In Re the Marriage of Hancock

No. 8 6 - 3 3 9
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
IN RE THE MARRIAGE OF
ARLIE HANCOCK,
Petitioner and Appellant,
and
WATSON LEROY HANCOCK,
Respondent and Respondent.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable James B. Wheelis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Tipp, Hoven, Skjelset & Frizzell; Douglas G. Skjelset,
Missoula, Montana
For Respondent:
Edward A. Cummings, Missoula, Montana
Submitted on Briefs: Feb. 5, 1 9 8 7
Decided: April 16, 1987
Filed: APR 16 1987
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
Arlie Hancock (the wife) appeals a Missoula County
District Court order which divides the main marital asset (a
ranch) between the parties in this dissolution of marriage
action. The single issue on appeal is whether in dividing
the ranch the lower court abused its discretion by requiring
the respondent, Mr. Watson Hancock, to divide the ranch into
two parts and allowing Mrs. Hancock the choice of which part
she wanted. We affirm.
This appeal is the culmination of ten years of bitter
dispute over the division of the ranch. In March 1977, Mrs.
Hancock filed a petition for dissolution of marriage. In
February 1978, the District Court entered a decree dissolving
the marriage. In September 1978, the court entered judgment
dividing most of the marital assets between the parties and
providing for the division of the ranch. That judgment
(1) ordered the parties to obtain a survey and a plat
partitioning the ranch into two parcels; (2) provided that
Mrs. Hancock could choose whichever parcel she desired for
her own; and (3) ordered the ranch sold within 120 days of
the judgment if the parties could not agree on partition.
Unfortunately, the parties could not agree on how to
partition the ranch nor, apparently, on an asking price for
the ranch. Thus, for years the parties made no progress in
either dividing or selling the ranch. In September 1985,
after a number of hearings, the Missoula County District
Court issued an order which stated that (1) the parties had
insufficient funds to pay a surveyor to divide the ranch into
two tracts of equal value; (2) a judicial sale might bring in
less than fair market value or might permit one party to
purchase the ranch at a low cost; and (3) an equitable means
of partitioning the ranch would be for Mrs. Hancock to divide
the land into two parts and for Mr. Hancock to choose the
parcel he desired. The court gave the parties an opportunity
to comment on the proposed procedure. In response, Mrs.
Hancock's counsel proposed that each of the parties should
recommend a dividing line for the property. The court could
then select the plan of one of the parties and the other
party would choose one of the two parcels. Mrs. Hancock's
counsel also objected to the court's proposed plan by
pointing out that the September 1978 judgment provided that
she (rather than Mr. Hancock) would get her choice of the
parcels. Counsel complained that the court had taken this
right away from Mrs. Hancock. In January 1986, the court
modified its September 1985 order by providing that Mr.
Hancock would propose a division of the property and Mrs.
Hancock would choose whichever parcel she wanted.
On January 31, 1986, the parties appeared in court.
Mr. Hancock drew a line on a map dividing the ranch into two
parcels. The court recessed and, after approximately one
hour and 45 minutes of contemplation, Mrs. Hancock chose one
of the parcels. Several days later, Mrs. Hancock filed a pro
se motion to reconsider, stating that she made a mistake in
selecting her half of the ranch. The court denied her motion
and filed an order dividing the ranch in accordance with the
choice Mrs. Hancock made on January 31, 1986. This appeal
followed.
[A] District Court has far-reaching
discretion in resolving property
divisions and its judgment will not be
altered unless a clear abuse of
discretion is shown. (Citation omitted.)
The test for reviewing a 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? (Citation omitted.)
Buxbaum v. Buxbaum (Mont. 1984), 692 P.2d 411, 414, 41
St.Rep. 2243, 2246-2247. Under the peculiar circumstances of
this case, we hold that the District Court did not abuse its
discretion in dividing the ranch between the parties. The
District Court found that neither party could afford to pay a
surveyor to divide the ranch into two equal parcels. Mrs.
Hancock does not attack this finding. Moreover, prior to the
partition, Mrs. Hancock did not complain of the basic plan
proposed by the court. Rather, Mrs. Hancock's objection was
that in September 1985 the court ordered her to draw the
dividing line with Mr. Hancock having his choice instead of
vice versa. She did not object to the method but rather to
who got the choice of land. Accordingly, the court ordered
Mr. Hancock to draw the line with Mrs. Hancock having her
choice. The court allowed her ample time to choose her half
of the ranch and she was advised by counsel, her daughter and
a friend. Further, we agree with the lower court that there
was no evidence that Mrs. Hancock's mental status was
impaired at the time of her choice. We also agree with the
lower court that simply ordering the ranch sold at auction
could result in a substantial loss for the parties. Lastly,
it is apparent from the record that the parties were
completely unable to agree on how they could divide the ranch
between themselves.
The method employed by the lower court will generally
result in an equal division. The party drawing the dividing
line is essentially forced to make an equal partition.
Otherwise, he risks receiving the smaller parcel left after
the other party chooses. The ranch in this case was fairly
small (265 acres) and was familiar to both parties. The line
drawn was relatively straight and does not demonstrate an
attempt to confuse Mrs. Hancock. Mrs. Hancock's choice was
n
simple. We find no abuse of discretion.
Affirmed.
I
stice
We Concur: A
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JA -+
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Chief Justice
Justices