                                         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

                                                                            2
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

                                                                 3
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

                                                                                       4
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
                                                                                        5
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
                                                                               6
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.


                                                                 7
          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
                                                                                    9
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

                                                                           10
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.
                                                                                  7




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