No. 86-76
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
IN RE THE MARRIAGE OF
LINDA S. REICH,
Petitioner, Counter-Appellant
and Respondent,
and
KEITH A. REICH,
Respondent and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Robert Holmstrom, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Kinnard & Woodward; Vernon E. Woodward, Billings,
Montana
For Respondent :
English & Lee; Bruce E. Lee, Billings, Montana
Submitted on Briefs: May 9, 1986
Decided: June 20, 1986
Filed:
JUN 2 0 1986
- - .-
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
This is an appeal of the property distribution in a
dissolution of marriage entered by the Yellowstone County
District Court. We affirm in part and remand in part.
The issues raised by the husband are:
(1) Did the District Court abuse its discretion in
setting the value of certain corporate equipment at $40,000?
(2) Did the District Court err by awarding a corporate
asset to the wife as part of the property division?
On cross appeal the wife raises these issues:
(3) Did the District Court err by awarding the wife
less than one-half of the marital estate after specifically
finding a 50/50 division was appropriate?
(4) Should husband be ordered to pay wife's attorney
fees incurred on appeal?
A hearing was held on the wife's petition for dissolu-
tion of marriage in October 1985. At the time of the hearing
the parties had not agreed on the disposition of their mari-
tal property. The District Court entered its findings and
conclusions, and after motion by the wife and a hearing,
those findings and conclusions were amended. The decree of
dissolution was entered in December 1985. The District Court
held in its original order that an equal division of the
marital estate was appropriate. In its amended order, the
court found that the parties' net worth was $132,658.60. The
court awarded the wife property with a total net value of
$62,526.43. Among other property, the court awarded the
husband his 100% interest in his business corporation, Reich
Geophysical, Incorporated.
I
Did the District Court abuse its discretion in setting
the value of certain corporate equipment at $40,000?
The husband challenges the District Court's finding
that: "The Petitioner submitted evidence reflecting that the
value of [certain logging equipment] was $40,000.00 . . .."
He argues that there was no evidence that the the value of
the logging equipment, which is owned by his business corpo-
ration, is $40,000.
The husband testified that the logging equipment had a
fair market value of between 30 and 40 percent of the origi-
nal purchase price. His valuation of $28,350 was 35 percent
of the original purchase price. The court received evidence
that the equipment was carried on the corporate books at a
value of $80,960.51. It further received into evidence a
letter from Norwest Bank in which the value of the equipment
was stated as $100,000. Also admitted into evidence was a
certificate of insurance showing that the 1.ogging equipment
was insured for $64,224.
It is true that there was no testimony before the Dis-
trict Court that the value of the logging equipment was
exactly $40,000. However, this Court has held that a dis-
trict court is free to find a value for marital property
within the range of the evidence submitted. In re Marriage
of Staudt (Mont. 1985), 700 P.2d 175, 179, 42 St.Rep. 740,
744. We will not set aside a district court's finding of
fact unless the finding represents an abuse of discretion.
Reese v. Reese (1979), 185 Mont. 52, 55, 604 P.2d 326, 328.
We conclude that valuation of the logging equipment at
$40,000 is supported by the evidence and is not an abuse of
the District Court's discretion.
I1
Did the District Court err by awarding a corporate asset
to the wife as part of the property division?
The husband contends that award of the 1981 Ford pickup
truck to the wife was error because title to the truck was in
Reich Geophysical, Inc. In the husband's proposed findings,
he suggested distributing the truck to the wife. He now
cites Buxbaum v. Buxbaum (Mont. 1984), 692 P.2d 411, 41
St.Rep. 2243, as authority that in a dissolution of marriage,
a corporate asset should not be distributed to the wife who
did not hold any shares in the corporation. Here the Dis-
trict Court recognized that the wife's automobile was not
reliable and that the husband had a car furnished to him by
the corporation and that the corporation also had a 1981 Ford
pickup. The District Court then apparently concluded that
because the husband was the sole shareholder of the corpora-
tion he was able to cause the asset to be transferred, and it
awarded the Ford pickup to the wife. It is technically true
that the District Court did not have the power to order the
distribution of corporate property where the corporation
itself was not a party to the marital dissolution. However,
our review of the record demonstrates that the District Court
carefully reviewed all of the assets of the parties, includ-
ing all of the various assets owned by the corporation, which
in turn was owned solely by the husband. We conclude that
there was a proper factual basis for the distribution of the
pickup to the wife. However, we also recognize that the
husband is technically correct as a matter of law.
We remand to the District Court with the following
instructions: Within 30 days of the issuance of remittitur
in this cause the husband shall file with the District Court
his election to accept the distribution of the 1981 Ford
pickup truck to the wife or in the alternative to accept a
property substitution equal in value to the $7,500 assigned
to the truck. Thereafter the District Court shall amend its
property distribution to coincide with that election, if
amendment is required.
I11
Did the District Court err by awarding the wife less
than one-half the marital estate after specifically finding a
50/50 division was appropriate?
This issue is raised by the wife on cross appeal. She
points out that in its original findings of fact and conclu-
sions of law the court awarded her approximately one-half of
the marital estate. The total net worth of the parties was
set at $117,658.60 and the wife was awarded net assets valued
at $58,776.43. The court's original findings and conclu-
sions, however, were later amended to include in the marital
estate the uncontested values of the 1981 Ford pickup and of
a 1980 Datsun 280 ZX. Titles to both of these vehicles were
held by the husband's business corporation but they were
erroneously left out of calculation of the net worth of the
corporation. The court amended its findings and conclusions
to increase the parties' total net worth to $132,658.60.
However, it increased the wife's award by only $3,750, so
that the total assets awarded to her were $62,526.43. She
argues that she is entitled to another $3,750 in net assets
so that she receives half of the net marital estate. We
recognize that in concluding that the estate should be divid-
ed 50/50, the District Court may not have concluded that a
precise mathematical division was required. We do not wish
to take the place of the District Court in making this
decision. We therefore remand this issue to the District
Court for further consideration and for an amendment to its
property division, if it concludes that such an amendment is
appropriate.
IV
Should husband be ordered to pay wife's attorney fees
incurred on appeal?
The wife argues that husband's appeal is not well taken
and borders on being frivolous. She therefore requests that
the court award her her attorney fees on appeal. The wife
cites no authority in support of this request and we note
that the parties were each ordered to pay their own attorney
fees in the action before the District Court. Additionally,
husband has made a valid legal argument in his second issue.
We conclude that the husband should not be ordered to pay
wife's attorney fees on appeal.
Affirmed in part and remanded to the District Court for
modifications as required by this Opinion.
We Concur: