In Re Marriage of LeProwse

646 P.2d 526, 198 Mont. 357, 1982 Mont. LEXIS 824
CourtMontana Supreme Court
DecidedJune 11, 1982
Docket81-335
StatusPublished
Cited by14 cases

This text of 646 P.2d 526 (In Re Marriage of LeProwse) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Marriage of LeProwse, 646 P.2d 526, 198 Mont. 357, 1982 Mont. LEXIS 824 (Mo. 1982).

Opinions

MR. JUSTICE MORRISON

delivered the opinion of the Court.

Norma Jean LeProwse, appellant, appeals from decree and judgment entered by the Missoula County District Court dissolving the parties’ marriage, determining child custody and support, and dividing the marital assets. The issues raised here concern the valuation and division of property as found and ordered by the trial court.

[359]*359The parties were married twenty-nine years. During their marriage they accumulated property including a house in Missoula, a cabin at Flathead Lake, a travel trailer, a boat with motor, a 1975 Chevrolet automobile, furnishings in the house and lake cabin, and Champion International stock. Additionally, in April of 1977, approximately eight months before commencement of this proceeding, appellant received an eleven thousand dollar ($11,000.00) inheritance, six thousand dollars of which remained at time of trial.

A licensed real estate broker testified for appellant regarding the value of the jointly-owned real property. Using comparable sales, he appraised the Missoula residence at fifty-three thousand five hundred dollars ($53,500.00) and the Flathead Lake property, including improvements, at fifty-five thousand dollars ($55,000.00). The broker used a listing price, rather than a sales price, for one of the comparable sales for the lake property; another comparable sales reference was property twice the size of the subject property that varied considerably from the subject property in terms of square footage and lake front footage. In determining the replacement costs of the improvements on the lake property the broker did not allow for any depreciation in valuing the nine-year-old improvements.

Respondent’s appraisal was presented by a MAI-designated real estate appraiser who used replacement cost and market data methods to value the property. He appraised the Missoula residence at fifty-four thousand nine hundred dollars ($54,900.00) and the lake shore property at forty-five thousand dollars ($45,000.00). The comparable sales used by respondent’s appraiser were verified sales of similar acreage, front footage and square footage value. Respondent’s appraiser used the same lot as appellant’s broker for one of his comparable sales but where the broker used a recent listing price as his reference point, the appraiser used an actual sales price that was some twenty-one thousand five hundred dollars ($21,500.00) lower than the subsequent listing. The appraiser arrived at a similar replacement cost valuation of the improvements located on the lake property, however, he made a [360]*360downward depredation adjustment to account for the age of the improvements.

Appellant provided no testimony as to the market value of the personal property in the marital estate. Respondent provided the court with his opinion, which was in part based upon a previous appraisal of an insurance agent, as to the estimated value of the travel trailer, the boat, the home and lake furnishings, and the stock.

Both parties testified that they had present and future ability to participate in medical insurance and retirement programs. Appellant is a twenty-year employee of the United States Forest Service, with an annual gross income in excess of nineteen thousand dollars ($19,000.00). Respondent has similar longevity with Champion International and a current annual gross income of approximately twenty-eight thousand dollars ($28,000.00). Appellant also testified that she had rheumatoid arthritis which required corrective surgery but that similar operations had been successful in the past. She had accumulated ample sick leave to allow for her convalescence.

The findings of fact entered by the court on January 12, 1981, included that the parties had similar retirement benefits, that with the exception of appellant’s remediable arthritic condition, the parties were in relatively good health, and that the inheritance received by appellant should be specifically excluded from the marital estate. The lower court valued and distributed the marital assets as follows:

Fair Net Assets to Appellant Market Value Indebtedness Marital Equity

Missoula Residence $54,200.00 $9,000 $45,200.00

Furnishings in Missoula Residence $12,500.00 -0-$12,500.00

1975 Automobile $ 2,000.00 -0- $ 2,000.00

Total $59,700.00

[361]*361Assets to Respondent

Lakeshore Property $45,000.00 -0-$45,000.00

Furnishings at Lake $ 500.00 -0- $ 500.00

Travel Trailer $ 1,200.00 -0- $ 1,200.00

Boat and Motor $ 1,500.00 -0- $ 1,500.00

Champion International Stock $ 4,000.00 -0- $ 4,000.00

$45,000.00

Total $52,200.00

On February 27, 1981, the Missoula County Clerk of Court sent parties’ counsel notice of entry of judgment; notice was not mailed but delivered to parties via boxes located in the clerk’s office and designated for local counsel. Upon informing the trial judge that counsel for appellant had not picked up the notice until March 6,1981, appellant was granted until March 19,1981, to file posttrial motions. Appellant filed a motion for reconsideration March 18, 1981. No hearing was set nor had on the motion before March 29, 1981. On April 29, 1981, counsel for both parties appeared before the District Judge to discuss the applicability of M.R.Civ.P., Rule 59(d) to appellant’s motion. At that time the court formally deemed the motion denied. Appellant’s notice of appeal was filed the same day. Respondent’s counsel made no attempt to have the appeal dismissed as untimely.

Before this Court, appellant’s principal claim is that the trial court abused its discretion in allocating the marital assets. The bases [sic] for appellant’s contention include the court’s failure to determine net worth of the parties, the wholesale adoption of respondent’s findings of fact and conclusions of law as proposed, the court’s failure to properly apply the factors of section 40-4-202, MCA, and the court’s failure to account for appellant’s athritic condition in the distribution of assets, absent a provision for maintenance. Additionally, appellant presents as error the failure of the District Court to mail the judgment and decree and notice of entry of judgment to appellant’s counsel.

There is no need for this Court to review the manner in which the Missoula County District Court transmits its orders to local counsel. Neither at the trial level nor the appellate [362]*362level has appellant been harmed by the Missoula County District Court’s practice of depositing orders in designated boxes in the court clerk’s office. Appellant’s motion for reconsideration was duly considered by the District Court and this Court now considers the substantive issues raised by appellant. Absent a showing of prejudice this Court will not interfere with the internal operating rules of the Missoula County District Court.

The standard for review of a District Court’s findings and conclusions is the same whether the District Court has prepared them or has adopted a party’s proposed findings and conclusions: the lower court’s findings are to stand if supported by the law and evidence. City of Billings v. Public Service Commission (1981), Mont., 631 P.2d 1295, 38 St.Rep. 1162, 1165.

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In Re Marriage of LeProwse
646 P.2d 526 (Montana Supreme Court, 1982)

Cite This Page — Counsel Stack

Bluebook (online)
646 P.2d 526, 198 Mont. 357, 1982 Mont. LEXIS 824, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-leprowse-mont-1982.