No. 81-335 INTHE SUPREME COURT OF THE STATE OF MONTANA 1982

INRE 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, 1982Mr. JusticeFrank B. Morrison, Jr., delivered the Opinion of the Court.

Norma Jean LeProwse,appellant, appeals from decree and judgment entered by theMissoula 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-nineyears. During their marriage they accumulated property including a house in Missoula, a cabin atFlathead Lake, a travel trailer, a boat with motor, a 1975Chevrolet automobile, furnishings in the house and lake cabin, and Champion International stock. Additionally, inApril of 1977,approximately eightmonths 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 realproperty. Using comparable sales, he appraised the Missoula residence at fifty-three thousand fivehundred 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 lakeproperty; another comparable sales referencewas property twice the size of the subject property thatvaried considerably from the subjectproperty in terms of square footageand lake front footage. In determining the replacement costs of the improvementson the lake property the broker did not allow for any depreciation in valuing the nine-year-old improvements.Respondent's appraisalwas presented by a MAI-designated real estate appraiserwho used replacement cost and market datamethods to value the property. He appraised the Missoula residence at fifty-four thousand nine hundred dollars ($54,900.00) and the lake shoreproperty at forty-five thousand dollars

($45,000.00). The comparable sales used by respondent's appraiserwere verified sales of similar acreage, front footageand square footagevalue. Respondent's appraiser used the same lot as appellant'sbroker 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 thatwas some twenty-one thousand five hundred dollars ($21,500.00) lower than the subsequent listing. The appraiser arrived at a similar replacement costvaluation 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 themarket value of the personal property in themarital estate. Respondent provided the courtwith 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 insuranceand 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 longevitywith Champion International and a current annual gross income of approximately twenty-eight thousanddollars ($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. Shehad 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 themarital estate. The lower courtvalued and distributed themarital assets as follows: Fair Net 

### - Assets

## toAppellant Market Value Indebtedness Marital Equity Missoula Residence $54,200.00 $9,000.00 $45,200.00 Furnishings in Missoula Residence $12,500.00 1975Automobile $ 2,000.00

Assets - to Respondent Lakeshore Property $45,000.00 Furnishings at Lake $ 500.00 TravelTrailer $ 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, theMissoula County Clerk of Court sentparties' counsel notice of entry 

### of judgment; noticewas notmailed but delivered to partiesvia boxeslocated in the clerk's office and designated for local counsel. Upon informing the trial judge t5at counsel for appellanthad notpicked up the notice until March 6, 1981, appellantwas granted until March 19, 1981, to fileposttrial motions. Appellant filed amotion for reconsideration March 18, 1981. No hearing was setnor had on the motion before March 29, 1981. On April 29, 1981, counsel for both parties appeared before the DistrictJudge to discuss the applicability of M.R.Civ.P., Rule 59(d) to appellant's motion. At that time the court formally deemed themotion denied. Appellant's notice of appeal was filed the same day. Respondent's counselmade 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 networth 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, appellantpresents as error the failure of the ~istrict Court tomail 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 DistrictCourt 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'smotion for reconsiderationwas duly considered by the District Court and this Courtnow considers the substantive issues raised by appellant. Absent a showing of prejudice this Courtwill not interferewith the internal operating rules of the Missoula County DistrictCourt. The standard for review of a District Court's findings and conclusions is the samewhether the DistrictCourthas 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. 

### , 631P.2d 1295, 38 St.Rep. 1162, 1165. Although the practice is disapproved, the fact that the District Court substantially adopted the findingsproposed 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 appellantmust show that the DistrictCourt "act[ed] arbitrarily without employment of conscientious judgment,

or exceed[edl the bounds of reason in view of all the circumstances." Zellv. Zell (1977),174Mont. 216, 220, 570 P.2d 30. Failure to precisely set forthnetworth of parties does not constitute abuse of discretion so long as the findingsas a whole are sufficient to determine networth, In reMarriage of Nunnally (1981), Mont. 

## , 625 P.2d 1159, 38 St.Rep. 529,and the findings themselveswill not be disturbed unless a preponderance of the evidence clearly mandates contrary determinations. Cameron v. Cameron (1978),179 Mont. 219, 587P.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 supportedby the evidence

on record. We cannot agree. No abuse of discretion can be found in findings of factand conclusions of law that: carefully set forth the fair market value, outstanding obligations,and net value of eachmarital 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 thewitnesses' qualifications,experience and demeanor when itmakes its determinations regarding the evidence before it; this Court's function is to review the lower court's findings in light of the record tomake certain the findings are not clearly

erroneous. Jensenv. 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 respondenthas requested that this Court adjudge this appeal to be frivolousand award respondent costs and damages. Where the question of sufficiencyof evidence to support

a lower court's decision or the issue of the lower court's abuse of discretion is reasonably in issue, this Courthas 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 unreasonableto 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), Mont

# . , 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 isbecoming 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 iswrong! See Canon 19,Canons of Judicial Ethics, 144Mont. 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 alongwith 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, ifwe were to do this. Ihave previously expressed in detailmy position on proposed findings and conclusions in .myconcurring opinion to Jensen v. Jensen (1981), -

### Mont

# . - 

## , 631P.2d 700, 704, 38 

### St.Rep. 1109, 1113, and I 

### see no need to belabor thepoint.