NO. 81-493
I N THE SUPREME C O U R T OF THE STATE OF M N A A
O T N
1983
I N RE T H E MARRIAGE OF HAZEL J .
VANCE, k/n/a SUE STARFORD,
Petitioner and Respondent,
vs.
RUSSELL L . VANCE,
A p p e l l a n t and Respondent.
Appeal from: D i s t r i c t C o u r t of t h e E i g h t e e n t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e County of G a l l a t i n
Honorable Joseph B. Gary, Judge p r e s i d i n g .
Counsel of Record:
For Appellant:
Steven D. Nelson argued, Bozeman, Montana
For Respondent:
Steven B a r r e t t argued, Bozeman, Montana
Submitted: March 4 , 1983
Decided: June 6 , 1 9 8 3
Piled:
J N 6 5983
U
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of
the Court.
The District Court of the Eighteenth Judicial District
issued an order September 29, 1980, dissolving the marriage
of Hazel J. Vance and Russel L. Vance and changing Hazel's
name to Sue Starford. Findings of fact, conclusions of law
and an order distributing the marital estate were issued June
24, 1981. Amended findings and conclusions were issued July
15, 1981, pursuant to a motion by Russel Vance. Now, Russel
Vance appeals the July 17, 1981, judgment which incorporated
those amendments.
Sue Starford and Russel Vance were married in Tampa,
Florida, on December 12, 1974. It was the third marriage for
each of them, the second to each other. They moved to
Montana immediately after their marriage and lived in several
places temporarily before locating permanently in Bozeman,
Montana, in June of 1976.
Mr. Vance was voluntarily retired at the time of the
marriage and held only occasional odd jobs throughout the
marriage. His time was spent managing his considerable
financial assets, performing household chores, tending his
ranch and hunting. Ms. Starford was unemployed until
February of 1977, when she began working as a secretary at
Montana State University. Her entire earnings were used for
family expenses.
Substantial testimony was presented to the District
Court concerning the assets each party brought into the
marriage, the changes in those assets, the assets accumulated
during the marriage and the value of all the assets at the
time of dissolution.
At the time of the marriage, Ms. Starford owned a house
in Tampa, Florida. Her house payments were approximately
$65.00 a month, as she had acquired the house at a very low
interest rate. When she moved to Montana, Ms. Starford began
renting her Florida house. Net rental income of
approximately $150.00 per month was used for family expenses
until 1978 when the house was sold for a net profit of
$27,200.00. Mr. Vance used those proceeds to pay a portion
of the debt in his Merrill Lynch account in Tampa. The sum
represented twenty-four percent of the total securities in
the account.
Mr. Vance brought assets into the marriage totalling
$292,968.00. Of that amount, $159,974.00 consisted of the
amount outstanding on a contract for the sale of a Culligan
business Mr. Vance had owned from 1957 until 1975. The
remaining $132,994.00 consisted primarily of stocks, bonds
and vehicles.
Once settled in Bozeman, Ms. Starford and Mr. Vance made
the major purchase of their marriage, a house and out
buildings on forty acres of land. The house and land were
purchased in 1976 for approximately $85,000.00. Mr. Vance
borrowed $30,000.00 from his mother for the down payment.
The monthly payments were paid out of the principal portion
of the Culligan contract payments. There is a balance due on
the house of $42,000.00.
At the time of dissolution, $83,700.00 remained
outstanding on the Culligan contract. The District Court
held that balance to be a separate asset of Russel Va.nce,
free and clear of any claims by Sue Starford.
Further, at the time of dissolution, the parties entered
into the following stipulation regarding the value of many of
their marital assets:
ASSETS FAIR MARKET VALUE INDEBTEDNESS NET VALUE
Itemized and Appraised $ 17,977.00 -0- 17,977.00
Personal Property-
Mandeville Appraisal
Itemized and Appraised
Personal Property-
Cindy Nelson Appraisal
Additional Personal
Property Items
Stocks Owned by
the Parties
The valuation of the remaining assets was disputed by
the parties. Specifically, those assets are: the Bozeman
home and accompanying forty acres; 1400 shares of Sunbird
Aviation stock; a 1979 GMC "Jimmy"; Ms. Starford's retirement
fund; and the crop of hay harvested from the Bozeman land
after the parties separated.
Each of the parties hired a professional appraiser to
determine the value of the Bozeman house and forty acres.
Ms. Starford's appraiser placed the value at $160,000.00
while Mr. Vance's appraiser valued the property at
$140,000.00. Ms. Starford testified that she believed the
property to be worth $160,000.00. Mr. Vance thought it was
worth $110,000.00. The District Court, stating no reasons,
adopted the $160,000.00 value.
Mr. Vance testified at length regarding the financial
history of Sunbird Aviation. Because of the company's
financial difficulties, he valued the stock at $5000.00. No
opposing testimony was presented. The District Court
adopted the $5000.00 value.
The GMC "Jimmy" was valued at $7300.00 with an
indebtedness of $7300.00, for a net value of $0.00.
Therefore, the "Jimmy" added no value to the marital estate.
Since Mr. Vance was awarded the "Jimmy", if its net value is
greater than $0.00, he received a windfall and has no grounds
for complaint.
Ms. Starford's retirement fund and the cut hay have
values of $2,025.00 and $500.00, respectively. Although not
4
mentioned in the original findings, they were included in the
marital estate in the court's amended findings and
conclusions of July 15, 1981.
In the original order of June 24, 1981, the following
distribution of marital assets was made:
FAIR MARKET
VALUE INDEBTEDNESS NET VALUE
--
TO WIFE:
Cash received for
stock at separation
Personal property to
he retained by
petitioner
Wife's personal
effects
Stocks or cash to be
transferred to wife
TOTAL
TO HUSBAND:
Balance of personal
property-Mandeville,
Exhibit #16, Cindy Nelson
& Stipulated Exhibit #11 $33,149.00 -0- 33,149.00
Sunbird Aviation Stock 5,000.00 5,000.00
1979 Jimmy vehicle 7,800.00 7,800.00 -0-
Husband's personal effects -0- -0- -0-
Family home & 40 acres $160,000.00 $42,000.00 $118,000.00
Balance of stocks 98,465.00 -0- 98,465.00
TOTAL $304,414.00 $49,800.00 $254,614.00
On July 1, 1981, Mr. Vance filed a motion requesting the
District Court to correct or amend several aspects of its
order. Specifically, he requested that:
1. The net value of the family home and forty acres be
adjusted to reflect the $30,000.00 owed by Mr. Vance to his
mother for the down payment she loaned him.
2. The fair market value of the family home be amended
to $150,000.00, the average of the two professional
appraisals.
3. Ms. Starford's retirement benefits be included in
the marital estate.
4. The cash received by Ms. Starford for stock be
amended to the correct amount as reflected in the exhibits
presented at trial, $24,424.00, not $22,449.00. That amount
represents twenty-four per cent of the total securities in
the Merrill Lynch account.
5. The distribution of the stocks owned by the parties
be changed to accurately reflect the total stock owned by the
parties, $173,469.61, not $200,914.00.
In response, an amended order was filed July 17, 1981,
distributing the marital estate between the parties as
follows:
FAIR MARKET NET
VALUE INDEBTEDNESS VALUE
TO WIFE:
Cash received for
stock at separation
Personal Property to be
retained by petitioner
(Exhibit #14) 6,155.00
Wife's personal effects -0-
Retirement Fund 2,025.00
Stocks or cash to be
transferred to wife 76,000.00
TOTAL
TO HUSBAND:
Balance of personal
property-Mandeville,
Exhibit #16, Cindy
Nelson, & stipulated
Exhibit #11 $33,149.00
Sunbird Aviation Stock 5,000.00
1979 Jimmy vehicle 7,300.00
Husband's personal effects -0-
Family home & 40 acres $160,000.00 72,000.00 88,000.00
Balance of stocks 73,045.00 -0- 73,045.00
TOTAL $278,994.00 $79,300.00 $199,694.00
In his appeal of the amended order, Mr. Vance alleges
five specific abuses of discretion by the District Court.
1. The court incorrectly valued the family home and
forty acres.
2. The court incorrectly treated the property acquired
prior to marriage.
3. The court failed to properly apply the criteria
mandated by section 40-4-202(1), MCA.
4. The court considered irrelevant factors or factors
not supported by the record in dividing the marital estate.
5. The court improperly divided the marital estate in
its amended order. The total decrease in the amended value
of the marital estate was deducted from the portion of the
marital estate originally awarded Mr. Vance.
Finally, Mr. Vance asserts that the division of the
marital estate violated his constitutional right of equal
protection under Montana law.
We find no abuse of discretion by the District Court and
no violation of Mr. Vance's right of equal protection. The
amended findings, conclusions and order of July 15 and 17,
1981, are affirmed.
The District Court did not abuse its discretion when it
adopted the appraised figure of $160,000.00 as the value of
the family home and forty acres. We held in Wolfe v. Wolfe
(19831, Mont . PI ,
- 659 P.2d 259, 262, 40 St.Rep.
211, 214, that: "Where there are 'widely conflicting
valuations' between different appraisers, the District Court
shall give reasons why one value is selected over the
others." In Wolfe, the "widely conflicting valuations" were
7
$1,649,166.00, $1,184,725.50 and $450,000.00. The District
Court chose the $450,000.00 figure.
Our decision in Wolfe was predicated upon another recent
decision, Peterson v. Peterson (1981), Mont . -I I
636 P.2d 821, 823, 38 St.Rep. 1723, 1726, where we stated:
"At trial the parties presented conflicting
evidence regarding the value of the home ranch.
Appellant offered the testimony and appraisal
report of a professional certified appraiser who
concluded the value of the home ranch to be
$740,000 as of September 1980. The respondent
offered the testimony of a local rancher and real
estate buyer. He valued the ranch at $402,500.
The District Court, without stated reasons,
accepted the lower figure. The District Court is
free to follow one appraisal and reject another.
However, here there is a wide disparity in
valuation, and we are unable to review for abuse of
discretion in the absence of findings by the trial
court supporting the valuation selected."
In comparison, the appraisals in the instant case are
not "widely conflicting valuations." Under these
circumstances, it is not necessary for the District Court
set forth specific reasons.
Further, appellant's eight assertions of error in the
adopted appraisal have no merit. The valuation was presented
by a professional appraiser. She thoroughly discussed her
reasons for arriving at the $160,000.00 figure. The appraisal
was supported by substantial credible evidence. The
appraised value of the property adopted by the District Court
is affirmed.
Appellant's second, third and fourth allegations of
abuse of discretion by the District Court concern the court's
application of section 40-4-202(1), MCA to the instant facts.
Section 40-4-202 (1), MCA, states in part:
"In disposing of property acquired prior to the
marriage . . . the court shall consider those
contributions of the other spouse to the marriage,
including:
(a) the nonmonetary contribution of a
homemaker;
(b) the extent to which such contributions
have facilitated the maintenance of this property;
and
(c) whether or not the property disposition
serves as an alternative to maintenance
arrangements."
In distributing property acquired prior to the marriage,
the court is not limited solely to consideration of the above
listed factors. Those considerations are set forth to
specifically benefit the homemaker who does not work outside
the home. The court is also free to consider the other
factors set forth in section 40-4-202(1), MCA. It did so.
In awarding Ms. Starford $76,000.00 in stocks or cash as her
equitable portion of Mr. Vance's stocks, the court considered
all of Ms. Starford's contributions to the family unit. She
completed her fair share, if not more, of the household
chores. She also worked fulltime outside the home, thus
enabling Mr. Vance to devote his time to the management of
his financial affairs.
Mr. Vance would like to have his marriage to Sue
Starford treated as a business relationship. It was not.
Equitable distribution of the assets of a marriage depends
upon more than just each party's initial financial
contribution to the relationship. Many other relevant
factors are found in section 40-4-202(1), MCA. It is evident
from the court's orders and accompanying memorandums of June
24, 1981 and July 15, 1981, that it considered those
statutory factors in distributing the marital estate.
Consideration was given to the parties' occupations,
amounts and sources of income, vocational skills,
employability, estates, needs and opportunities for future
acquisition of capital assets and income. The District Court
specifically refused to consider any allegations regarding
Mr. Vance's marital misconduct. We find no abuse of
discretion and affirm the distribution of the marital estate
between the parties.
9
Next, Mr. Vance contends the court abused its discretion
when it deducted the total amended decrease in the value of
the marital estate from the portion originally awarded him.
Again, we do not agree. The court stated in its memorandum
accompanying the amended order that the court originally
"made error in computation" and that the court "was in error
in the amount of stocks still in the hands of the respondent
[Mr. Vance] ." Clearly, the court was merely correcting
errors which had unintentionally benefited Mr. Vance.
Finally, the District Court judge stated: "It is still
a man's world as far as income is concerned and I have
recognized this fact in the distribution of assets." That
statement is a description of the present relative economic
status of men and women. It is a realistic observation.
Applying the observation to the distribution of the marital
estate between these parties did not violate Mr. Vance's
constitutional right of equal protection. His contention is
meritless.
Affirmed.
We concur:
8 ! A L J
Chief Justice
*@d4q
file a written dissent later.