Marriage of Bishop

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 self-
employed 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.
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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
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.
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