Marriage of Bishop

Opinion

NO. 96-018

IN THE SUPREME COURT OF THE STATE OF MONTANA 1996

IN RE MARRIAGE OF: CAROL M. BISHOP Petitioner and Appellant, and ROBERT W. BISHOP, Respondent and Respondent.

APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable Diane G. Bars, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Fred E. Work, Jr., Work Law Firm, Billings, Montana For Respondent:

Mark D. Parker, Parker Law Firm, Billings, Montana

Submitted on Briefs: May 2, 1996 Decided: July 22, 1996 Filed:

Justice William E. Hunt, Sr. delivered the Opinion of the Court.

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court

1995 Internal Operating Rules, the following decision shall not be cited as precedent and shall be published by its filing as a public

document with the Clerk of this Court and by a report of its result

to State Reporter Publishing Company and West Publishing Company.

Appellant, Carol M. Bishop, appeals from the Findings of Facts

and Conclusions of Law entered by the Thirteenth Judicial District

Court of Yellowstone County on August 25, 1995.

We affirm in part and reverse and remand in part.

Appellant raises the following issues, which we restate as follows:

1. Did the District Court abuse its discretion in excluding Robert Bishop's tools as part of the marital estate asset list?

2. Did the District Court abuse its discretion in valuing Carol Bishop's furniture at $20,000?

3. Did the District Court abuse its discretion in valuing automobiles at $7,200?

4. Did the District Court abuse its discretion in valuing the tractor at $8,000?

5. Did the District Court abuse its discretion in finding that the $37,500 promissory note to Robert Bishop's mother was a valid marital debt?

6. Did the District Court abuse its discretion in the division of the marital assets?

7. Did the District Court abuse its discretion in denying Carol Bishop maintenance?

Robert and Carol married in May 1975. There are four children of the marriage; two daughters from Carol's previous marriage

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adopted by Robert, both of whom have obtained the age of majority, and two sons, ages 17 and -15 at the time of trial. Carol was a homemaker during the course of the marriage, and Robert is a selfemployed mechanic, who also teaches at the Billings College of Technology. As part of his employment, Robert has a large collection of automotive repair tools.

On December 5, 1994, the Thirteenth Judicial District Court issued a temporary restraining order at Carol's request. This order was subsequently dissolved, after which Carol left the family home. The two minor children remained with Robert. Upon her departure, Carol removed all of the household goods as well as her personal property. Robert obtained a loan in order to replace the household items at a cost of $20,000:

A petition for dissolution was filed, and a hearing was held in June 1995. At trial, testimony was heard from the parties, Ms. Donna Bender, and Mr. Dennis Whitmore. Ms. Bender is an appraiser hired by Carol and works locally as an auctioneer. Mr. Whitmore, is a friend of Robert's and his former business partner in Precision Power Trains. Mr. Whitmore bought Robert out of his interest in that business. Both Robert and Mr. Whitmore offered appraisal values for several marital assets.

The District Court entered its findings of facts and conclusion of law in August 1995. Carol appeals.

STA$lDARD REVIEW

OF

When a district court's findings of fact regarding marital property distribution are not clearly erroneous, and when

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substantial credible evidence supports the findings and judgment,

this Court will not alter the distribution of the martial property

absent an abuse of discretion. In re Marriage of Binsfield (1995),

269 Mont. 336, 888 P.2d 889.

This court recognizes that a district court has broad

discretion in determining value of property in marriage

dissolution. In re Marriage of Robinson (1994), 269 Mont. 293,

296, 888 P.2d 895, 897; In re Marriage of Rada (1994), 263 Mont.

402, 405, 869 P.2d 254, 255.

ISSUE ONE

Did the District Court abuse its discretion in excluding Robert Bishop's tools as part of the marital estate asset list?

On appeal, Carol argues that the District Court abused its

discretion when it failed to list several items as assets of the

parties in the court's findings. In finding of fact no. 10, the

court noted that the parties disputed the value of Robert's tools.

Based on the testimony of Robert and Mr. Whitmore, the court then

valued Robert's lathe at $3,500, his mill at $2,500, his hand tools

at $5,000, and other miscellaneous tools at $4,500, for a total of

$15,500. Carol argues that although these items were valued and

awarded to Robert in the court's findings, they were not listed as

assets in the marital estate.

Before a district court divides the marital estate it must first determine the net worth of the marital assets. Robinson, 888

P.2d at 897. In this case, the court identified several of

Robert's tools as assets of the marriage. The court then assigned

value to these tools. Despite the court's identification and

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subsequent valuation, it then failed to consider this amount when

it distributed the assets. See In ce Marriage of Smith (19941, 264 Mont. 306, 310, 871 P.2d 884, 886. No where in either Carol's or Robert's assets lists are the tools mentioned. This oversight is clearly in error.

We conclude that the District Court erred in the division of

the marital estate for its failure to include the value of Robert's

tools. We reverse on this issue and remand this case for a re-

evaluation of the marital estate. Upon remand, the court should

properly consider the provisions set forth in 5 40-4-202, MCA.

ISSUE TWO

Did the District Court abuse its discretion in valuing Carol Bishop's furniture at $20,0.00?

After the court dissolved the restraining order against Robert, Carol left the family home and removed all of the furniture

and her personal property. Following Carol's departure, Robert replaced the furniture and other property at a cost of $20,000.

On appeal, Carol argues that the household goods removed are

actually worth $2,844, not the $20,000 replacement value placed on these items by the court. She argues the household goods she

removed were over fifteen years old and had little value. She

further asserts that in the sense that Robert had his shop with his

tools, that she, as a homemaker, had her household items.

In this case, Carol chose to leave the family home and take

all of the household items with her. Given that Carol chose to

remove all of the items from the home upon departure, this left

Robert in a position of having to replace everything. As long as

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the valuation of the property in a dissolution is reasonable in

light of the evidence submitted, we will not disturb the finding on

appeal. Robinson, 888 P.2d at 897 (citing In re Marriage of

Milesnick (1988), 235 Mont. 88, 94-95, 765 P.2d 751, 755).

It was within the discretion of the District Court to accept replacement costs as a reasonable valuation of household goods. We

affirm on this issue.

ISSUE THREE

Did the District Court abuse its discretion in valuing automobiles at $7,200?

At trial, Carol's appraiser, Ms. Bender, estimated the value

of Robert's various automobiles at $26,800. On appeal, Carol

contends that Ms. Bender's valuations were based on the widely accepted "Kelly Blue Book" values.

Robert submitted evidence rebutting the valuations presented

by Ms. Bender. Robert explained that several of the cars valued by

Ms. Bender actually belonged to the minor children of the marriage.

Robert further testified that several cars sat in total disrepair

and, in fact, held a negative value.

The suggested retail prices in the blue book are simply

suggestions. Again, the court has wide discretion in determining

the value of marital assets of the marriage. m, 869 P.2d at 255.

A district court has far reaching discretionary powers to determine

the value of property in a dissolution action. Its valuation can

be premised on expert testimony, lay testimony, documentary

evidence, or any combination thereof. Milesnick, 765 P.2d at 755.

The District Court did not abuse its discretion by accepting

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Robert's testimony and corresponding valuations. We affirm on this issue.

ISSUE FOUR

Did the District Court abuse its discretion in valuing the tractor at $8,000?

Carol disputes the court's valuation of a tractor at $8,000.

Carol asserts that the tractor is worth $15,690. Carol's appraiser arrived at this figure by taking 70% of the new cost, plus an additional $150 for the tractor blade. In response to Carol's valuation, Robert stated that he had conferred with personnel knowledgeable in tractor sales, after which he concluded that the tractor was only worth $8,000 Again, the court is in-a position to accept Robert's valuation of the tractor. Rada -I 869 P.2d at 255. "Because the District Court has had the opportunity to observe the demeanor of the witnesses, we defer to its resolution of any conflicting evidence." In re Marriage of Porter (1991), 247 Mont. 395, 398, 807 P.2d 192, 194. The court did not abuse its discretion by accepting the $8,000 valuation. We affirm on this issue.

ISSUE FIVE

Did the District Court abuse its discretion in finding that the $37,500 promissory note to Robert Bishop's mother was a valid marital debt?

The court found that Robert's mother, Audrey Bishop, lent Robert $37,500 to build the shop and do renovations on the family home. This amount was subsequently charged to Robert as a valid debt in the division of the marital estate.

On appeal, Carol argues that the loans are suspicious. She

contends that the $37,500 represents several loans that occurred

over the course of 20 years, and that subsequent to the loans,

Robert has received a $10,000 gift from his mother and this amount

was not applied to the debt. Furthermore, Carol alleges that she

does not know if the loan money was even used to enhance the value

of the couple's marital assets.

At trial, however, Carol testified that the couple did not

discuss marital finances. Thus, the fact that Carol does not know

how Robert may have spent the money lent by Ms. Bishop is not

compelling. In addition, evidence that Robert may have received

subsequent gifts from his mother neither indicates nor confirms the invalidity of the previous loans from his mother.

Carol also argues that the debt is not valid because the promissory note reflecting the $37,500 debt was signed in 1987, and

therefore Robert could raise a statute of limitations defense

against his mother. This argument was not raised at trial,

subsequently this Court wiL1 not consider the issue for the first time on appeal. In re Marriage of Craib (1994), 266 Mont. 483,

496, 880 P.2d 1379, 1387; Binsfield, 888 P.2d at 893.

The record contains a copy of the promissory note Robert

signed over to his mother for $37,500, the note substantiates the

court's conclusion that the debt to Robert's mother is valid. See

In re Marriage of Neal (1994), 267 Mont. 455, 884 P.2d 789. It was

within the court's discretion to determine the note was legitimate

as the "assessor of the credibility of witnesses." In re Marriage

a

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of Ruff (1991), 247 Mont..486, 490, 807 P.Zd 1345, 1348. The District Court did not abuse its discretion in determining that the

debt to Ms. Bishop was valid, and, therefore, chargeable to the

marital estate. We affirm on this issue.

ISSUE SIX

Did the District Court abuse its discretion in the division of the marital assets?

Carol argues that the District Court improperly considered higher education expenses of the minor children in the division of

the marital estate. Carol asserts that under Montana case law,

this finding represents an improper obligation and, accordingly, is

a clear abuse of discretion. In re Marriage of Hurley (1986), 222

Mont. 287, 721 P.2d 1279. .

In Hurley, this Court concluded that the district court erred when it awarded the wife a greater portion of the marital estate

using as one of the factors in its decision the college education

of the parties' son. Hurlev, 721 P.2d at 1286. This Court held

that a parent's obligation for support ends at the age of majority,

unless there has been some sort of voluntary agreement to provide for further education beyond that age. Hurlev, 721 P.2d at 1287;

See also In re Marriage of Hewitt (1990), 242 Mont. 389, 791 P.2d 444 (distinguishes court ordered child support payments).

In the instant case, the court did not order child support.

Instead, the court stated "this award is disproportionately

distributed in Robert's favor." The court then stated that it was

considering the fact that Robert would be the principal care-giver

for the minor children and that this carried a responsibility for

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higher education past high school. As was the case in Hurlev, the

District Court inappropriately determined that the custodial parent should receive a disproportionate share of the marital estate in

consideration of the children's college expenses. In choosing to

award Carol less on this basis, the court effectively placed an

improper obligation on Carol to support the children beyond the age

of majority. Hurlev, 721 P.2d at 1287.

We remand on this issue for the District Court to apportion

the parties' marital assets without regard to higher education

expenses.

ISSUE SEVEN

Did the District Court abuse its discretion in denying Carol Bishop maintenance?

Finally, Carol argues that the court should have awarded her maintenance. The standard of review for maintenance awards is

whether the district court's findings are clearly erroneous. In re

Marriage of Smith (1995), 270 Mont. 263, 269, 891 P.Zd 522, 526; In

re Marriage of Corey (1994), 266 Mont. 304, 308, 880 P.2d 824, 827.

Throughout the marriage, Carol was a homemaker. She contends that

she has no marketable skills. Furthermore, she argues that Robert

has the capacity to both earn an income and manage the conditions

of a maintenance award Following the dissolution of a marriage, maintenance is

awarded when the spouse seeking the award both lacks sufficient

property to provide for his or her reasonable needs and is unable to support himself or herself through appropriate employment.

Section 40-4-203 (1) I MCA. Here, the court awarded Carol a

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contract receivable from Precision Power Trains. Subsequently, the court denied an award of maintenance and found Carol had been

awarded sufficient property to meet her needs.

We agree. The findings indicate that the court considered the

statutory factors listed in § 40-4-203, MCA. Corev, 880 P.2d at 827. The Precision Power Trains contract was worth over $90,000 and will provide Carol with a steady stream of income. We conclude

that the court's decision not to award Carol maintenance was not clearly erroneous.

Affirmed in part and reversed in part and remanded for further

proceedings in accordance with this opi ion.