In Re the Marriage of Binsfield

                             NO.    94-215
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1995


IN RE THE MARRIAGE OF
HILDA BINSFIELD,
           Petitioner and Respondent,
     and




APPEAL FROM:    District Court of the Eighth Judicial District,
                In and for the County of Cascade,
                The Honorable Joel G. Roth, Judge presiding.


COUNSEL OF RECORD:
           For Appellant:
                Don A. Labar and Royce A. McCarty, Jr.
                Attorneys at Law; Church, Harris, Johnson &
                Williams, Great Falls, Montana

           For Respondent:
                E. Lee LeVeque, Attorney at Law;
                Conklin, Nybo, LeVeque & Murphy,
                Great Falls, Montana



                             Submitted on Briefs:       October 28, 1994
                                             Decided:   January 19, 1995
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.




        Nicholas H. Binsfield (Nicholas) appeals from the findings of

fact,    conclusions of law, and decree entered by the Eighth Judicial

District Court, Cascade County, dissolving his marriage to Hilda

Binsfield (Hilda).        We affirm.

        We consider the following issues on appeal:

        1.     Did the District Court err in denying Nicholas' motion to

compel Hilda to submit to a psychological examination?

        2.     Did the District Court err in making an equal distribution

of the marital assets?

        3.     Did the District Court err in awarding Hilda an in-kind

distribution of real property?

        Nicholas and Hilda were married on September 1,         1956,   in

Power, Montana.        Prior to the marriage, Nicholas purchased a one-

half interest in his family's farm a few miles south of Great Falls

on the Missouri River; his brother owned the other one-half

interest in the farm.        Their father retained a life estate in the
farm.        In the early 194Os, Nicholas had purchased approximately 480

acres of land adjacent to the family farm for $2,000.

        Hilda lived in Germany and Switzerland before immigrating to

the United States in 1955.        While in Europe, Hilda had a son, Anton
Giger, and was married for a period of time.

        When Nicholas and Hilda married, Hilda moved onto the family
farm and her son Anton moved to California.           Hilda and Nicholas
lived on the farm with Nicholas' brother and father.             Nicholas
                                       2
farmed full-time, and Hilda performed the duties of a homemaker for

the three men.       Nicholas' father died in 1963; his brother died in

1970.

        At the time of the dissolution, Nicholas was 83 years old and

Hilda was 81 years old.            Nicholas owned nearly 800 acres of land

including all 320 acres of the family farm.                 The 800 acres had an

appraised value of $546,000.             In addition, he held bonds, savings

accounts, and other income-producing property worth approximately

$578,656.     All of these assets were held solely in Nicholas' name.

At the time of dissolution,             Hilda possessed just over $1,400 in

three bank accounts.          She received about $260 per month in social

security benefits and approximately $390 per month in pensions from

the German and Swiss governments for work performed in those

countries    prior     to   her   immigration   to the United States.

        Early in 1993, Hilda was diagnosed as having a brain tumor.

She testified that she was concerned she would not survive.                      She

asked Nicholas to provide farm land for her son Anton.                        Hilda

testified that Nicholas replied that Anton could work on the land,

but would never own any of it.                   This   refusal   prompted   Hilda's

interest in seeking a dissolution.                The Mayo Clinic in Rochester,

Minnesota,    successfully treated Hilda's tumor.

        After returning from the Mayo Clinic, Hilda filed a petition

for     dissolution.        Nicholas    responded,      denying that there were

irreconcilable differences between the parties and asserting that

Hilda lacked the mental capacity to petition for dissolution.

Nicholas requested that Hilda's petition be dismissed or, in the

                                            3
alternative,       that    the property and debts of                  the parties be

equitably      divided.

      On December 1, 1993, Nicholas moved for an order to show cause
why Hilda should not be compelled under Rule 35(a), M.R.Civ.P., to

submit to a psychological             examination.       The District Court held a

hearing     and denied Nicholas'            request.         We denied Nicholas'

subsequent application for a writ of supervisory control on the

issue.

      After a bench trial,            the District Court entered a "bare"

decree of dissolution because Hilda's counsel was concerned that

none of the marital property was in her name and that one of the

parties might die before the decree of dissolution was entered. On

February    24,    1994,     the court entered its                 findings of fact,

conclusions of law, and decree.

      The District Court evenly divided future crop and annuity

payments    and   awarded    Nicholas    and      Hilda    personal    property   worth

$13,395 and $2,685, respectively.                Nicholas received the farmstead

and five acres worth $30,000, and the court ordered the remainder

of the farm property, worth $516,000,                   divided evenly between the

parties.    The division was to be accomplished by Nicholas dividing

the remaining acres into two parcels of approximately equal size

and value and permitting Hilda to choose the parcel she preferred.

To account for the disproportionate amount of personal and real

property    Nicholas      received,   the       court    awarded    Hilda   investments

worth $309,683; Nicholas was awarded investments worth $268,973.

The   assets    each   party   received         totalled   approximately     $626,902.


                                            4
Nicholas    appeals.


        Did the District Court err in denying Nicholas' motion to
        compel Hilda to submit to a psychological examination?

        Nicholas moved the court to compel Hilda to submit to a

psychological examination pursuant to Rule 35(a), M.R.Civ.P., which

states in relevant part:

        When the mental or physical condition (including the
        blood group) of a party . . is in controversy, the
        court in which the action is pending may order the party
        to submit to a physical or mental examination by a
        suitably licensed or certified examiner . . .         The
        order may be made only on motion for good cause shown and
        upon notice to the person to be examined and to all
        parties and shall specify the time, place, manner,
        conditions, and scope of the examination and the person
        or persons by whom it is to be made.

The language of the rule is discretionary.             It authorizes, but does

not    require,   a district court to order a party to submit to a

psychological examination when the party's mental condition is in

controversy and good cause is shown.           We will not reverse a court's

discretionary determinations absent an abuse of discretion.                 In re

Marriage of Rada (19941, 263 Mont. 402, 405, 869 P.2d 254, 255.

        We previously have interpreted Rule 35(a)          in the context of

criminal cases in which a defendant sought to compel a victim to
submit to a physical or psychological examination.                     In   those

circumstances,       we consistently held that           Rule 35(a) was not
applicable because the victim was not a party to the proceeding.

See State v. Little (1993), 260 Mont. 460, 468, 861 P.2d 154, 159;

State v. Goodwin (1991), 249 Mont. 1, 18-19, 813 P.2d 953, 964;
State v. Gilpin (1988), 232 Mont. 56, 67, 756 P.Zd 445, 451; State

v.    Liddell   (1984),   211 Mont.   180,   191,   685 P.2d 918,   924.    Those

                                        5
cases provide no authority for, or guidance in, resolving the issue

presently before us.

        The United States Supreme Court interpreted Rule 35(a) of the

Federal Rules of Civil Procedure, upon which Montana's Rule 35(a)

is     based,   in Schlagenhauf v. Holder (1964), 379 U.S. 104, 85 S.Ct.

234,    13 L.Ed.2d 152.     In that case, a party filed suit based on an
accident between a bus and a tractor-trailer.        One of the parties

alleged that the driver of the bus was neither physically nor
mentally fit to drive a bus at the time of the accident.       The party
moved to compel the bus driver to submit to various physical and

mental examinations pursuant to Rule 35(a), F.R.Civ.P.

        In vacating the lower court's order allowing the examinations,

the Supreme Court focused on the rule's "in controversy" and "good

cause"     language.     It noted that the "in controversy" and "good

cause"     requirements:

        are not met by mere conclusory allegations of the
        pleadings--nor by mere relevance to the case--but require
        an affirmative showing by the movant that each condition
        as to which examination is sought is really and genuinely
        in controversy and that good cause exists for ordering
        each particular examination. . . . Rule 35, therefore,
        requires discriminating application by the trial judge,
        who must decide, as an initial matter in every case,
        whether   the party requesting a mental or physical
        examination or examinations has adequately demonstrated
        the   existence of the     Rule's  requirements of    " in
        controversy" and "good cause" . .

Schlaaenhauf,      379 U.S. at 118-19.

        In the present case, Nicholas submitted several affidavits and

presented witnesses at a hearing regarding the possible necessity

of a psychological evaluation.       He testified that Hilda's petition
for dissolution was unexpected and unusual.        Based on a review of

                                         6
Hilda's    medical    records,     a   psychologist   testifying    for   Nicholas

stated that Hilda "may"          lack the mental capacity to make her own

decisions and that it would be difficult to determine her capacity

via an interview or question and answer format.               The    psychologist

had never met or talked to Hilda; nor was his testimony relating to

her possibly deficient mental capacity based on any personal

observation    of    her.       Hilda testified on her own behalf at the

hearing.     After listening to Hilda's testimony, the District Court

stated:

             I've been observing Mrs. Binsfield ever since we've
       been in court here.    I must admit now, based upon her
       testimony here, both on cross and on direct, there's
       really little doubt in my mind but what this lady is
       competent.   She knows what she's doing.

Later, the court added: "I'm satisfied after having heard this lady

[Hildal that she does know what [she is1 doing."
       Applying     the   Schlaqenhauf    standard    here,   it is clear that

Nicholas     relied on speculative and conclusory testimony by a

psychologist who had no personal knowledge of Hilda or her mental

capacity.      He made no affirmative showing that Hilda's mental

capacity was genuinely in controversy.            See Schlaqenhauf, 379 U.S.

at 118.      We conclude that such evidence is wholly inadequate to

meet Nicholas' initial burden of establishing the existence of the

"in    controversy"       and   "good cause" requirements of Rule 35(a),

M.R.Civ.P.

       Nicholas relies on In re Marriage of Tesch (1982), 199 Mont.
240, 648 P.2d 293, in support of his argument that the court should

have   ordered      a psychological examination.              His   reliance is


                                          7
misplaced.

          In   Marriaqe of     Tesch,   the   husband   obtained a   default

dissolution from his wife, who was almost totally incapacitated by

multiple       sclerosis.    At the hearing prior to entry of the default

judgment, both the husband and his attorney informed the court that

they believed the wife was competent;              neither the wife nor a

representative of the wife was present.            After the district court

entered the default dissolution, the wife moved to set aside the

judgment.         The district court denied the wife's motion. We

reversed on appeal, noting that:

          [tlhe wife is totally disabled by multiple sclerosis.
          Such a disability, in itself, might warrant the setting
          aside of the default judgment.     Here, however, other
          circumstances also support the setting aside of the
          judgment.  Nothing on the record addresses the question
          of the wife's competency or her voluntary relinquishment
          of her interests in the farm. . We emphasize that
          the crucial problem with this case is that nowhere are
          the desires of the wife on record.

Marriaqe of Tesch, 648 P.2d at 296-97.

          Here, unlike in Marriaqe of Tesch, the District Court held a

separate hearing to determine the merits of Nicholas' motion to

require Hilda to submit to a psychological examination.                As a

result,        the record before the trial court and this Court does

address the question of Hilda's mental capacity and desires.

Indeed, Hilda testified on her own behalf, providing the court the

ability to determine whether Hilda's mental capacity was genuinely

in controversy and whether good cause was established to compel her

to submit to a psychological examination.           Noting that none of the

marital   property was in her name and that Nicholas had informed her
that Anton would not receive any of the farm land, Hilda voiced her
concerns that she would die without providing for her son Anton.
Hilda adequately informed the court of her desires and demonstrated
her   mental   capacity to the court's satisfaction.   We hold that the
District Court did not abuse its discretion in denying Nicholas'
motion to compel Hilda to submit to a psychological examination.

      Did the District     court err in        making an     equal
      distribution of the marital assets?
      The distribution of the marital estate is controlled by § 40-
4-202, MCA, which provides in relevant part:
      (1) In a proceeding for dissolution of a marriage . .
      the court, without regard to marital misconduct, shall ,
           finally 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 . . .
This statute vests the district court with broad discretion to
apportion the marital estate in a manner which is equitable to each
party under the circumstances.       In re Marriage of Zander (1993),
262 Mont. 215, 221, 864 P.2d 1225, 1229.       When a district court's
findings of fact regarding marital property distribution are not
clearly erroneous, and when substantial credible evidence supports
the findings and judgment, we will not alter a district court's
marital property division absent an abuse of discretion.             In re
Marriage of Maedje (1994),     263 Mont. 262, 265-66, 868 P.2d 580, 583
(citations omitted).
      Nicholas argues that an equal division of the marital assets
is inequitable in this case.       His position is based on assertions
that he brought most of the assets into the marriage with him; the
                                     9
District Court did not trace several of his "E Series" savings
bonds as premarital assets; some of the savings bonds are in both
his and his sister's names; the court incorrectly valued a pickup
and trailer; and the court failed to consider Hilda's dissipation
of the marital estate.
     At    the     time   of   the    parties'     marriage,       Nicholas    owned
approximately 480 acres of land in his own name and a one-half
interest in his father's 320 acre farm, with his father retaining
a life estate.       During the marriage, he inherited another portion
of the farm and money with which he acquired the remainder.
Nicholas testified that he had other assets prior to his marriage;
his testimony was vague, however,               regarding the value of these
assets.
     When dividing property acquired prior to the marriage or
through    inheritance, a            district     court     must    consider     the
contributions      of the other        spouse,    including the nonmonetary
contribution of a homemaker, the extent to which such contributions
facilitated the maintenance of the such property, and whether the
property    division      serves      as   an    alternative to        maintenance
arrangements.      See § 40-4-202(I), MCA.          Here,    it is apparent from
the District Court's extensive findings of fact that Hilda's
contributions as a homemaker and general farmhand substantially
contributed to the maintenance of                the property that Nicholas
brought into and acquired during the marriage.                The District Court
made a separate finding addressing dozens of household and farm-
related    tasks     Hilda     routinely performed during the 37year

                                           10
marriage.      In addition, Hilda was not awarded maintenance in the
dissolution.     We conclude that the District Court did not abuse its
discretion by including the properties Nicholas brought into the
marriage and inherited during the marriage in the marital estate.
      With regard to the Series E savings bonds, Nicholas testified
that he believed all of the bonds were purchased prior to his
marriage.      However,   the only documentary evidence regarding the
bonds was the accounting of Nicholas' brother's estate.            Based on

that accounting, the District Court found that only 3 of 10 bonds
in   Nicholas' and his brother's names were purchased in 1943 and the
remainder were purchased after 1956, the year Nicholas and Hilda
married.    The three premarital bonds owned by Nicholas had a value
of only $550.32 sixteen years after the marriage, and no evidence
of their value at or around the      time   of the parties' marriage was
introduced.
      The District Court properly could have separated the value of
these premarital assets only where sufficient evidence was
presented to trace the assets and their value to a        time   before the
marriage.     See In re Marriage of Miller (1989), 238 Mont. 197, 203-

04, 777 P.2d 319, 324.       No such evidence was presented here. We
conclude that the District Court's findings regarding the bonds
were not clearly erroneous.
      We decline to address Nicholas' argument that the court erred
in distributing the value of bonds which included his sister as an
alternate payee.      Nicholas did not object to the inclusion of the
bonds in the marital estate on this basis in the District Court.

                                    11
We will not entertain issues raised for the first time on appeal.

In re Marriage of Prescott (19931, 259 Mont. 293, 299, 856 P.2.d

229, 232-33.

     Nicholas also contends that the court erred in valuing a

pickup truck and a trailer. At trial, Nicholas testified that the

value of the truck was $3,800 and the value of the trailer was

$1,500.    Hilda's son Anton testified that he believed the truck was

worth about $6,000 and the trailer worth $2,500.      The court used

Anton's valuation for the truck and Nicholas' valuation for the

trailer.   We conclude that there was sufficient evidence to support

the District Court's valuation of the pickup truck and the trailer.

     Nicholas further argues that the court erred by failing to

include some of Hilda's assets in the marital estate.    These assets

were the monies contained in three bank accounts totaling $1,424.70

at the time of the dissolution hearing.     While the District Court

did err in failing to make findings regarding the $1,424.70, we

conclude that the error was harmless in the context of the District

Court's equal distribution of a marital estate valued at more than

$1.2 million.

     Finally,   Nicholas contends that the division of the marital

estate is inequitable because the District Court did not consider

Hilda's dissipation of the marital estate.      Nicholas argues that
Hilda's failure to save her pension money and alleged gifts of

money to Anton's father constituted dissipation of the value of the

marital estate to an extent that the District Court was compelled

to take into account in distributing the marital assets. We


                                  12
disagree.
     We have     stated that any finding of dissipation must be
supported   by   substantial   evidence.   In re Marriage of Stewart
(1988),   232 Mont. 40, 43, 757 P.2d 765, 767.     In the present case,
Hilda testified that she used her pension money for household items
and gave some money to her son Anton.         She denied that she had
given any money to Anton's father.            In   addition,   Hilda was
inordinately frugal throughout the marriage and this frugality
aided in the acquisition and preservation of            marital assets.   We
conclude that the District Court did not err in failing to find
that Hilda dissipated the marital estate.
     We hold that the District Court did not err in making an equal
distribution of the marital assets.

     Did the District Court err in awarding Hilda an in-kind
     distribution of real property?
     The District Court awarded the family home and the five acres
upon which it sits to Nicholas.      The court also awarded each of the
parties one-half of the remaining real property acreage. The court
adopted a method of division whereby Nicholas was to divide the
property in half, excluding the five-acre homestead, and Hilda was
to choose one of the parcels.      Where substantial credible evidence
supports a district court's findings and judgment distributing a
marital estate, this Court will not alter that decision absent an
abuse of discretion.     Marriaqe of Maedie, 868 P.2d at 583.
     Nicholas correctly relies on In re Marriage of Glass (1985),
215 Mont. 248, 258, 697 P.2d 96, 102,        for the proposition that

                                    13
Montana's policy in favor of keeping a family farm intact may be
considered in distributing marital property after it has been
allocated.       No authority is cited, however, and we have located
none,    in support of the proposition that a family farm must be
retained intact.

        Here,   the District Court did not maintain the unity of the
family farm.        Under the circumstances before us--where Hilda lived
on the farm for 37 years, is 81 years old and expressed her desire
to remain on the farm--we cannot conclude that the District Court
abused its discretion in ordering that the farm be divided.
        In addition, we previously have approved a method of dividing
a family ranch in a dissolution proceeding similar to that used by
the District Court here.         In re Marriage of Hancock (1987), 226
Mont. 383, 736 P.Zd 101.         In Marriaqe of Hancock, we stated that
"[t]he method employed by the lower court will generally result in
an equal division.           The party drawing the dividing line is
essentially forced to make an equal partition.       Otherwise, he risks
receiving the smaller parcel left after the other party chooses."
Marriaqe of Hancock, 736 P.2d at 102.         We hold that the District
Court did not err in awarding Hilda an in-kind distribution of real
property.
        Affirmed.




                                      14
15