No. 86-192
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
IN RE THE MARRIAGE OF
MARY ELLEN McCORMACK,
Petitioner and Appellant,
and
SAM 0 McCORMACK,
.
Respondent and Respondent.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Henry Loble, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
C. W. Leaphart, Helena, Montana
For Respondent:
Charles Graveley, Helena, Montana
Submitted on Briefs: ,July 31, 1986
Decided: October 9, 1986
t-1 9-1986,
Filed:
&#
Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
Mary Ellen McCormack appeals a Lewis and Clark County
District Court order dividing the property of the parties.
Three issues are raised on appeal:
(1) Whether the District Court erred in rejecting the
appraisal of Allen Jones as to the value of the residence at
the time of the marriage.
(2) Whether it was error to reject the only expert
testimony as to the value of the mining claims.
(3) Whether it was error to evenly divide the
appreciated equity in the residence between the parties.
We affirm.
The parties were married on November 24, 1976 and lived
together until they separated in September, 1983. Both
parties brought some property into the marriage. The wife's
net worth at the beginning of the marriage was appraised at
$25,275 compared to $8,202.45 for the husband. Before the
marriage, the wife purchased ten acres of land and partially
completed a house on the property. During the marriage, the
parties made improvements to the property worth $20,439.
At trial two appraisals of the house and the ten acres,
as of the time of the marriage, were received into evidence.
The appraisals were $45,300 and $56,000. The District Court
accepted the $45,300 appraisal prepared by Joseph J.
Zirnrnerman, finding that he was a highly qualified appraiser
whose evidence was more credible than that of the other
appraiser.
The court found that the wife was entitled to the value
of the house at the beginning of the marriage but that the
parties should split the appreciation in the net value of the
house since the appreciation was a product of their joint
efforts and contributions. The court accepted Zimrnerman's
appraisal of $95,500 as the market value of the house in
1985, the time of the divorce. The debt owing on the house
was $23,500, leaving a net value or equity of $72,000.
Subtracting the 1976 net value of the house of $18,800 from
the net value of $72,000 at the time of the divorce leaves a
balance of $53,200, which is the increased value of the house
during the marriage. The court rejected the wife's claim
that the husband was only entitled to half of the total
improvements made on the property during the marriage, which
amounted to $20,439. The court therefore awarded the house
to the wife, but ordered her to pay the husband $26,600
within ten years and assume the $23,500 debt on the house.
A court with jurisdiction to dispose of marital
property is guided by § 40-4-202(1), MCA:
[Tlhe court ...
shall ...
equitably
apportion between the parties the
property and assets belonging to either
or both, however and whenever acquired
and whether the title thereto is in the
name of the husband or wife or both. In
making apportionment, the court shall
consider the duration of the marriage and
prior marriage of either party;
antenuptial agreement of the parties; the
age, health, station, occupation, amount
and sources of income, vocational skills,
employability, estate, liabilities, and
needs of each of the parties; custodial
provisions; whether the apportionment is
in lieu of or in addition to maintenance;
and the opportunity of each for future
acquisition of capital assets and income.
The court shall also consider the
contribution or dissipation of value of
the respective estates and the
contribution of a spouse as a homemaker
or to the family unit. In dividing
property acquired prior to the marriage;
property acquired by gift, bequest,
devise, or descent; property acquired in
exchange for property acquired before the
marriage or in exchange for property
acquired by gift, bequest, devise, or
descent; the increased value of property
acquired prior to marriage; ...
The standard of review was stated in In Re Marriage of
Garst (Mont. 1983), 669 P.2d 1063, 1067, 40 St.Rep. 1526,
The District Court has far-reaching
discretion in making property divisions.
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 injustice. Kowis, 658
P.2d at 1087, 40 St.Rep. at 153.
The first issue is whether the District Court erred in
rejecting Allen Jones' appraisal of the parties' residence.
In Dickerson v. Dickerson (1980), 188 Mont. 492, 497, 614
P.2d 521, 524, we said "the trier of the facts has the
discretion to give whatever weight he sees fit to the
testimony of the expert from 0 to loo%." Biegalke v.
Biegalke (1977), 172 Mont. 311, 317, 564 P.2d 987, 990. In
Marriage of Peterson (1981), 195 Mont. 157, 162, 636 ~ . 2 d
821, 823, we held that "the District Court is free to follow
one appraisal and reject another." The District Court must
make findings supporting the valuation selected where there
is a wide disparity in the appraisals offered. Peterson, 636
In this case the District Court received into evidence
appraisals from Joseph Zirnmerman and Allen Jones and found
Zimmerman's appraisal to be more credible. The court had the
discretion to give full weight to either appraisal.
Moreover, the court found Zimmerman to be a "highly
qualified" appraiser. We conclude that the District Court
did not abuse its discretion.
The second issue is whether it was error to reject M.W.
Ratcliff's appraisal of the Rimini mining claims. Ratcliff
appraised the claims on behalf of the wife at a figure
between $18,250 and $20,000. We follow Dickerson, 614 P.2d
521, and hold that the District Court, as the trier of fact,
had the discretion to give whatever weight it saw fit to the
testimony of the wife's expert. The court found the
appraisal of the mining claims to be unreliable because no
proof of any commercial value in the claims had been shown.
The appraiser did not know who owned the ground, he did not
test it, drill it, or look at the production records. He did
not know of anyone who would buy the land. Instead he relied
on what others had told him about the claims. The District
Court acted well within its discretion by adopting the
husband's estimate that the claims had a hobby value of $250.
The third issue is whether it was error to evenly
divide the appreciated equity in the residence between the
parties. In Torma v. Torma (1982), 198 Mont. 161, 168, 645
P.2d 395, 399, we held that "a property division should at
least reflect the relative contributions of the parties, as
well as entitle each to a proportionate share of the
appreciation in property values in the wake of divorce."
The District Court found the parties to be in
approximately the same position, each having contributed an
equal amount to the marriage. From a finding that the
appreciated property value of $53,200 was a product of the
parties' joint efforts, the court divided the appreciation
equally between them. We agree with the judgment of the
District Court.
The wife argues that since she brought the house into
the marriage and since title to the house is in her name, she
should receive more than 50% of the appreciation in property
values.
We have said that property acquired before marriage is
still a marital asset subject to division and that there is
no definite rule as to how the trial court is to consider the
asset. Each case is to be decided on its own facts. In Re
Marriage of Keepers (Mont. 1984), 691 P.2d 810, 41 St.Rep.
2163. We find Keepers persuasive when read in conjunction
with S 40-4-202(1), MCA, which reads in part:
[Tlhe court ... shall ... equitably
apportion between the parties the
property and assets belonging to either
or both, however and whenever acquired,
and whether thetitle thereto is in
the name of the husband - wife or-both.
or
(~mphasisadded.)
The District Court is vested with wide discretion in
these matters and we see no facts to indicate that it abused
its discretion.
Affirmed.
\
We concur: