No. 13892
IN THE SUPREME COURT OF THE STATE OF MONTANA
1977
VICTORIA M. ZELL,
Defendant and Appellant,
-vs-
RAYMOND W. ZELL,
Plaintiff and Respondent.
Appeal from: District Court of the Ninth Judicial District,
Honorable B. W. Thomas, Judge presidinq.
Counsel of Record:
For Appellant:
Smith, Emmons, Baillie & Walsh, Great Falls, Montana
For Respondent :
Frisbee and Illoore, Cut Bank, Montana
Argument submitted on briefs
Submitted: August 9, 1977
Decided: SEP
- 2 1 190
Mr. Chief Justice Paul G. Hatfield delivered the Opinion of
the Court.
This is an appeal by the wife from the property division
rendered in a divorce action. No issue is taken to the granting
of the divorce nor the custody decree.
This appeal marks the second time these parties have been
before this Court. On June 6, 1977, this Court rendered its
opinion in Zell v. Zell, Mont . , 565 P.2d 311, 34 St.Rep.
492 (1977). That opinion was limited to the motion to dismiss
on the grounds the notice of appeal was not timely filed and did
not address itself to the merits of the appeal.
The parties to this appeal were married on November 21,
1945. Four children have been born from this marriage. All but
one, Gay Loree, are of majority age. At the time of the marriage
the parties owned no material property. Mr. Zell had a net worth
of about $2,000. After their marriage the parties came to Montana
and acquired property. All of the property involved in this appeal
was acquired during the marriage.
The property in question is as follows:
Parcel A: The residence presently occupied by Victoria
M. Zell and children of the parties located
at 800 First Street South in Shelby, Montana
and described as:
Lots 1, 2, 3 and 4 of Block 33, of Johnsons
First Addition to the Townsite of Shelby,
Montana which has a reasonable value of
$75,000.00, and title to which is in the
name of defendant.
Parcel B: Rental property consisting of a house located
at 327 Eighth Avenue North in Shelby, Montana
described as:
Lots 4 and 5 in Block 41 of the Original School
Addition to the Townsite of Shelby, Toole County,
Montana which has a reasonable value of $25,000.00,
and title to which is in the joint names of the
parties.
Parcel C: Country Farm Land in Toole County described as:
Township 31 North, Range 2 West
Section 7: E 1/2
Section 17: W 1/2 NW
Section 18: NE 1/4
Section 5: W 1/2 SE 1/4, E 1/2 SW 1/4
Section 8: SW 1/4, less 6 acres taken for a
Missle Site, which has a reasonable value of
$132,000,00, and title to which is in the
joint names of the parties.
Parcel D: Various farm leases consisting of written
leases or verbal leases or extensions of verbal
leases standing in the name of Raymond W. Zell
and covering the following described property,
to-wit:
All in Toole County, Montana:
Township 31 North, Range 2 West
Section 5: NE 1/4, NW 1/4
Section 8: NE 1/4, SE 1/4
Township 32 North, Range 2 West
Section 31: W 1/2
Township 32 North, Range 3 West
Section 24: SE 1/4
Section 25: E 1/2, SW 1/4
Section 26: E 1/2
No value for these leases, separate and apart
from the value of Parcel C, was established by
the evidence.
Parcel E: Farm machinery, vehicles and equipment having
a reasonable value of $50,000.00.
Parcel F: 1975 crop and summerfallow.
Parcel G: Household furnishings and miscellaneous pers~nal
property.
Parcel H: Bank accounts and grain.
Parcel I: Real property interests inherited by Raymond
W. Zell.
The district court made the following disposition of the
property in question:
Parcel A: The residence occupied by Victoria M. Zell was
left in the wife's name.
Parcel B: The rental house was given to the husband.
Parcel C: The farm land was partitioned equally between
the parties.
Parcel D: The leases were divided between the two
parties.
Parcel E: The farm machinery was given to the husband.
Parcel F: All of the 1975 crops were divided equally
between the parties after the husband was reimbursed for the
costs of production.
Parcel G: Miscellaneous personal property was to remain
in the name of the party in whose name it is already in.
Parcel I: Parcel I is the sole property of Raymond W.
Zell being property which he recently inherited consisting of un-
divided interests in real estate.
The basic breakdown of the property division was as follows:
To the Husband: Rental House $25,000
Machinery 50,000
$75,000
To the Wife: Family Home
The district court made a finding that the parties had made approx-
imately an equal contribution to the accumulation of the property
in question and that each party owned an equal interest in that
property. From this finding and judgment, the wife appeals.
The wife raises this issue on appeal;
Did the district court err in its division of property,
in this action for divorce by failing to make an equal division
of the property?
The wife contends that the district court abused its dis-
cretion in taking into account the family residence and that
equity requires that the family house be left in the wife's name
and that equal distribution of the remaining property be ordered.
We disagree.
The trial transcript supplied to this Court refutes the
wife's claim that she provided all of the funds to purchase the
family home. While being cross-examined the husband made this
statement:
"Q. And then your wife put up most of that money
to buy the house initially, is that correct? A.
I believe that she had -- let's see -- if I recall
it right I believe she told me she had $35,000.00
in savings, and that came off the farm originally,
I think. She took some of that money to make the
down payment on the house."
Nowhere in the record is this statement refuted. The statement
thereby evidences contribution by the husband. The money used
for the down payment came originally from the farm proceeds
which were generated by the joint efforts of both parties. The
husband's practice was to divide equally the crops without de-
ducting any costs of production. The district court did not
abuse its discretion by including the family house with the other
property which was accumulated during the marriage by the joint
efforts of the parties.
Section 48-321(1), R.C.M. 1947, controls the district
court's consideration and disposition of the marital property.
Guidelines for the district court's consideration in a property
division were outlined by this Court in Biegalke v. Biegalke,
Mont. , 564 P.2d 987, 34 St.Rep. 401 (1977).
Here, the district court in its finding of fact No. 7
found:
"7. The parties have made approximately equal
contributions to the accumulation of the property
described as Parcels A through H and in fact and
equity own equal interests in that property."
The district court then went on and awarded an approxi-
mately equal division of the property to each party.
It is well settled in Montana that a district court has
far reaching discretion in resolving property divisions and its
judgment will not be altered unless a clear abuse of that dis-
cretion is shown. Eschenburg v. Eschenburg, Mont . 557
P.2d 1014, 1016, 33 St.Rep. 1198 (1976). The criteria for re-
viewing the district court's discretion is: Did the district
court in the exercise of its discretion act arbitrarily without
employment of conscientious judgment, or exceed the bounds of
reason in view of all the circumstances. Berthiaume v. Berthiaume,
Mont .
-
1 -P.2d , 34 St.Rep. 921 (1977).
A reading of the trial record, the findings of fact and
conclusions of law adopted by the district court indicates that
the presiding judge took into consideration each of the assets
claimed by the parties, as well as the individual contribution
of each party. The district court concluded that the parties
made approximately equal contributions to the accumulation of
the property. We find no abuse of discretion in the district
court's judgment which affects an equal property division based
upon equal contributions by each party. As this Court stated in
Eschenburg at p. 1016:
"Each case depends upon its own facts and circumstances
and this case warranted an equal distribution."
The judgment is
Chief Justice L'
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Justices