                                               NO.    82-30

                   I N THE SUPREME COURT O THE STATE O M N A A
                                          F           F OTN

                                                      1982




I N RE THE MARRIAGE OF

S A O M.
 H R N          GARST,

                     P e t i t i o n e r and A p p e l l a n t ,

         -vs-

ORAH W .    GARST,

                     Respondent and Respondent.




Appeal from:         D i s t r i c t C o u r t o f t h e S i x t e e n t h ~ u d i c i a lD i s t r i c t ,
                     I n a n d f o r t h e County o f Powder R i v e r , The Honor-
                     a b l e A l f r e d B. Coate, J u d g e p r e s i d i n g .


Counsel o f Record:

      For Appellant:

                     Lucas & Monaghan; Lance Tonn, M i l e s C i t y ,
                     Montana

      For Respondent:

                     B e r g e r , ~ i n c l a i r& Nelson;        James S i n c l a i r ,
                     B i l l i n g s , Montana




                                              S u b m i t t e d on B r i e f s :     J u n e 1 7 , 1982
                                                                   Decided:          August 11, 1 9 8 2



Filed:     A ~ 11 !9@
               G
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.

     Sharon M. Garst appeals from a judgment apportioning
marital property and from a denial of her post-trial motions
in the District Court of the Sixteenth Judicial District in
Powder River County.
     Sharon and Orah (the latter also known as Dub) were
married at Hot Springs, Arkansas, on February 22, 1972.
They have two children:     Jason, born on April 21, 1973, and
Shayna, born on June 10, 1976.
     Prior to their marriage, Sharon had worked as a secretary,
and Dub had worked as a jockey, traveling to racetracks
around the country.     For the first three years of their
marriage, Sharon and Dub traveled extensively, allowing Dub
to continue working as a jockey.     In 1975, Sharon and Dub
moved to a ranch owned by Dub's parents in Powder River
County, Montana.     Dub worked as a ranch hand until September
1977, At that time, Sharon and Dub bought the ranch from
Dub's parents for $243,750.     This purchase included a con-
veyance of one-half of the underlying minerals owned by
Dub's parents.     Sharon and Dub later conveyed one-half of
their mineral interest to Dub's brother.
     Sharon and Dub lived and worked together on the ranch
until July 1, 1980, when Sharon filed a petition for dissolution
of marriage.     Thereafter, Sharon and the couple's two children
moved to Broadus, where Sharon became employed as a secretary.
At this time, Dub gave Sharon $14,000 to buy a mobile home.
Dub continued to work and live at the ranch, and supplemented
his ranch income by working occasionally as a jockey and as
a musician.
     On July 17, 1981, trial was held.     Sharon called two
witnesses who had made appraisals of the ranch machinery and
ranch land.     Bob Barthel, a farm machinery dealer, submitted
an appraisal showing the total value of the machinery to be
$68,025.     Dennis Jurica, an appraiser and realtor from Miles
City, testified that the ranch land was worth $500,000.
     Dub, on the other hand, testified that the value of the
machinery was $37,850, and the value of the ranch was between
$325,000 and $386,000.
     On September 10, 1981, the District Court entered its
findings of fact and conclusions of law.    Among other things,
the District Court found that the value of the machinery was
$74,025, and the value of the ranch land was $356,874.37.
The District Court determined the marital net equity of the
parties to be $56,744.32.     This compared to Sharon's proposed
finding of net equity to be $236,092.57 and Dub's submitted
net equity figure of $93,095.
     The District Court divided the marital property as
follows r
     SHARON GARST

     1.     The mobile home with Dub to assume the obligation
            thereon.
     2.     Twenty percent of the remaining livestock.
     3.     Fifty percent of the oil, gas, and mineral interest.
     4.     All of her personal property, including the
            automobile now in her possession.
     DUB GARST
     --
     1.     The land, machinery, balance of the livestock,
            balance of the oil, gas, and minerals, and
            the personal property in his possession.
     2.     All liabilities incurred during the marriage.
     The basic issue boils down to this:     Did the District
Court abuse its discretion by failing to determine accurately
the net worth of the marital estate?
     The discretion of the District Court is given primarily
by the criteria set forth in section 40-4-202(1), MCA, which
states in part:
     "In a proceeding for dissolution of marriage
     .   ..the court    ...shall .       ..
                                       finally
     equitably apportion between the parties the
     property and assets belonging to either or
     both, however and whenever acquired and
     whether the title thereto is in the name of
     the husband or wife or both       . . ."
     In reviewing divisions of marital property, this Court
must determine only whether the District Court, in exercise
of its discretion, acted arbitrarily, unreasonably, or
without regard to recognized principles resulting in substantial
injustice.    In Re Marriage of Kis (1982), - Mont . - 639
                                                      ,
P.2d 1151, 1154, 39 St.Rep. 119, 125.         Only when the findings
of a District Court are clearly erroneous will they be set
aside.   Rule 52 (a), M.R.Civ.P.
     Sharon's primary complaint is that the District Court
deviated from the evidence submitted by either party and
valued assets significantly lower than the testimony justified.
We agree with Sharon in some respects.
     For example, both parties' value of the land was higher
than that determined by the District Court.         In its findings
of fact, the District Court indicated it arrived at the
value of the land by increasing by ten percent per annum the
purchase price of $243,750.        This formula would raise the
value of the land to $356,874.37.        In another finding of
fact, the District Court used extraneous factors such as
"current production costs, drought, and prices for agricultural
products," and "the current concern for unit train loadings
from grain terminals" to justify its finding as to the value
of the land.   None of these extraneous factors were ever
mentioned in the testimony or exhibits presented by either
party.
     This Court stated in In Re Marriage of LeProwse (1982),
     Mont.      ,   646 P.2d 526, 529, 39 St.Rep. 1053, 1057, "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 - - record."
                                              by the
(Emphasis added.)     The District Court failed this test by
using factors not supported in the record to determine
the value of the land.
     Sharon next contends that the District Court erred when
it did not include in the marital estate the sum of $74,875,
which represents the appraised value of the residence,
outbuildings, corrals, and other structures located upon Dub
and Sharon's ranch.    We do not agree with this contention.
Testimony of both Sharon's appraiser and Dub indicated that
the buildings were considered when reaching the appraisal
values.    In this case, it was clearly within the court's
discretion to consider the buildings along with the land in
determining the value of the ranch.
     Sharon also contends that the District Court erred in
its valuation of the ranch machinery.    Again, we cannot
agree with this contention, since the record supports the
District Court's finding.    Bob Barthel's appraisal of the
machinery listed the total value to be $68,025.     However,
Barthel's appraisal did not include a pickup truck, which
Dub admitted under cross-examination was worth $6,000. The
District Court added to Barthel's appraisal the value of the
truck, and determined the value of the machinery to be
$74,025.    Such a finding was clearly supported by the record
and will not be disturbed by this Court.
     Finally, Sharon disagrees with the manner in which the
District Court calculated the marital indebtedness. The
District Court entered the following findings of fact
regarding the marital liabilities:
     "The parties have incurred the following
     liabilities:
     "Stockman's Bank
       Accrued Interest
     "Federal Land Bank
       Accrued Interest
     "Federal Land Bank
       Accrued Interest
     "Commodity Credit
       Accrued Interest
     "Department of Interior          $20,000.00
       No Interest
     "Russell Garst
       Accrued Interest
     "Mobile Home Obligation          $19,770.00
                                     $417,130.05
     The evidence shows that Dub was allowed to introduce as
an exhibit an affidavit outlining the parties' assets and
liabilities.   This exhibit fully supports the District
Court's finding concerning the marital liabilities.   There-
fore, substantial evidence exists in the record to support
the District Court's finding.
     The magnitude of the District Court's failure to determine
accurately the net worth of the marital estate can be shown
by examining the net worth figures placed in evidence by the
parties.   Sharon's evidence indicated that the net marital
equity totalled $236,092.57, and Dub's evidence indicated a
net marital equity of $93,095. However, the District Court

found that the marital net equity was $56,744.32.   The
court's figure is considerably less than the figures submitted
by either of the parties.   The court's marital equity finding
is clearly erroneous and is not supported by the record.
The District Court, therefore, abused its discretion in
arriving at the marital net worth.
     The difference in net marital worth from the figure

testified to by the husband and that found by the District
Court is $36,350.68.    The distribution to Sharon should be
at least $18,000 more than awarded here, assuming the District
Court was attempting to divide the marital estate equally.
     As a final matter, Sharon requests that Dub be required
to account for the income he received from oil and gas
leases during the period between the parties' separation and
the entering of the decree by the District Court.      Although
the District Court did divide the record ownership of the
mineral interests equally between Sharon and Dub, Sharon
did not receive any of the income therefrom until after the
decree was entered.    We hold that Sharon is entitled to her
share of the income during the pendency of the divorce.
     The District Court's judgment is affirmed in part and
reversed in part, in accordance with this opinion.     We remand
to the District Court with instruction that, unless the
parties agree in writing submitted to the District Court for
a method of Dub paying Sharon money or property worth $18,000
more than was awarded to her in the decree here appealed
from, and an agreed accounting of the oil and gas lease
income during the litigation, within 30 days of remittitur
from this Court, that the District Court proceed to hold a
new trial on the distribution of the marital estate.     Costs
awarded to Sharon.




                                             Justice        i   /
We Concur:




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