Marriage of Snell ( 2002 )

No. 02-074
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 243N
IN RE THE MARRIAGE OF
SHARON K. SNELL,
Petitioner and Appellant,
and
ROBERT S. SNELL,
Respondent and Respondent.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Stewart E. Stadler, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Peter F. Carroll, Attorney at Law, Kalispell, Montana
For Respondent:
Erika L. Johnson; Johnson, Berg, McEvoy & Bostock,
Kalispell, Montana
Submitted on Briefs: May 16, 2002
Decided: November 7, 2002
Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1996 Internal Operating Rules, the following decision shall not be
cited as precedent but shall be filed as a public document with the
Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter
Publishing Company and to West Group in the quarterly table of
noncitable cases issued by this Court.
¶2 Sharon K. Snell (Sharon) appeals from the judgment entered by
the Eleventh Judicial District Court, Flathead County, on its
findings of fact, conclusions of law and decree of dissolution. We
affirm.
¶3 Sharon raises the following issues:
¶4 1. Did the District Court abuse its discretion in accepting
David Heine’s appraisal of the 3-acre Creston Farm homestead into
evidence?
¶5 2. Did the District Court abuse its discretion in valuing and
distributing the marital estate?
¶6 3. Did the District Court err in failing to award Sharon
maintenance?
BACKGROUND
¶7 Sharon and Robert S. Snell (Robert) were married on July 25,
1967. In April of 1999, Sharon petitioned the District Court to
dissolve the marriage and equitably apportion the marital estate
between the parties. She also requested that Robert pay her
maintenance. The District Court held a trial in May of 2001,
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following which it entered findings of fact, conclusions of law and
a decree dissolving the marriage and distributing the parties’
marital estate. As the court stated in its findings of fact, the
marital estate in this case consists mainly of four parcels of land
acquired by the parties during their marriage and referred to in
this proceeding as the Creston Farm, the Isch property, the Lake
Blaine property and the Snell Home Place.
¶8 The Creston Farm consists of approximately 200 acres of
farmland with a house and several outbuildings. James Kelley
(Kelley), a certified land appraiser hired by the parties to
appraise the various parcels of land, valued the Creston Farm at
$740,000. A second appraisal, conducted by David Heine (Heine) at
the request of Robert, valued a 3-acre tract containing the house
and outbuildings within the Creston Farm at between $60,000 and
$75,000. The District Court allocated 40 acres of the Creston
Farm, plus the 3-acre tract with house and outbuildings, to Sharon
and the remaining 157 acres to Robert.
¶9 The Isch property consists of 70.26 acres of farmland valued
by Kelley at $259,962. At the time of the trial, the debt on this
property was $105,599. The debt is secured by a Merrill Lynch
account which the District Court valued at an amount approximately
equal to the debt. The District Court distributed both the
property and the Merrill Lynch account to Sharon. The court also
distributed the Lake Blaine property, consisting of 5 acres of
residential property valued by Kelley at $276,000, to Sharon.
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¶10 The final parcel, referred to as the Snell Home Place,
consists of 174.53 acres of farmland. Kelley valued 37.48 acres of
this property, containing a residence and some outbuildings, at
$163,000. He further determined that the highest and best use of
the remaining acreage is as residential subdivision and valued it
at approximately $900,000. The District Court allocated the 37.48
acres with buildings to Robert. The court divided the remaining
acreage between the parties, with Robert receiving 68.55 acres and
Sharon receiving 68.5 acres.
¶11 In addition to the above real property distributions, the
District Court valued and allocated the parties’ other assets and
debts. Robert received a net distribution equaling $1,088,504 and
Sharon received a net distribution of $1,133,078. The court also
specifically noted that Sharon was receiving a greater proportion
of the marital estate in lieu of a maintenance award. Sharon
subsequently moved to amend the decree or, alternatively, for a new
trial, asserting that various of the District Court’s findings of
fact relating to the valuation and distribution of the marital
estate were erroneous. The court denied the motion and entered
judgment on the decree. Sharon appeals.
DISCUSSION
¶12 1. Did the District Court abuse its discretion in accepting
Heine’s appraisal of the 3-acre Creston Farm homestead into
evidence?
¶13 Prior to the trial in this matter, the parties signed, and
filed with the District Court, a stipulation stating that Kelley
would perform the appraisals of all the real property of the
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marital estate and no additional or alternative appraisals would be
performed. At trial, Robert offered into evidence Heine’s
appraisal valuing the home, outbuildings and 3-acre tract within
the Creston Farm property at $65,000. Sharon objected to the
exhibit on the basis that it violated the pretrial stipulation.
The District Court allowed the exhibit into evidence and Sharon
asserts error. We review a district court’s evidentiary rulings to
determine whether the court abused its discretion. In re Marriage
of Craib (1994), 266 Mont. 483, 499, 880 P.2d 1379, 1389.
¶14 Sharon contends that the District Court’s admission of the
Heine appraisal was error affecting her substantial rights because
her “trial counsel was caught unprepared by the proffer of such
testimony.” Our review of the record, however, shows that Sharon’s
counsel was aware of the appraisal prior to trial and had prepared
to respond to it. During direct examination of Kelley, Sharon’s
counsel said someone had indicated to him that the 3-acre parcel
was worth $65,000 and asked what response Kelley had to that
valuation. Kelley then testified that he believed the 3-acre tract
would be worth up to $50,000. Moreover, Sharon testified that if
there was a legitimate offer to purchase the 3-acre tract for
$65,000, she would be willing to value the tract at that amount.
All of this testimony occurred prior to Robert offering the Heine
appraisal into evidence, thus contradicting Sharon’s assertion that
her counsel was unaware of, and unprepared for, the Heine
appraisal.
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¶15 Moreover, the District Court accepted the Heine appraisal into
evidence on the basis that it had already heard the testimony set
forth above. In other words, Sharon opened the door for Robert to
present evidence regarding the value of the 3-acre tract. Based on
the record before us, we hold that the District Court did not abuse
its discretion in accepting Heine’s appraisal of the 3-acre Creston
Farm homestead into evidence.
¶16 2. Did the District Court abuse its discretion in valuing and
distributing the marital estate?
¶17 We review a district court’s division of marital property to
determine whether the court’s findings of fact are clearly
erroneous and its conclusions of law correct. Siefke v. Siefke,
2000 MT 281, ¶ 7, 302 Mont. 167, ¶ 7, 13 P.3d 937, ¶ 7; In re
Marriage of Gochanour, 2000 MT 156, ¶ 15, 300 Mont. 155, ¶ 15, 4
P.3d 643, ¶ 15. If the court’s findings are not clearly erroneous,
we will affirm a property distribution absent a showing that the
court abused its discretion. Siefke, ¶ 7; Marriage of Gochanour, ¶
15. Moreover, a presumption exists in favor of a district court’s
determinations regarding the valuation and distribution of marital
property and those determinations are accorded a great amount of
deference on review. Marriage of Gochanour, ¶ 34. Finally, a
district court “has the discretion to adopt any reasonable
valuation of property supported by the record.” Siefke, ¶ 20
(citation omitted).
¶18 Sharon argues the District Court’s findings of fact regarding
the value of certain assets in the marital estate are clearly
erroneous and, consequently, the court’s ultimate property
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distribution--based on these erroneous findings--was an abuse of
discretion. She first contends that the District Court erred in
relying on a balance sheet prepared at Robert’s request by
certified public accountant Ken Armstrong (Armstrong) to determine
the value of certain marital property because the balance sheet was
hearsay evidence and, therefore, the validity of the figures
therein was questionable.
¶19 During Sharon’s testimony, she offered as an exhibit a
document outlining her proposed valuation and distribution of the
marital estate. At the same time, she offered Armstrong’s balance
sheet as an exhibit as the source for some of the values assigned
to assets on her proposed distribution exhibit. Robert objected to
admission of the Armstrong balance sheet on the basis that it was
both hearsay and inaccurate. In response, Sharon’s attorney
specifically argued that the Armstrong balance sheet was not
hearsay because it constituted an admission against interest by
Robert.
¶20 A party may not change its legal theory or raise new arguments
on appeal. Milltown Add. Homeowner’s Ass’n v. Geery, 2000 MT 341,
¶ 18, 303 Mont. 195, ¶ 18, 15 P.3d 458, ¶ 18. Moreover, we will
not reverse a district court for error in which the appellant
acquiesced or participated. Sandman v. Farmers Ins. Exchange, 1998
MT 286, ¶ 23, 291 Mont. 456, ¶ 23, 969 P.2d 277, ¶ 23. Because
Sharon argued below that the Armstrong balance sheet was not
hearsay, she is precluded from arguing here that the District Court
should not have relied on the exhibit because it was hearsay. We
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conclude, therefore, that the District Court’s valuation of certain
assets based on the Armstrong balance sheet is not clearly
erroneous.
¶21 Sharon next argues that the District Court’s valuation of the
Merrill Lynch account securing the debt owed against the Isch
property at $104,151 based on figures from the Armstrong balance
sheet is clearly erroneous because the validity of the balance
sheet figures is questionable. She contends that the District
Court should have adopted the lower value of $80,509 placed on the
account by Robert. Again, however, Sharon herself offered the
Armstrong balance sheet into evidence and, indeed, her proposed
property valuation and distribution exhibit values the Merrill
Lynch account in accordance with Armstrong’s balance sheet. Having
requested the District Court to value the account in accordance
with the Armstrong balance sheet, Sharon cannot now argue that the
court was in error for doing so. We conclude the District Court’s
finding of fact valuing the Merrill Lynch account at $104,151 is
not clearly erroneous.
¶22 Sharon also argues that the District Court’s finding of fact
valuing the parties’ farm equipment at $78,625 is clearly
erroneous. She contends that the more accurate value of the farm
equipment is $165,000, as reflected in a Farm Credit Services
report she prepared for the parties in 1998. Robert testified,
however, that he met with a loan officer from the Farm Credit
Services in 1999 and, with the loan officer’s assistance,
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determined that the value of the farm equipment was approximately
$78,000. The District Court found that
[w]hile there were introduced equipment inventories
suggesting a higher value, those inventories were
prepared by [Sharon] during the times she controlled the
farm records. Following the parties’ separation,
[Robert] met and cooperated with a Farm Credit Services
officer to accurately inventory and value the equipment.
The Court finds the value of the farm equipment to be
$78,625.00.
¶23 As stated above, a district court “has the discretion to adopt
any reasonable valuation of property supported by the record.”
Siefke, ¶ 20 (citation omitted). Moreover, determinations
regarding the valuation of marital property are presumptively
correct and accorded a great amount of deference on review.
Marriage of Gochanour, ¶ 34. We conclude the District Court’s
finding of fact valuing the farm equipment at $78,625 is supported
by the record and, therefore, is not clearly erroneous.
¶24 Sharon next argues that the District Court’s finding of fact
valuing the Lake Blaine property at $276,000 is clearly erroneous
because the court failed to adjust the value to reflect tax
consequences which would result from the sale of the property. She
contends that, at the time the parties separated, they agreed the
Lake Blaine property eventually would be sold and that the court’s
property distribution requires her to sell real property--namely
the Lake Blaine property--in order to have adequate income on which
to live. However, Sharon testified at the trial that, depending on
the final property distribution, there may be no need to sell the
Lake Blaine property. This testimony contradicts her assertion
here that it was assumed the property would be sold. Moreover, as
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the District Court observed in its order denying Sharon’s posttrial
motion to amend the decree, “[t]he Lake Blaine property allocated
to [Sharon] could be used to acquire a home or additional farm
acreage without tax consequences . . . .”
¶25 Tax liability should be considered by the district court only
where the court’s property distribution includes a taxable event
resulting in a concrete and immediate tax liability. In re
Marriage of Lee (1991), 249 Mont. 516, 519, 816 P.2d 1076, 1078.
Based on the record before us, we conclude that potential tax
consequences related to the Lake Blaine property were neither
concrete nor immediate at the time the District Court entered its
decree. Consequently, we further conclude that the court’s finding
of fact valuing the property at $276,000 is not clearly erroneous.
¶26 Finally, Sharon argues that the District Court’s finding of
fact 15 is clearly erroneous. That finding states as follows:
During the period of separation, [Sharon] claims that
[Robert] has retained all of the family farm income.
[Robert] claims that for a period of time during the
parties separation that [Sharon] maintained the farm bank
accounts and excessively dissipated these accounts.
Giving credibility to both claims, results in the Court
finding that there has been an approximately equal
distribution of post separation farm income.
Sharon’s argument that this finding is erroneous is based,
essentially, on her assertion that her testimony regarding the
parties’ use of marital assets during the post-separation period
was more credible than Robert’s. However, we must give due regard
to the trial court’s opportunity to judge the credibility of
witnesses and will not substitute our judgment for that of the
trial court on those matters. In re Marriage of Oehlke, 2002 MT
1079, ¶ 21, 309 Mont. 254, ¶ 21, 46 P.3d 49, ¶ 21. We conclude
Sharon has failed to establish that the District Court’s finding of
fact 15 is clearly erroneous.
¶27 Having concluded that the challenged findings of fact are not
clearly erroneous, we hold that the District Court did not abuse
its discretion in valuing and distributing the marital estate.
¶28 3. Did the District Court err in failing to award Sharon
maintenance?
¶29 In her petition for dissolution, Sharon requested that Robert
pay her maintenance. At trial, however, Sharon testified that she
would be willing to forego a maintenance award if the court awarded
her sufficient property in lieu thereof. In the final decree, the
court awarded Sharon a net property distribution which was $44,574
greater than that awarded Robert and specifically stated that
[t]he disproportionate allocation of the marital estate
is in lieu of maintenance and considering [Robert’s]
greater earning capacity which equalizes when [Sharon]
obtains her anticipated additional education. Said
distribution provides [Sharon] with sufficient assets
when considered with income available to provide for her
continued education and reasonable needs. There is no
evidence that either will be unable to meet their
reasonable financial needs, so spousal maintenance is not
appropriate.
¶30 In a dissolution proceeding, a district court may grant a
spouse maintenance if the court finds that the spouse lacks
sufficient property to provide for his or her reasonable needs and
is unable to support him/herself through appropriate employment.
Section 40-4-203(1), MCA. A court may, in its discretion, allocate
property in lieu of maintenance. Section 40-4-203(2)(a), MCA.
Finally, we review a court’s grant or denial of a maintenance award
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to determine whether the court’s underlying findings of fact are
clearly erroneous. In re Marriage of Haines, 2002 MT 182, ¶ 15,
311 Mont. 70, ¶ 15, 53 P.3d 378, ¶ 15.
¶31 Sharon argues that the District Court’s finding that it
awarded sufficient property in lieu of maintenance to provide for
her reasonable needs is clearly erroneous. Her argument is based
on her assertion that none of the property she received was income-
producing. She first contends that, although the court awarded her
farm property which potentially could be income-producing, it
failed to award her any of the farm equipment with which to produce
such income. The District Court awarded all the farm equipment to
Robert, finding that, although Sharon stated a desire to farm, it
questioned the legitimacy of that desire based on her failure to
avail herself of previous opportunities to farm during the parties’
marriage. Based on the record before us, we conclude that
sufficient evidence exists to support this finding and it is not
clearly erroneous.
¶32 Sharon further asserts, however, that the District Court’s
failure to award her any equipment with which to farm results in
her being required to sell some of her property in order to meet
her needs. Consequently, according to Sharon, she will suffer
adverse tax liabilities and the loss of some of her property, thus
making the court’s property award in lieu of maintenance
insufficient. As noted above, however, the District Court found
that the sale of any property awarded to Sharon would not
necessarily result in adverse tax consequences, and we conclude
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that Sharon has not established that this finding is clearly
erroneous. We hold, therefore, that the District Court did not err
in failing to award Sharon maintenance.
¶33 Affirmed.
/S/ KARLA M. GRAY
We concur:
/S/ PATRICIA COTTER
/S/ TERRY N. TRIEWEILER
/S/ TERRY N. TRIEWEILER
/S/ JAMES C. NELSON
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