No. 85-311
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
IN RE THE MARRIAGE OF
DONALD E. BELL,
Petitioner and Respondent,
and
DOROTHY BELL,
Respondent and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial,
In and for the County of Yellowstone,
The Honorable Nat Allen, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Linda Harris, Billings, Montana
For Respondent:
Nye & Meyer; Joan Meyer Nye, Billings, Montana
Submitted on Briefs: Oct. 10, 1985
Decided: February 6, 1986
Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
Dorothy Bell appeals the property division ordered by
the Yellowstone County District Court in this divorce action.
The issues on appeal are I whether the District Court
abused its discretion in dividing the marital estate between
the parties, and (2) whether the District Court erred in
denying wife's motion for new trial. We affirm.
In March 1984, after almost thirty-one years of
marriage, Donald Bell (respondent) petitioned for the
dissolution of his marriage to appellant. Respondent is a
farmer working a relatively small, highly encumbered farm.
During the marriage, appellant took care of the family home
and performed various farm chores. Appellant began an
antique business in 1983 and had sales of approximately
$3,500 in 1984 in that business. The parties have one child,
a son, who farms on ].eased land close to the family home and
helps out on his parents1 farm. The son stated that he
thought the court should award the farm to his father so that
he a.nd his father could work on it together.
Clyde Rader, a trained fa.rmland appraiser, testified
that the current market value of the Bell farm, allowing for
a sale within six months, was $300,000. Rader testified that
that was the top price the Bells could receive. Raderls
estimate of $300,000 included the fixtures on the farm but
excluded two mobile homes on the farm. At one point, Rader
mentioned that the $300,000 estimate was based on a sale for
cash within a reasonable length of time. Rader also
mentioned that Bells might receive more money for the farm if
the buyers arranged for "constructive financing." Woody
Shore, the vice president/senior loan officer of the Little
Horn State Bank in Hardin, Montana, testified that he had a
rough idea of land values in Big Horn County and that a fair
market value for Bells' irrigated land would be $900 an acre.
Based on $900 an acre, the farm (including improvements)
would be worth approximately $300,000. Respondent also
testified that the current fair market value of the farm was
$300,000.
Respondent testified that he owned about $1,600 of
Farmers Union stock shares but that he would receive the
value for those stocks only upon his retirement or his
leaving the county, neither of which he was planning on
doing. Respondent has also acquired shares of Federal Land
Rank stock but he will receive no value for that stock until
he pays off his substantial loan with that bank. Lastly,
respondent has Big Horn County Electric Cooperative Capital
Credits of approximately $1,000. These credits are repaid to
the farmers approximately twenty years after being paid in
and respondent has received about $58 a year the last three
years.
In January 1985, the District Court filed its findings
of fact, conclusions of law, and a final decree of
dissolution. The court found that Bells had. assets worth
$456,374 and total liabilities of $325,762.18, leaving them
with a net marital estate worth $130,611.82. The Bells have
farm debts on their la.nd and farm equipment of $319,491.82.
The court valued the farm land at $300,000.
In dividing the marital estate, the District Court
awarded the bulk of the estate to respondent. To respondent,
the court awarded the farm, the farm equipment, various
vehicles, and other items for a total value of $426,402.
Respondent was made responsible for liabilities totaling
$321,762, leaving him with $104,640 more in assets than in
liabilities. The court awarded appellant $13,972 in assets
over and above the liabilities the court made her responsible
for. To eliminate any disparity in the awards, the court
ordered the respondent to pay appellant $45,334 with the
result that each would receive a net award of $59,306. The
court ordered the respondent to pay $10,306 to appellant
within sixty days of the decree and to pay 120 monthly
payments of $292 to appellant. The court ordered that these
"equity" payments to the wife shall be a lien on the farm
land, but a lien subservient to the mortgages, and renewals
of mortgages, on the land.
In February 1985, appellant filed a motion for new
trial. The motion was based principally upon what appellant
termed newly discovered evidence which purportedly rendered
the property settlement inequitable and impossible of
performance. The newly discovered evidence was a letter from
the Little Horn State Bank which declined respondent's
request for a loan to provide operating expenses and to renew
respondent's carry-over debt. The letter requested that
respondent satisfy his existing debt with the bank. The
trial court denied the motion for new trial and the wife
appeals from this denial and from the property division.
Appellant argues that the District Court abused its
discretion in several ways in distributing the marital
estate. The standard of review i-s clear. The District Court
has far reaching discretion in resolving property divisions
and this Court will not alter the lower court's judgment
unless we find a clear abuse of discretion. The test for
abuse of discretion is if the trial court has acted
arbitrarily without employment of conscientious judgment or
has exceeded the bounds of reason resulting in substantial
injustice. In Re the Marriage of Rolfe (Mont. 1985), 699
Appellant contends that distributing the marital
estate, the District Court erred by failing to consider the
factors detailed in S 40-4-202(1), MCA. In part, this
section states:
... 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 ...
This section only requires the District Court to consider the
enumerated factors, and the court is not required to make a
finding of fact as to each factor. See In Re Marriage of
Sell (Mont. 1981), 630 P.2d 222, 38 St.Rep. 956; In Re
Marriage of Caprice (1978), 178 Mont. 455, 585 P.2d 641. We
find that the District Court's findings of fact and
conclusions of law, taken as a whole, demonstrate that the
court adequately considered the factors set forth in
5 40-4-202, MCA.
Appellant also charges that the District Court abused.
its discretion in valuing the farm land and in failing to
place a value on certain assets (Federal Land Bank stock,
Farmers Union Credits, Big Horn County Electric Cooperative
Capital Credits). Appellant complains that the court's
valuation of the farm land was based upon Clyde Ra.derls
estimate of what the land would bring in a "cash" sale.
Rader's testimony, as a whole, shows that his estimate was
not based on a "distress" sale but rather on what be believed
was the fair market value of the land. The testimony of
Rader, respondent and Woody Shore provides an adequate basis
for the court's valuation of the land. Furthermore, the
court explained its reasons for not placing a value on
certain assets and the evidence supports a finding that these
assets had little or no value to respondent.
Appellant also complains that the District Court abused
its discretion in failing to order the sale of the farm and
the division of the proceeds between the parties. This Court
has established a policy
that a family farm or a ranch should be
kept intact and operated as a unit upon a
marriage dissolution whenever there is a
reasonable means of providing a wife her
equitable share of the marital property
short of selling the land.
Gomke v. Gomke (Mont. 1981), 627 P.2d 395, 396, 38 St.Rep.
578L, 578N; citing In R.e Marriage of Jacobson (19?9), 183
Mont. 517, 600 P.2d 1183. The policy is especially valid
where, as here, the parties1 child desires to take over the
farm and family members "want to insure the continuity of a
family heritage." Gomke, at 397; see also In Re Marriage of
Knudson (1980), 186 Mont. 8, 606 P.2d 130.
Here, the lower court order provided that appellant
will receive her equitable share of the marital property.
Under the order, the respondent must make a $10,306 payment
to appellant by March 22, 1985 and monthly payments
thereafter. We note that appellant does not complain that
respondent did not make the initial payment. Furthermore,
from the record it appears that the monthly payments of $292
are within respondent's ability to pay. The lower court's
plan results in a fifty-fifty split of the marital estate
between the parties and provides that appellant will have a
lien on the farm in the amount of the payments. We have
approved similar plans in both Gomke and Knudson. In light
of the foregoing, we find that the lower court provided a
reasonable means of giving the wife her equitable share of
the marital property and that the District Court did not
abuse its discretion in allowing respondent to buy out
appellant's interest in the land.
Appellant also quarrels with the lower court's
valuation of certain farm equipment and other assets. We
need only state that there is sufficient evidence to support
the valuations placed on the marital estate assets.
Finally, the appellant contends that the District Court
erred in denying her motion for new trial. In February 1985,
appellant filed a motion for new trial on the basis of newly
discovered evidence. This evidence was a letter from
respondent's bank to respondent declining to loan him more
money or to renew his carryover debt. The letter also
requested him to liquidate his present loan at the bank.
Appellant was apparently contending that respondent would
have to sell the farm to pay off the loan and she would not
receive her equitable share of the farm because her interest
was subject to the mortgages on the land. In March 1985, the
lower court held a hearing and testimony was given by the
parties on appellant's motion. From other documents in the
record, it appears that respondent may have refinanced the
debt on the farm with a loan from the Farmers Home
Administration.
Although appealing the denial of her motion for new
trial, appellant has not provided this Court with a
transcript of the hearing on the motion. In denying the
motion, the lower court specifically referred to the parties'
testimony at the hearing. "It is the duty of a party seeking
review of a judgment to present this Court with a record
sufficient to enable us to pass upon the question raised."
Harrington v. Harrington (1979), 181 Mont. 541, 542, 594 P.2d
319, 320; citing e.g., Rule 9, M.R.App.Civ.P. Appellant has
failed her duty as to this issue. We cannot consider the
merits of this issue without a satisfactory record of the
evidence presented at the hearing on the motion for new
trial. Therefore, the wife's appeal is dismissed as to this
issue. See Harrington, supra, and Yetter v. Kennedy (1977),
175 Mont. 1, 571 P.2d 1152.
This Court has considered respondent's request for
attorney's fees and costs on appeal and the same is denied.
Affirmed.