No. 86-76 INTHE SUPREME COURT OF THE STATEOF MONTANA 1986

INRE THEMARRIAGE OF LINDA S. REICH, Petitioner,Counter-Appellant and Respondent, and KEITHA. REICH, Respondentand Appellant.

APPEAL FROM: DistrictCourt 

### of the Thirteenth JudicialDistrict, Inand for the County ofYellowstone, TheHonorableRobert Holmstrom,Judgepresiding.

COUNSEL OF RECORD:

ForAppellant: Kinnard & Woodward; Vernon E. Woodward, Billings, Montana

ForRespondent: English & Lee;Bruce E. Lee,Billings,Montana

Submitted onBriefs: May 9,1986 Decided: June 20, 1986

Filed: 

## JUN20

## 1986

- - .- ClerkMr. JusticeFred J. Weber delivered the Opinion of the Court.

This is an appeal of the property distribution in a dissolution of marriage entered by the Yellowstone County DistrictCourt. We affirm inpart and remand in part. The issues raisedby thehusband are:

(1) Did the District Court abuse its discretion in setting the value of certain corporate equipment at $40,000? (2) Did the District Court err by awarding a corporate asset to thewife aspart of theproperty division? On cross appeal thewife raises these issues:

(3) Did the District Court err by awarding the wife less than one-half of the marital estate after specifically findinga 50/50divisionwas appropriate? (4) Should husband be ordered to pay wife's attorney fees incurredon appeal? A hearing was held on the wife's petition for dissolution ofmarriage in October 1985. At the time of the hearing the parties had not agreed on the disposition of their marital property. The District Court entered its findings and conclusions, and after motion by the wife and a hearing, those findings and conclusions were amended. The decree of dissolution was entered in December 1985. The District Court held in its original order that an equal division of the marital estate was appropriate. In its amended order, the court found that theparties' networthwas $132,658.60. The court awarded the wife property with a total net value of $62,526.43. Among other property, the court awarded the husband his 100% interest in his business corporation,Reich Geophysical,Incorporated.I Did the District Court abuse its discretion in setting the value of certain corporate equipmentat $40,000? The husband challenges the District Court's finding that: "The Petitioner submitted evidence reflecting that the value of [certain logging equipment] was $40,000.00 

# ...."
He argues that there was no evidence that the the value of the logging equipment, which is owned by his business corporation, is $40,000. The husband testified that the logging equipment had a fair market value ofbetween 30 and 40percent of the original purchase price. His valuation of $28,350was 35 percent of the original purchaseprice. The court received evidence that the equipment was carried on the corporate books at a value of $80,960.51. It further received into evidence a letter fromNorwest Bank inwhich thevalue of the equipment

was stated as $100,000. Also admitted into evidence was a certificate of insurance showing that the 1.oggingequipment

was insured for $64,224. It is true that there was no testimony before the District Court that the value of the logging equipment was exactly $40,000. However, this Court has held that a district court is free to find a value for marital property within the range of the evidence submitted. In re Marriage of Staudt (Mont. 1985), 700 P.2d 175, 179, 42 St.Rep. 740, 744. We will not set aside a district court's finding of fact unless the finding represents an abuse of discretion. Reese v. Reese (1979), 185 Mont. 52, 55, 604 P.2d 326, 328. We conclude that valuation of the logging equipment at $40,000 is supported by the evidence and is not an abuse of the District Court'sdiscretion.I1 Did the District Court errby awarding a corporate asset to thewife as part of theproperty division? The husband contends that award of the 1981 Ford pickup truck to thewifewas error because title to the truckwas in Reich Geophysical, Inc. In the husband's proposed findings, he suggested distributing the truck to the wife. He now cites Buxbaum v. Buxbaum (Mont. 1984), 692 P.2d 411, 41 St.Rep. 2243,as authority that in a dissolution ofmarriage,

a corporate asset should not be distributed to the wife who did not hold any shares in the corporation. Here the District Court recognized that the wife's automobile was not reliable and that the husband had a car furnished to him by the corporationand that the corporationalsohad a 1981Ford pickup. The District Court then apparently concluded that because the husband was the sole shareholder of the corporationhe was able to cause the asset tobe transferred,and it awarded the Ford pickup to the wife. It is technically true that the District Court did not have the power to order the distribution of corporate property where the corporation itselfwas not a party to themarital dissolution. However,
our reviewof the record demonstrates that the District Court carefully reviewed all of the assets of the parties, including all of the various assets owned by the corporation,which in turn was owned solely by the husband. We conclude that there was a proper factualbasis for the distribution of the pickup to the wife. However, we also recognize that the husband is technicallycorrect as amatter of law. We remand to the District Court with the following instructions: Within 30 days of the issuance of remittitur in this cause the husband shall filewith the District Courthis election to accept the distribution of the 1981 Ford pickup truck to the wife or in the alternative to accept a property substitution equal in value to the $7,500 assigned to the truck. Thereafter the District Court shall amend its property distribution to coincide with that election, if amendment is required. I11 Did the District Court err by awarding the wife less than one-half themarital estate after specifically findinga 50/50divisionwas appropriate? This issue is raised by the wife on cross appeal. She points out that in its original findings of fact and conclusions of law the court awarded her approximately one-half of the marital estate. The total net worth of the parties was set at $117,658.60 and thewifewas awarded net assetsvalued at $58,776.43. The court's original findings and conclusions,however, were later amended to include in themarital estate the uncontestedvalues of the 1981 Ford pickup and of
a 1980Datsun 280 ZX. Titles to both of these vehicles were held by the husband's business corporation but they were erroneously left out of calculation of the net worth of the corporation. The court amended its findings and conclusions to increase the parties' total net worth to $132,658.60. However, it increased the wife's award by only $3,750, so that the total assets awarded to her were $62,526.43. She argues that she is entitled to another $3,750 in net assets so that she receives half of the net marital estate. We recognize that in concluding that the estate should be divided 50/50, the District Court may not have concluded that a precise mathematical division was required. We do not wish to take the place of the District Court in making thisdecision. We therefore remand this issue to the District Court for further consideration and for an amendment to its property division, if it concludes that such an amendment is appropriate. IV Should husband be ordered to pay wife's attorney fees incurred on appeal? The wife argues that husband's appeal is notwell taken and borders on being frivolous. She therefore requests that the court award her her attorney fees on appeal. The wife cites no authority in support of this request and we note that the parties were each ordered to pay their own attorney fees in the action before the DistrictCourt. Additionally, husband has made a valid legal argument in his second issue. We conclude that the husband should not be ordered to pay wife's attorney fees on appeal. Affirmed in part and remanded to the District Court for modifications as requiredby this Opinion.

We Concur: