the point.