In Re the Marriage of Mouat , 228 Mont. 430 ( 1987 )

No. 87-101
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
IN RE THE MARRIAGE OF
HELEN MOUAT,
Petitioner and Respondent,
and
DONALD MOUAT,
Respondent and Appellant.
APPEAL FROM: District Court of the Sixteenth Judicial District,
In and for the County of Treasure,
The Honorable Alfred B. Coate, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Harris & Seidler; Linda L. Harris, Billings, Montana
For Respondent:
Michael M. Morse, Billings, Montana
Submitted on Briefs: Aug. 20, 1987
Decided: September 24, 1987
Filed:
- -
Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
This is an appeal from a dissolution of marriage heard
before the Honorable Alfred B. Coate in the Sixteenth
Judicial District. The District Court directed the division
of the marital estate by issuing findings of fact,
conclusions of law, and an order dated November 25, 1986.
Appellant, Donald Mouat, appeals the property division of the
martial estate. The sole issue presented for review is
whether the District Court committed error by failing to make
specific findings of fact and conclusions of law considering
the elements of 5 40-4-202, MCA, resulting in an abuse of
discretion in distributing the marital estate. We affirm the
decision of the District Court but remand for the correction
of a minor error.
Donald and Helen Mouat were married in 1949 and had
four children. All of the children have reached the age of
majority.
At the time of dissolution, the marital estate included
the following real property: (1) the Mouat farm, including a
house; (2) an 80 acre pasture; (3) a country home; and
(4) a home in Hysham, Montana. The farm was purchased from
Donald Mouat's parents in 1962. The farm was leased to
another individual beginning in the mid 1970s. The house
located in Hysham was purchased in approximately 1974 from
Donald's brother. Other major assets in the marital estate
included livestock and a significant amount of machinery and
equipment.
Helen Mouat has worked as a secretary for the Hysham
Public School since 1973. Prior to that date, Helen devoted
her efforts to raising the Mouat children, acting as
housewife, and assisting with the farm operation. Donald
spent the majority of his efforts maintaining and operating
the family farm until the time it was leased. He has also
worked in maintaining a dragline business. The record and
the District Court's findings of fact indicate both Helen and
Donald made substantial contributions to the marital estate.
Following a hearing, the District Court issued findings
of fact and conclusions of law dividing the marital estate.
The major assets and liabilities were identified and valued.
According to that valuation, the District Court distributed
the marital estate so that Helen and Donald each effectively
received approximately fifty percent of the total value of
the estate. Specifically, finding of fact number 43 found
that the marital estate should be divided in the following
manner:
Respondent Petitioner
(Donald Mouat) (Helen Mouat)
Farm land $67,981.00 Country home $31,200.00
80 acres grazing Town home 28,500.00
land 800.00 1964 Ford pickup 300.00
farm home 37,500.00 Shasta trailer 500.00
balance of Sears riding
machinery 14,300.00 mower 300.00
1 herd bull 500.00 32 cows with calves l8,4OO.OO
15 heifers with 3 dry cows 1,050.00
8 calves 5,410.00 PERS Account 3,187.00
$126,491.00 Petitioner's bank
account
Less debt
Plus cash
Less cash -10,043.11
$92,545.10
Respondent's bank
account 1,235.00
$93,780.10
As indicated, Donald was ordered to pay $10,043.11 so as to
create a division which would give each party roughly fifty
percent of the value of the total estate. Donald appeals
from this property division alleging the District Court
failed to consider certain requirements of S 40-4-202, MCA,
and therefore abused its discretion.
The standard of review which must be implemented
regarding an issue of this nature has been stated many times:
In dividing property in a marriage
dissolution the district court has far
reaching discretion and its judgment will
not be altered without a showing of clear
abuse of discretion. The test of abuse
of discretion is whether the trial court
acted arbitrarily without employment of
conscientious judgment or exceeded the
bounds of reason resulting in substantial
injustice. In re Marriage of Vert
(Mont. 1984), 680 P.2d 587, 41 St.Rep.
895.
In re the Marriage of Rolfe (Mont. 1985), 699 P.2d 79, 83, 42
St.Rep. 623, 626. See also, In re the Marriage of Manus
(Mont. 1987), 733 P.2d 1275, 1278, 44 St.Rep. 398, 403; In re
the Marriage of Tonne (Mont. 1987), 733 P.2d 1280, 1282, 44
St.Rep. 411, 412-413; and In re the Marriage of Hundtoft
(Mont. 1987), 732 P.2d 401, 402, 44 St.Rep. 204, 205.
Section 40-4-202(l), MCA, states, in pertinent part,
that:
[Tlhe court shall consider the duration
of the marriage and prior marriage of
either party; antenuptial agreement of
the parties; the age, health, station,
occupation, amount and sources of income,
vocational skills, employability, estate,
liabilities and needs of each of the
parties; custodial provisions; whether
the apportionment is in lieu of or in
addition to maintenance; and the
opportunity of each for future
acquisition of capital assets and income.
(Emphasis added.)
Specifically, Donald Mouat asserts the District Court failed
to consider nine items: (1) duration of the marriage; (2)
health of the parties; (3) the occupation of Helen; (4)
amount and sources of income; (5) actual skills of Donald;
(6) employability of the parties; (7) opportunity for
future acquisition of real property and assets; (8) source
of marital property; and (9) needs of the parties.
We have considered similar claims on many past
occasions. In distributing the marital estate, the district
court must consider those factors explicitly set out in
5 40-4-202, MCA. In re the Marriage of Tomaskie (Mont.
1981), 625 P.2d 536, 538, 38 St.Rep. 416, 418. Further, we
have stated:
This Court recognizes that the trial
court must evidence the basis of its
ultimate conclusion in the findings of
fact. However, the statutory guidelines
promulgated in 40-4-202, MCA, were not
designed as requisite criteria to be
individually itemized in every property
distribution decree.
In re the Marriage of Ziegler (Mont. 1985), 696 P.2d 983,
987, 42 St.Rep. 298, 302.
In the case of In re the Marriage of Hundtoft (Mont.
1987), 732 P.2d 401, 402, 44 St.Rep. 204, 205, 206, we
stated:
While articulation of these factors is
encouraged, the absence of specific
findings does not automatically warrant
remand:
"It is not the lack of specific findings
which constitutes reversible error, but
the lack of substantial evidence to
support the judgment. We look both to
the District Court's express reasoning
and the evidence in the record to
determine whether ample evidence exists.
In re the Marriage of Peterson (Mont .
1984), 683 P.2d 1304, 1307, 41 St.Rep.
1252, 1256 (quoting Frazier v. Frazier
(Mont. 1984), 676 P.2d 217, 219-20, 41
St.Rep. 233, 236).
The above cited cases dictate that while the district court
must conscientiously consider all the elements of
$ 40-4-202(1), MCA, it need not itemize and explain each
separate element. With these rules in mind, we examine
Donald's contentions:
1. Duration of the marriage. This contention is
without merit. The District Court made a specific finding
regarding the date Donald and Helen were married. Donald
also indicates here that Helen's contribution to the marital
estate during portions of their 37 years of marriage was less
than substantial. However, there is substantial credible
evidence demonstrating that both Helen and Donald contributed
substantially to the marital estate.
2. Health of the parties. Here it is contended that
there was no consideration of the health of either of the
parties. This contention borders on frivolous. The findings
of fact specifically address the health of both parties.
These findings are made from evidence presented within the
record.
3. Occupation of Helen. Donald contends the District
Court placed little emphasis on Helen's occupation and her
future income. This contention is without merit since the
findings made specific reference to Helen's occupation and
that both parties are severely limited in their employability
outside their present occupations.
4. Amount and sources of income. Donald states his
future income will be severely limited by the division.
However, the record indicates the District Court considered
other potential sources of income including the farm lease,
cattle sales, draqline work, and future social security
benefits.
5. Actual skills of Donald. Donald contends the
District Court failed to consider that Helen has established
an occupational skill, while he has few skills outside
farming. No abuse of discretion exists regarding this
contention since the District Court specifically eluded to
the employability and present occupations of both Helen and
Donald.
6. Employability of the parties. This contention
tends to overlap with the previous three contentions. As
stated above, there is no indication that the District Court
failed to consider the employability, occupation or skills of
either party.
7. Opportunity for future acquisitions of real
property and assets. There is no evidence that either Helen
or Donald will realize any particular advantage from the
division regarding future acquisitions of real property and
assets. Donald fails to demonstrate that this was not
considered by the District Court or that an abuse of
discretion was committed.
8. The source of the marital property. Donald states
the source of the marital property was not properly
considered after approximately 37 years of marriage. Donald
contends the District Court failed to consider that the
family farm and the Hysham home were both purchased from
members of his family at a price which was below fair market
value. However, finding of fact number 17 specifically notes
that the farm and house were purchased and that both parties
were to share equally in any benefits realized due to terms
and conditions which might have been favorable. We find no
evidence that the District Court failed to consider the
source of the marital property.
9. Needs of the parties. No elaboration or
explanation is offered as to the allegation that the District
Court failed to consider the needs of the parties. This
contention tends to overlap with several previous
contentions. Since no abuse of discretion is demonstrated,
we will not consider this contention further.
Finally, Donald contends that the District Court
improperly accepted Helen's offered appraisals, while denying
his proposed appraisals. Donald's contention centers on the
value of the real property contained in the marital estate.
Donald contends the correct total valuation of the real
property is $153,250. Helen's proposed appraisal set the
value at $165,181 and was accepted by the District Court. At
a hearing prior to the dissolution proceeding, the District
Court suggested that both parties submit their appraisal
reports by stipulation. The court indicated this would be
more economical and suggested that each party could submit
their objections based on each written appraisal. The
District Court's findings of fact state the parties did
stipulate that the appraisals could be introduced into
evidence without the necessity of calling each appraiser to
testify. Donald contends he relied on the trial judge's
suggestion and submitted a written appraisal without
supporting testimony from the appraiser. In contrast, Helen
submitted a written appraisal with supporting testimony from
the appraiser despite the stipulation that the testimony was
not required. The trial judge preferred the appraisal
presented by Helen and stated in the findings of fact that,
[Hlaving heard ample testimony concerning
the qualifications, methods, and
conclusions of [Helen's appraiser], and
having heard no such testimony as
concerns Respondent's appraisal, it is
deemed appropriate to adopt the real
property values set forth in [Helen's
appraisal].
Donald argues that the court was inconsistent when it
suggested that the written appraisals be simply admitted by
stipulation and without supporting testimony, but then
preferred Helen's appraisal because it was supported with the
appraiser's testimony.
Although the course of events may have confused
Donald's counsel, both parties had the right to submit
supporting testimony at the time of trial. Only Helen chose
to do so and the trial court preferred her suggested
appraisal because of that supporting testimony. There is
substantial credible evidence supporting the valuations
listed in the property distribution. Helen's appraiser, Jack
Chapman, testified as to the appraisal at the trial and was
subject to cross examination. Mr. Chapman was a qualified
appraiser and his testimony was supported by his extensive
written appraisal which was introduced at trial. We find no
evidence that the trial court acted arbitrarily without
employment of conscientious judgment.
An additional reason why we choose to affirm the
District Court's finding is that the appraisals do not
represent widely conflicting valuations. In In re the
Marriage of Vance (1983), 204 Mont. 267, 664 P.2d 907, a
house and forty acres of land was appraised at $160,000 by
one litigant's expert and $140,000 by the other litigant's
expert. The district court accepted the $160,000 appraisal
without stating any specific reasons. This Court affirmed
that decision because the valuations were not widely
conflicting. Vance, 664 P.2d at 911. The same rationale
should apply under these facts.
Donald also contends that his suggested appraisal
should be preferred since it was completed only four months
prior to trial, while Helen's suggested appraisal was
completed seven months prior to trial. While the timeliness
of an appraisal is important, an appraisal will not be
preferred solely because it was completed closest in time to
the hearing. There is no evidence indicating that the trial
court failed to consider the timing of each appraisal.
We do find what appears to be a typographical or
inadvertent error. The District Court accepted Helen's
proposed appraisal, but valued the Mouat farm land at $67,981
and valued the total of the real property at $165,981.
Helen's appraisal valued the Mouat farm land at $67,181 and
valued the total of the real property at $165,181.
Therefore, it appears that the implemented valuation is $800
greater than that proposed by Helen. This inconsistency must
be corrected and we remand for this purpose only. For the
foregoing reasons, the remainder of the District Court
decision is affirmed.