Marriage of Weaver, In re, 76-444
| Decision Date | 28 July 1977 |
| Docket Number | No. 76-444,76-444 |
| Citation | 571 P.2d 307,39 Colo.App. 523 |
| Parties | In re the MARRIAGE OF Geraldine P. WEAVER, Appellee, and Adrian F. Weaver, Appellant. . II |
| Court | Colorado Court of Appeals |
March, March & Myatt, Joseph T. Carroll, Jr., Fort Collins, for appellee.
Harden, Napheys, Schmidt, Hass & Bloom, P. C., Ralph B. Harden, Charles S. Bloom, Fort Collins, for appellant.
Adrian F. Weaver appeals the property division and child support orders entered in connection with the dissolution of his marriage of 22 years to Geraldine P. Weaver. We affirm.
The parties owned and operated a large ranching operation in northern Colorado and southern Wyoming consisting of approximately 12,860 acres. The husband brought 2,100 of these acres into the marriage and acquired 750 acres as a gift during the marriage. The balance of the acreage, part of which was transferred into Weaver Ranches, Inc., a corporation formed by the parties in 1972, was purchased by the parties during the marriage. The corporation also owned all cattle and equipment used in the ranching operation. The husband held 75% of the stock of the corporation, the wife held 10% and each of their three children held 5%. The parties also purchased a city block in West Laramie, Wyoming.
The evidence as to the value of the land varied considerably. Much of the property was subject to substantial encumbrances, and there were few assets available that could be converted to cash for a property division.
The court set aside to the husband, as his separate property, the value at the time of the marriage of the 2,100 acres which he brought into the marriage, and the value at the time he received it of the gift of the 750 acres ($79,350 total), and then decreed that the husband be awarded 60% of the marital property and the wife be awarded 40%. The allocation between marital and non-marital property and this percentage allocation is not being appealed.
The court made the following findings:
The evidence relating to market value of the properties does not establish such market value with sufficient certainty to enable the Court to equitably divide the property. The evidence does indicate that the value is highly speculative and the only reasonable way to establish market value is to sell the property. In addition, there is a pronounced lack of liquid assets which prevents the retention of any part of the marital property by either party in such a way as to allow the other party to receive their equitable division. Therefore, the Court specifically finds that there is no way to fairly divide the marital property other than to sell all the assets . . . and divide the net proceeds.
Consequently, the court ordered that all real property of the parties and the stock representing 85% of Weaver Ranches, Inc., held by the parties, be sold within one year of the decree. The court allowed the husband to continue to operate the ranch until the sale, and charged him with the responsibility of selling the assets, subject to court approval.
The husband objects to this order requiring sale of all the property, claiming that a physical division or sale of less than all of the property would award the wife her equitable share.
The case of Jekot v. Jekot, 32 Colo.App. 118, 507 P.2d 473, is controlling. In Jekot, the parties both requested the trial court to effect a physical partition of a parcel jointly owned by them, so that they could receive their equitable shares. However, after attempting to so divide the property, the court found it could not in fact make an equitable physical division and instead ordered the property sold at a public sale and the proceeds divided. We upheld this order as a proper exercise of the trial court's discretion in the division of property.
In the present case, the court had the power to order the sale of all of the property or to make the parties tenants in common, which would then give either party the right to seek formal partition of any or all of the property. See Jekot v. Jekot, supra. See also Larrick v. Larrick, 30 Colo.App. 327, 491 P.2d 1401. Since the court determined the percentage ownership each party had in the marital property, and also determined that it could not make an equitable physical division, we find no abuse of discretion in ordering the sale of all the property and division of the proceeds.
The husband claims that the court erred in refusing to find the current value of the marital property, and that, because of this failure, the court also erred in finding that it could only make an equitable division by ordering the sale of the property. We do not agree.
Generally, in making a division of property, the court must find the approximate current value of all property owned by the parties, as well as the value of separate property at the time of the marriage or at the time of acquisition, if after marriage. In re Marriage of Wildin, Colo.App., 563 P.2d 384. However, where the court determines the percentage ownership each party has in the marital property, and that percentage is not an issue on appeal, the failure to make such findings of current value is not necessarily erroneous.
If, as the husband contends, the failure to find a value for the marital property was the cause of the court's determination that it could not physically divide the property, then we agree that there could be reversible error. However, the findings of fact, conclusions of law, judgment and decree, when read as a whole, show that the court merely concluded that uncertainties as to any value it might assign to the properties would make physical division of the property an inferior and uncertain means of effecting the division, and for that reason, the sale was the best method of assuring an equitable division. This finding was well-supported by the record, which showed that the value of the real property varied greatly from one tract to another and from one use to another. The fact that the husband at trial agreed to accept the valuations placed by his wife on part of the property was of little...
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