NO. 94-215

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

IN RE THE MARRIAGE OF

HILDA BINSFIELD,

Petitioner and Respondent,

and

APPEAL FROM: District Court of the Eighth Judicial District,

In and for the County of Cascade,

The Honorable Joel G. Roth, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Don A. Labar and Royce A. McCarty, Jr.

Attorneys at Law; Church, Harris, Johnson &

Williams, Great Falls, Montana

For Respondent:

E. Lee LeVeque, Attorney at Law;

Conklin, Nybo, LeVeque & Murphy,

Great Falls, Montana

Filed:

Submitted on Briefs: October 28, 1994

Decided: January 19, 1995
Justice Karla M. Gray delivered the Opinion of the Court.

Nicholas H. Binsfield (Nicholas) appeals from the findings of

fact, conclusions of law, and decree entered by the Eighth Judicial

District Court, Cascade County, dissolving his marriage to Hilda

Binsfield (Hilda). We affirm.

We consider the following issues on appeal:

1 . Did the District Court err in denying Nicholas' motion to

compel Hilda to submit to a psychological examination?

2 . Did the District Court err in making an equal distribution

of the marital assets?

3 . Did the District Court err in awarding Hilda an in-kind

distribution of real property?

Nicholas and Hilda were married on September 1, 1956, in

Power, Montana. Prior to the marriage, Nicholas purchased a onehalf interest in his family's farm a few miles south of Great Falls

on the Missouri River; his brother owned the other one-half

interest in the farm. Their father retained a life estate in the

farm. In the early 194Os, Nicholas had purchased approximately 480

acres of land adjacent to the family farm for $2,000.

Hilda lived in Germany and Switzerland before immigrating to

the United States in 1955. While in Europe, Hilda had a son, Anton

Giger, and was married for a period of time.

When Nicholas and Hilda married, Hilda moved onto the family

farm and her son Anton moved to California. Hilda and Nicholas

lived on the farm with Nicholas' brother and father. Nicholas

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farmed full-time, and Hilda performed the duties of a homemaker for

the three men. Nicholas' father died in 1963; his brother died in

1970.

At the time of the dissolution, Nicholas was 83 years old and

Hilda was 81 years old. Nicholas owned nearly 800 acres of land

including all 320 acres of the family farm. The 800 acres had an

appraised value of $546,000. In addition, he held bonds, savings

accounts, and other income-producing property worth approximately

$578,656. All of these assets were held solely in Nicholas' name.

At the time of dissolution, Hilda possessed just over $1,400 in

three bank accounts. She received about $260 per month in social

security benefits and approximately $390 per month in pensions from

the German and Swiss governments for work performed in those

countries prior to her immigration to the United States.

Early in 1993, Hilda was diagnosed as having a brain tumor.

She testified that she was concerned she would not survive. She

asked Nicholas to provide farm land for her son Anton. Hilda

testified that Nicholas replied that Anton could work on the land,

but would never own any of it. This refusal prompted Hilda's

interest in seeking a dissolution. The Mayo Clinic in Rochester,

Minnesota, successfully treated Hilda's tumor.

After returning from the Mayo Clinic, Hilda filed a petition

for dissolution. Nicholas responded, denying that there were

irreconcilable differences between the parties and asserting that

Hilda lacked the mental capacity to petition for dissolution.

Nicholas requested that Hilda's petition be dismissed or, in the

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alternative, that the property and debts of the parties be

equitably divided.

On December 1, 1993, Nicholas moved for an order to show cause

why Hilda should not be compelled under Rule 35(a), M.R.Civ.P., to

submit to a psychological examination. The District Court held a

hearing and denied Nicholas' request. We denied Nicholas'

subsequent application for a writ of supervisory control on the

issue.

After a bench trial, the District Court entered a "bare"

decree of dissolution because Hilda's counsel was concerned that

none of the marital property was in her name and that one of the

parties might die before the decree of dissolution was entered. On

February 24, 1994, the court entered its findings of fact,

conclusions of law, and decree.

The District Court evenly divided future crop and annuity

payments and awarded Nicholas and Hilda personal property worth

$13,395 and $2,685, respectively. Nicholas received the farmstead

and five acres worth $30,000, and the court ordered the remainder

of the farm property, worth $516,000, divided evenly between the

parties. The division was to be accomplished by Nicholas dividing

the remaining acres into two parcels of approximately equal size

and value and permitting Hilda to choose the parcel she preferred.

To account for the disproportionate amount of personal and real

property Nicholas received, the court awarded Hilda investments

worth $309,683; Nicholas was awarded investments worth $268,973.

The assets each party received totalled approximately $626,902.

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Nicholas appeals.

Did the District Court err in denying Nicholas' motion to

compel Hilda to submit to a psychological examination?

Nicholas moved the court to compel Hilda to submit to a

psychological examination pursuant to Rule 35(a), M.R.Civ.P., which

states in relevant part:

When the mental or physical condition (including the

blood group) of a party . . is in controversy, the

court in which the action is pending may order the party

to submit to a physical or mental examination by a

suitably licensed or certified examiner . . . The

order may be made only on motion for good cause shown and

upon notice to the person to be examined and to all

parties and shall specify the time, place, manner,

conditions, and scope of the examination and the person

or persons by whom it is to be made.

The language of the rule is discretionary. It authorizes, but does

not require, a district court to order a party to submit to a

psychological examination when the party's mental condition is in

controversy and good cause is shown. We will not reverse a court's

discretionary determinations absent an abuse of discretion. In re

Marriage of Rada (19941, 263 Mont. 402, 405, 869 P.2d 254, 255.

We previously have interpreted Rule 35(a) in the context of

criminal cases in which a defendant sought to compel a victim to

submit to a physical or psychological examination. In those

circumstances, we consistently held that Rule 35(a) was not

applicable because the victim was not a party to the proceeding.

See State v. Little (1993), 260 Mont. 460, 468, 861 P.2d 154, 159;

State v. Goodwin (1991), 249 Mont. 1, 18-19, 813 P.2d 953, 964;

State v. Gilpin (1988), 232 Mont. 56, 67, 756 P.Zd 445, 451; State

v. Liddell (1984), 211 Mont. 180, 191, 685 P.2d 918, 924. Those

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cases provide no authority for, or guidance in, resolving the issue

presently before us.

The United States Supreme Court interpreted Rule 35(a) of the

Federal Rules of Civil Procedure, upon which Montana's Rule 35(a)

is based, in Schlagenhauf v. Holder (1964), 379 U.S. 104, 85 S.Ct.

234, 13 L.Ed.2d 152. In that case, a party filed suit based on an

accident between a bus and a tractor-trailer. One of the parties

alleged that the driver of the bus was neither physically nor

mentally fit to drive a bus at the time of the accident. The party

moved to compel the bus driver to submit to various physical and

mental examinations pursuant to Rule 35(a), F.R.Civ.P.

In vacating the lower court's order allowing the examinations,

the Supreme Court focused on the rule's "in controversy" and "good

cause" language. It noted that the "in controversy" and "good

cause" requirements:

are not met by mere conclusory allegations of the

pleadings--nor by mere relevance to the case--but require

an affirmative showing by the movant that each condition

as to which examination is sought is really and genuinely

in controversy and that good cause exists for ordering

each particular examination. . . . Rule 35, therefore,

requires discriminating application by the trial judge,

who must decide, as an initial matter in every case,

whether the party requesting a mental or physical

examination or examinations has adequately demonstrated

the existence of the Rule's requirements of " in

controversy" and "good cause" . .

Schlaaenhauf, 379 U.S. at 118-19.

In the present case, Nicholas submitted several affidavits and

presented witnesses at a hearing regarding the possible necessity

of a psychological evaluation. He testified that Hilda's petition

for dissolution was unexpected and unusual. Based on a review of

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Hilda's medical records, a psychologist testifying for Nicholas

stated that Hilda "may" lack the mental capacity to make her own

decisions and that it would be difficult to determine her capacity

via an interview or question and answer format. The psychologist

had never met or talked to Hilda; nor was his testimony relating to

her possibly deficient mental capacity based on any personal

observation of her. Hilda testified on her own behalf at the

hearing. After listening to Hilda's testimony, the District Court

stated:

I've been observing Mrs. Binsfield ever since we've

been in court here. I must admit now, based upon her

testimony here, both on cross and on direct, there's

really little doubt in my mind but what this lady is

competent. She knows what she's doing.

Later, the court added: "I'm satisfied after having heard this lady

[Hildal that she does know what [she is1 doing."

Applying the Schlaqenhauf standard here, it is clear that

Nicholas relied on speculative and conclusory testimony by a

psychologist who had no personal knowledge of Hilda or her mental

capacity. He made no affirmative showing that Hilda's mental

capacity was genuinely in controversy. See Schlaqenhauf, 379 U.S.

at 118. We conclude that such evidence is wholly inadequate to

meet Nicholas' initial burden of establishing the existence of the

"in controversy" and "good cause" requirements of Rule 35(a),

M.R.Civ.P.

Nicholas relies on In re Marriage of Tesch (1982), 199 Mont.

240, 648 P.2d 293, in support of his argument that the court should

have ordered a psychological examination. His reliance is

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misplaced.

In Marriaqe of Tesch, the husband obtained a default

dissolution from his wife, who was almost totally incapacitated by

multiple sclerosis. At the hearing prior to entry of the default

judgment, both the husband and his attorney informed the court that

they believed the wife was competent; neither the wife nor a

representative of the wife was present. After the district court

entered the default dissolution, the wife moved to set aside the

judgment. The district court denied the wife's motion. We

reversed on appeal, noting that:

[tlhe wife is totally disabled by multiple sclerosis.

Such a disability, in itself, might warrant the setting

aside of the default judgment. Here, however, other

circumstances also support the setting aside of the

judgment. Nothing on the record addresses the question

of the wife's competency or her voluntary relinquishment

of her interests in the farm. . We emphasize that

the crucial problem with this case is that nowhere are

the desires of the wife on record.

Marriaqe of Tesch, 648 P.2d at 296-97.

Here, unlike in Marriaqe of Tesch, the District Court held a

separate hearing to determine the merits of Nicholas' motion to

require Hilda to submit to a psychological examination. As a

result, the record before the trial court and this Court does

address the question of Hilda's mental capacity and desires.

Indeed, Hilda testified on her own behalf, providing the court the

ability to determine whether Hilda's mental capacity was genuinely

in controversy and whether good cause was established to compel her

to submit to a psychological examination. Noting that none of the

marital property was in her name and that Nicholas had informed her
that Anton would not receive any of the farm land, Hilda voiced her

concerns that she would die without providing for her son Anton.

Hilda adequately informed the court of her desires and demonstrated

her mental capacity to the court's satisfaction. We hold that the

District Court did not abuse its discretion in denying Nicholas'

motion to compel Hilda to submit to a psychological examination.

Did the District court err in making an equal

distribution of the marital assets?

The distribution of the marital estate is controlled by § 40-

4-202, MCA, which provides in relevant part:

(1) In a proceeding for dissolution of a marriage . .

the court, without regard to marital misconduct, shall ,

finally equitably apportion between the parties the

property and assets belonging to either or both, however

and whenever acquired and whether the title thereto is in

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

This statute vests the district court with broad discretion to

apportion the marital estate in a manner which is equitable to each

party under the circumstances. In re Marriage of Zander (1993),

262 Mont. 215, 221, 864 P.2d 1225, 1229. When a district court's

findings of fact regarding marital property distribution are not

clearly erroneous, and when substantial credible evidence supports

the findings and judgment, we will not alter a district court's

marital property division absent an abuse of discretion. In re

Marriage of Maedje (1994), 263 Mont. 262, 265-66, 868 P.2d 580, 583

(citations omitted).

Nicholas argues that an equal division of the marital assets

is inequitable in this case. His position is based on assertions

that he brought most of the assets into the marriage with him; the

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District Court did not trace several of his "E Series" savings

bonds as premarital assets; some of the savings bonds are in both

his and his sister's names; the court incorrectly valued a pickup

and trailer; and the court failed to consider Hilda's dissipation

of the marital estate.

A t the time of the parties' marriage, Nicholas owned

approximately 480 acres of land in his own name and a one-half

interest in his father's 320 acre farm, with his father retaining

a life estate. During the marriage, he inherited another portion

of the farm and money with which he acquired the remainder.

Nicholas testified that he had other assets prior to his marriage;

his testimony was vague, however, regarding the value of these

assets.

When dividing property acquired prior to the marriage or

through inheritance, a district court must consider the

contributions of the other spouse, including the nonmonetary

contribution of a homemaker, the extent to which such contributions

facilitated the maintenance of the such property, and whether the

property division serves as an alternative to maintenance

arrangements. See § 40-4-202(I), MCA. Here, it is apparent from

the District Court's extensive findings of fact that Hilda's

contributions as a homemaker and general farmhand substantially

contributed to the maintenance of the property that Nicholas

brought into and acquired during the marriage. The District Court

made a separate finding addressing dozens of household and farmrelated tasks Hilda routinely performed during the 37year

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marriage. In addition, Hilda was not awarded maintenance in the

dissolution. We conclude that the District Court did not abuse its

discretion by including the properties Nicholas brought into the

marriage and inherited during the marriage in the marital estate.

With regard to the Series E savings bonds, Nicholas testified

that he believed all of the bonds were purchased prior to his

marriage. However, the only documentary evidence regarding the

bonds was the accounting of Nicholas' brother's estate. Based on

that accounting, the District Court found that only 3 of 10 bonds

in Nicholas' and his brother's names were purchased in 1943 and the

remainder were purchased after 1956, the year Nicholas and Hilda

married. The three premarital bonds owned by Nicholas had a value

of only $550.32 sixteen years after the marriage, and no evidence

of their value at or around the time of the parties' marriage was

introduced.

The District Court properly could have separated the value of

these premarital assets only where sufficient evidence was

presented to trace the assets and their value to a time before the

marriage. See In re Marriage of Miller (1989), 238 Mont. 197, 203-

04, 777 P.2d 319, 324. No such evidence was presented here. We

conclude that the District Court's findings regarding the bonds

were not clearly erroneous.

We decline to address Nicholas' argument that the court erred

in distributing the value of bonds which included his sister as an

alternate payee. Nicholas did not object to the inclusion of the

bonds in the marital estate on this basis in the District Court.

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We will not entertain issues raised for the first time on appeal.

In re Marriage of Prescott (19931, 259 Mont. 293, 299, 856 P.2.d

229, 232-33.

Nicholas also contends that the court erred in valuing a

pickup truck and a trailer. At trial, Nicholas testified that the

value of the truck was $3,800 and the value of the trailer was

$1,500. Hilda's son Anton testified that he believed the truck was

worth about $6,000 and the trailer worth $2,500. The court used

Anton's valuation for the truck and Nicholas' valuation for the

trailer. We conclude that there was sufficient evidence to support

the District Court's valuation of the pickup truck and the trailer.

Nicholas further argues that the court erred by failing to

include some of Hilda's assets in the marital estate. These assets

were the monies contained in three bank accounts totaling $1,424.70

at the time of the dissolution hearing. While the District Court

did err in failing to make findings regarding the $1,424.70, we

conclude that the error was harmless in the context of the District

Court's equal distribution of a marital estate valued at more than

$1.2 million.

Finally, Nicholas contends that the division of the marital

estate is inequitable because the District Court did not consider

Hilda's dissipation of the marital estate. Nicholas argues that

Hilda's failure to save her pension money and alleged gifts of

money to Anton's father constituted dissipation of the value of the

marital estate to an extent that the District Court was compelled

to take into account in distributing the marital assets. We

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disagree.

We have stated that any finding of dissipation must be

supported by substantial evidence. In re Marriage of Stewart

(1988), 232 Mont. 40, 43, 757 P.2d 765, 767. In the present case,

Hilda testified that she used her pension money for household items

and gave some money to her son Anton. She denied that she had

given any money to Anton's father. In addition, Hilda was

inordinately frugal throughout the marriage and this frugality

aided in the acquisition and preservation of marital assets. We

conclude that the District Court did not err in failing to find

that Hilda dissipated the marital estate.

We hold that the District Court did not err in making an equal

distribution of the marital assets.

Did the District Court err in awarding Hilda an in-kind

distribution of real property?

The District Court awarded the family home and the five acres

upon which it sits to Nicholas. The court also awarded each of the

parties one-half of the remaining real property acreage. The court

adopted a method of division whereby Nicholas was to divide the

property in half, excluding the five-acre homestead, and Hilda was

to choose one of the parcels. Where substantial credible evidence

supports a district court's findings and judgment distributing a

marital estate, this Court will not alter that decision absent an

abuse of discretion. Marriaqe of Maedie, 868 P.2d at 583.

Nicholas correctly relies on In re Marriage of Glass (1985),

215 Mont. 248, 258, 697 P.2d 96, 102, for the proposition that

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Montana's policy in favor of keeping a family farm intact may be

considered in distributing marital property after it has been

allocated. No authority is cited, however, and we have located

none, in support of the proposition that a family farm must be

retained intact.

Here, the District Court did not maintain the unity of the

family farm. Under the circumstances before us--where Hilda lived

on the farm for 37 years, is 81 years old and expressed her desire

to remain on the farm--we cannot conclude that the District Court

abused its discretion in ordering that the farm be divided.

In addition, we previously have approved a method of dividing

a family ranch in a dissolution proceeding similar to that used by

the District Court here. In re Marriage of Hancock (1987), 226

Mont. 383, 736 P.Zd 101. In Marriaqe of Hancock, we stated that

"[t]he method employed by the lower court will generally result in

an equal division. The party drawing the dividing line is

essentially forced to make an equal partition. Otherwise, he risks

receiving the smaller parcel left after the other party chooses."

Marriaqe of Hancock, 736 P.2d at 102. We hold that the District

Court did not err in awarding Hilda an in-kind distribution of real

property.

Affirmed.

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