In Re the Marriage of Gerhart

800 P.2d 698, 245 Mont. 279, 47 State Rptr. 2106, 1990 Mont. LEXIS 351
CourtMontana Supreme Court
DecidedNovember 8, 1990
Docket90-188
StatusPublished
Cited by17 cases

This text of 800 P.2d 698 (In Re the Marriage of Gerhart) 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 the Marriage of Gerhart, 800 P.2d 698, 245 Mont. 279, 47 State Rptr. 2106, 1990 Mont. LEXIS 351 (Mo. 1990).

Opinion

JUSTICE 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 parties’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.

*281 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 premarital 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 accountant’s 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 parties’ health and station in life. The District Court also considered the parties’ property on the date of the marriage as well as the parties’ property acquired during the marriage and said property on their date of separation.

B.J.’s 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 *282 value of the assets nor did it consider B.J.’s income or inheritance during the marriage. Tom’s 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 “division 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.”

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, 332.

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:
“ Tt 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), 211Mont. 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), [___ Mont. ___,] *283 631 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.

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Bluebook (online)
800 P.2d 698, 245 Mont. 279, 47 State Rptr. 2106, 1990 Mont. LEXIS 351, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-gerhart-mont-1990.