                                            No. 02-074

                IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2002 MT 243N


IN RE THE MARRIAGE OF
SHARON K. SNELL,

               Petitioner and Appellant,

         and

ROBERT S. SNELL,

               Respondent and Respondent.



APPEAL FROM:          District Court of the Eleventh Judicial District,
                      In and for the County of Flathead,
                      The Honorable Stewart E. Stadler, Judge presiding.


COUNSEL OF RECORD:

               For Appellant:

                      Peter F. Carroll, Attorney at Law, Kalispell, Montana

               For Respondent:

                      Erika L. Johnson; Johnson, Berg, McEvoy & Bostock,
                      Kalispell, Montana



                                                    Submitted on Briefs: May 16, 2002

                                                               Decided: November 7, 2002
Filed:


                      __________________________________________
                                        Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.


¶1    Pursuant to Section I, Paragraph 3(c), Montana Supreme Court

1996 Internal Operating Rules, the following decision shall not be

cited as precedent but shall be filed as a public document with the

Clerk of the Supreme Court and shall be reported by case title,

Supreme     Court   cause     number    and    result    to   the   State   Reporter

Publishing Company and to West Group in the quarterly table of

noncitable cases issued by this Court.
¶2    Sharon K. Snell (Sharon) appeals from the judgment entered by

the Eleventh Judicial District Court, Flathead County, on its

findings of fact, conclusions of law and decree of dissolution.                   We

affirm.

¶3    Sharon raises the following issues:

¶4    1.    Did the District Court abuse its discretion in accepting

David Heine’s appraisal of the 3-acre Creston Farm homestead into

evidence?

¶5    2.    Did the District Court abuse its discretion in valuing and

distributing the marital estate?

¶6    3.     Did the District Court err in failing to award Sharon

maintenance?
                                     BACKGROUND

¶7    Sharon and Robert S. Snell (Robert) were married on July 25,

1967.      In April of 1999, Sharon petitioned the District Court to

dissolve the marriage and equitably apportion the marital estate

between the parties.            She also requested that Robert pay her

maintenance.        The District Court held a trial in May of 2001,

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following which it entered findings of fact, conclusions of law and

a decree dissolving the marriage and distributing the parties’

marital estate.   As the court stated in its findings of fact, the

marital estate in this case consists mainly of four parcels of land

acquired by the parties during their marriage and referred to in

this proceeding as the Creston Farm, the Isch property, the Lake

Blaine property and the Snell Home Place.

¶8   The Creston Farm consists of approximately 200 acres of

farmland with a house and several outbuildings.       James Kelley

(Kelley), a certified land appraiser hired by the parties to

appraise the various parcels of land, valued the Creston Farm at

$740,000.   A second appraisal, conducted by David Heine (Heine) at

the request of Robert, valued a 3-acre tract containing the house

and outbuildings within the Creston Farm at between $60,000 and

$75,000.    The District Court allocated 40 acres of the Creston

Farm, plus the 3-acre tract with house and outbuildings, to Sharon

and the remaining 157 acres to Robert.
¶9   The Isch property consists of 70.26 acres of farmland valued

by Kelley at $259,962.   At the time of the trial, the debt on this

property was $105,599.    The debt is secured by a Merrill Lynch

account which the District Court valued at an amount approximately

equal to the debt.       The District Court distributed both the

property and the Merrill Lynch account to Sharon.   The court also

distributed the Lake Blaine property, consisting of 5 acres of

residential property valued by Kelley at $276,000, to Sharon.




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¶10   The   final   parcel,   referred    to   as   the   Snell   Home   Place,

consists of 174.53 acres of farmland.          Kelley valued 37.48 acres of

this property, containing a residence and some outbuildings, at

$163,000.    He further determined that the highest and best use of

the remaining acreage is as residential subdivision and valued it

at approximately $900,000. The District Court allocated the 37.48

acres with buildings to Robert.          The court divided the remaining

acreage between the parties, with Robert receiving 68.55 acres and

Sharon receiving 68.5 acres.
¶11   In addition to the above real property distributions, the

District Court valued and allocated the parties’ other assets and

debts.   Robert received a net distribution equaling $1,088,504 and

Sharon received a net distribution of $1,133,078.             The court also

specifically noted that Sharon was receiving a greater proportion

of the marital estate in lieu of a maintenance award.                    Sharon

subsequently moved to amend the decree or, alternatively, for a new

trial, asserting that various of the District Court’s findings of

fact relating to the valuation and distribution of the marital

estate were erroneous.        The court denied the motion and entered

judgment on the decree.       Sharon appeals.

                                DISCUSSION

¶12 1. Did the District Court abuse its discretion in accepting
Heine’s appraisal of the 3-acre Creston Farm homestead into
evidence?

¶13   Prior to the trial in this matter, the parties signed, and

filed with the District Court, a stipulation stating that Kelley

would perform the appraisals of all the real property of the



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marital estate and no additional or alternative appraisals would be

performed.       At    trial,   Robert       offered   into   evidence   Heine’s

appraisal valuing the home, outbuildings and 3-acre tract within

the Creston Farm property at $65,000.                  Sharon objected to the

exhibit on the basis that it violated the pretrial stipulation.

The District Court allowed the exhibit into evidence and Sharon

asserts error.     We review a district court’s evidentiary rulings to

determine whether the court abused its discretion. In re Marriage

of Craib (1994), 266 Mont. 483, 499, 880 P.2d 1379, 1389.
¶14   Sharon contends that the District Court’s admission of the

Heine appraisal was error affecting her substantial rights because

her “trial counsel was caught unprepared by the proffer of such

testimony.”     Our review of the record, however, shows that Sharon’s

counsel was aware of the appraisal prior to trial and had prepared

to respond to it.       During direct examination of Kelley, Sharon’s

counsel said someone had indicated to him that the 3-acre parcel

was worth $65,000 and asked what response Kelley had to that

valuation.    Kelley then testified that he believed the 3-acre tract

would be worth up to $50,000.           Moreover, Sharon testified that if

there was a legitimate offer to purchase the 3-acre tract for

$65,000, she would be willing to value the tract at that amount.

All of this testimony occurred prior to Robert offering the Heine

appraisal into evidence, thus contradicting Sharon’s assertion that

her   counsel    was    unaware   of,    and    unprepared     for,   the   Heine

appraisal.




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¶15   Moreover, the District Court accepted the Heine appraisal into

evidence on the basis that it had already heard the testimony set

forth above.   In other words, Sharon opened the door for Robert to

present evidence regarding the value of the 3-acre tract.                  Based on

the record before us, we hold that the District Court did not abuse

its discretion in accepting Heine’s appraisal of the 3-acre Creston

Farm homestead into evidence.

¶16 2. Did the District Court abuse its discretion in valuing and
distributing the marital estate?
¶17   We review a district court’s division of marital property to

determine    whether   the    court’s       findings   of   fact     are   clearly

erroneous and its conclusions of law correct.               Siefke v. Siefke,

2000 MT 281, ¶ 7, 302 Mont. 167, ¶ 7, 13 P.3d 937, ¶ 7; In re

Marriage of Gochanour, 2000 MT 156, ¶ 15, 300 Mont. 155, ¶ 15, 4

P.3d 643, ¶ 15.     If the court’s findings are not clearly erroneous,

we will affirm a property distribution absent a showing that the

court abused its discretion.      Siefke, ¶ 7; Marriage of Gochanour, ¶

15.   Moreover, a presumption exists in favor of a district court’s

determinations regarding the valuation and distribution of marital

property and those determinations are accorded a great amount of

deference on review.         Marriage of Gochanour, ¶ 34.             Finally, a

district    court   “has   the   discretion      to    adopt   any     reasonable

valuation of property supported by the record.”                    Siefke, ¶ 20

(citation omitted).

¶18   Sharon argues the District Court’s findings of fact regarding

the value of certain assets in the marital estate are clearly

erroneous    and,   consequently,       the     court’s     ultimate       property


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distribution--based on these erroneous findings--was an abuse of

discretion.     She first contends that the District Court erred in

relying   on   a   balance    sheet   prepared     at   Robert’s      request    by

certified public accountant Ken Armstrong (Armstrong) to determine

the value of certain marital property because the balance sheet was

hearsay evidence and, therefore, the validity of the figures

therein was questionable.

¶19   During   Sharon’s      testimony,     she   offered   as   an    exhibit    a

document outlining her proposed valuation and distribution of the

marital estate.     At the same time, she offered Armstrong’s balance

sheet as an exhibit as the source for some of the values assigned

to assets on her proposed distribution exhibit.             Robert objected to

admission of the Armstrong balance sheet on the basis that it was

both hearsay and inaccurate.               In response, Sharon’s attorney

specifically argued that the Armstrong balance sheet was not

hearsay because it constituted an admission against interest by

Robert.
¶20   A party may not change its legal theory or raise new arguments

on appeal.     Milltown Add. Homeowner’s Ass’n v. Geery, 2000 MT 341,

¶ 18, 303 Mont. 195, ¶ 18, 15 P.3d 458, ¶ 18.               Moreover, we will

not reverse a district court for error in which the appellant

acquiesced or participated.       Sandman v. Farmers Ins. Exchange, 1998

MT 286, ¶ 23, 291 Mont. 456, ¶ 23, 969 P.2d 277, ¶ 23.                   Because

Sharon argued below that the Armstrong balance sheet was not

hearsay, she is precluded from arguing here that the District Court

should not have relied on the exhibit because it was hearsay.                    We



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conclude, therefore, that the District Court’s valuation of certain

assets    based   on     the    Armstrong     balance    sheet     is    not   clearly

erroneous.

¶21   Sharon next argues that the District Court’s valuation of the

Merrill Lynch account securing the debt owed against the Isch

property at $104,151 based on figures from the Armstrong balance

sheet is clearly erroneous because the validity of the balance

sheet figures is questionable.                She contends that the District

Court should have adopted the lower value of $80,509 placed on the

account by Robert.             Again, however, Sharon herself offered the

Armstrong balance sheet into evidence and, indeed, her proposed

property valuation and distribution exhibit values the Merrill

Lynch account in accordance with Armstrong’s balance sheet.                     Having

requested the District Court to value the account in accordance

with the Armstrong balance sheet, Sharon cannot now argue that the

court was in error for doing so.              We conclude the District Court’s

finding of fact valuing the Merrill Lynch account at $104,151 is

not clearly erroneous.
¶22   Sharon also argues that the District Court’s finding of fact

valuing    the    parties’       farm   equipment       at    $78,625    is    clearly

erroneous.    She contends that the more accurate value of the farm

equipment is $165,000, as reflected in a Farm Credit Services

report she prepared for the parties in 1998.                     Robert testified,

however, that he met with a loan officer from the Farm Credit

Services     in   1999    and,     with   the    loan        officer’s   assistance,




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determined that the value of the farm equipment was approximately

$78,000.    The District Court found that

      [w]hile there were introduced equipment inventories
      suggesting a higher value, those inventories were
      prepared by [Sharon] during the times she controlled the
      farm records.     Following the parties’ separation,
      [Robert] met and cooperated with a Farm Credit Services
      officer to accurately inventory and value the equipment.
       The Court finds the value of the farm equipment to be
      $78,625.00.

¶23   As stated above, a district court “has the discretion to adopt

any reasonable valuation of property supported by the record.”
Siefke,    ¶     20   (citation    omitted).       Moreover,   determinations

regarding the valuation of marital property are presumptively

correct    and    accorded   a    great   amount   of   deference    on   review.

Marriage of Gochanour, ¶ 34.              We conclude the District Court’s

finding of fact valuing the farm equipment at $78,625 is supported

by the record and, therefore, is not clearly erroneous.

¶24   Sharon next argues that the District Court’s finding of fact

valuing the Lake Blaine property at $276,000 is clearly erroneous

because the court failed to adjust the value to reflect tax

consequences which would result from the sale of the property.                She

contends that, at the time the parties separated, they agreed the

Lake Blaine property eventually would be sold and that the court’s

property distribution requires her to sell real property--namely

the Lake Blaine property--in order to have adequate income on which

to live.    However, Sharon testified at the trial that, depending on

the final property distribution, there may be no need to sell the

Lake Blaine property.        This testimony contradicts her assertion

here that it was assumed the property would be sold.                Moreover, as


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the District Court observed in its order denying Sharon’s posttrial

motion to amend the decree, “[t]he Lake Blaine property allocated

to [Sharon] could be used to acquire a home or additional farm

acreage without tax consequences . . . .”

¶25   Tax liability should be considered by the district court only

where the court’s property distribution includes a taxable event

resulting in a concrete and immediate tax liability.                  In re

Marriage of Lee (1991), 249 Mont. 516, 519, 816 P.2d 1076, 1078.

Based on the record before us, we conclude that potential tax

consequences related to the Lake Blaine property were neither

concrete nor immediate at the time the District Court entered its

decree.    Consequently, we further conclude that the court’s finding

of fact valuing the property at $276,000 is not clearly erroneous.
¶26   Finally, Sharon argues that the District Court’s finding of

fact 15 is clearly erroneous.        That finding states as follows:

      During the period of separation, [Sharon] claims that
      [Robert] has retained all of the family farm income.
      [Robert] claims that for a period of time during the
      parties separation that [Sharon] maintained the farm bank
      accounts and excessively dissipated these accounts.
      Giving credibility to both claims, results in the Court
      finding that there has been an approximately equal
      distribution of post separation farm income.

Sharon’s    argument   that   this   finding    is   erroneous   is   based,

essentially, on her assertion that her testimony regarding the

parties’ use of marital assets during the post-separation period

was more credible than Robert’s.          However, we must give due regard

to the trial court’s opportunity to judge the credibility of

witnesses and will not substitute our judgment for that of the

trial court on those matters.        In re Marriage of Oehlke, 2002 MT


                                     10
79, ¶ 21, 309 Mont. 254, ¶ 21, 46 P.3d 49, ¶ 21.                  We conclude

Sharon has failed to establish that the District Court’s finding of

fact 15 is clearly erroneous.

¶27   Having concluded that the challenged findings of fact are not

clearly erroneous, we hold that the District Court did not abuse

its discretion in valuing and distributing the marital estate.

¶28   3.    Did the District Court err in failing to award Sharon

maintenance?

¶29   In her petition for dissolution, Sharon requested that Robert

pay her maintenance.      At trial, however, Sharon testified that she

would be willing to forego a maintenance award if the court awarded

her sufficient property in lieu thereof.            In the final decree, the

court awarded Sharon a net property distribution which was $44,574

greater than that awarded Robert and specifically stated that
      [t]he disproportionate allocation of the marital estate
      is in lieu of maintenance and considering [Robert’s]
      greater earning capacity which equalizes when [Sharon]
      obtains her anticipated additional education.        Said
      distribution provides [Sharon] with sufficient assets
      when considered with income available to provide for her
      continued education and reasonable needs. There is no
      evidence that either will be unable to meet their
      reasonable financial needs, so spousal maintenance is not
      appropriate.

¶30   In a dissolution proceeding, a district court may grant a

spouse     maintenance   if   the   court   finds   that   the   spouse   lacks

sufficient property to provide for his or her reasonable needs and

is unable to support him/herself through appropriate employment.

Section 40-4-203(1), MCA.       A court may, in its discretion, allocate

property in lieu of maintenance.            Section 40-4-203(2)(a), MCA.

Finally, we review a court’s grant or denial of a maintenance award


                                       11
to determine whether the court’s underlying findings of fact are

clearly erroneous.         In re Marriage of Haines, 2002 MT 182, ¶ 15,

311 Mont. 70, ¶ 15, 53 P.3d 378, ¶ 15.

¶31    Sharon argues that the District Court’s finding that it

awarded sufficient property in lieu of maintenance to provide for

her reasonable needs is clearly erroneous.                Her argument is based

on her assertion that none of the property she received was income-

producing.      She first contends that, although the court awarded her

farm property which potentially could be income-producing, it

failed to award her any of the farm equipment with which to produce

such income.      The District Court awarded all the farm equipment to

Robert, finding that, although Sharon stated a desire to farm, it

questioned the legitimacy of that desire based on her failure to

avail herself of previous opportunities to farm during the parties’

marriage.       Based     on   the   record    before    us,   we    conclude     that

sufficient evidence exists to support this finding and it is not

clearly erroneous.
¶32    Sharon further asserts, however, that the District Court’s

failure to award her any equipment with which to farm results in

her being required to sell some of her property in order to meet

her needs.       Consequently, according to Sharon, she will suffer

adverse tax liabilities and the loss of some of her property, thus

making    the    court’s       property   award    in    lieu       of   maintenance

insufficient.       As noted above, however, the District Court found

that   the   sale    of    any   property      awarded   to    Sharon     would   not

necessarily result in adverse tax consequences, and we conclude



                                          12
that Sharon has not established that this finding is clearly

erroneous.   We hold, therefore, that the District Court did not err

in failing to award Sharon maintenance.

¶33   Affirmed.



                                          /S/ KARLA M. GRAY


We concur:


/S/   PATRICIA   COTTER
/S/   TERRY N.   TRIEWEILER
/S/   TERRY N.   TRIEWEILER
/S/   JAMES C.   NELSON




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