No. 83-473
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
IN RE THE PIARRIAGE OF
ROSALYN H. PETERSON,
2etitioner and Respondent,
and
ROBERT C. PETERS014,
Respondent and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Diane G. Barz, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jock B. West, Billings, Montana
For Respondent :
Linda L. Harris, Billings, Montana
Submitted on Briefs: March 23, 1984
Decided: June 2 8 , 1984
Clerk
Mr. Justice John Conway Harrison delivered the Opinion of
the Court.
This appeal is from a distribution of property made by
the District Court of the Thirteenth Judicial District, in a
proceeding to dissolve the marriage of the parties.
Appellant Robert C. Peterson objects to several aspects of
the property distribution. We affirm the ruling of the
District Court with a slight modification.
Robert C. Peterson, hereinafter husband, and Rosalyn
H. Peterson, hereinafter wife, were married on November 17,
1978 in Worland, Wyoming. Both parties were employed during
the entire course of the marriage. Husband was employed by
the United States Postal Service with a net pay of $626.13
every two weeks. At the time of the dissolution
proceedings, wife was employed as a secretary with a net pay
of $361.43 every two weeks.
No children were born of this marriage. However, wife
had two minor sons from prior marriages who lived with the
parties during the marriage. Husband did not adopt the
children, but all of the financial support for their needs
came from the combined income of the parties. Wife
collected none of the support payments due for the children,
which she testified amounted to approximately $10,000 over
the term of the marriage.
The focus of this dispute is on the mobile home in
which the parties resided and the ten acres of real property
upon which it sits. The real property was purchased by the
husband in 1974, at a purchase price of $12,500. A down
payment of $2,500 was made and the remaining $10,000
financed through Valley Credit Union. Fifty-five monthly
payments were made by husband until the parties opened a
joint checking account. Prior to the marriage, husband
improved the property by drilling a well, building a barn,
corral and fences, running electricity and water lines to
the trailer and installing a septic tank. The total cost of
these improvements was $3,810, which was paid by husband.
During the marriage, a garage was constructed on the
property at a cost of $3,400 to the parties. The mobile
home was purchased in April 1977 by husband, at a cost of
$15,741. A $2,500 down payment and sixteen monthly payments
were made by husband prior to the marriage.
The parties each brought certain livestock to the
marriage. Husband brought two geldings to the marriage,
which were sold and the proceeds used to buy two brood
mares, "Sis" and "Leo's Rapid Cat." Wife brought two horses
to the marriage, "Justin" and "Blondie." During the
marriage Blondie had two colts, "Whiskey" and "Peaches."
Also during the marriage five horses were purchased,
"Bonny," "Rita," FOX^," "Star Jet," "Sis" and "Rio."
To consolidate payments, the parties borrowed $10,000
from the Billings U.S. Employees Credit Union. In September
of 1981, $3,859.61 of this was paid to Valley Credit Union
to satisfy the mortgage on the real property. Approximately
$2,100 was used to purchase a Fiat automobile, and $200 for
a camper. The remainder of the $10,000 was used to purchase
the above listed horses and to cover other miscellaneous
expenses.
The wife filed a petition for dissolution of the
marriage in the District Court of the Thirteenth Judicial
District on September 21, 1982. The decree of dissolution
and judgment were entered on June 16, 1983. The marital
property was distributed between the parties as part of the
judgment. Wife received, among other items, the Fiat
automobile, and the horses, Sis, Rita and Bonny. Husband
was also required to pay wife $12,633.45 for her interest in
the mobile home and real property. Husband received the
camper, the horses Star Jet, Rio and Foxy and was to assume
the obligation for the remaining balance of the $10,000 loan
and the remaining balance of the loan for the mobile home.
The respective balances of these two are $6,989.20 and
$9,379.10. From this distribution appeal is taken.
Three issues are raised by the husband:
(1) Did the District Court err in not finding that the
wife made a negative contribution to the marriage?
(2) Did the District Court err by failing to give
reasons for selecting the wife's expert's appraisal of the
real property?
(3) Did the District Court err in failing to assess to
the wife the value of certain real property received by her?
The husband's first contention is that the District
Court did not properly consider the nature of the wife's
contibution to the marital estate. Specifically he contends
that she should not receive any distribution representing
the appreciation in value of either the real property or the
mobile home, because of what he terms her "negative
contribution" to the maintenance of the property. He
alleges this "negative contribution" occurred because the
wife and her two sons consumed 3/4 of the marital income,
yet she only contributed 1/3 of the income. Thus he
theorizes that any appreciation of the marital assets
resulted not because of but in spite of the wife's efforts
and she should not receive any benefit therefrom.
In dividing marital property, the District Court is to
take into consideration, "[Tlhe contribution or dissipation
of value of the respective estates and the contribution of a
spouse as a homemaker or to the family unit." Section
40-4-202(1), MCA. Obviously this consideration will depend
on the extant facts. The determination of the value of such
contribution or dissipation is thus a question of fact for
the trial court. In such a case we will defer to the
discretion of the lower court unless it has exercised an
abuse of discretion. Eschenburg v. Eschenburg (1976), 171
Mont. 247, 557 P.2d 1014.
In the present case, the trial court considered both
the monetary and non-monetary contributions of the parties.
It specifically found,
"That other than as herein provided, the
parties to this action contributed
equally to the acquisitions of interests
in real and personal property during the
course of their marriage. A1 though
Respondent's income exceeded that of the
Petitioner during the course of their
marriage, Petitioner's contribution [was]
equal to that of the Respondent."
There is nothing in the scant record of this case to
dispute the above finding. The husband alleges in his
appeal brief that, "No authority need be cited to establish
that two minor boys will cause wear and tear to the home, in
addition to the consumption (of marital income)."
While this may be true as a general rule, trial courts
do not consider generalities as dispositive of fact
questions in individual cases. Each must be examined on its
own merits and disposed of on the prevailing facts. In
Montana a married person is not bound to support his
spouse's children by a former marriage. However, if he
receives them into his home and supports them, it is
presumed t h a t he d o e s s o a s a p a r e n t and t h u s t h e y a r e n o t
l i a b l e t o him f o r t h e i r s u p p o r t n o r h e t o them f o r their
services. S e e S e c t i o n 40-6-217, MCA. The h u s b a n d p r e s e n t e d
h i s a r g u m e n t s t o t h e D i s t r i c t C o u r t , t h o u g h h e made n o t h i n g
more t h a n a s s e r t i o n s t h a t t h e w i f e and h e r c h i l d r e n d i d n o t
c o n t r i b u t e t o t h e maintenance of the property. The w i f e
a d m i t t e d t h a t i t c o s t more t h a n s h e was e a r n i n g t o f e e d a n d
clothe the children, but testified that her non-monetary
c o n t r i b u t i o n s t o t h e h o u s e h o l d made up t h e d i f f e r e n c e . The
husband's evidence did not rebut t h e presumption that his
s u p p o r t was g i v e n a s a parent. This being t h e case, the
D i s t r i c t Court c l e a r l y a c t e d p r o p e r l y in finding that the
p a r t i e s c o n t r i b u t e d e q u a l l y t o t h e a c q u i s i t i o n of i n t e r e s t s
i n t h e m o b i l e home and r e a l p r o p e r t y d u r i n g t h e m a r r i a g e .
The husband next contends that the District Court
e r r e d by n o t g i v i n g r e a s o n s f o r a d o p t i n g t h e a p p r a i s a l o f
the r e a l p r o p e r t y and improvements s u b m i t t e d by t h e w i f e .
The w i f e t e s t i f i e d t h a t s h e h a d t h e p r o p e r t y a p p r a i s e d a t
$57,000, and listed the factors the appraiser had
articulated in arriving a t that figure. The husband
testified that he had the property appraised at $30,000
without the improvements which cost over $7,000. The
husband asserts that this discrepancy is sufficient to
mandate the District Court to give express reasons for
c h o o s i n g one a p p r a i s a l o v e r t h e o t h e r .
The h u s b a n d ' s argument is based on c e r t a i n language
contained in In re the Marriage of Peterson (1981), 195
Mont. 157, 636 P.2d 821. Peterson involved the valuation of
a marital estate where the District Court adopted one
appraisal over another without expressing its reasons. In
remanding for specific findings we stated:
"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.
". . . Upon review of the record, we
cannot say the District Court properly
exercised its discretion in selecting the
value it did without some indication of
its reasons for doing so." 195 Mont. at
162, 636 P.2d at 823-4.
However the failure to articulate reasons for adopting
one appraisal over another does not automatically require a
remand of the case to District Court. It was the lack of
supporting evidence in the Peterson record which made a
remand necessary. As was explained in Frazier v. Frazier
(Mont. 1984), 676 P.2d 217, 41 St.Rep. 233, when we review
findings of fact where the lower court adopts one appraisal
over another, "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
GJ76
record to determine whether ample evidence exists." J3 g
,&.i
P.2d at 219-20, 41 St. Rep. at 233.
The record in the present case clearly shows why the
wife's appraisal was adopted. The husband's appraisal was
for the real property only, excluding the improvements. He
testified to the cost of the improvements, but the bare cost
of the improvements and their value once they are set in
place are different. This is especially true where he
testified that he did almost all the labor himself. The
wife's appraisal was clearly more reliable because it
considered the property as a whole the way it existed.
Finally, the husband points to several items of
personal property which he contends were inequitably
distributed by the trial court. With two exceptions, these
allegations of error are a thinly veiled attempt to seek a
de novo distribution of the marital property by this Court.
We have reviewed each and find ample evidence to support the
trial court's distribution. "The apportionment made by the
District Court will not be disturbed on review unless there
has been a clear abuse of discretion as manifested by a
substantially inequitable division of the marital assets
resulting in substantial injustice." In Re the Marriage of
Brown (1978), 179 Mont. 417, 587 P.2d 361. No substantial
injustice has been done here.
However, two adjustments must be made by the District
Court. First, the parties agree that the proper amount of
the wife's equity in the mobile home is $1,365.03, not
$2,110.45 as originally calculated by the District Court in
its finding of fact number 15. Finding number 15 should be
changed accordingly. Second, the District Court improperly
valued the parties' life insurance policy. The husband
testified that they owned an insurance policy, which was
whole life as to himself, but term as to the wife and her
two children. He estimated its cash value was approximately
$400. The wife, who was unable to testify as to the type of
policy, estimated its cash value was approximately $2,500.
However the District Court ignared both estimates and found
its value to be $0, distributing it to the wife. This
finding is clearly wrong, and must be corrected on remand.
If additional evidence is needed, the District Court should
require submission of such evidence from the parties. After
the proper value is found, any necessary adjustments in the
distribution of marital property should be made.
Affirmed in part, modified in part, and remanded for
valuation of the life insurance policy.
We concur:
Y
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