MARRIAGE OF BELL
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No. 85-311 IN THE SUPREME COURT OF THE STATE OF MONTANA 1986 IN RE THE MARRIAGE OF DONALD E. BELL, Petitioner and Respondent, and DOROTHY BELL, Respondent and Appellant. APPEAL FROM: District Court of the Thirteenth Judicial, In and for the County of Yellowstone, The Honorable Nat Allen, Judge presiding. COUNSEL OF RECORD: For Appellant: Linda Harris, Billings, Montana For Respondent: Nye & Meyer; Joan Meyer Nye, Billings, Montana Submitted on Briefs: Oct. 10, 1985 Decided: February 6, 1986 Clerk Mr. Justice L. C. Gulbrandson delivered the Opinion of the Court. Dorothy Bell appeals the property division ordered by the Yellowstone County District Court in this divorce action. I The issues on appeal are whether the District Court abused its discretion in dividing the marital estate between the parties, and (2) whether the District Court erred in denying wife's motion for new trial. In marriage, March 1984, Donald after Bell We affirm. almost (respondent) thirty-one years of petitioned for the dissolution of his marriage to appellant. Respondent is a farmer working a relatively small, highly encumbered farm. During the marriage, appellant took care of the family home and performed various antique business in farm chores. 1983 and had $3,500 in 1984 in that business. Appellant began an sales of approximately The parties have one child, a son, who farms on ].eased land close to the family home and helps out on his parents1 farm. The son stated that he thought the court should award the farm to his father so that he a.nd his father could work on it together. Clyde Rader, a trained fa.rmland appraiser, testified that the current market value of the Bell farm, allowing for a sale within six months, was $300,000. Rader testified that that was the top price the Bells could receive. Raderls estimate of $300,000 included the fixtures on the farm but excluded two mobile homes on the farm. At one point, Rader mentioned that the $300,000 estimate was based on a sale for cash within a reasonable length of time. Rader also mentioned that Bells might receive more money for the farm if the buyers arranged for "constructive financing." Woody Shore, the vice president/senior loan officer of the Little Horn State Bank in Hardin, Montana, testified that he had a rough idea of land values in Big Horn County and that a fair market value for Bells' irrigated land would be $900 an acre. Based on $900 an acre, the farm would be worth approximately (including improvements) $300,000. Respondent also testified that the current fair market value of the farm was $300,000. Respondent testified that he owned about $1,600 of Farmers Union stock shares but that he would receive the value for those stocks only upon his retirement or his leaving the county, neither of which he was planning on doing. Respondent has also acquired shares of Federal Land Rank stock but he will receive no value for that stock until he pays off his substantial loan with that bank. Lastly, respondent has Big Horn County Electric Cooperative Capital Credits of approximately $1,000. These credits are repaid to the farmers approximately twenty years after being paid in and respondent has received about $58 a year the last three years. In January 1985, the District Court filed its findings of fact, conclusions dissolution. of law, and a final decree of The court found that Bells had. assets worth $456,374 and total liabilities of $325,762.18, leaving them with a net marital estate worth $130,611.82. The Bells have farm debts on their la.nd and farm equipment of $319,491.82. The court valued the farm land at $300,000. In dividing the marital estate, the District Court awarded the bulk of the estate to respondent. the court awarded the farm, the To respondent, farm equipment, various vehicles, and other items for a total value of $426,402. Respondent was made responsible for liabilities totaling $321,762, leaving him with $104,640 more in assets than in The court awarded appellant $13,972 in assets liabilities. over and above the liabilities the court made her responsible for. To eliminate any disparity in the awards, the court ordered the respondent to pay appellant $45,334 with the result that each would receive a net award of $59,306. court ordered the respondent to pay within $10,306 to appellant sixty days of the decree and payments of $292 to appellant. The to pay 120 monthly The court ordered that these "equity" payments to the wife shall be a lien on the farm land, but a lien subservient to the mortgages, and renewals of mortgages, on the land. In February trial. 1985, appellant filed a motion for new The motion was based principally upon what appellant termed newly discovered evidence which purportedly rendered the property performance. the Little settlement inequitable and impossible of The newly discovered evidence was a letter from Horn State Bank which declined respondent's request for a loan to provide operating expenses and to renew respondent's carry-over debt. The letter requested that respondent satisfy his existing debt with the bank. The trial court denied the motion for new trial and the wife appeals from this denial and from the property division. Appellant argues that the District Court abused its discretion estate. in several ways in distributing The standard of review i-s clear. the marital The District Court has far reaching discretion in resolving property divisions and this Court will not alter the lower court's judgment unless we find a clear abuse of discretion. abuse of discretion is if the trial The test for court has acted arbitrarily without employment of conscientious judgment or has exceeded the bounds of reason resulting in substantial injustice. In Re the Marriage of Rolfe Appellant contends that (Mont. 1985), 699 distributing the marital estate, the District Court erred by failing to consider the factors detailed in S 40-4-202(1), MCA. In part, this section states: ... In making apportionment, the court shall consider the duration of the marriage and prior marriage of either party; antenuptial agreement of the parties; the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties; custodial provisions; whether the apportionment is in lieu of or in addition to maintenance; and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution or dissipation of value of the respective estates and the contribution of a spouse as a homemaker or to the family unit ... This section only requires the District Court to consider the enumerated factors, and the court is not required to make a finding of fact as to each factor. Sell (Mont. 1981), 630 P.2d See In Re Marriage of 222, 38 St.Rep. 956; In Re Marriage of Caprice (1978), 178 Mont. 455, 585 P.2d 641. find that the District Court's findings of fact We and conclusions of law, taken as a whole, demonstrate that the court adequately considered the factors set forth in 5 40-4-202, MCA. Appellant also charges that the District Court abused. its discretion in valuing the farm land and in failing to place a value on certain assets (Federal Land Bank stock, Farmers Union Credits, Big Horn County Electric Cooperative Capital Credits). Appellant complains that the court's valuation of the farm land was based upon Clyde Ra.derls estimate of what the land would bring in a "cash" sale. Rader's testimony, as a whole, shows that his estimate was not based on a "distress" sale but rather on what be believed was the fair market value of the land. The testimony of Rader, respondent and Woody Shore provides an adequate basis for the court's valuation of the land. court explained its Furthermore, the reasons for not placing a value on certain assets and the evidence supports a finding that these assets had little or no value to respondent. Appellant also complains that the District Court abused its discretion in failing to order the sale of the farm and the division of the proceeds between the parties. This Court has established a policy that a family farm or a ranch should be kept intact and operated as a unit upon a marriage dissolution whenever there is a reasonable means of providing a wife her equitable share of the marital property short of selling the land. Gomke v. Gomke (Mont. 1981), 627 P.2d 395, 396, 38 St.Rep. 578L, 578N; citing In R.e Marriage of Jacobson (19?9), 183 Mont. 517, 600 P.2d 1183. The policy is especially valid where, as here, the parties1 child desires to take over the farm and family members "want to insure the continuity of a family heritage." Gomke, at 397; see also In Re Marriage of Knudson (1980), 186 Mont. 8, 606 P.2d 130. Here, the lower court order provided that appellant will receive her equitable share of the marital property. Under the order, the respondent must make a $10,306 payment to appellant thereafter. by March 22, 1985 and monthly payments We note that appellant does not complain that respondent did not make the initial payment. Furthermore, from the record it appears that the monthly payments of $292 are within respondent's ability to pay. The lower court's plan results in a fifty-fifty split of the marital estate between the parties and provides that appellant will have a lien on the farm in the amount of the payments. We have approved similar plans in both Gomke and Knudson. In light of the foregoing, we find that the lower court provided a reasonable means of giving the wife her equitable share of the marital property and that the District Court did not abuse its discretion in allowing respondent to buy out appellant's interest in the land. Appellant also quarrels with the lower court's valuation of certain farm equipment and other assets. We need only state that there is sufficient evidence to support the valuations placed on the marital estate assets. Finally, the appellant contends that the District Court erred in denying her motion for new trial. In February 1985, appellant filed a motion for new trial on the basis of newly discovered evidence. This evidence was a letter from respondent's bank to respondent declining to loan him more money or to renew his carryover debt. The letter also requested him to liquidate his present loan at the bank. Appellant was apparently contending that respondent would have to sell the farm to pay off the loan and she would not receive her equitable share of the farm because her interest was subject to the mortgages on the land. In March 1985, the lower court held a hearing and testimony was given by the parties on appellant's motion. From other documents in the record, it appears that respondent may have refinanced the debt on the Administration. farm with a loan from the Farmers Home Although appealing the denial of her motion for new trial, appellant has not provided this transcript of the hearing on the motion. Court with a In denying the motion, the lower court specifically referred to the parties' testimony at the hearing. "It is the duty of a party seeking review of a judgment to present this Court with a record sufficient to enable us to pass upon the question raised." Harrington v. Harrington (1979), 181 Mont. 541, 542, 594 P.2d 319, 320; citing e.g., Rule 9, M.R.App.Civ.P. failed her duty as to this issue. Appellant has We cannot consider the merits of this issue without a satisfactory record of the evidence presented at the hearing on the motion for new trial. Therefore, the wife's appeal is dismissed as to this issue. See Harrington, supra, and Yetter v. Kennedy (1977), 175 Mont. 1, 571 P.2d 1152. This Court has considered respondent's request for attorney's fees and costs on appeal and the same is denied. Affirmed.
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