No. 90-188
IN THE SUPREME COURT OF THE &ATE OF MONTANA
1990
IN RE THE MARRIAGE OF
TOM GERHART,
Petitioner and Respondent,
and
B.J. GERHART,
Respondent and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Thomas M. McKittrick, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
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'., Daniel L. Falcon, Matteucci & Falcon, P.C., Great
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Fall, Montana
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For Respondent:
~d -- -- L ) Keith Tokerud, Scott & Tokerud, Great Falls, Montana
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Submitted on Brief: October 3, 1990
Decided: November 8, 1990
Filed:
I
Clerk
Justice John Conway Harrison delivered the Opinion of the Court.
In December of 1989, the Cascade County District Court entered
a decree of dissolution of the marriage of Tom Gerhart and B.J.
Gerhart. B.J. appeals from the property settlement. We affirm.
The issues for review are:
1. Whether the District Court clearly abused its discretion
by failing to offer a coherent plan regarding distribution of the
marital property.
2. Whether the District Court created a reversible inequity
by failing to value or divide interest accumulated from the
parties1 joint investments between the date of valuation and the
date of actual division.
3. Whether the District Court abused its discretion by
accepting valuations which were erroneous and inaccurate.
4. Whether it is appropriate for the District Court to
consider temporary maintenance as an asset of the marital estate.
Tom filed a petition for dissolution and a hearing was held
on January 16, 1989. The District Court issued its findings of
fact, conclusions of law, and order on December 7, 1989. In this
order, the District Court awarded B.J. (1) all of her pre-marital
assets; (2) all of the inheritances she received during the
marriage; (3) all the gain realized during the marriage on her pre-
marital assets and inheritances; and (4) forty percent of the gain
during the marriage from the ranching operation that Tom brought
to the marriage. The District Court also awarded B.J. maintenance
of $250 per month for five years and $7,500 for attorney's and
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accountantts fees. B.J. entered post-trial motions with the
District Court December 26, 1989, citing numerous alleged errors
by the District Court. A hearing was held on March 2, 1990 on
B.J.'s post-trial motions. All motions were denied except one
which cited a typographical error. Thereafter, on March 5, 1990,
the District Court entered its final judgment and decree from which
B.J. now appeals. We affirm.
Tom and B.J. were married in Great Falls, Montana, April 10,
1976. No children were born during the marriage nor was B.J.
pregnant at the time of the dissolution proceeding.
B.J., age 60 at the date of dissolution, is of average good
health. B.J. completed high school and two years of college. She
most recently worked in the pharmacy of the Great Falls Clinic for
fifteen years. Prior to that job she had worked in commercial
establishments in Portland, Oregon.
Tom was 54 at the date of dissolution. Tom had begun ranching
south of Belt, Montana in 1963 and has continued ranching to the
present date.
Tom testified that the parties had been separated on and off
for several years before 1987, when they did finally separate on
September 30, 1987. Tom filed a petition for dissolution in June,
1987.
In its findings of fact, the District Court considered the
partiest health and station in life. The District Court also
considered the partiest property on the date of the marriage as
well as the partiesu property acquired during the marriage and said
property on their date of separation.
B.J.ls accountant testified at trial that the marital estate
had gained $221,800 during the marriage. The District Court
rejected this value because the analysis was not based on the
change in fair market value of the assets nor did it consider
B.J.Is income or inheritance during the marriage. Tom1s
accountant, on the other hand, contended that the marital gain was
$100,882.98. The District Court found the gain in the marital
estate during the marriage to be $154,986.
Additional facts will be discussed as needed.
As her first assignment of error, B.J. claims the District
Court abused its discretion in distributing property of the marital
estate. Specifically, B.J. claims the lldivision
fails to have any
reasonable clarity and is plagued by internal conflicts and
discrepancies. As a result it is not possible to determine how the
marital estate was in fact divided.I1
Conflicting evidence was before the District Court in the
present case. When confronted with conflicting evidence, the court
must use its fact-finding powers to determine which evidence is
more credible. Having had the opportunity to observe the
witnesses, the trial court is in a position superior to that of the
appellate court to judge the credibility of the testimony. In re
the Custody of Holm (1985), 215 Mont. 413, 418, 698 P.2d 414, 417.
Absent a clear abuse of discretion by the trial judge, this Court
will not overturn the distribution of marital property. In re the
Marriage of Dirnberger (1989), 237 Mont. 398, 401, 773 P.2d 330,
Section 40-4-202, MCA, sets forth factors which the court must
consider when making a distribution of marital property. However,
While articulation of these factors is
encouraged, the absence of specific findings
does not automatically warrant remand:
"It is not the lack of specific findings which
constitute 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 record to
determine whether ample evidence exists."
In re the Marriage of Hundtoft (1987), 225 Mont. 242, 244, 732 P.2d
401, 402, quoting In re the Marriage of Peterson (1984), 211 Mont.
118, 683 P.2d 1304. The lower court need not articulate each
factor separately as long as the findings are sufficient to allow
nonspeculative review by this Court.
Our ultimate test for adequacy of
findings of fact is whether they are
sufficiently comprehensive and pertinent to
the issues to provide a basis for decision,
and whether they are supported by the evidence
presented.
In re the Marriage of Jensen (Mont. 1981), 631 P.2d 700, 703, 38
St.Rep. 1109, 1113. On review, this Court examines both the trial
court's express reasoning as well as the evidence in the record.
B.J. contended the gain in the marital estate was $221,800
while Tom contended the gain to be $100,882.98. The court
considered the testimony from each party's expert, rejected both
valuations and found the gain in the marital estate to be $154,986.
The court then awarded B.J. forty percent of this gain to be paid
out of a joint investment fund made up of proceeds from the sale
of cattle from the ranch. We have held that a district court is
free to find a value for marital property within the range of
evidence submitted. In re the Marriage of Kramer (1987), 229 Mont.
476, 747 P.2d 865. Here the District Court valued the marital gain
to be $154,986. The value is well within the range of evidence
submitted and was thoughtfully arrived at by the District Court.
We find no error. The District Court valued the marital gain,
awarded B.J. forty percent of this gain and provided her a way to
get it, namely out of the joint investment fund. We find that this
valuation and distribution' is equitable and quite coherent. The
record reflects the fact that the District Court considered the
factors set out in 5 40-4-202, MCA, when making the distribution
of marital assets. Furthermore, the distribution plan is plain,
simple, short and clear. Upon review, it is apparent that the
trial judge attempted to value the marital estate and to distribute
the property equitably and to support his distribution with
adequate findings. We find no abuse of discretion and uphold the
District Courtls valuation and distribution of the marital gain.
As her second assignment of error, B.J. claims the District
Court erred by failing to value or divide interest accumulated from
the parties1 joint investment between the date of valuation and
the date of actual division.
The District Court valued the marital estate as of September,
1987 and specifically valued the marital gain as totalling
$154,986. Thereafter, the District Court entered its dissolution
decree on December 7, 1989 and awarded B.J. forty percent of the
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marital gain to be paid out of the partiest joint investment fund.
At this point note that B.J. was not awarded rights to the joint
investment fund but rather was awarded forty percent of the marital
gain to be paid out of the joint investment fund. From September,
1987 until December, 1989, the partiest joint investments, which
totalled $68,874.71 as of September 1987, accrued interest of over
$10,000. B.J. argues, without citing any case law or statutory
authority, that she is entitled to an equitable portion of this
accumulated pre-judgment interest on the joint investment fund.
We disagree.
The correct rule in this jurisdiction is that interest is not
allowable until the exact amount due is ascertained or is
ascertainable. Daly v. Swift & Co. (1931), 90 Mont. 52, 300 P.
265. In this case, the amount due B . J . was not ascertained (or
ascertainable) until December 7, 1989, when the District Court
entered its decree. Therefore, interest is allowable only from
December 7, 1989. We hold that no reversible inequity exists in
the record regarding prejudgment interest.
B . J . Is third assignment of error is whether the District Court
abused its discretion by accepting a number of valuations which
were erroneous and inaccurate. B.J. first argues that the
depreciation method used by Tom to value his machinery and
equipment was fatally flawed in that the method only considered
depreciation during the marriage rather than depreciation during
the entire life of the machinery and equipment.
Specifically, B . J . points out that the District Court valued
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Tom's I1PTO balerg1on the date of marriage, in 1976, for the same
amount Tom had originally paid for it in 1963. B . J . contends that
this constitutes an abuse of discretion of the District Court. We
disagree.
At trial, Tom testified without contradiction that he
purchased the baler in 1963, at cost, for $2,700 while its fair
market value was $4,500. Tom further testified that in 1976, as
of the date of the marriage, the baler then had a fair market value
of $2,700. However, by 1987, ranchers had switched to the new
round balers, and Tom and his expert both testified that the
obsolete "PTO balerw was only worth $150. As such, the record
reflects that the depreciation method used by Tom considered
depreciation during the entire life of the machinery and equipment.
There was no abuse of discretion. B.J. next states that ''This
erroneous method of depreciation was apparently implemented by Tom
on all machinery purchased prior to the marriage." We find no
evidence in the record which supports this claim.
B.J. alleges other errors in the District Court's findings.
In short, we have reviewed the entire record before us and find
that there is no credible evidence to substantiate any of her
claims that the District Court abused its discretion. We affirm
the ~istrictCourt.
As her fourth and last assignment of error, B . J . asserts that
the District Court erred by considering temporary maintenance as
a marital asset. The District Court ordered Tom to pay $750 per
month to B.J. during the course of the divorce because she had
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access to only her funds. At a later date the District Court-foucd
that B.J. s share of the property division should be reduced by the
amount of this temporary maintenance paid by Tom. Accordingly, the
District Court reduced B.J. Is share of the property division by
$20,250. B.J. claims this was a reversible error because, in so
doing, the District Court was essentially treating temporary
maintenance as an asset of the marital estate.
B.J. cites In re the Marriage of Lundvall (Mont. 1990) , 786
P.2d 10, 47 St.Rep. 173, for the proposition that temporary
maintenance payments cannot be considered as a marital asset. This
is not what we held in Lundvall. In Lundvall we said that one of
the factors the court should consider when making a maintenance
award is whether the spouse seeking the award "will receive
sufficient property to provide for the spousels needs ( 40-4-
203 (1)(a), MCA) , the term Isufficient property1 means income-
producing, not income consuming. Lundvall at 12, 47 St.Rep. at
175. We then characterized the llassetu temporary maintenance
of
already received by the wife as not income-producing. Accordingly,
we said that the total amount of temporary maintenance received by
the wife from the husband is not to be considered a marital asset
when makins a maintenance award. In this case, the District Court
was making a property distribution and charged B.J. for the
property already received in the form of temporary maintenance
payments. We hold that this was an equitable arrangement and not
an abuse of discretion on the part of the District Court. The
District Court is hereby affirmed.