Zell v. Zell , 174 Mont. 216 ( 1977 )

570 P.2d 33 (1977)

Victoria M. ZELL, Defendant and Appellant,
v.
Raymond W. ZELL, Plaintiff and Respondent.

No. 13892.

Supreme Court of Montana.

Submitted August 9, 1977. Decided September 21, 1977. Rehearing Denied October 4, 1977.

Smith, Emmons, Baillie & Walsh, Great Falls, for defendant-appellant.

Frisbee & Moore, Cut Bank, matter submitted on briefs without oral argument, for plaintiff-respondent.

HATFIELD, Chief Justice.

This is an appeal by the wife from the property division rendered in a divorce action. No issue is taken to the granting of the divorce nor the custody decree.

This appeal marks the second time these parties have been before this Court. On June 6, 1977, this Court rendered its opinion in Zell v. Zell, Mont., 565 P.2d 311, 34 St. Rep. 492 (1977). That opinion was limited to the motion to dismiss on the grounds the notice of appeal was not timely filed and did not address itself to the merits of the appeal.

The parties to this appeal were married on November 21, 1945. Four children have been born from this marriage. All but one, Gay Loree, are of majority age. At the time of the marriage the parties owned no material property. Mr. Zell had a net worth of about $2,000. After their marriage the parties came to Montana and acquired property. All of the property involved in this appeal was acquired during the marriage.

The property in question is as follows:

Parcel A: The residence presently occupied by Victoria M. Zell and children of the parties located at 800 First Street South in Shelby, Montana and described as:

Lots 1, 2, 3 and 4 of Block 33, of Johnsons First Addition to the Townsite of Shelby, Montana which has a reasonable value of $75,000.00, and title to which is in the name of defendant.

Parcel B: Rental property consisting of a house located at 327 Eighth Avenue North in Shelby, Montana described as:

Lots 4 and 5 in Block 41 of the Original School Addition to the Townsite of Shelby, Toole County, Montana which has a reasonable value of $25,000.00, and title to which is in the joint names of the parties.

Parcel C: Country Farm Land in Toole County described as:

Township 31 North. Range 2 West

Section 7: E ½ Section 17: W ½ NW Section 18: NE ¼ Section 5: W ½ SE ¼, E ½ SW ¼ Section 8: SW ¼, less 6 acres taken for a Missile Site, which has a reasonable value of $132,000.00, and title to which is in the joint names of the parties.

Parcel D: Various farm leases consisting of written leases or verbal leases or extensions of verbal leases standing in the name of Raymond W. Zell and covering the following described property, to-wit:

All in Toole County, Montana:

Township 31 North, Range 2 West

Section 5: NE ¼, NW ¼ Section 8: NE ¼ SE ¼

Township 32 North, Range 2 West

Section 31: W ½

Township 32 North, Range 3 West

Section 24: SE ¼ Section 25: E ½, SW ¼ Section 26: E ½ No value for these leases, separate and apart from the value of Parcel C, was established by the evidence.

Parcel E: Farm machinery, vehicles and equipment having a reasonable value of $50,000.00.

Parcel F: 1975 crop and summerfallow.

Parcel G: Household furnishings and miscellaneous personal property.

Parcel H: Bank accounts and grain.

Parcel I: Real property interests inherited by Raymond W. Zell.

The district court made the following disposition of the property in question:

Parcel A: The residence occupied by Victoria M. Zell was left in the wife's name.

Parcel B: The rental house was given to the husband.

Parcel C: The farm land was partitioned equally between the parties.

Parcel D: The leases were divided between the two parties.

Parcel E: The farm machinery was given to the husband.

Parcel F: All of the 1975 crops were divided equally between the parties after the husband was reimbursed for the costs of production.

Parcel G: Miscellaneous personal property was to remain in the name of the party in whose name it is already in.

Parcel I: Parcel I is the sole property of Raymond W. Zell being property which he recently inherited consisting of undivided interests in real estate.

The basic breakdown of the property division was as follows:

To the Husband: Rental House      $25,000
Machinery          50,000
_______
$75,000
To the Wife:    Family Home       $75,000

The district court made a finding that the parties had made approximately an equal contribution to the accumulation of the property in question and that each party owned an equal interest in that property. From this finding and judgment, the wife appeals.

The wife raises this issue on appeal:

Did the district court err in its division of property, in this action for divorce by failing to make an equal division of the property?

The wife contends that the district court abused its discretion in taking into account the family residence and that equity requires that the family house be left in the wife's name and that equal distribution of the remaining property be ordered. We disagree.

The trial transcript supplied to this Court refutes the wife's claim that she provided all of the funds to purchase the family home. While being cross-examined the husband made this statement:

"Q. And then your wife put up most of that money to buy the house initially, is that correct? A. I believe that she had — let's see — if I recall it right I believe she told me she had $35,000.00 in savings, and that came off the farm originally, I think. She took some of that money to make the down payment on the house."

Nowhere in the record is this statement refuted. The statement thereby evidences contribution by the husband. The money used for the down payment came originally from the farm proceeds which were generated by the joint efforts of both parties. The husband's practice was to divide equally the crops without deducting any costs of production. The district court did not abuse its discretion by including the family house with the other property which was accumulated during the marriage by the joint efforts of the parties.

Section 48-321(1), R.C.M. 1947, controls the district court's consideration and disposition of the marital property. Guidelines for the district court's consideration in a property division were outlined by this Court in Biegalke v. Biegalke, Mont., 564 P.2d 987, 34 St.Rep. 401 (1977).

Here, the district court in its finding of fact No. 7 found:

"7. The parties have made approximately equal contributions to the accumulation of the property described as Parcels A through H and in fact and equity own equal interests in that property."

The district court then went on and awarded an approximately equal division of the property to each party.

It is well settled in Montana that a district court has far reaching discretion in resolving property divisions and its judgment will not be altered unless a clear abuse of that discretion is shown. Eschenburg v. Eschenburg, Mont., 557 P.2d 1014, 1016, 33 St.Rep. 1198 (1976). The criteria for reviewing the district court's discretion is: Did the district court in the exercise of its discretion act arbitrarily without employment of conscientious judgment, or exceed the bounds of reason in view of all the circumstances. Berthiaume v. Berthiaume, Mont., 567 P.2d 1388, 34 St.Rep. 921 (1977).

A reading of the trial record, the findings of fact and conclusions of law adopted by the district court indicates that the presiding judge took into consideration each of the assets claimed by the parties, as well as the individual contribution of each party. The district court concluded that the parties made approximately equal contributions to the accumulation of the property. We find no abuse of discretion in the district court's judgment which affects an equal property division based upon equal contributions by each party. As this Court stated in Eschenburg at p. 1016:

"Each case depends upon its own facts and circumstances and this case warranted an equal distribution."

The judgment is affirmed.

DALY, HARRISON, HASWELL and SHEA, JJ., concur.