In Re the Marriage of Yadon , 216 Mont. 59 ( 1985 )

No. 84-450
IN THE SUPREIW COURT OF THE STATE OF MONTANA
1985
IN RE MARRIAGE OF
lQILMA YADON ,
Petitioner and Respondent,
and
ARTHUR LYNN YADON,
Respondent and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Joseph B. Gary, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Bolinger & Conover; H.A. Bolinger, Bozeman, Montana
For Respondent:
Bryan & Atkins; Mark Bryan, Bozeman, Montana
Submitted on Briefs: March 7, 1985
Decided: May 2, 1985
Filed: ' ij85
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Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
This is an appeal from the District Court of the
Eighteenth Judicial District in and for the County of
Gallatin, concerning the distribution of the parties' marital
assets. We affirm.
After thirty-nine years of married life, and after
raising five children, who are now adults, the parties in
this action agreed to dissolve the marriage. The respondent
(wife), at the time of the separation, was fifty-six years of
age and had completed her first year of high school. She
currently has serious medical problems which required
hospitalization shortly before trial. Her condition will
require ongoing medical treatment and medication for the
remainder of her life. The appellant, (husband) is
fifty-eight years of age. He has made a living for the past
fourteen years as an outdoor guide, operating the Bighorn
Outfitters, a guide business, in Manhattan, Montana. In
addition to serving as a guide for hunting parties, the
husband engaged in farming on leased property. In 1981 the
farm was sold, and as a result he lost the leases.
During the marriage the parties accumulated major
assets which include a house valued at $60,000 and real
property valued at $45,000. For the past several years, the
guide business has earned approximately $15,000 per year in
family income. The wife served as the booking agent for the
guide business as the business was operated out of the home.
The wife made reservations for the various hunting parties
that called in from around the country.
The decree from the District Court dissolving the
marriage decreed the division of the real property, awarded
the guide and outfitting business to the husband, and awarded
maintenance to the wife. The court awarded the wife the
family home, one acre of la.nd and $500 per month maintenance.
The court awarded the husband the use of 19.59 acres of
pasture land. The land was subject to a lien to secure the
payment of the maintenance money awarded the wife, with the
provision that if the pasture land was sold the husband would
purchase an annuity with proceeds to insure the maintenance
payments to the wife. The decree further provided that in
the event of the death of the husband, prior to the wife's
death or remarriage, the maintenance payments would continue
to be a lien against the estate of the husband. The court
also awarded the husband the assets of the outfitting
business, subject to the husband making payment on a marital
debt of $12,000.
This Court is asked to determine the following:
(1) The establishment of the value of the house and
business;
(2) how the major assets are to be divided; and
(3) the wife's maintenance and costs in the
proceedings.
Concerning the first issue, the record establishes that
both parties agreed that a Michaela Shyne, a certified
property appraiser, would appraise the property. The
appraisal fee was to be paid by the husband. The appraisal
was introduced in evidence and. showed that the house and
property were valued at $105,000. The wife testified in
support of the appraisal. The husband testified that the
house and property should be valued at $80,000 but offered no
documentation to support his opinion.
As to the evaluation of the family's outfitting
business, there were several evaluations submitted to the
court for consideration: (1) the business could be valued as
a going concern; or (2) the value could be determined by the
assets held by the business. The husband testified that at
the time of trial he had $23,334.74 worth of advance bookings
for the 1984-85 hunting season. This figure represents only
one-half of the total amount to be paid by the hunters. The
wife offered the only testimony as to the value of the
business as a going concern. Wesely C. Carlisle, the family
accountant for the past four years, testified that using a
net-income investment approach, the value of the business was
$161,852.
Contradictory evidence was offered by both sides as to
the value of the assets held by the business. The assets
consisted of three hunting permits, one on Burlington
Northern land, which could be transferred, and two Forest
Service permits which could be transferred if there were a
total sale of the business but could not be transferred as a
matter of right. Additional assets set forth as exhibits
before the court included hunting equipment, horses, saddles,
vehicles and other items.
In addition to the testimony of the wife and the
husband as to the value of the guide business, a Robert
Arnaud, a guide and outfitter, gave the court a valuation of
the business' assets. The court also received the testimony
of Denise Hassel, a daughter of the parties who is an
insurance underwriter. She submitted evidence of an audit
and value of the business assets.
The husband raises the issue that the court erred in
not establishing a value of the entire marital assets as
required by section 40-4-202, MCA. This appears in the
court's finding no. 18. The husband argues that the court's
failure would lead to an inequitable distribution of assets
and the impossibility on the part of the husband to pay the
maintenance as ordered.
Admittedly the court had difficulty in its evaluation
of the family business. However, in order to understand the
court's findings, necessary to list findings 17 through
"17. That the Petitioner argued that the
value of the business assets were
approximately FIFTY THOUSAND DOLLARS
($50,000.00), but because of the value of
Forest Service and Burlington Northern
permits, a customer list, and a special
life style, the true value of the
business is in the range of ONE HUNDRED
SIXTY-ONE THOUSAND DOLLARS ($161,000.00).
"18. That the Respondent valued the
outfitting business at NINETEEN THOUSAND
EIGHT HUNDRED SEVENTY-FIVE DOLLARS
($19,875.00) . That while the Supreme
Court has directed that the Court find
the value of the marital assets, by
reason of the diversity of opinion of the
outfitting business from ONE HUNDRED
SIXTY-ONE THOUSAND DOLLARS ($161,000.00)
on the high side to NINETEEN THOUSAND
EIGHT HUNDRED SEVENTY-FIVE DOLLARS
($19,875.00) on the low side, and nothing
in between for the Court to arrive at an
evaluation, the Court is not going to
value the entire marital assets including
the outfitting business but shall
distribute the same in accordance with
what the Court believes is an equitable
distribution considering all of the
various factors.
"19. That the Court accepts the higher
value of the business assets presented by
the Petitioner totalling FIFTY THOUSAND
DOLLARS ($50,000.00) , but rejects
additional values placed on incalculable
variables like 'life style.'"
It is obvious that the husband took his statement out
of context in an attempt to find a basis for his appeal. A
reading of the findings of fact as a whole, clearly indicates
that all of the marital assets with values were considered
by the court in reaching an equitable distribution of the
marital estate. The court specifically set forth the values
as to each major item of marital property and even set forth
the most minor items down to the degree of establishing a
five dollar value for a magazine rack in finding no. 9.
It is clear that the language used by the District
Court in finding no. 18 concerns a specific evaluation of the
family business. Here, the District Court valued the
business on the basis of the value of its assets and not as a
going concern. The court established the value of the assets
at $50,000. This value favored the husband by lowering the
value on the assets distributed to him over the $161,000
figure the wife had established.
As previously noted in reaching its evaluation, the
court heard the testimony of (1) the wife; (2) the bookeeper
of the business; (3) the husband who operated the business;
(4) Robert Arnaud, an experienced outfitter who had worked
with the assets; (5) Denise Hassel, a daughter of the
parties, who prepared the audit on the assets for insurance
purposes; and (6) James Walmo, an experienced outfitter.
Obviously there was abundant evidence before the court to
establish its evaluation of the business. No error was made
by the court's statement in instruction no. 18.
Issue two concerns the major assets and how they were
divided. This issue ties in with the first issue. As
previously noted, the court had considerable evidence to make
a decision on the distribution of those assets. The court
did so in such a manner as to provid-e for the husband's
continued operation of the outfitting business. The income
figures testified to would not only take care of his needs,
but care for the maintenance of his ex-wife. The court, as
best it could, determined the profitability of the hunting
business based on the previous years and the reservations
made for the 1984-85 hunting season. While the husband did
not receive what he wanted, his contention that the division
of the marital assets was erroneous and inequitable is
without merit.
This Court in numerous cases has set the standard of
review in marital distribution cases. In Re the Marriage of
Osteen (Mont. 1985) P.2d , 42 St.Rep. 522; Vert v.
Vert (Mont. 1984), 680 P.2d 587, 41 St.Rep. 895; In Re
Marriage of Thompson (Mont. 1984), 676 P.2d 223, 41 St.Rep.
237; Cameron v. Cameron (1978), 179 Mont. 219, 587 P.2d 939.
In Thompson, supra, we stated:
"The standard of review of a district
court ruling as set forth in our Rule
5 2 ( a . ) , M.R.Civ.P., as follows:
"'Findings of fact shall not be set aside
unless clearly erroneous, and due regard
shall be given to the opportunity of the
trial court to judge the credibility of
the witnesses.'" Thompson, 676 P.2d at
225.
We conclude the findings of fact and conclusions of law are
not clearly erroneous
The final issue raised by the appellant addresses the
court's award of maintenance to the wife. The husband
alleges the maintenance places a financial burden upon him
that he is unable to comply with.
The award of maintenance always places a financial
burden on the supporting spouse. Here, the wife is
fifty-seven years of age. She suffers from serious medical
problems which require continual medical treatment and
medication. She even lacks a high school education that
might otherwise open job opportunities for her. The husband,
on the other hand, is engaged in an outfitting business.
Over a four year period, the business has earned a net income
of $15,376 per year. Most business expenses including gas,
food, clothing, insurance and vehicle maintenance were
claimed by him. The husband was awarded the business
property. The wife was awarded the house and one acre which
surrounded it. Although the house is a valuable asset, it is
not an income producing asset. Therefore, it was necessary
for the court to award $500 per month maintenance to meet the
wife's needs. We find the District Court did not err for
failing to amend its findings of fact and conclusions of law
as requested by the husband's motion to amend. Rule 59(a),
M.R.Civ.P., provides the ground for a new trial. The rule
states that the movant must "state with particularity, the
grounds therefore." Here the sole basis of the husband's
motion for a new trial was that the respondent-husband was
"not in good health." None of the statutory requirements for
a new trial were presented, nor was the health of the husband
raised as an issue until he filed a counterclaim on March 9,
1984. He failed to produce any evidence at trial that would
establish poor health and this is, in our opinion, a specious
allegation at this point.
The wife argues that the appeal here is frivolous and
that und-er Rule 32 Montana Rules of Appellate Civil Procedure
the appeal by the husband is frivolous because: (1) it is
taken without substantial or reasonable grounds; and (2) it
is taken for the purpose of delay. While there may be some
merit to her argument, in view of the issue raised by the
appellant, we will not assess damages against the husband.
The judgment of the District Court is affirmed.
P
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We concur: