Schultz v. Schultz

• Court: Montana Supreme Court
• Writing for the Court: HARRISON; HASWELL
• Citation: Schultz v. Schultz, 649 P.2d 1268, 199 Mont. 332, 39 St.Rep. 1435 (Mont. 1982)
• Decision Date: 11 August 1982
• Docket Number: No. 81-431,81-431
• Parties: In re the Marriage of Dorothea J. SCHULTZ, Petitioner and Appellant, v. Jacob SCHULTZ, Respondent and Respondent.

Page 1268

649 P.2d 1268

199 Mont. 332

In re the Marriage of Dorothea J. SCHULTZ, Petitioner and Appellant, v. Jacob SCHULTZ, Respondent and Respondent.

No. 81-431.

Supreme Court of Montana.

Submitted on Briefs June 17, 1982.

Decided Aug. 11, 1982.

Anderson, Edwards & Molloy, Billings, for petitioner and appellant.

Kronmiller & Seykora, Hardin, for respondent and respondent.

HARRISON, Justice.

Action commenced by wife seeking dissolution of marriage and a property division. Petitioner filed in the District Court of the Thirteenth Judicial District in and for the County of Yellowstone. Findings of fact and conclusions of law were entered April 22, 1981, followed by judgment. Appeal followed directed specifically to the disposition of couple's property.

The parties to this action were married in 1936. For the 43-year duration of their marriage they farmed and ranched at various locations in south-central Montana. Respondent (hereinafter Jake) has a second grade education. Appellant (hereinafter Dorothea) was graduated from high school. Due to the parties' wide difference in educations, Dorothea handled the management and finances of the operations while Jake concentrated on the day-to-day functions. The record shows both Jake and Dorothea were hard workers and attempted to make the best of their debt-ridden business.

At the time appellant filed her petition for dissolution of marriage, and parties were farming and ranching north of Hardin, Montana, on 160 acres known as the home place which they purchased from Dorothea's father. Later, another 117 acres were purchased with the help of their son, Robert Schultz, known as the Orser Place. The parties improved and equipped the home place by borrowing substantial amounts of money from the FHA and the PCA. In addition they used funds which Dorothea received in a personal injury settlement and from money inherited from her uncle.

The parties accumulated a herd of cattle on the ranch which included four separate brands:

1. Bar D Lazy K, registered to Dorothea Schultz;

2. Lazy DJ Bar, registered to Jacob and Dorothea Schultz;

3. Bar CB, registered to Patricia Thomas;

4. Slash CC, registered to Robert and Dorothea Schultz The ownership of these four brands is disputed. The Bar D Lazy K brand was first established in 1950 by Dorothea Schultz. In 1971, Dorothea transferred the brand to a joint brand with Jake upon request by the FHA to qualify for a loan. When the loan was released Jake assigned his interest back to Dorothea. The Lazy DJ Bar is jointly owned by Dorothea and Jake without dispute. The cattle branded Bar CB were purchased in 1961 by Dorothea and then sold to the daughter Patricia Thomas. Since then the brand has always been registered in the daughter's name. When the brand Bar CB cows were calved-out through the years, some of the calves were sold and the proceeds used by Jake and Dorothea in their operations. The cattle branded Slash CC were purchased by Dorothea in 1975. Dorothea obtained a loan from the Little Horn Bank to pay for the cattle. When she couldn't repay the loan, the son, Robert Schultz, repaid the bank and Dorothea gave him a bill of sale for the cattle. The cattle were branded Slash CC and the brand was registered in the names of Robert and Dorothea Schultz.

In the District Court's findings of fact and conclusions of law the court found the total net worth of the parties to be between $94,116.51 and $153,599.51. The difference in amount is due to different appraisals of the real estate and cattle. The District Court's finding is as follows:

RECAP

-----

ASSETS

------

Real Property $242,375.00 to $276,060.00

Less sale of 59% interest - 59,000.00 - 59,000.00

Machinery 19,100.00 to 31,750.00

Crops 5,000.00 to 7,908.00

Livestock

--

CB Brand 15,730.00 to 15,800.00

-DK Brand 38,730.00 to 45,300.00

/CC Brand 9,450.00 to 10,900.00

DJ Brand 16,500.00 to 18,650.00

--

Check 8,729.33 to 8,729.33

-------------- -----------

Sub-Total 355,614.33 to 415,097.33

Less $59,000.00, sale of 59%

interest - 59,000.00 59,000.00

-------------- -----------

TOTAL ASSETS $296,614.33 to $356,097.33

-------------- -----------

LIABILITIES

-----------

FHA $180,030.17

Little Horn State Bank 14,722.65

Miscellaneous 7,745.00

--------------

TOTAL LIABILITIES $202,497.82

--------------

NET WORTH OF PARTIES TOGETHER

Assets $296,614.33 to $356,097.33

Liabilities 202,497.82 202,497.82

-------------- -----------

TOTAL $ 94,116.51 $153,599.51

-------------- -----------

In the judgment the District Court ordered:

"... that the property of the marital estate, both real and personal, including CB and /CC brand cattle shall be sold, and after payment of all indebtedness herein the net proceeds shall be divided between the parties except petitioner is entitled to be paid $25,000 over and above respondent's share...

"Sale of property set forth in the previous paragraph shall be accomplished by mutual agreement of the parties presented to this Court. If no agreement is reached, the court shall set the guidelines for the sale. The court would ratify an agreement allowing the petitioner's to retain the 'home place,' if the parties can do so, giving respondent his portion of the marital estate."

From this judgment petitioner appeals.

The issues presented for review are:

1. Whether the court had jurisdiction to include within the marital estate and to divide and order sold the cattle owned by and branded in the names of the adult children, Robert Schultz and Patricia Thomas.

2. Whether the court abused its discretion and acted contrary to the evidence when it included with the marital estate the cattle with the wife's separate and personal brand, Bar D Lazy K.

3. Whether the court abused its discretion in failing to give the wife the right to purchase the home ranch before subjecting it to forced litigation.

Appellant argues the District Court erred by including the brands Slash CC and Bar CB, registered in the children's names, into the marital estate. There is no dispute that the brand, Bar CB is registered in the name of the daughter, Patricia Thomas, or that the brand, Slash CC is registered in the names of the son, Robert Schultz and Dorothea Schultz.

Appellant cites section 81-3-105, MCA:

"A person, firm or corporation in whose name a mark or brand is recorded is entitled to the exclusive use of the mark or brand on the species of animal and in the position designated in the record. A copy of the record certified by the department is prima facie evidence of this right, and the certificate is also prima facie evidence that the person, firm or corporation entitled to use the mark or brand is the owner of all animals on which it appears in the position and on the species of animal stated in the certificate." (Emphasis supplied.)

This section was originally enacted as Section 5, Ch. 144 Laws of Montana (1921), codified as Section 3305, R.C.M.1921. The language has remained unchanged since its enactment. In the case of State v. Keays (1934), 97 Mont. 404, 34 P.2d 855, this Court cited the section and stated: "Defendant argues that the certificates mentioned in the above section were the best evidence of ownership, and that it was error to admit the oral testimony of Rafesty upon this question. It is true that the certificates specified by the statutes would have been the best evidence. The admission of the oral testimony in the place of such certificates did constitute at least a technical error." This being a criminal case, the Court found other grounds upon which we could reverse. However, the rule that the certificate is the best evidence of ownership has never been overruled.

That does not mean that the presumption of ownership cannot be rebutted. In Bohart v. Songer et al. (1940), 110 Mont. 405, 101 P.2d 64, we stated: "(n)ow the recorded brand establishes prima facie proof of ownership on which such brand appears. Of course, the prima facie evidence of ownership can be overcome by satisfactory evidence of transfer or relinquishment of a particular animal." In the present case there was no evidence of transfer or relinquishment of the disputed brands. The brands have always been in the children's names and thus the children are presumed the owners.

Respondent now claims he has an "interest" in the disputed brands because he fed and watered the cattle and took care of them on his land. He cites no authority which substantiates this claim of ownership. Respondent acknowledged that the children were the registered owners of the brands and never contested their ownership until the dissolution proceeding. The record shows the parents sold calves from the daughter's brand, Bar CB, and the proceeds were used in the operation of the ranch. The record does not show that the daughter was repaid for these calves. Respondent cannot argue he watered, fed and pastured the children's cattle without compensation as it seems the parents use of the proceeds from the daughter's calf sales provided equitable payment. We find no merit in respondent's contentions.

Appellant next argues the District Court abused its discretion when it included the wife's personal brand of cattle...