Leprowse v. Leprowse

No. 81-335
I N THE SUPREME COURT O THE STATE OF M N A A
F OTN
1982
I N R THE MARRIAGE O F :
E
NORMA J E A N LePROWSE,
P e t i t i o n e r and A p p e l l a n t ,
and
ROBERT E G R LePROWSE,
D A
Respondent and R e s p o n d e n t .
Appeal f r o m : D i s t r i c t Court of t h e Fourth J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f M i s s o u l a
H o n o r a b l e J o h n Henson, J u d g e p r e s i d i n g .
C o u n s e l o f Record:
For Appellant:
Goldman and Goldman, M i s s o u l a , Montana
For Respondent:
D a t s o p o u l o s , MacDonald & L i n d , M i s s o u l a , Montana
S u b m i t t e d on b r i e f s : March 5 , 1982
D e c i d e d : J u n e 11, 1982
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of
the Court.
Norma Jean LeProwse, appellant, appeals from decree and
judgment entered by the Missoula County District Court
dissolving the parties' marriage, determining child custody
and support, and dividing the marital assets. The issues
raised here concern the valuation and division of property
as found and ordered by the trial court.
The parties were married twenty-nine years. During
their marriage they accumulated property including a house
in Missoula, a cabin at Flathead Lake, a travel trailer, a
boat with motor, a 1975 Chevrolet automobile, furnishings in
the house and lake cabin, and Champion International stock.
Additionally, in April of 1977, approximately eight months
before commencement of this proceeding, appellant received
an eleven thousand dollar ($11,000.00) inheritance, six
thousand dollars of which remained at time of trial.
A licensed real estate broker testified for appellant
regarding the value of the jointly-owned real property.
Using comparable sales, he appraised the Missoula residence
at fifty-three thousand five hundred dollars ($53,500.00)
and the Flathead Lake property, including improvements, at
fifty-five thousand dollars ($55,000.00). The broker used a
listing price, rather than a sales price, for one of the
comparable sales for the lake property; another comparable
sales reference was property twice the size of the subject
property that varied considerably from the subject property
in terms of square footage and lake front footage. In
determining the replacement costs of the improvements on
the lake property the broker did not allow for any depreciation
in valuing the nine-year-old improvements.
Respondent's appraisal was presented by a MAI-designated
real estate appraiser who used replacement cost and market
data methods to value the property. He appraised the Missoula
residence at fifty-four thousand nine hundred dollars ($54,900.00)
and the lake shore property at forty-five thousand dollars
($45,000.00). The comparable sales used by respondent's
appraiser were verified sales of similar acreage, front
footage and square footage value. Respondent's appraiser
used the same lot as appellant's broker for one of his
comparable sales but where the broker used a recent listing
price as his reference point, the appraiser used an actual
sales price that was some twenty-one thousand five hundred
dollars ($21,500.00) lower than the subsequent listing. The
appraiser arrived at a similar replacement cost valuation of
the improvements located on the lake property, however, he
made a downward depreciation adjustment to account for the
age of the improvements.
Appellant provided no testimony as to the market value
of the personal property in the marital estate. Respondent
provided the court with his opinion, which was in part based
upon a previous appraisal of an insurance agent, as to the
estimated value of the travel trailer, the boat, the home
and lake furnishings, and the stock.
Both parties testified that they had present and future
ability to participate in medical insurance and retirement
programs. Appellant is a twenty-year employee of the united
States Forest Service, with an annual gross income in excess
of nineteen thousand dollars ($19,000.00). Respondent has
similar longevity with Champion International and a current
annual gross income of approximately twenty-eight thousand
dollars ($28,000.00). Appellant also testified that she had
rheumatoid arthritis which required corrective surgery but
that similar operations had been successful in the past.
She had accumulated ample sick leave to allow for her
convalescence.
The findings of fact entered by the court on January
12, 1981, included that the parties had similar retirement
benefits, that with the exception of appellant's remediable
arthritic condition, the parties were in relatively good
health, and that the inheritance received by appellant
should be specifically excluded from the marital estate.
The lower court valued and distributed the marital assets as
follows:
Fair Net
-
Assets to Appellant Market Value Indebtedness Marital Equity
Missoula Residence $54,200.00 $9,000.00 $45,200.00
Furnishings in Missoula
Residence $12,500.00
1975 Automobile $ 2,000.00
Total $59,700.00
Assets - Respondent
to
Lakeshore Property $45,000.00
Furnishings at Lake $ 500.00
Travel Trailer $ 1,200.00
Boat and Motor $ 1,500.00
Champion International
Stock $ 4,000.00
Total $52,200.00
On February 27, 1981, the Missoula County Clerk of
Court sent parties' counsel notice of entry of judgment;
notice was not mailed but delivered to parties via boxes
located in the clerk's office and designated for local
counsel. Upon informing the trial judge t5at counsel for
appellant had not picked up the notice until March 6, 1981,
appellant was granted until March 19, 1981, to file post-
trial motions. Appellant filed a motion for reconsideration
March 18, 1981. No hearing was set nor had on the motion
before March 29, 1981. On April 29, 1981, counsel for both
parties appeared before the District Judge to discuss the
applicability of M.R.Civ.P., Rule 59(d) to appellant's
motion. At that time the court formally deemed the motion
denied. Appellant's notice of appeal was filed the same
day. Respondent's counsel made no attempt to have the
appeal dismissed as untimely.
Before this Court, appellant's principal claim is that
the trial court abused its discretion in allocating the
marital assets. The bases for appellant's contention include
the court's failure to determine net worth of the parties,
the wholesale adoption of respondent's findings of fact and
conclusions of law as proposed, the court's failure to
properly apply the factors of section 40-4-202, MCA, and the
court's failure to account for appellant's arthritic condition
in the distribution of assets, absent a provision for maintenance.
Additionally, appellant presents as error the failure of the
~istrictCourt to mail the judgment and decree and notice of
entry of judgment to appellant's counsel.
There is no need for this Court to review the manner in
which the Missoula County District Court transmits its
orders to local counsel. Neither at the trial level nor the
appellate level has appellant been harmed by the Missoula
County ~istrictCourt's practice of depositing orders in
designated boxes in the court clerk's office. ~ppellant's
motion for reconsideration was duly considered by the District
Court and this Court now considers the substantive issues
raised by appellant. Absent a showing of prejudice this
Court will not interfere with the internal operating rules
of the Missoula County District Court.
The standard for review of a District Court's findings
and conclusions is the same whether the District Court has
prepared them or has adopted a party's proposed findings and
conclusions: the lower court's findings are to stand if
supported by the law and evidence. City of Billings v.
Public Service Commission (1981), Mont. , 631 P.2d
1295, 38 St.Rep. 1162, 1165. Although the practice is disapproved,
the fact that the District Court substantially adopted the
findings proposed by respondent's counsel does not change
the standard of review by this Court.
The oft-stated rule in reviewing property distributions
in dissolution proceedings is that the District Court is
afforded broad discretion. Abuse of discretion is the
touchstone in determining whether a particular property
distribution is inequitable. For an abuse of discretion to
be found appellant must show that the District Court "act[ed]
arbitrarily without employment of conscientious judgment,
or exceed[edl the bounds of reason in view of all the circumstances."
Zell v. Zell (1977), 174 Mont. 216, 220, 570 P.2d 30.
Failure to precisely set forth net worth of parties does not
constitute abuse of discretion so long as the findings as a
whole are sufficient to determine net worth, In re Marriage
of Nunnally (1981), Mont. , 625 P.2d 1159, 38
St.Rep. 529, and the findings themselves will not be disturbed
unless a preponderance of the evidence clearly mandates
contrary determinations. Cameron v. Cameron (1978), 179 Mont.
219, 587 P.2d 939.
Despite the potpourri of matters raised in appellant's
brief, the essence of appellant's argument on appeal is that
the findings and conclusions are not supported by the evidence
on record. We cannot agree. No abuse of discretion can be
found in findings of fact and conclusions of law that:
carefully set forth the fair market value, outstanding
obligations, and net value of each marital asset; develop
the trier of fact's reasoning for accepting respondent's
appraisals and estimates over those offered by appellant;
and are fully supported by the record.
It is the trial court's function to assess the witnesses'
qualifications, experience and demeanor when it makes its
determinations regarding the evidence before it; this Court's
function is to review the lower court's findings in light
of the record to make certain the findings are not clearly
erroneous. Jensen v. Jensen (1981), Mont. , 629
P.2d 765, 38 St.Rep. 1109. We find no clear error in the
property valuations adopted by the trial court. The lower
court's judgment is affirmed.
As a final matter respondent has requested that this
Court adjudge this appeal to be frivolous and award respondent
costs and damages.
Where the question of sufficiency of evidence to support
a lower court's decision or the issue of the lower court's
abuse of discretion is reasonably in issue, this Court has
said that a respondent is not entitled to recover damages
under Rule 32, M.R.App.Civ.P. Martens v. Martens (1981),
Mont. , 637 P.2d 523, 38 St.Rep. 2135. That rule
must control the instant case. Albeit appellant's case was
not strong and this decision is of little precedential
value, the appeal itself is not so unwarranted or unreasonable
to invoke this Court's powers under Rule 32.
' J
'L f '
& ! g , c .
Justice /
We Concur:
add & ~ - a
Chief Justice
Mr. Justice Daniel J. Shea concurring:
I join in the decision of the majority, but I express
reservations to the trial court's wholesale adoption of the
findings and conclusions of the prevailing party. In Tomaskie
v. Tomaskie (1981), - Mont . - 625 P.2d 536, 538, 38 St.Rep.
,
416, we stated that ". . . [i]t is wise practice for the trial
court to prepare and file its own findings and condus'ions" and
that "[ilt is becoming increasingly apparent to this Court, however,
that the trial courts rely too heavily on the proposed findings
and conclusions submitted by the winning party. That is wrong!
See Canon 19, Canons of Judicial Ethics, 144 Mont. at xxvi-xxvii."
Notwithstanding this message, the trial courts are still
too often engaged in the wholesale adoption of the prevailing
party's proposed findings and conclusions, and yet, we seem to
do nothing about it. I look at this practice no differently
than I would a practice of this Court to ask each party to submit
a proposed opinion to this Court along with its briefs, and then
to adopt verbatim the proposed opinion of the prevailing party.
I can just imagine the uproar of the trial bar and the public,
and rightly so, if we were to do this.
I have previously expressed in detail my position on
proposed findings and conclusions in .my concurring opinion to
Jensen v. Jensen (1981), - Mont . - 631 P.2d 700, 704, 38
,
St.Rep. 1109, 1113, and I see no need to belabor the point.