No. 83-151
I N THE SUPREME COURT O THE STATE O MONTANA
F F
1983
I N RE THE MARRIAGE OF
SHARON M. GARST,
P e t i t i o n e r and Respondent,
and
ORAH W. GARST
Respondent and A p p e l l a n t .
Appeal from: D i s t r i c t Court of t h e S i x t e e n t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f Powder R i v e r ,
The H o n o r a b l e A. B . M a r t i n , J u d g e p r e s i d i n g .
C o u n s e l o f Record:
For Appellant:
James J . S i n c l a i r , B i l l i n g s , Montana
F o r Respondent :
Lucas & Monaghan; A. Lance Tonn, M i l e s C i t y ,
Montana
-
Submitted on B r i e f s : July 7, 1983
Decided: September 2 9 , 1 9 8 3
Filed:
SEP 2 9 1983
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Orah W. Garst appeals from the judgment of the Sixteenth
Judicial District Court, Powder River County, apportioning
marital property. We modify and affirm the District Court's
judgment .
The issues on appeal are:
(1) Did the District Court err in its valuation of the
marital ranch property?
(2) Did the District Court abuse its discretion by
ordering an inequitable division of marital property?
(3) Did the District Court err by granting the wife a
lien on marital property or its proceeds in a specific dollar
amount?
Sharon M. Garst (Sharon) filed a petition for
dissolution of marriage on July 1, 1980. Trial was held July
17, 1981 and the District Court issued findings and
conclusions on September 10, 1981. Sharon appealed from that
judgment and this Court affirmed in part, reversed in part
and remanded the case for redetermination of the net marital
estate and reapportionment of marital property. Garst v.
Garst (Mont. 1982), 649 P.2d 450, 39 St.Rep. 1477.
Trial was held December 15, 1982. The principal issue
at trial wa.s the value of the net marital estate, which
turned upon valuation of marital ranch property and
improvements and upon other matters not challenged on appeal.
All other assets and all liabilities were found to have been
conclusively determined in the first trial.
Orah W. Garst (Dub) testified that the ranch consisted
of the following types and amounts of acreage:
hay land 186 acres
crop land 340 acres
improved pasture 120 acres
grazing land 2,603.63 acres
TOTAL 3,249.63 acres
Dub testified that the value of the ranch was $100 per acre
or approximately $325,000, including improvements.
Dub testified that the "improved pasture" was originally
grazing land, which had been plowed and planted for the
purpose of growing sufficient crops to pay for a tractor for
the ranch. After one or two crops were harvested, the land
was replanted to grass and used for grazing. Dub testified
that this pasture would support no more cattle than other
grazing land and was worth no more than other grazing land.
Sharon's expert appraiser, Dennis Jurica, testified that the
improved pasture should be valued as farm land rather than
grazing land.
Jurica testified that the ranch and improvements were
worth approximately $500,000. His appraisal was based upon
several different methods of valuation. He valued the
improvements alone at approximately $75,000. Sharon
testified that she felt the ranch and improvements were worth
$500,000.
Dub's expert appraiser, M. L. Watson, testified that the
farm land was worth $367.50 per acre and the grazing land was
worth $70.44 per acre. Watson's appraisal, prepared before
trial, was based upon acreage figures different from those
testified to by Dub at trial. Watson testified that these
differences affected the valuation of the ranch. The acreage
figures testified to by Dub at trial were substantiated by
Jurica's testimony. Sharon's counsel stated to the Court
that she was willing to accept Dub's acreage figures. Watson
further testified that ranch improvements were worth $55,000,
and the ranch, $387,000, including improvements.
The District Court found that the value of the ranch and
improvements was $485,804.69. The Court accepted the acreage
figures supplied by Dub and the values per acre supplied by
Watson. The Court accepted Jurica's testimony regarding
value of the 120 acres of improved pasture, valuing that land
at the higher farm land figure. Ranch value was calculated
by the District Court as follows:
340 acres farmland and
120 acres farmland returned to
pasture, at $367.50 per acre: $169,050.00
186 acres hayland at $367.50
per acre: 68,355.00
2,603.63 acres range land
at $70.44 per acre: 183,399.69
Total $420,804.69
To this value, the Court added a compromise value for
improvements of $65,000, for a total ranch value of
$485,804.69.
The Court found there was a net marital estate of
$204,374, to which each party was equally entitled. The
Court ordered that all ranch assets be distributed to Dub,
who in return was to pay Sharon $102,187 or half of the net
marital estate. Because it was doubtful that Dub could raise
that amount by borrowing against the ranch, the Court ordered
that if no payment agreement was worked out within 90 days,
the ranch property was to be sold. The Court granted Sharon
a lien upon the ranch property or proceeds in the amount of
$102,187. Dub appeals.
Dub first contends that the District Court erred in its
valuation of marital ranch property. He argues the District
Court rejected, without stating reasons, the opinions of both
experts, and that the Court's valuation figure was thus
chosen arbitrarily and is not supported by the evidence.
However, the record clearly shows these contentions are
without merit.
It is well-settled that this Court will not disturb the
fact findings of the District Court if they are based upon
substantial credible evidence. Kowis v. Kowis (Mont. 1983) ,
658 P.2d 1084, 1087, 40 St.Rep. 149, 152. In Kowis, we
stated that although conflicts may exist in the evidence
presented, it is the duty of the trial judge to resolve such
conflicts. His findings will not be disturbed on appeal
where they are based on substantial though conflicting
evidence, unless there is a clear preponderance of evidence
against such findings. 658 P.2d at 1087, 40 St.Rep. at 152.
We find there is substantial credible evidence to
support the District Court's valuation of the marital ranch
property.
In reaching its determination of ranch value, the
District Court used Dub's acreage figures and the values
supplied by Dub's appraiser, Watson. The Court did not
reject the testimony of Watson. The record clearly shows
that the acreage figures used by Watson in preparation of his
appraisal were erroneous. The Court applied Watson's values
per acre to the acreage figures testified to by Dub at trial.
Those figures were supported by Jurica's testimony, and
Sharon indicated to the Court that they were acceptable to
her. The Court questioned the witnesses with respect to
acreage figures.
The District Court was not bound to accept either all or
none of the testimony of any witness. In Goodmundson v.
Goodmundson (Mont. 1982), 655 P.2d 509, 39 St.Rep. 2295, we
stated:
"In adopting proposed values or in setting its own,
the District Court is free in its discretion to
adopt the recommendation of a party or a layman
over that of an expert.
- Dickerson v. Dickerson
(1980), Mont. , 614 P.2d 521, 37 St.Rep.
1286. Also, the District Court may average the
values given by experts to arrive at an eqGitable
solution. . .. In Re the Marriage of Jensen
(19811,
1109.
Mont .
, 631 P.2d 700, 38 St.Rep.
"Here, the District Court adopted some findings
supported by the wife's valuations, some findings
that were averages of values set by experts, and
some findings based on the husband's testimony and
that of his appraisers. The husband claims this is
illogical and inconsistent. . ..
"We disagree with the husband simply because the
findings are supported by the evidence and that is
the determinative test." 655 P.2d at 511-12, 39
St.Rep. at 2297.
Here, as in Goodmundson, the District Court's valuation was
based on selected portions of the testimony of various
witnesses. Each step of the District Court's valuation
process was supported by substantial credible evidence.
Dub argues that the District Court committed reversible
error in failing to state its reasons for rejecting the
valuation of the expert witnesses, citing Marriage of
Peterson (Mont. 1981), 636 P.2d 821, 823, 38 St.Rep. 1723,
1726. Peterson is distinguishable, however. There, we stated
that we were unable upon review of the record to say that the
District Court properly exercised its discretion, without
some indication of its reasoning. 636 P.2d at 824, 38
St.Rep. at 1726. Here, the reasons are clear from the record
for the Court's acceptance or rejection of various testimony.
There is no merit in Dub's contention that the District Court
committed reversible error in accepting the testimony of Dub
and his expert witness.
Dub contends that the District Court erroneously valued
the 120 acres of improved pasture as farm land rather than
grazing land. The testimony was in conflict on this
question. Dub testified that the improved pasture was worth
no more than the grazing land. But Jurica testified that the
property should be valued as farm land. The land in question
had been farmed by Dub for at least one or two seasons, and
crops were harvested. The District Court's finding that this
land should be valued as farm land is supported by
substantial credible evidence.
We find no error in the District Court's valuation of
the marital ranch property.
11.
Dub next contends that the District Court abused its
discretion by ordering an inequitable method of division of
marital property. More specifically, he argues that the
Court erred in ordering that the marital ranch property be
sold so that Sharon will receive her share of the net marital
estate. We reject this argument.
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.
Dub argues that Montana follows the rule that a family
ranch should be kept intact wherever there is a reasonable
means of providing the other spouse with his or her equitable
share of marital property short of selling the land, citing
Biegalke v. Biegalke (1977), 172 Mont. 311, 564 P.2d 987. He
notes that in furtherance of this policy, Montana courts
allow one spouse to buy out the equitable share of the other
spouse in a lump sum or according to installment schedules
established by the court or the parties. Marriage of
Jacobson (1979), 183 Mont. 517, 600 P.2d 1183. Dub argues
that the District Court here failed to reasonably and
realistically consider his ability to buy Sharon's equitable
interest in the ranch through the ranch's income-producing or
borrowing capacity.
These general principles of property division are not
disputed. However, the policy of keeping a family ranch
intact cannot be used to deprive a spouse of his or her
equitable share of the marital estate. Marriage of Owen
(Mont. 1980), 609 P.2d 292, 295, 37 St.Rep. 616, 619.
In resolving this issue it is important to consider the
District Court's finding number 8:
"The Court finds that [Dub] is without financial
means to pay [Sharon] her one-half share, and the
Court has been advised by counsel that there is
doubt if [Dub] can raise that amount by further
encumbering the ranch property. In the event [Dub]
is unable to pay [Sharon] the amount awarded or
cannot arrive at an agreement with [Sharon] for
installment payments within 90 days from date of
judgment, all ranch property belonging to the
marital estate shall be sold. . .."
Clearly, the District Court recognized the principles urged
by Dub. The Court gave Dub 90 days to arrange financing or
to work out an agreement with Sharon for purchase of her
interest. However, the Court found it was doubtful whether
such an arrangement was possible. The marital ranch
liabilities were substantial, making it unlikely that Dub
could obtain additional financing against the ranch assets.
Dub concedes that the ranch is already subject to "tremendous
liabilities." The District Court's order is an equitable and
fair decision with respect to both parties. If Dub is able
to arrange financing, he can preserve the ranch. However, if
he cannot, Sharon's interest is protected.
On this record, we cannot say that the trial court acted
arbitrarily without employment of conscientious judgment or
exceeded the bounds of reason. Finding no abuse of
discretion, the District Court's order that the ranch be sold
if no purchase agreement is reached within 90 days is
affirmed.
Finally, Dub contends that the District Court erred in
granting Sharon a lien on ranch property or proceeds in the
specific amount of $102,187, after stating the property was
to be divided equally. The substance of this contention is
that the percentage split of the net marital estate will not
be 50-50 if the ranch sells for either more or less than the
value determined by the District Court. He argues that to
grant the lien for a specific amount under these
circumstances is to act arbitrarily and. without employment of
conscientious judgment. We agree.
The lien amount of $102,187 is based upon the entire net
marital estate of the parties. If the ranch property sells
for more than $485,804 or if other ranch assets are sold for
more than the values set by the District Court, the lien
amount will be less than half the net marital estate, and
Sharon will receive less than her share. On the other hand,
if assets are sold for less than the values determined by the
Court, the lien amount will be greater than half, and Dub
will receive less than his share.
This problem is easily corrected by modifying the decree
to state that the lien shall be in the amount of $102,187 or,
in the event that property is sold for more or less than the
value determined by the District Court, the lien shall be
adjusted accordingly so that the lien is for one-half of the
net marital estate. We order that the judgment be so
modified.
Finally, we note that the trailer home included in the
District Court's valuation of the net marital estate has
apparently been distributed to Sharon. If this is so, the
value of the trailer must be subtracted from the amount of
the net marital estate due Sharon from Dub, and the trailer
should be paid for with proceeds of the sale of marital
assets. Similar adjustments are to be made for any other
items included in the net marital estate and already
distributed.
With the modifications noted above, we affirm the
judgment of the District Court.
We Concur:
?&
A &.Q+JQ
Chief ~usfice