                                  No.    92-389

           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                        1993



IN RE THE MARRIAGE OF
MARCIA LORRAINE SELSOR,
           Petitioner and Appellant,
     and
BEAL MONROE MOSSMAN,
           Respondent and Respondent.



APPEAL FROM:    District Court of the Thirteenth Judicial District,
                In and for the County of Yellowstone,
                The Honorable William J. Speare, Judge presiding.


COUNSEL OF RECORD:
           For Appellant:
                Gregory R. Todd, Towe, Ball, Enright & Mackey,
                Billings, Montana
           For Respondent:
               Kevin T. Sweeney, Sweeney             &   Healow, Billings,
               Montana


                                 Submitted on Briefs:        December 22, 1992
                                                  Decided:   February 2, 1993
Filed:


                             "
                                   / Clerk
Chief Justice J. A. Turnage delivered the Opinion of the Court.
     Marcia     Selsor    (Selsor) appeals     the   findings of    fact,
conclusions of law and order entered in this dissolution of
Marriage by     the District Court        for the Thirteenth Judicial
District, Yellowstone County.         We affirm the District Court.
        The sole issue presented for our consideration is:
     Did the District Court equitably apportion the marital assets
between the parties?
        Selsor and Beal Mossman (Mossman) were married on June 13,
1980.    At the time of marriage, Selsor was an associate professor
of art with five years of teaching service at Eastern Montana
College (Eastern).       Mossman was a full professor of psychology at
Eastern with over ten years of teaching service in that capacity.
Eight and one-half years later, on January 15, 1989, the parties
separated. Selsor petitioned the District Court for a dissolution
of marriage in February 1989.         At the time of dissolution, both
parties     earned   roughly    the    same   income.    Selsor    earned
approximately $37,000 per year, and Mossman earned approximately
$36,300 per year.

        Before the parties married, Mossman owned real property
located on Poly Drive in Billings with an equity of approximately
$46,000.     The property was used as rental property.         In 1985,
Mossman sold the Poly Drive property and invested the proceeds in
three brokerage accounts. When the parties separated three years
later, the accounts had increased in value to approximately
$79,000.   In addition, both Selsor and Mossman contributedto their
separate teacher's retirement accounts and deferred compensation
accounts during their marriage.   In 1988, Mossman repurchased the
Poly Drive property at an FHA foreclosure sale for    $35,000.   He
again rented this property.
     During the marriage, Selsor and Mossman accumulated various
joint assets and liabilities. The major items included real rental
property, a refinanced mortgage to improve their residence, and
investments. Selsor does not dispute the valuation or division of
the majority of the marital assets or liabilities.       Her appeal
centers around the District Court's award to each party of his or
her respective retirement and deferred compensation accounts.


     Did the District Court equitably apportion the marital assets
between the parties?
     Selsor contends that because each party was awarded his or her
respective retirement and deferred compensation accounts, the
District Court did not equitably apportion the marital assets. She
claims she received a disproportionate, unfair, and inequitable
portion of the property of the parties.   We disagree.
     With the exception of the deferred compensation and retirement
accounts, Selsor admits, and the record supports, that both parties
were awarded real and personal property of approximately the same
value.   Although she does not agree with the District Court's
valuation of the Poly Drive property, Selsor admits that the
valuation of this real property is not the major issue. At trial,
Selsor placed a value of $65,000 on this property while Mossman
valued the property at $48,000.      Neither party presented any
evidence as to the appraised value of the property.   The District
Court valued the Poly Drive property at $50,000.   Our standard of
review in regard to the factual findings of the District Court as
to the value placed upon marital property, as well as the division
of marital property, is whether the valuation or division is
clearly erroneous.   In re the Marriage of Danelson (Mont. 1992),
833 P.2d 215, 219, 49 St.Rep. 597, 599.    In the case at bar, we
hold the $50,000 valuation placed upon the Poly Drive property was
not clearly erroneous and will not be disturbed on appeal.
     For purposes of clarity, we will also briefly discuss the
$79,000 in the three brokerage accounts.     As stated above, the
brokerage accounts were opened when Mossman sold the Poly Drive
property.   The record supports the District Court's findings that
Selsor did not contribute to the creation or maintenance of these
accounts.   At trial, Mossman testified that he withdrew the money
from these accounts shortly after the parties separated, and
gambled it away in Nevada.       Selsor offered no testimony to
contradict this story. The District Court excluded this asset from
the marital estate because it reasoned it had no way to retrieve
and divide property which was no longer in existence.
     We now turn to Selsor's main contention.      She argues that
because her deferred compensation and retirement accounts are
substantially less than Mossman's, the division of the marital
estate was inequitable.     As to the retirement accounts, Selsor
relies upon a stipulated economic report of the present values of
the retirement plans introduced at trial. The report, prepared by
an economist, determined the present value of Mossman's         and
Selsor's retirement benefits in the Montana Teachers' Retirement
System (MTRS) accruing between June 1980 and July 1990. As of July
31, 1990, the gross present value of Mossman's account was
$97,645.37.   Selsor's account had a gross present value of
$30,941.37.
     Section 40-4-202, MCA, controls the division of property in
dissolutions of marriage.
     In a proceeding for dissolution of a marriage,    .. . ,
     the court, without regard to marital misconduct, 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.
Section 40-4-202(1), MCA.   On its face, the statute does not speak
to equality in apportionment of the marital property and assets.
Rather, the statute speaks to an equitable division.    As we have
said, "[it] is well settled in Montana that property division does
not need to be equal but instead must be equitable."      In re the
Marriage of Scott (Mont. 1992), 835 P.2d 710, 714, 49 St.Rep. 634,
636.
       The District Court found that Mossman had a larger retirement
account than Selsor because he had worked longer than she had. The
District Court reasoned that the difference in the retirement
accounts was "readily explainable as being earned prior to marriage
and after separation" and reflects what "is an equitable division.''
The record supports this finding.       After taking into account
several necessary variables, the economic report concludedthat the
present value (as of July 31, 1990) of Mossman's contributions to
his retirement account at the time of marriage were $23,615.80.
Likewise, utilizing identical methodology, the economic report
concluded that the present value of Selsor's contributions to her
retirement account at the time of marriage were $7,445.47.      The
economic report used a fixed rate of 7 percent as the interest the
retirement accounts would earn.
       Taking into account that Mossman had three times the accrued
benefits of Selsor at the time of marriage, it is not anomalous
that Mossman's retirement account would grow more quickly than
Selsor's, notwithstanding the fact that the rate of return (7
percent) was the same for both parties.       Moreover, though the
record reveals no date specific, Selsor admits that shortly after
the parties were married, she became a full professor and chair of
the art department at Eastern.      Thus, her salary was at par with
Mossman's for the majority of the marriage.    It follows then, that
both parties contributed approximately the same amount to their
respective retirement accounts during the duration of the marriage.
      Under 5 19-4-602, MCA, normal member contributions to the MTRS
are 7.044 percent of earned compensation. Selsor's exhibit numbers
5 and 6 reveal that for the pay period ending January 12, 1992, the
parties' bi-weekly contributions to their respective retirement
plans were within $2.52 of each other, Selsorlscontribution being
the higher.       In light of the record, it is evident that the
increase in the parties' respective retirement accounts were based
upon approximately equal earnings, equivalent rates of return, and
equivalent member contributions. Quite simply, the present value
of Mossman's retirement account as listed in the economic report is
greater because of the amount accrued prior to marriage.    It is not
based upon disproportionate contributions by Selsor into Mossman's
retirement account.
       "Section 40-4-202(1), MCA, refers to a spouse's contribution
to 'the increased value of property acquired prior to marriage,'.
..   .'I   Scott, 835 P.2d at 714. In the case at bar, we hold Selsor
made no contribution which resulted in an increased value of the
retirement account Mossman had acquire prior to marriage.        The
District Court's finding that each party was entitled to his or her
respective retirement account was not clearly erroneous.
       Finally, we address Selsor's contention that the division of
the deferred compensation accounts was inequitable.        The record
reveals   that   as   of   December    31,   1991, Mossman's   deferred
compensation account was       worth    $30,600.    Selsor's deferred
compensation account was worth $21,208 as of June 30, 1991.        The
parties agreed that the deferred compensation accounts were
initiated during the marriage, although neither was certain as to
the exact date the accounts were opened.             By Selsor's own
admission, the program allowed either party to defer any amount of
his or her respective income so long as the amount did not exceed
20 percent of annual gross income.           Because the parties were
earning approximately the same income, and were free to choose how
much of their income they wished to defer (within the limits set by
the program), we hold it was not error for the District Court to
find that each party was entitled to his or her respective deferred
compensation account.
     In the case at bar, the findings of the District Court as to
the division of marital property were not clearly erroneous.
Accordingly, the judgment is affirmed.
We concur:
                                        February 2, 1993

                                  CERTIFICATE OF SERVICE

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


GREGORY R. TODD, ESQ.
Attorney at Law
Transwestern One Bldg., Rm. 205
404 N. 31st St.
Billings, MT 59101

Kevin T. Sweeney, Esq.
SWEENEY & HEALOW
1250 15th St. West, Suite #202
Billings, MT 59102


                                                     ED SMITH
                                                     CLERK OF THE SUPREME COURT


                                                     BY:
