NO. 81-199
IN THE SUPREME COURT OF THE STATE OF MONTANA
1983
IN RE THE MARRIAGE OF
LYNN WOLFE,
Petitioner and Appellant,
and
SAMUEL WOLFE,
Respondent and Respondent.
Appeal from: District Court of the Fourth Judicial District,
In and for the County of Missoula
The Honorable James B. Wheelis, Judge presiding.
Counsel of Record:
For Appellant:
Milodragovich, Dale & Dye, Missoula, Montana
For Respondent:
Tipp, Hoven, Skjelset & Frizzell, Missoula, Montana
For Amicus Brief:
Hilley & Loring, Great Falls, Montana
Submitted on briefs: December 9 , 1982
Decided:February 17, 1983
Filed: FEB 17 1983
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
Petitioner, Lynn Wolfe appeals the December 16, 3.980
decree of the Fourth Judicial District Court distributing the
marital estate of the parties. We vacate the decree and
remand this cause for resolution pursuant to the guidelines
set forth below.
Lynn and Samuel Wolfe were married on October 17, 1949.
They resided on the Colorado ranch belonging to respondent
and his family until 1952, when appellant moved to Missoula,
Montana. Respondent followed shortly thereafter. The
family resided on a ranch and then bought a house in
Missoula, prior to purchasing a 5200 acre ranch outside
Stevensville, Montana in 1961. Appellant lived and worked on
that ranch until 1964, when she returned to the house in
Missoula. The parties have been separated since that time.
Appellant has lived in California since 1971. Respondent
began leasing the ranch in 1971 and moved to Missoula in
1977, where he still resides.
Appellant's two children from a previous marriage were
adopted by respondent. The couple also have two children of
their own, James and Carolyn. All are over twenty-one,
however, Carolyn is mentally retarded. She resides with her
mother as she is incapable of staying alone for more than
three hours at a time. Appellant also had custody of James
for approximately four years prior to his emancipation.
The marriage of the parties was dissolved on August 17,
1979. At that time, appellant was sixty-four years of age
and had voluntarily retired from her position as an
eligibility worker for the State of California. Respondent
was a fifty-nine year old property manager and carpenter.
Most of his monthly income was derived from rentals on the
property he owned and managed.
Following a hearing on January 8, 1980, findings of
fact, conclusions of law and a decree distributing the
marital estate were issued December 16, 1980. Appellant was
awarded all property held in her name and in her possession,
subject to all debts thereon. Except, the $16,500 mortgage
on appellant's house in California became the obligation of
respondent until its retirement, appellant's move or the sale
of the house, whichever occurs first. Respondent apparently
received everything else, although the Stevensville ranch was
not specifically awarded to anyone. No maintenance or child
support was awarded. No provision for the care of Carolyn
was made.
Lynn Wolfe's appeal of that decree presents us with the
following issues:
1. Did the District Court err in adopting respondent's
proposed findings and conclusions under the circumstances of
this case? Specifically, did the court err in failing to
award maintenance; in adopting respondent's opinion of the
value of the Stevensville Ranch; and in failing to make
findings concerning the parties' needs, income and ability to
acquire assets in the future?
2. Did the District Court err in concluding that it did
not have jurisdiction to consider the needs of the parties'
adult mentally retarded daughter in distributing the
property ?
3. Was the division of property inequitable? Specifi-
cally, did the District Court err in its treatment of the
Stevensville ranch as inheritance, premarital and gift
property of the husband; in awarding all appreciation
attributable to inflation and increase in land values to the
husband; and in failing to consider care of an adult mentally
retarded daughter as contribution to the family unit?
The Uniform Marriage and Divorce Act was in force at the
time that the decree was issued by the District Court.
However, the decree was issued prior to this Court's recent
decisions interpreting and applying the Act in Montana. We
will therefore set forth summaries of some decisions as they
pertain to the issues now before us. These guidelines shall
govern upon remand of this case.
ISSUE ONE: Did the District Court err in adopting
respondent's proposed findings and conclusions under the
circumstances of this case?
In Tomaskie v. Tomaskie (1981), Mont- I ,
- 625
P.2d 536, 539, 38 St.Rep. 416, 419, we voiced our disapproval
of trial courts relying "too heavily on the proposed, findings
and conclusions submitted by the winning party." A trial
judge relies "too heavily" upon proposed findings when they
are used "to the exclusion of a consideration of the facts
and the exercise of his own judgment." Hunter v. Hunter
(19821, Mont.I ,
- 639 P.2d 489, 495, 39 St.Rep.
59, 67. "Our ultimate test for adequacy of findings of fact
is whether they are sufficiently comprehensive and pertinent
to the issues to provide a basis for decision, and whether
they are supported by the evidence presented." Jensen v.
Jensen (1981), Mont.- I ,
- 631 P.2d 700, 703, 38
St.Rep. 1109, 1113. The findings here, which were adopted
practically verbatim from the respondent's proposed findings,
do not meet these tests.
Conclusion of Law #7 states:
"Lynn Wolfe is not entitled to any maintenance in
light of the property she received from the
distribution of the marriage. In light of her
continuing ability to earn income, and her ability
to support herself through appropriate employment,
this court awards no maintenance."
In determining the maintenance issue on remand, consideration
shall be given to appellant's need for maintenance in light
of the property division, Lynn's age and health and Carolyn's
condition.
" ...the court may grant a maintenance order for
either spouse only if it finds that the spouse
seeking maintenance:
(a) lacks sufficient property to provide for his
reasonable needs; and
(b) is unable to support himself through
appropriate employment or is the custodian of a
child whose condition or circumstances make it
appropriate that the custodian not be required to
seek employment outside the home." Section
40-4-203 (1), MCA.
See Tidball v. Tidball (1981), Mont . , 625 P.2d 1147,
38 St.Rep. 482, where we held it to be inappropriate to
require the custodian of a physically and emotionally
handicapped child to work outside the home in lieu of
maintenance.
In determining the distribution of the marital estate,
the District Court shall consider and apply the factors set
forth in section 40-4-202, MCA. That includes each party's
income, needs and ability to acquire assets in the future.
On remand, the trial judge shall give consideration to those
factors. Smith v. Smith (1981)I Mont . , 622 P.2d
1022, 38 St.Rep. 146; Tefft v. Tefft (1981), Mont . I
628 P.2d 1094, 38 St.Rep. 837.
Finally, a professional appraiser hired by Sam Wolfe
valued the Stevensville ranch at $1,184,725.50, as a working
ranch. Lynn Wolfe's professional appraiser valued the ranch
at $1,649,166.00 at its highest and best use. Respondent's
opinion regarding the value of the ranch was that it is worth
$450,000.00. Citing no reasons, the District Court adopted
respondents' opinion. Where there are "widely conflicting
valuations" between different a.ppraisers, the District Court
shall give reasons why one value is selected over the others.
Peterson v. Peterson (1981), Mont . , 636 P.2d 821, 38
St.Rep. 1723.
ISSUE TWO: Did the District Court err in concluding that it
did not have jurisdiction to consider the needs of the
parties' adult mentally retarded daughter in distributing the
property?
Section 40-4-202(2), MCA, states:
" (2) In a proceeding, the court may protect and
promote the best interests of the children by
setting aside a portion of the jointly and
separately held estates of the parties in a
separate fund or trust for the support,
maintenance, education, and general welfare of any
minor, dependent, or incompetent children of the
parties. "
Therefore, Lynn's request to have a trust established for the
benefit of Carolyn should have been entertained by the
District Court. Further, the District Court has jurisdiction
to provide for the support of Carolyn, even if a trust is not
established. Maberry v. Maberry (1979), Mont . , 598
P.2d 1115, 36 St.Rep. 1511. The needs of Carolyn shall be
considered on remand.
ISSUE THREE: Was the Division of Property inequitable?
The District Court's division of the marital property
was inequitable. On remand, the court shall generally
consider the guidelines set forth in section 40-4-202, MCA,
and the numerous cases construing that statute, particularily
Larson v. Larson (1982), Mont . , 649 P.2d 1351, 39
St.Rep. 1628. In applying those guidelines, the District
Court shall value the marital property as of the date of
dissolution, August 17, 1979. Krum v. Krum (1980),
Mont . , 614 P.2d 525, 37 St.Rep. 1291.
The December 16, 1980 decree is vacated and remanded for
reconsideration in light of this opinion.
We concur:
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Chief Justice
Justice