No. 88-527
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
IN RE THE MARRIAGE OF
SYLVIA GAY JOHNS,
petitioner and Appellant,
and
WILLIAM J. JOHNS,
Respondent and Respondent.
APPEAL FROM: District Court of the Second Judicial ~istrict,
In and for the County of Silver BOW,
The Honorable Frank Davis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
~enningsen,Purcell, Vucurovich & ~ichardson;Mark A.
~ucurovich,Butte, Montana
For Respondent:
W. M. Hennessey, Butte, Montana
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- Submitted on ~riefs: May 11, 1989
Decided: July 24, 1989
Mr. Justice William E. Hunt, Sr., delivered the opinion of
the Court.
Sylvia Johns, petitioner, appeals from the property
distribution mandated in the dissolution of marriage decree
entered by the District Court of the Second Judicial
District, Silver Bow County. We affirm.
The issues raised on appeal are:
1. Whether sufficient evidence supported the District
Court's valuation of the parties' real property.
2. Whether the ~istrictCourt adequately determined the
parties' net worth.
Sylvia and William Johns were married on September 11,
1965. On June 12, 1987, wife filed a petition for
dissolution of the marriage and for the equitable
distribution of the marital estate. A hearing was held on
April 15, 1988, which dissolved the marriage and reserved all
other issues. On July 25, 1988, the District Court issued
its findings of fact and conclusions of law and decree
dividing the marital property.
When dividing the martial property, the ~istrictCourt
considered several factors as required under 5 40-4-202, MCA.
The factors were enumerated in the court's findings of fact
and conclusions of law as follows: the duration of the
marriage, real and personal property acquired during the
marriage, the age of the parties, the employment and pension
plans of each, the IRA accounts of each, the wife's
inheritance, a debt on the family home, a debt for their
adult daughter's wedding, and miscellaneous property. The
District Court noted that in addition to wife having a higher
monthly net income than husband, wife's pension plan had a
present value in excess of $24,000 while husband's pension
plan had only a future potential value of $247 per month upon
retirement. Although it is unclear from the record how the
valuation of the pensions was made, the parties did not raise
the specific issue.
Upon consideration of the parties' assets, the District
Court decreed that each party retain as their separate
property their IRA accounts, pension plans, deferred savings
and motor vehicles. The family home valued at $40,000 was
awarded to husband conditioned on payment of a $2,000 debt
remaining on the home as well as a $2,300 debt incurred on
the parties' adult daughter's wedding. The court also
considered wife's inheritance and decreed that it should be
wife ' s sole property. In addition, wife was awarded
miscellaneous property. The District Court stated, in
comment to its findings, that the distribution was practical,
equitable and in the best interests of both parties.
The first issue raised on appeal is whether sufficient
evidence supported the ~istrict Court's valuation of the
parties' real property. Specifically, wife argues that the
family home awarded to husband in the distribution was
undervalued by the District Court at $40,000.
Both parties employed qualified appraisers to give
expert opinions as to the present value of the home. The
deposition testimony of both appraisers was introduced as
evidence in court. wife's appraiser valued the home at
$56,000 while husband's appraiser valued it at $40,000. The
District Court accepted the $40,000 appraisal and explained
in its findings that it accepted husband's appraisal because
the value was more realistic for a one-bedroom home. Wife
argues that there was no justification for the valuation and
thus, the District Court abused its discretion.
The District Court's findings of fact must be viewed as
a whole. In re the Marriage of Hockaday (Mont. 1989), -
P.2d , 46 St.Rep. 910. The standard of review in a
distribution case is that where the District Court based its
distribution of marital assets on substantial credible
evidence, it will not be overturned absent a clear abuse of
discretion. In re the ~arriageof Stewart (Mont. 19881, 757
P.2d 765, 767, 45 St.Rep. 850, 852; In re the ~arriage Watson
(Mont. 1987), 739 P.2d 951, 954, 44 St.Rep. 1167, 1170. We
will not reverse the ~istrict Court on a property
distribution determination without such a showing. See In re
the Marriage of LeProwse (1982), 198 Mont. 357, 362, 646 P.2d
526, 529. Moreover, the ~istrict Court has far reaching
discretionary powers when valuing property for distribution.
The valuation need only be reasonable in the light of the
evidence submitted. In re ~arriageof the ~ilesnick (Mont.
1988), 765 P.2d 751, 755, 45 St.Rep. 2182, 2187; In re the
Marriage of ~ u i s i (Mont. 1988), 756 P.2d 456, 459, 45 St.Rep.
1023, 1026.
In the present case, the ~istrictCourt predicated its
$40,000 valuation on the expert testimony of an appraiser.
We held in Milesnick, 765 P.2d at 755, that expert testimony
is a reasonable premise for which the ~istrictCourt may base
a valuation. Wife, however, argues that she too presented
expert testimony that the home had a value of $56,000 and
that there was no rationale given by the court for its
$40,000 valuation. However, in ~ilesnick,765 P.2d at 755,
we stated:
When confronted with conflicting evidence, the
court must use its fact-finding powers to determine
which evidence is more credible.. . .
Unless there
is a clear preponderance of the evidence against
the District Court's valuation, its findings, where
based on substantial though conflicting evidence,
will not be disturbed on appeal.
The District Court's $40,000 valuation of the parties'
home was reasonable in light of the testimony presented and
the rationale set forth in the District Court's findings.
There was no abuse of discretion.
The second issue raised on appeal is whether the
District Court adequately determined the parties net worth.
Specifically, wife alleges that the determination was
improper since the ~istrictCourt considered wife's $30,000
inheritance as her property in the distribution.
The net worth of a marital estate must be determined
prior to division of the estate. In re the ~arriage of
Shultz (1980), 188 Mont. 363, 365, 613 P.2d 1022, 1024. In
determining the net worth, the District Court must make
complete findings and include all assets and liabilities. In
re the Marriage of ~irnberger (Mont. 1989), 773 P.2d 330, 46
St.Rep. 898.
In this case, the ~istrict Court set forth wife's
$30,000 inheritance in its findings of fact as a marital
asset. In Dirnberger, we held that the ~istrictCourt was
required to take inheritance into consideration when dividing
marital assets. In fact, the Court may have erred had it not
made such a consideration. In re the ~arriageof Alt (19851,
218 Mont. 327, 334, 708 P.2d 258, 262. We hold that the
District Court properly considered wife's inheritance when it
determined the parties net worth.
Affirmed.
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Justices
Mr. Justice L. C. Gulbrandson dissenting.
I respectfully dissent.
The majority sets forth correctly the duty imposed upon
a trial judge to determine the net worth of a marital estate
prior to entry of a decree dividing said estate. However,
the majority has ignored the fact that the net worth was not
determined in this case, and there is no adequate basis for
this Court to review the property division. Specifically, I
am unable to determine if the trial judge correctly
characterized wife's $24,000.00 deferred savings plan as a
better pension plan than husband's vested pension plan of
$247.00 a month upon retirement, where there was no testimony
regarding ages of the parties or costs of a comparable
annuity.
I would remand for additional net worth findings and
reconsideration of the treatment of wife's inheritance, which
was found to be wife's sole property, but was treated as
marital property for division purposes.
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