                             No.    92-614

           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   IS93



IN RE THE MARRIAGE OF
RICK A. MAEDJE,
           Petitioner and Appellant,
     and
KIM A. MAEWE,
           Respondent and Respondent.



APPEAL FROM:    District Court of the Fourth Judicial District,
                In and for the County of Missoula,
                The Honorable Ed McLean, Judge presiding.


COUNSEL OF RECORD:
           For Appellant:
                Thomas W. Trigg, Attorney at Law,
                Missoula, Montana
           For Respondent:
                Neil M. Leitch, Attorney at Law,
                Missoula, Montana


                             Submitted on Briefs:       October 28, 1993
                                             Decided:   February 1, 1994
Justice Terry N Trieweiler delivered the opinion of the Court.
               .
     Appellant Rick A. Maedje petitioned the District Court for the
Fourth Judicial District in Missoula County to dissolve his
marriage to Kim A. Maedje.    A trial was conducted by a Special
Master in December 1991, and a decree of dissolution was entered by
the District Court on June 25, 1992.     The court distributed the
marital estate based on the Special Master's recommended findings
of fact and conclusions of law. Rick's motion to amend the decree
was deemed denied pursuant to Rule 5 9 1 ~ ~ )M.R.Civ.P.
                                              ;            From the
decree and denial of his motion to amend, Rick appeals.
     We affirm in part and reverse in part.
     The issues on appeal are restated as follows:
     1.   Were the court's findings regarding the increase in value
of the Inyokern property during the partiesv marriage clearly
erroneous?
     2.   Did the court err in its distribution of the marital
estate?
     Rick and Kim Naedje were married on June 8, 1989, in Salt Lake
City, Utah.   A petition for dissolution was filed by Rick on
April 30, 1991.   At the time of trial, Rick was 52 years old and
was employed as a pilot for Sky West Airlines.   He had worked as a
commercial pilot for over 20 years.    Kim was 34 years old at the
time of trial and had previously worked as a horse trainer and
grocery store checker.   No children were born during the parties'
22 month marriage.
                                 2
     Both Rick and Kim had previously been married and each brought
substantial real and personal property into the marriage.      Among
those assets were Rick's properties located in Tehachapi and
Inyokern, California, and Kim's interest in property located in
Caliente, California.     Prior to their marriage, Rick and Kim
resided together at Tehachapi and then lived at Inyokern during
part of 1989 and 1990, where Kim conducted a horse training and
boarding business.
     During their marriage, the parties sold the Tehachapi,
Inyokern, and Caliente properties, and purchased two pieces of
property in Montana:     28 acres located on Nine Mile Road near

Huson, and the Blue Bird Mobile Home Park in Hamilton.      The Nine
Mile property was purchased with proceeds from the sale of the
Inyokern property in March 1990.       In April 1991, just prior to
their separation, the Hamilton property was purchased with proceeds
from the sale of the Tehachapi property and a loan secured by the
Nine Mile property.
     At trial, a Special Master for the District Court valued the
marital estate based primarily on testimony from the parties and
their experts.   After adopting the Special Master's recommended
findings of fact and conclusions of law, the District Court
apportioned the marital estate and entered a decree of dissolution
on June 25, 1992.     The court awarded Kim the tangible personal
property she brought into the marriage and the proceeds from the
sale of the Caliente property.       Rick was awarded his premarital
                                 3
personal property, two undeveloped parcels of real property, and
his retirement account and shares of Sky West stock.          These
property distributions are not challenged on appeal.
     At issue in this appeal are the court's valuation of the
appreciation of the Inyokern property during the parties' marriage,
and its allocation of the increased value realized fromthe sale of
both the Inyokern and Tehachapi properties.
     The court found that the value of the Inyokern property as of
tho date of the parties1 marriage was $96,000 and that it was sold
ten months later for $125,000. Therefore, the court concluded that
the property had increased in value by approximately $29,000 during
the time the parties were married.   The court also found that the
Tehachapi property was appraised in November 1988 at $171,000 and
sold in February 1991 for $250,000. The court determined that this
represented an increase in value of approximately $3000 per month,
and concluded that the property increased in value by $58,000 from
the date of the marriage to the date the property was sold.      The
court specifically found the following with respect to these
increases in value:
          Although there was considerable testimony submitted
     that Kim is and has been a hard worker during the
     marriage, it is highly probable that neither Kim nor
     Rick's improvements to property may have significantly
     contributed to the increase in value during the course of
     the marriage. Rather, it appears that the increase was
     primarily attributable to appreciation.
     The court concluded that the parties should share equally in
the increased value in these two properties and determined that an
equitable division of property would be to award Kim the Nine Mile
property, valued at $55,000, free of all encumbrances.      The court
stated that this reflected "her contributions to the marriage and
her portion of the increase in value of both Tehachapi and Inyokern
during the course of the marriage."    Rick was awarded the Hamilton
mobile home park and was ordered to pay the mortgage on the Nine
Mile property which secured the outstanding loan on the Hamilton
property.
     Rick moved to alter or amend the judgment, but this motion was
deemed denied on September 9, 1992. From the decree and the denial
of the motion to amend, Rick appeals.
                         STANDARD OF REVIEW
     The distribution of the marital        estate   is governed by
5 40-4-202, MCA.   This statute vests the district court with broad
discretion to apportion the marital estate in a manner which is
equitable to each party under the circumstances. In re Mammuge Rock
                                                             of

(l993), 257 Mont. 476, 850 P.2d 296; In reMummageofCollelt (1981), 190

Mont. 500, 621 P.2d 1093.
     The standard of review employed by this Court in marital
property division cases is whether the district court's findings of
fact are clearly erroneous.    lnreMum'ageofMcLean/Fleury (1993), 257

Mont. 55, 849 P.2d    1012.   When there is substantial credible
evidence to support the court's findings and judgment, this Court
will not alter the trial court's decision unless there is an abuse
of discretion. In re Marriage of Scojfield (Mont. 1993)' 852 P.2d 664, 50

St. Rep. 560.


      Were the court's findings regarding the increase in value of
the   Inyokern property     during    the    parties'   marriage   clearly
erroneous?
      Rick contends that the court's findings in regard to the
appreciation of the Inyokern property during the time that the
parties were married is clearly erroneous.        Therefore, he asserts
that the property distribution scheme, which is based in part on
the Inyokern property's appreciation, is inequitable.
      Rick   does   not   challenge    the    court's   methodology    for
calculating the appreciation of premarital property during the
parties' marriage.    However, he contends that the figures used by
the court to calculate the appreciation of the Inyokern property
were purely speculative and are not supported by substantial
credible evidence.
       We agree with this contention. The District Court's findings
of fact numbered 23 and 24 address the valuation of the Inyokern
property.    Those findings state as follows:
           23. Petitioner  testified  that  he   believed
      Inyokern's value as of June 1989 was $103,000.
      Respondent testified that Petitioner told her the
      property was worth between $85,000          -
                                           $90,000 as of
      June 1989.
           24. Averaging the values given by the parties, the
      Special Master recommends that the value as of date of
     marriage be established at $96,000. Thus the increase in
     the value of this property from the date of marriage to
     the date of sale is approximately $29,000.
     After reviewing the record, we conclude that there was no
factual basis in the record for these findings.           When Rick
testified, he stated that he did not know the value of the Inyokern
property in June 1989, but that he had sold ten acres of it for
$105,000 in 1983.    There is no indication what relationship that
ten acres had to the 19.2 acres of Inyokern property which Rick
brought into the marriage in June 1989,    Although it is unclear
whether a portion of Inyokern was actually sold or whether this was
a lease option which ultimately fell through, there is no evidence
that Rick stated that Inyokern was worth $103,000 in 1989.
     Furthermore, when Kim was asked about the value of the
Inyokern property in 1989, she gave the following answers to the
following questions during the course of her testimony:
     Q. (BY MR. WITCH) Moving along here, Kim, regarding
     the Inyokern property, you state in the [proposed]
     Findings that in June of '89 it was valued at $85,000.
     Where did that figure come from?
     A. That figure I had gotten from--and I think it is more
     of a guesstimation on the price that Rick wanted to sell
     it to the Hackers for. They lived right next door to us.
     And originally I had always heard--
     MR. NEWCOMER:   Objection, speculation.
     THE COURT:   Sustained.


     Q.   Okay. But you said that it was valued at $90,000 by
     Rick, not $85,000?
     A.    Well, it was speculation on our part. We thought 8 5
     to 9 0 and that's how I feel about it. It is hard when
     you are not real estate agents, and we are not even
     talking about an appraisal here. We are talking about
     two people talking.
     MR. NEWCOMER: Your Honor, I would object to this line of
     questioning as simply eliciting speculation as to value.
        In other words, in order to arrive at the value sf the
Inyokern property at the time the parties were married so that it
could determine the amount by which the property appreciated during
the marriage, the court averaged a figure which it erroneously
attributed to the testimony of Rick with a figure thrown out by Kim
based on total speculation. The result was an average of               $96,000,

which has no factual basis in the record.
        In hzreMam'ageofLuki (1988),   232   Mont.   243,   756   P.2d 4 5 6 , we

stated that, when valuing the assets in a marital estate, the court
is free to adopt any valuation of property which is supported by
the record.     However, in this instance the court's findings are
based     largely on speculation, and we have made                 clear that
speculation, conjecture, inference, or guess do not constitute
credible factual evidence. Graham v. Rolatuhn        (1967),   150   Mont.   270,




     We conclude that the court's findings were not supported by
substantial credible evidence, and therefore, its calculation of
the appreciation of the Inyokern property during the parties'
marriage was clearly erroneous. The judgment of the District Court
with respect to the valuation of the Inyokern property is vacated
and we remand this case to the District Court for a proper
determination of the amount by        which   the Inyokern property
appreciated during the parties' marriage,
                                11.
     Did the court err in its distribution of the marital estate?
     Rick contends that the court erroneously awarded Kim the Nine
Mile property as compensation for her share of the appreciation of
Inyokern and Tehachapi because she did not contribute significantly
to the appreciation of those pre-acquired properties which Rick
brought into the marriage.      He asserts that even if Kim did
contribute to the value of Tehachapi, the court's award of half of
the appreciation of both properties was disproportionate to the
value of her contributions.     Finally, he claims that the court
should not have ordered him to pay the mortgage on the Nine Mile
property because Kim testified that she would be willing to pay it
if she were awarded the property.
     Section 40-4-202(1), MCA, sets forth the factors which must be
considered by the court before distributing property acquired
before the marriage.   That section provides in relevant part that:
     In dividing property acquired prior to the marriage ...
     the court shall consider those contributions of the other
     spouse to the marriage, including:
          (a) the nonmonetary contribution of a homemaker;
          (b) the extent to which such contributions have
     facilitated the maintenance of this property; and
         (c) whether or not the property division serves as
    an alternative to maintenance arrangements.
     In this instance, the record demonstrates that the court
considered Kim's contributions to the marriage, including specific
contributions she ma6e to the properties in question.         Eased on
testimony by the parties and other witnesses, the court found that
Kim had made substantial nonmonetary contributions to the marriage.
There was testimony that, among other things, Kim had remodeled and
painted buildings on the parties1 various properties, performed
daily housekeeping activities, and kept the marital financial
records. Furthermore, although a recpest for maintenance was made
in the response to the petition for dissolution, no maintenance was
awarded.   Although the court found that the increase in the value
of   the   Inyokern   and   Tehachapi    properties    "was   primarily
attributable to appreciation,'* it concluded that due to her
contributions to the marriage, she was entitled to half of the
appreciation in value of those properties.
     Although   the   evidence   does     not   indicate   that   Kim's
contributions resulted in any significant increase in the value of
the properties in question, the record does support the finding
that Kim contributed in some fashion to the maintenance and
appreciation of these properties.     We conclude that this evidence
supports the District Court's allocation of these assets according
to the considerations required by 5     40-4-202,   MCA.
     Therefore, we hold that the court did not abuse its discretion
when it awarded Kim half of the appreciated value of the Inyokern
and Tehachapi properties.   Although Kim had stated that she would
                                 10
pay the mortgage on the Mine Mile property, it was within the
court's discretion to award her this property unencumbered as
compensation for her share of the marital estate.
     This case is reversed in part and remanded for a proper
determination of the amount by     which   the   Inyokern property
appreciated during the partiesi marriage. The distribution of the
marital estate is affirmed subject to any adjustments necessary to
reflect the corrected value of appreciation on the Inyokern
property.




We concur:



     Chief Justice
Chief Justice J. A. Turnage concurring in part and dissenting in
part:
     I concur with the majority opinion on Issue 2. I respectfully
dissent from the majority opinion on Issue 1.
     The majority opinion reverses the District Court and remands
this case for determination of the amount by which the Inyokern
property appreciated during the parties' marriage.     The majority
opinion concludes that the District Court's        findings of fact
numbered 23 and 24, relating to the valuation of the Inyokern
property, have no factual basis in the record and, therefore, are
clearly erroneous.
     With the exception of finding 23, in that the figure $103,000
should have been $105,000, findings 23 and 24 are not clearly
erroneous.
     A review of the record in this case is enlightening and
clearly supports the findings of the District Court.     The record
consists of:
     (1)     Over 1200 pages of transcribed dep~sitionsand trial
testimony;
     (2) Over 70 exhibits introduced at trial;
     (3)   Over 94 pages of discovery documents;
     (4)     Two large district court files containing 122 separate
filings of documents.
     The setting of this conjugal war commenced on June 8, 1989,
with the marriage of the parties and escalated commencing April 30,
1991, when the petitioner Rick Maedje (Rick) filed for a dissolu-
tion of his marriage to Kim Maedje (Kim), This marital war has
continued for nearly three years and may well continue much longer
now that the majority has reversed the District Court.
        From a review of this record, it is readily apparent that the
special master who presided in this case exercised the highest
standards of judicial conduct and patience. The special master was
faced with a most complex and difficult trial that consumed many
judicial hours, three substitutions of counsel and involved parties
that, charitably speaking, were on many occasions difficult.
        The property that the special master was required to consider
in arriving at an equitable distribution of the marital estate
consisted of many items of personal property too numerous to
mention and six parcels of real estate located in California and
Montana, each of which had a substantial value that needed to be
determined.
     The majority of this Court reverses and remands this case,
thereby prolonging the marital conflict for an indefinite period of
time.    The sole reason is the majority's conclusion that there is
no factual basis in the record to support the master's findings of
a value, as of June 8, 1989 (the date of the parties1 marriage),
for a parcel of land of approximately twenty acres located in Kern
County, California, and the amount of its appreciation during the
marriage of the parties.    This Court is asking a new trier of fact
to perform an impossible task in trying to establish a value for
this parcel of land nearly five years after the marriage.
     It is apparent from the record that Rick was determined to
avoid testifying concerning the value of the Inyokern property as
well as to values of other property to be considered in the marital
estate.   An example of Rick's avoidance of offering evidence of
values of properties is his response to an August 13, 1991 order of
the court requiring the parties to set forth an inventory of the
property involved in the marital estate and the values thereof. By
Document 37 in the District Court file, Rick's response states an
inventory of all property owned by the parties jointly or separate-
ly. Rick lists eighty-three separate items of property, including
the Inyokern property, and states for his response to the court
that the value of each of the said eighty-three items is to him
"unknown."
     The special master's Conclusion of Law No. 6 states: "The
value of the gross marital estate is approximately $520,385. The
debt against this estate is approximately $167,000, resulting in a
net marital estate of $353,385."
     The special master in Conclusion of Law No. 9 stated that the
value of the Inyokern property increased approximately $29,000 from
the date of marriage to the date of sale and that the parties
should share equally in the $29,000 increase in value. Therefore,
the special master awarded $14,500 of the increase to Kim.     The
majority of this Court now finds that there is nothing in the
record to substantiate this conclusion of law.       I disagree.
     There is no dispute in the record that the Inyokern property
sold on March 26, 1990, for $125,000; $55,500 was paid as a down
payment and the balance of $69,500 was received by Rick in the form
of a note and deed of trust.    Rick's Exhibit 1-B-4.
     Transcript Volume 111, Page 50, sets forth Rick's testimony on
direct examination concerning this sale:
          Q.     So then in 1990 did you sell the Inyokern
     property?
          A.   Yes.
          Q.   Okay.   And when did you put it on the market?
          A.   It was in the early winter, I believe.
          Q.   Okay.   And it sold March 26, 1990?
          A.   Yes.
          Q. And about how much did you receive?        How much
     did you receive for it?
          A.   The selling price was 125,000.
This testimony not only sets forth the sale of the property for
$125,000 on March 26, 1990, but also provides testimony from the
owner of the property upon which the court can draw a lawful
inference that this property was placed on the market in the early
winter of 1989-90. Therefore, by inference in October 1989, some
four months after the marriage, Rick must have placed a value of at
least $125,000 on this property because it sold for that sum in
March of 1990. Most certainly the buyer did not offer to pay more
                                 15
than the asking price.    From this sale, Rick has been receiving
$736 a month on the unpaid balance.   (Transcript Volume 111, Page


     Rick's Exhibit 9 establishes that he had agreed to sell the
Inyokern property for $105,000 in 1983 but that the sale failed in
1985.   Transcript Volume V, Page 136, sets forth the question
directed to Rick by the court and his response.    This portion of
the transcript tells us that Rick did at this time put a value on
Inyokern and the value was $105,000.      Undoubtedly the court's
erroneous figure of $103,000 in its findings should have been


     Rick's testimony establishes that he therefore did put a value
on that property which the court could use as an inference of value
when he had offered no other assistance to the court in providing
a June 8, 1989 value.    In response to a question from the court,
Rick testified, Transcript Volume V, Page 136:
          Q.   Can you tell me the value of the Inyokern
     property as of June 1989?
          A. The only thing I can go on there is I had sold
     ten acres of it with the main barns and the corrals and
     arena and mobile on it for 105,000 to Lloyd and Beverly
     Hacker (phon.) in 1983 and that's the only value that I
     could out on it. [Emphasis added.] [Note that this is
     the sale which failed.]
     Kim testified as to a value of the Inyokern property, a value
that she had obtained from Rick, the owner of the property.    This
testimony and the testimony of Rick provides substantial credible
evidence upon which the court arrived at a value of the Inyokern
property and the increase in value during the marriage.        This
evidence supports the court's findings 23 and 24 whereby the court
averaged the $90,000 value given by Kim with the testimony given by
Rick that the value was $103,000 [sic] and subtracted that amount
from the $125,000 sale price, arriving at an increase in value of


     Kim testified on direct examination concerning the value of
the Inyokern property, Transcript Volume IV, Pages 153-55:
          Q. Okay. And in June of '89 did Rick tell you what
     he thought it was worth?
          A.   Yeah, approximately.
          Q.   And how much was that?
         A. Approximately 85 to 90,000 is what we thought it
    would sell for. Both of us. It was both of our impres-
    sion that it would be right around that, that that would
    be its selling price, once it was--
          Q.   Was it then sold in April of 1990?


          Q.   And do you know how much it was sold for?


         A. I believe it was 125. I think that this is
    wrong, the 120. That should be--
          Q.   Sold for 120 to 125,000?
          A.   Yeah.
          Q.   Okay.
         A. I think we put the low ends on--both 85 and 120
    here. It looks that way to me.
          Q.   Okay. Assuming it was sold for $90,000--or
     excuse me, it was valued at $90,000 by Rick in June of
     '89 and then sold for 125,000 in 1990, March, what sort
     of an increase in value would that give us?
          A Well, it would be 35, and then split in half, it
           .
     is 17,5.
          Q. Okay. but you said that it was valued at 90,000
     by Rick, not 85?
          A.   Well, it was speculation on our part.       We
     thought 85 to 90 and that's how I feel about it, It is
     hard when you are not real estate agents, and we are not
     even talking about an appraisal here. We are talking
     about two people talking.
          MR. NEWCOMER: Your Honor, I would object to this
     line of questioning as simply eliciting speculation as to
     value.
          THE COURT: I think she has been asked and answered
     this same question.
          MR. LEITCH: I think so, too. I am responding to
     the objection.    I think it is an admission against
     interest and I think under the Rules of Evidence it comes
     under what he valued the property at at that time.
          THE COURT: Well, I will overrule the objection, but
     move on, because I think that information is in.
     The record in this case is not a perfect example of how
property should be valued and appraised; however, it does provide
the court a substantial credible record upon which to base the
findings of fact and the conclusions of law. It must be remembered
that the court is responsible for providing an equitable distribu-
tion of the marital estate, and such was accomplished in this case.
     This case will soon be three years in duration.        It has
consumed countless hours of court time, involved five different
lawyers resulting fromthree substitutions of counsel, and attorney
liens filed against both Rick and Kim.
     The amount involved in this case in view of the totality of
the property is minimal. The court's erroneous finding of $103,000
as the value set in Rick's testimony when the value should have
been $105,000, is of a trivial nature when viewed in light of the
significant amounts of property in this case and therefore does not
warrant any remand or reversal on that point.       A reversal and
remand undoubtedly will     result in prolonged    District Court
litigation and, in all probability, further appeal to this Court.
The time has now arrived to bring to a conclusion the marital war
between Rick and Kim.    I would affirm the District Court.




Justice James C Nelson:
               .
     I concur with the concurring and dissenting opinion of Chief
Justice Turnage.




Justice Karla M. Gray:
    I concur with the concurring and dissenting opinion of Chief
Justice Turnage.




                                19
                                        February 1, 1994

                                  CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:


THOMAS W. TRICE
Attorney at Law
210 North Higgins Ave.
Missoula, MT 59802

NEIL M. LEITCH
Attorney at Law
336 Ryman Ave.
Missoula, MT 59802

                                                     ED SMITH
                                                     CLERK OF THE SUPREME COURT
                                                     STATE OF MONTANA

                                                    BY:
                                                       DeputyU
