NO. 83-180
IN THE SUPREME COURT OF THE STATE OF MONTANA
1983
IN RE THE MARRIAGE OF:
ROBERT A. POPP,
Petitioner and Respondent,
and
SUSAN POPP,
Respondent and Appellant.
Appeal from: District Court of the Thirteenth Judicial District
In and for the County of Yellowstone
Honorable Diane G. Barz, Judge presidina.
Counsel of Record:
For Appellant:
Allen Beck, Billings,Montana
For Respondent:
Moses Law Firm, Billings, Montana
Submitted on briefs. July 14, 1983
Jjecided. October 27, 13 8 3
Filed:
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
Appellant, Susan Popp, appeals a final iudgment of the
District Court of the Thirteenth Judicial District,
Yellowstone Countv, entered February 7, 1983. Appellant
challenges the valuation and the disposition of the marital
estate.
The parties were married on August 19, 1961, and sepa-
rated August 20, 1981. There are four children of the mar-
riage; however, the matters of child custody and support and
visitation rights are not issues in this appeal.
The dispute arises from the District Court's valuation
and apportionment of the marital property, including the
family ranch, crops, ranch vehicles, farm machinery and farm
tools. Appellant wife appeals the District Court's refusal
to order the ranch sold.
This is the first marriage of both appellant wife and
respondent husband. Testimony indicates that the property at
issue was acquired by the parties during the course of their
marriage. The marital estate consists primarily of an
834-acre ranch upon which the parties raised cattle, horses
and crops, as we11 as maintained the related vehicles and
implements used to operate that ranch. The family home is
also located on the ranch; however, the valuation of this
asset is not at issue.
Appellant raises the following issues on appeal:
1. Whether the District Court erred in failing to meet
its own stated objective of awarding 60 percent of the mari-
tal estate to the husband and 40 percent to the wife.
2. Whether the District Court erred in ordering a 60
percent (husband), 40 percent (wife) division of the marital
estate.
3. Whether the District Court erred in failing to
require husba-nd to account for the decrease in assets between
the date of separation and the date of the trial and later
hearing.
4. Whether the District Court erred in its virtually
verbatim adoption of husband's proposed findings of fact and
conclusions of law.
5. Whether the District Court erred in failing to
order the ranch sold.
STANDARD - REVIEW
OF
In Parenteau v. Parenteau (Mont. 1983), 664 ~ . 2 d900,
40 St.Rep. 815, we stated the following regarding the proper
standards of review in marital dissolution cases:
"'The standards governing review of a
District Court's property distribution
... are well-settled in Montana. The
District Court has far-reaching discretion
in making property divisions. Torma v.
Torma (1982), - Mont . , 645 P.2d 395,
399, 39 St.Rep. 839, 8 m Zell v. Zell
(1977), 174 Mont. 216, 220, 570 P.2d 33,
35.
"'The reviewing court does not substitute
its judgment for that of the trial court,
and will not alter a judgment unless it
finds an abuse of discretion, i.e., that
the trial court acted. arbitrarily without
employment of conscientious judgment or
exceeded the bounds of reason resulting in
substantial iniustice. Torma. 645 P.2d at
.
,
399, 39 St.Rep. at 843; Zell, 174 Mont. at
220, 570 P.2d at 35; Creon v. Creon
(19811, - Mont . , 635 P.2d 1308,
1309, 39 St.Rep. 1828,830.
" I [Wlhile a district court, in its discre-
tion, may equally divide the marital
assets, section 40-4-202, MCA, does not
mandate equal distribution. Martens v.
Martens (1981), - Mont . , 637 P.2d
523, 526, 38 St.Rep. ; 8
3
1
,
5
2 In re
Marriage of Aanenson (1979), - Mont .
, 598 P.2d 1120, 1123, 36 St.Rep. 1525,
1528.' Kowis v. Kowis (1983). Mont .
These standards still apply and qovern our review of this
matter.
FAILURE TO DIVIDE PROPERTY ACCORDING TO COURT-ORDERED
PLAN ANDFAILURE ACCOUNT FOR ASSETS
-- OF
- HUSBAND -TO
Appellant wife contends that the District Court erred
in failing to meet its stated objective of dividing the
property 60 percent to the husband and 40 percent to the
wife. We agree.
Section 40-4-202, MCA, requires the equitable distribu-
tion of the parties' property in a dissolution proceeding.
This property includes "the property and assets belonging to
either or both, however and whenever acquired." For all
property to be distributed it must all first be valued and
included in the gross marital estate. That did not occur in
this matter. As we stated in Lippert v. Lippert (Mont.
"A proper disposition of marital property
in a dissolution proceeding requires a
finding of the net worth of the parties
at or near the time of the dissolution.
Hamilton v. Hamilton (1980), Mont .
, 607 P.2d 102, 37 St.Rep. 247; Vivian
r~ivian ,
(1978), - Mont. - 583 P.2d
1072, 35 St.Rep. 1359; Kramer v. Kramer
(1978), 177 Mont. 61, 580 P.2d 439; Downs
v. Downs (1976), 170 Mont. 150, 551 P.2d
1025. The basic reason for the rule is
obvious; however, it is equally apparent
that application of the rule is dependent
upon the kinds of marital assets under
consid-eration. The time for proper
valuation cannot be tied to any single
event in the dissolution process. The
filing of a petition, trial of the
matter, or even the granting of the
decree of dissolution do not control the
prbper point of evaluation by the Dis-
trict Court."
However, while there may be no standard, fixed time to
properly value the marital assets, in this case the District
Court clearly erred in valuing the 1982 crops in February
rather than around harvest time. This early valuation re-
sulted in the elimination of a significant asset from the
gross marital estate. This in itself is sufficient error to
destroy the court's proposed 60-40 distribution. However,
the court compounded its error by valuing the debts of the
parties at the time of trial. Consequently, whi1.e the wife
was not allowed to share in the profits of the ranch accrued
since the date of separation, she was nevertheless charged
with a proportionate share of the debts which accrued during
that same time period. This is fundamentally unfair and
constitutes clear error on the part of the District Court.
It is also clear from a thorough review of the file on
this matter that the court valued some assets at their depre-
ciated value as listed on the parties' income tax returns
instead of at their fair market va-lue. Yet there is no
finding stating that the depreciated value is equal to fair
market value of certain items of equipment. Without such a
finding we hold the District Court's decision was "clearly
erroneous."
The 60-40 split also fails in that the court failed to
require the husband to account for al-1 marital assets in his
possession and under his control during the separation of the
parties. Without an accounting of all assets the gross
marital estate cannot be determined and the property cannot
be equitably divided.
The cumulative effect of the foregoing errors contrib-
ute to the court's failure in fact to divide the property on
a 60-40 basis. We have held that when the trial court's
findings and conclusions do not adhere to its decision to
split the marital property on a certain percentage basis, the
trial court's judgment distributing assets of the marria.ge
must be vacated and remanded. In re Marriage of Gohner
(Mont. 19801, 609 P.2d 288, 37 St.Rep. 613. Therefore, this
matter must also be vacated and remanded on this issue.
The greatest error which wife claims destroys the 60-40
split is the undervaluation of the ranch which is the main
asset of the parties.
Appellant wife submitted an appraisal at trial prepared
by an accredited rural appraiser (the "Hall appraisal") .
Hall was available at trial and testified as to his valuation
procedures. Hall valued the ranch a.t $386,110. Husband's
appraisal was admitted into evidence by stipulation (the
"Wright appraisal") . Wright valued the ranch at $283,300.
We also note that there was a bona fide offer for the
.
ranch in the amount of $350,000. We further note a discrep-
ancy between the appraisals as to the number of irrigated
acres. In most material respects, the two appraisals are
diametrically opposed.
We stated in Biegalke v. Biegalke (1977), 172 Mont.
311, 564 P.2d 987, that "the trier of the facts has the
discretion to give whatever weight he sees fit to the testi-
mony of the expert from 0 to loo%." However, Biegalke is
distinguishable in that the parties there agreed to the court
appointment of a single appraiser, stipulated to his qualifi-
cations, and generally accepted his appraisal without objec-
tion. On appeal, we held the court properly exercised its
discretion in determining valuation. In the instant case, as
in Peterson v. Peterson (Mont. 1981), 636 P.2d 821, 38
St.Rep. 1723, the parties secured different appraisers who
presented widely conflicting valuations. Unlike Peterson,
here, upon review of the record, we cannot say the District
Court improperly exercised its discretion in selecting the
value it did based upon the findings of fact as stated.
60-40 DIVISION - PROPERTY
OF
Appellamt wife also challenges the 60-40 division of
property. It is clear from the record that this was the
first marriage of each of the parties and both brought virtu-
ally no assets to this marriage. The property to be distrib-
uted was acquired by the parties during their marriage.
Clearly, the primary asset is the ranch property.
The only reference by the court in its findings to the
60-40 split is one sentence in Finding No. 54. "This above
a-mount represents a 40-60% split of the net marital estate."
No reasoning is given for the basis of such a distribution.
We cannot determine whether such a division is an abuse of
discretion without findings by the court explaining the
reasoning behind such a decision. Consequently, we must also
remand for findings with regard to this issue.
Appellant contends that the District Court ordered the
60-40 property division based on Finding of Fact No. 48. It
states, "The Court specifically finds that Respondent [appel-
lant] has made no contribution to the ranch since separating
from the Petitioner [respondent].I1 Since there are no find-
ings stating the reason for the 60-40 division, we are unable
to determine whether this is, in fact, the basis for the
court's decision. However, as we stated in &arson v. Larson
(Mont. 1982), 649 P.2d 1351, 39 St.Rep. 1628:
"We ca-ution the trial court not to place
emphasis on petitioner's lack of connec-
tion with the ranch during the pendency
of these proceedings. Cf. Torma v. Torma
,
(19821, - Mont. - 645 P.2d 395, 39
St.Rep. 839 (discussion of parties'
relative contributions toward property
maintenance and equity after final decree
has been entered) . Though petitioner ' s
homemaking services and nonmonetary
contributions may not have been rendered
in the ranch context, they nevertheless
continued as petitioner had custody and
primary responsibility for the physical
and. emotiona.1 needs of the parties' minor
children. This no doubt facilitated
respondent's ability to maintain his
employment and ranch responsibilities as
he was not required to take time from
these activities to ensure that the
children's basic needs were being met."
In this case the wife cared for the youngest child of
the parties during the pendency of these proceedings. We
consider that to be a significant contribution under the
circumstances and hold that the District Court should recon-
sider its findings with regard to the wife's contribution
since separation, and if this is in fact the basis for the
60-40 division, should also reconsider its decision to divide
the property in such a manner in light of our holding in
Larson.
ADOPTION - HUSBAND'S FINDINGS - - - AND CONCLUSIONS - -
OF OF FACT OF LAW
Appellant also alleges error in the District Court's
virtuall-y verbatim adoption of petitioner ' s findings of fact
and conclusions of law. This Court has repeatedly stated its
position that findings and conclusions which are sufficiently
comprehensive and pertinent to the issues to provide a basis
for decision, and which are supported by the evidence, i.e. ,
are not "clearly erroneous" in light of the evidence, will
not be overturned simply because the trial court relied upon
proposed findings and conclusions submitted by counsel.
Parenteau v. Parenteau (Mont. 1983), 664 P.2d 900, 40 St.Rep.
815; Kowis v. Kowis (Mont. 1983), 658 P.2d 1084, 40 St.Rep.
149; In re Marriage of Hunter (Mont. 1982), 639 ~ . 2 d489, 39
St.Rep. 59; In re Marriage of Jensen (Mont. 1981), 631 ~ . 2 d
700, 38 St.Rep. 1109. The error here is not in the adoption
of the findings but rather in their insufficiency and errors
in fact. Consequently, this matter must be remanded.
SALE
- -OF RANCH
Finally, appellant alleges error in the District
Court's failure to order the ranch sold. The court's find-
ings numbered 54 and 55 deal with this matter and state:
"54. . . . If the Petitioner is unable
to comply with the above terms, then and
in that event the entire marital estate
will be sold and the net proceeds after
all the marital liabilities are paid
shall be divided for the basis of 60% to
petitioner, 40% to respondent.
"55. It is the strong desire of the
Court to allow the family ranch operation
to continue, although the respondent's
presentations and proposals clearly
indicate that it is her contention that
the ranch is not an economic unit and
shall be sold. This court noting the
difficult economic times for farmers
everywhere cannct in good conscience
destroy a family ranching oepration if
there is any chance to save it."
We agree with the above findings and hold that the
court's ruling against selling the ranch property is af-
firmed, subject to the District Court's stated conditions.
In summary we affirm the District Court's order that
the ranch not be sold., subject to the conditions stated in
the findings. However, we find that the District Court
abused its discretion in determining the value of the marital
estate of the parties. It also erred in failing to provide
sufficient findings of fact and conclusions of law to support
its judgment dividing the marital estate.
With the exception of the issue regarding the sale of
the ranch, the judgment is vaca.ted and remanded for further
proceedings consistent with this opinion.
$4-
$9d*r~9~{
Chief Justice
We concur: