No. 84-315
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985
IN RE THE +WRRIAGE OF
ELOISE ELAINE GLASS,
Petitioner and Respondent,
and
NEIL ARLEN GLASS,
Respondent and Appellant.
APPEAL FROM: District Court of the Tenth Judicial District,
In and for the County of Fergus,
The Honorable Byron Robb, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Mark Stermitz; Law Office of John R. Christensen,
Stanford, Montana
For Respondent :
Kenneth C. Tolliver; Wright, Tolliver & Guthals,
Billings, Montana
For Intervenor:
Carey E. Matovich, Billings, Montana (Glass & Sons)
Submitted on Briefs: Dec. 20, 1984
Decided: March 21, 1985
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Filed:
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Clerk
Mr. Justice Frank B. Morrison delivered the opinioiz of the
Court.
Eloise Glass filed a petition for dissolution of mar-
riage on May 19, 1982. A decree dissolving the marriage was
entered April 25, 1983, with disposition of the marital
property reserved for a later date. Following a two-day
trial, the District Court of the Tenth Judicial District,
County of Fergus, entered findings of fact, conclusions of
law and a judgment on February 14, 1984.
On April 4, 1984, Charles Glass & Sons, a partnership in
which Neil holds a. 50 percent interest, moved to intervene in
the proceedings. The partnership filed motions to amend the
findings, to alter or amend judgment, or for a new trial.
Neil Glass made similar post-trial motions.
On April 17, 1984, the District Court denied all
post-trial motions. Neil and Eloise both appeal from the
February 14, 1984, judgment distributinq the marital proper-
ty. Neil also appeals the April 17, 1984, motion denying his
post-trial motions. Charles Glass & Sons appeals the deci-
sion of the District Court denying its motion to intervene on
the basis that the motion was not timely filed. We affirm
all judgments and orders issued by the District Court in this
cause.
Neil and Eloise Glass were married on November 28, 1-964.
They have two children, a son born in 1965 and a daughter
born in 1969. Both were raised in the Denton area by fami-
lies engaged in ranching. At the time of the marriage, the
partnership owned some farm land, a truck, a trailer and some
cows. Eloise brought bonds and cash totalling $11,000 into
the marriage. Each family has since contributed to the
marriage in various aspects.
Eloise suffers from cerebral palsy. Therefore, she does
not have significant prospects for gainful employment in the
future. She worked on the ranch and. reared two children
during the course of the marriage.
The partnership acquired a large land holding in 1968,
the Ward Ranch. The partnership has since continuously grown
and expanded, while remaining consistently in debt. Two days
of testimony concerning the value of the partnership, the
value of Neil's interest in the partnership, the contribu-
tions of both parties to the marriage, the contributions of
both parties' families to the marriage, the needs of the
children a-nd the needs of Eloise, resulted in a property
distribution decree awarding Neil 60 percent of the net
marital estate and Eloise 40 percent. Neil now contends that
in order to meet the scheduled payments to Eloise, the part-
nership will have to be sold.
Further facts will be developed as required for resolu-
tion of the specific issues raised. Those issues are:
Intervention
1. Whether the District Court abused its discretion in
denying the motions of the partnership, Charles Glass & Sons.
Appeal
1. Whether the District Court abused its discretion in
distributing the marital property?
2. Whether the District Court abused its discretion in
valuing the marital estate?
Cross-Appeal
1. Whether the District Court improperly applied the
policy in favor of preserving Montana's family farms in
determining the allocation of the marital estate rather than
only in the method of distribution.
2. Whether the District Court erred in not considering
the wife's severely limited future earnings capacity in
allocating the marital estate.
INTERVENTION BY THE PARTNERSHIP
Charles Glass & Sons moved to intervene following trial
and decision by the District Court, pursuant to Rule 24,
P4.R.Civ.P. The partnership's primary contention was that
the trial judge had overvalued the partnership. It sought to
present "new" evidence concerning the value of the partner--
ship's land holdings and cow/calf pairings. Further, it
contended that the trial judge had improperly treated gifts
given to Neil and Eloise by their families. These same
arguments were presented to the trial judge in Neil Glass's
post-trial motions.
Rule 24, M.R.Civ.P., requires that an application to
intervene be timely. The trial judge dismissed the partner-
ship's motion, stating that a motion to intervene filed after
a judgment is not timely. We cannot agree. Although not
often granted, motions to intervene made after judgment are
not per se untimely. 3B Moore's Federal Practice 24.13, at
24-154 - 24-157. (2d. ed. 1984)
A determining factor in granting a post-judgment motion
to intervene is whether the motion seeks to reopen or
relitigate an issue already determined. McDonald v. E.J.
Lavino Co. (5th. Cir. 1970), 430 F.2d 1065, 1072. Here, the
entire purpose of the motion is to reopen litigation in order
to permit the partnership to present "new" evidence on the
value of the partnership. Further, Rule 24, M.R.Civ.P. is a
discretionary, judicial efficiency rule. It is used to avoid
delay, circuity and multiplicity of actions. Grenfell v.
Duffy (1982), 198 Mont. 90, 95, 643 P. 2d 1184, 1187. If the
partnership were allowed to intervene, it would seek only to
relitigate issues about which the parties have had every
opportunity to present evidence at trial. Therefore, we
affirm the denial by the trial court of the partnership's
motion to intervene.
DISTRIBUTION OF THE MARITAL ESTATE
The net value of the marital estate was found to be
$71.1,961, with $678,633 of that amount being Neil's interest
in the partnership. Neil was awarded 60 percent of the
marital estate, or $427,176. Eloise was awarded 40 percent,
or $284,785. The trial judge allowed Neil ten years at 7
percent interest, with an initial payment of $38,650 and ten
annual payments of $35,595, to pay Eloise for her interest in
the marital estate.
Neil contends that the trial judge abused his discretion
by failing to give sufficient consideration to Montana's
public policy favoring the preservation of the family ranch
when he distributed the marital property. Specifically, Neil
contends that the ranch partnership will have to be liquidat-
ed in order to pa.y to Eloise her share of the marital estate.
However, Neil offers no proof in support of this contention.
Instead, he compares his situation with several other Montana
dissolution cases involving family ranches and concludes that
he has received unfair treatment. The valuation and distri-
bution of a marital estate in any one case must be based
solely on the facts and circumstances unique to that case.
In re the Marriage of Aanenson (1979), 183 Mont. 229, 234,
598 P.2d 1120, 1123.
The trial judge recognized Montana's public policy
favoring the preservation of family ranches in finding of
fact #26 and conclusion of law I. His distribution scheme,
which recognizes this public policy, is well reasoned and
supported by specific findings. The 7 percent interest rate
allows Neil the use and benefit of the partnership property
from which the settlement is to be paid and allows Eloise to
receive interest at least equivalent to that earned by ordi-
nary savings accounts. Finding of fact # 3 0 . Ten years is a
reasonable time for Neil to complete his purchase of Eloise's
interest through the use of the farm assets, which form a
part of the marital estate. Finding of fact #26. The dis-
tribution of the marital estate by the trial judge is
affirmed.
VALUATION OF THE IJIARITAL ESTATE
Neil Glass contends both in his post-trial motions for
relief and on appeal that the trial judge abused his discre-
tion in valuating the marital estate. The only basis for
granting a new trial in this situation is the discovery of
new evid.ence which the party could not, with reasonable
diligence, have discovered in time for trial. See,
5 s 25-11-102 and 103, MCA. Neil presented no "new" evidence
in support of his post-trial motions, only belated evidence.
Although perfectly capable of doing so, Neil refused to
obtain appraisals, records and other information until learn-
ing of the trial judge's valuation of the estate. We affirm
the denial by the trial judge of Neil's post-trial motions.
On appeal, Neil raises the following errors in the trial
court's valuation of the marital estate:
1. The court relied too heavily on Eloise's expert
appraiser, whose findings contain many errors;
2. The value of Glass cattle was extremely inflated. and
not based on proven fact;
3. The full value of Federal Land Bank stock should not
have been included as a partnership asset;
4. It was error to find that Neil Glass's partnership
capital account was $16,605 in excess of the other partners;
5. The court mishandled evidence of gifts from both
parties' parents;
6. The value of Eloise's non-monetary contribution to
maintenance of the marital estate was unrealistically
inflated.
Neil has failed to show that the valuations by the trial
judge are clearly erroneous. We therefore affirm those
valuations. In re the Marriage of Gomke (Mont. 1981) , 627
P.2d 395, 396, 38 St.Rep. 578L, 578N. In affirming, we
address each issue in the order presented by appellant.
1. Eloise Glass presented testimony at trial by an
expert appraiser, Robert L. Kellogg, on the value of the
ranch lands owned by the partnership. Kellogg estimated the
value of the ranch land at $1,310,000, or over $207 an acre.
Neil and his brother/partner, Kenneth, estimated the average
value of the land at $100 an acre. The Glasses' banker, D.A.
McRae, stated that good farm land in the area was worth $550
an acre. McRae valued land owned by the partnership from $65
to $550 an acre. The trial judge adopted Kellogg's value,
stating:
"Petitioner wife obtained an extensive,
well-documented written appraisal of the partner-
ship lands by Robert L. Kellogg, of Norman C.
Wheeler & Associates, Bozeman, Montana, which was a
complete, realistic and impartial evaluation there-
of; that said appraisal determines value by the
income, cost and market approach, utilizes compara-
ble sales, and accurately expresses fair market
value of the property at $1,310,000.00 . . . ."
Finding of fact #16d.
The trial judge is free to select and reject appraisal
values as he wishes, so long as there is substantial credible
evidence in support of the values he selects. In re the
Marriage of Peterson (1981), 195 Mont. 157, 162, 636 P.2d
821, 823. However, where the values presented at trial are
widely conflicting, the trial judge must state the reasons
for his selection. In re the Marriage of Wolfe (Mont. 1983),
659 P.2d 259, 262, 40 St.Rep. 211, 214. Where, as here, the
trial judge states his reasons for selecting one appraisal
over the others, there is no abuse of discretion.
2. The same argument applies to the trial court's
valuation of the partnership's cattle. At trial, Kenneth
Glass estimated the value of their cow/calf pairs at $400 to
$500. On the firm's financial statement, he valued them at
$550. The court granted both parties leave to supplement the
record on this issue after trial. Eloise presented the court
with a valuation by Doug Best, an employee of Billings Auc-
tion Yards, of $650 per head for the cows. Neil presented no
evidence to refute this valuation, nor did he present any
other valuation of his own. Further, regarding the Glass
brothers' valuation of their property, the trial judge
stated:
"Respondent and his brother, Kenneth Glass, were
recalcitrant and evasive witnesses in numerous
respects, especially as to values of land, live-
stock and grain sales, and even failed to produce
various current partnership records and statements
attempted to be subpoenaed by petitioner and 1982
income tax data. Such omissions and derelictions
by the brothers have substantially impaired their
credibility on all material issues herein, and
rendered their personal opinions as to land and
livestock values of little worth." Finding of fact
#16b.
Therefore, the trial judge did not abuse his discretion when
he adopted the value placed on the partnership's cows by Doug
Best.
3. As a prerequisite to borrowing money from the Feder-
al Land Bank, the partnership was required to purchase Feder-
al Land Bank stock in the amount of 5 percent of the loan, or
$13,200. The trial judge included the value of this stock in
the marital estate. In his post-trial motions, and again in
this appeal, Neil requests the value of the stock be dis-
counted to reflect the fact that it will be tied up for the
life of the loan. Unfortunately, although Neil certainly had
the opportunity to do so, he failed to present any evidence
at trial on how the stock should be discounted. We find no
error in the trial court's denial of the post-trial motion as
Neil's request is not based on new evidence, or any other
ground set forth in § 25-11-102, MCA. Further, we will not
entertain issues raised for the first time on appeal.
4. Based on the testimony of the partnership's accoun-
tant, that Neil had drawn less money from the partnership
account than had his brother, the trial judge found that
Neil's partnership account contained $16,605 more than did
Kenneth's partnership account. In so finding, the trial
judge disregarded testimony by Kenneth Glass that the dis-
crepancy existed because Kenneth had contributed over $10,000
to the partnership from a personal injury settlement. We
find no error in this decision. Kenneth's statement is
contrary to both the December 31, 1981, statement of assets
and liabilities of the partnership and Charles Glass's testi-
mony that neither of his sons paid to get into the business.
Once again, the trial judge is free to believe the testimony
of whichever witness he finds most credible.
5. We find no merit whatsoever to Neil's contention
that the court mishandled evidence of gifts to the parties by
their parents. Neil alleges that the trial judge failed to
consider the fact that were it not for Charles Glass, the
Glass partnership would not have attained its present finan-
cial status. Specifically, Neil contends the trial judge
erred in failing to consider the effect the nominal leasing
of the Ward Place by Charles to Neil and Kenneth had on
appreciating the value of the marital estate. The fact is,
Charles did not lease the Ward Place to his sons. The part-
nership purchased the Ward Place in 1968. Other beneficial
gifts from Charles to the partnership were offset by the
donation of the use of a house by Eloise's parents to Neil
and Eloise.
6. Finally, Neil contends that the trial judge unreal-
istically inflated the value of Eloises' non-monetary contri-
bution to the marital estate. Again, we do not agree.
Eloise worked on the ranch for several years. Even after she
moved to town, she still contributed to the marital relation-
ship as homemaker, wife and mother. As we stated in In re
the Marriage of Larson (Mont. l982), 649 P.2d 1351, 1355, 39
"Though petitioner's homemaking services and
non-monetary contributions may not have been ren-
dered in the ranch context, they nevertheless
continued as petitioner had custody and primary
responsibility for the physical and emotional 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 childrens' [sic] basic needs were
being met."
We affirm the valuation of the marital estate by the trial
judge .
ALLOCATION OF THE MAP.ITAL ESTATE
Eloise, on cross-appeal, contests the allocation of the
marital estate by the trial judge. Basically, Eloise con-
tends that the tria.1 judge erred in his appl-ication of Mon-
tana's public policy in favor of preserving the family ranch
and in failing to consider the effect of her handicap on her
ability to acquire future earnings when allocating the mari-
tal estate.
Eloise's initial contention is based on finding of fact
#26, where the trial judge states in part:
"26. The court finds that Montana is still primar-
ily an agricultural region, and because the family
held ranch is a form of business worth encoura.ging,
that it is a desirable and declared policy in this
state to preserve the integrity and continuation of
the family farm and ranch operation, if reasonably
possible. Therefore, to give the respondent - hus-
band herein - chance t o k e e p - family ranch and
a the
- purchase the wifers
to interest - - marital
in the
estate - - a period - -
over of time, and because he con-
tributed several years of effort and labor to the
ranch operation before the parties married and one
year after the parties separated, because the
wife's possibility of inheritance from her parents
appears commensurate with the husband's potential.
inheritance from his parents, and because the
husband will also be obligated for child support
for another three or four years, the marital estate
should - - divided equally, --- husband
not be but that the
should receive - thereof - - - -
60% and the wife 40%."
(emphasis supplied).
Eloise correctly contends that the trial judge erred in
considering Montana's policy in favor of preserving family
ranches when allocating the marital estate between the par-
ties. This policy is not included as a criteria to be con-
sidered when dividing martial property under § 40-4-202 (1),
MCA, Montana's equitable property distribution statute.
Rather, the policy is only to be considered upon distribution
of the marital property, after it has been allocated.
However, in light of the other statutory reasons given
for the 60-40 split, we find this error to be ha-rmless.
"[Tlhe policy of keeping a family ranch intact cannot be used
to deprive a spouse of his or her equitable share of the
marital estate." In re the Marriage of Garst (Mont. 1983) ,
669 P.2d 1063, 1067, 40 St-Rep. 1526, 1531. Eloise has not
been deprived of her equitable share of the marital estate.
Keeping in mind Eloise's handicap, employment situation,
contribution to the 'family ranch, potential. inheritance and
needs, the trial judge awarded her 40 percent of the marital
estate.
Further, conclusions of law J and M insure that, pursu-
ant to In re the Marriage of Jacobson (1979), 183 Mont. 516,
525, 600 P.2d 1183, 1188, the policy .against splitting up the
ranch or forcing its sale will yield to Eloise's right to an
equitable share of the property. Conclusion of law J pro-
vides that Eloise's interest in the ranch shall-be secured by
a judgment lien. Conclusion of law M states:
"That in the event the husband fails, neglects or
refuses to make the payments herein provided for to
the wife, the Charles GI-ass & Sons partnership
should be legally wound up and liquidated, the
assets sold, and any balance due the wife paid to
her. "
There is a.bsolutely no merit to Eloise's second conten-
tion that the trial judge failed to consider her handicap.
The trial judge states in finding of fact #lo:
"That the wife is now about 39 years old, has
suffered from cerebral palsy since birth, and is
impa.ired by an asthmatic condition and a degener-
ated cervical disk, all of which severely limits
and restricts her employability and the type of
work she can do. The cerebral palsy affects her
fine motor skills and precludes effectively per-
forming tasks such as writing and typing. Prior to
the marriage, however, Eloise finished about two
years of college at KSU in Bozeman, Montana, after-
wards she performed volunteer work with church and
youth groups and did a little babysitting, and in
the last few years she has sought vocational reha-
bilitation, but she has no work experience outside
the ranch and home, and no skills or educational
certification that would assist her in finding
employment, especially in the small town and rural
area of Denton. Due to petitioner's physical
condition and lack of vocational experience, she
would require substantial training or education in
order to function in the job market, and even then
her ability to hold steady employment and become
self-supporting is highly questionable."
This finding is supported by the testimony of Eloise's voca-
tional rehabilitation counselor, Bob Morgan.
Eloise's physical condition and its effect on her abili-
ty to earn a living is again considered by the trial judge in
conclusion of law H:
"H. That by reason of the len.gth of the marriage,
the wife ' s contributions to the husband's farming
and trucking business and their accumulation of
property, her contributions as a homemaker and
mother t o the parties [sic] two children, - -
and. her
severe physical disabilities and limitations for
employment, the wife is entitled not only to main-
- -
tenance for herself until her receipt o f the first
lump sum toward property settlement as herein
specified, but also to a substantial portion of the
husband's partnership interest in .Charles Glass &
Sons as herein set forth." (emphasis supplied)
We find no basis for Eloise's complaint concerning this
matter.
The allocation of the marital estate between the parties
is affirmed.
Affirmed.
We concur: