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No. 94-177
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994

IN RE THE MARRIAGE OF CATHERINE A. McNELLIS, Petitioner and Respondent, and ROBERT F. McNELLIS,
Respondent and Appellant.
APPEAL FROM: District Court of the First Judicial District,In and for the County of Lewis and Clark,The Honorable Jeffrey Sherlock, Judge presiding.
COUNSEL OF RECORD: For Appellant: Thomas F. Dowling, Dowling Law Firm,Helena, Montana For Respondent: John Hollow, Attorney at Law,Helena, Montana

Submitted on Briefs: August 25, 1994 Decided: November 21, 1994

Justice William E. Hunt, Sr., delivered the opinion of the Court.
Robert (Bob) McNellis
appeals the judgment of the First Judicial District Court, Lewis and Clark County, dissolving the parties' marriage and distributing the marital estate. We affirm.
The issues on appeal are:
1.
Did the District Court properly estop Bob from changing his position at trial regarding the value of the recycling machine investment?

2.
Was the District Court's valuation of the marital assets clearly erroneous?

3.
Was the District Court's distribution of the marital estate clearly erroneous?


Bob and Cathy were married on December 29, 1967, in Fort Knox, Kentucky. About two years later, the couple moved from Kentucky to Indiana, where Bob worked for Corning Glassworks and obtained a masters degree in management. Bob was subsequently transferred to Pennsylvania. During these early years of the marriage, Cathy taught both high school and grade school, substitute taught, and worked as an office manager. In 1975, Bob left Corning Glassworks, and the couple moved to Helena where Bob obtained employment with the Federal Reserve Bank.
Three children were born of the marriage. During the marriage, Cathy did most of the housecleaning and cooking and was the primary caretaker of the children. She also attended classes at Carroll College, and received a degree in accounting in 1983. After a nine year absence from the work force, she returned to work
part-time as an accountant/office manager. By 1986 or 1987, her
part-time job evolved into a full-time position. At the time of
the petition for dissolution, she earned an annual salary of
$39,600.
Bob's employment with the Federal Reserve Bank ended in 1989. During his employment with the bank, Bob invested money in both a Federal Reserve Thrift Plan and a Retirement Plan. At the time of the petition for dissolution, the Retirement Plan was worth $76,720, and the Thrift Plan was worth about $103,000, less an outstanding loan balance of about $13,000.
After his discharge from the bank, Bob worked as a consultant for Independent Bank Service Corporation and as an adjunct professor of economics at Carroll College. During his semester at Carroll College, Bob developed a plan for a private business venture called Advanced Industrial Concepts and Coating (AIC).
AIC consists of two separate entities: a corporation (AIC, Inc.) and a partnership (AIC Properties). AIC, Inc., deals with the actual coating of products. AIC Properties deals with the acquisition and maintenance of the property on which AIC, Inc., is located. Cathy and Bob brought in Gary and Kathy Dagel, and in June 1990, the four became stockholders of AIC, Inc., and partners in AIC Properties. Each couple contributed cash or property in the amount of $45,000 as start-up capital. According to Bob's testimony, the finances of the partnership and the corporation were not carefully separated, and frequently intermingled.
Cathy and Bob borrowed $34,000 from the Thrift Plan and loaned that amount to AIC, Inc., to put toward the purchase of the Steffick Building located on North Main Street in Helena. The partnership obtained a mortgage and acquired the building. At the time of the hearing, an outstanding balance of approximately $186,000 remained on the building loan.
In September 1991, Bob signed a five year lease agreement with Dwayne Anderson, owner of Recycle Technologies of Billings, for a recycling machine known as a "cash can." Bob paid $30,000 for the lease. The cash can is shaped like a large soda can and typically is set up in parking lots of busy supermarkets. People insert recyclable aluminum cans into the machine which electronically keeps track of the weight of the cans and then pays out a certain amount of money according to the weight. In theory, the operator of the cash can generates income from the subsequent sale of the aluminum cans to a central recycling facility. According to Anderson's testimony, the plan was for Bob to recover his initial investment of $30,000, plus additional profits, over the term of the five year lease.
In April 1992, the Daqels gave notice that they were withdrawing from AIC, Inc., and AIC Properties. The McNellises
and the Daqels entered into arbitration in November 1993. They reached an agreement whereby Bob would pay them $55,000 for their one-half interest, provided that Bob could obtain financing on or before February 9, 1994. The agreement provided that if Bob could not raise the money to buy the Daqels out, the Daqels would be allowed to sell AIC, including the Steffick Building, and retain their one-half of the proceeds. If they had to sell the building, the agreementprovidedthatthe initial asking price would be $334,000, and if it did not sell, the asking price could be incrementally reduced, but in no event less than $300,000. The agreement further provided that the proceeds of the sale would be used to pay off the mortgage, to cover any realtor's commission and title insurance, and to repay the balance of the Thrift Plan loan owed to the McNellises.

Cathy petitioned for dissolution of the marriage on December 11, 1992. The District Court heard the matter on November 24, 1993. At the hearing, both parties testified to the value of the marital assets and debts. At issue on appeal is the value of three particular items--Recycle Technology, AIC Properties, and the Federal Reserve Thrift Plan--and the final division of the marital estate.
The District Court issued findings of fact, conclusions of law, and order on January 7, 1994, and entered judgment on January 18, 1994, distributing the marital assets and debts as follows:
Cathy
Assets  
(1) Residence(2) CondominiumContract for Sale (3) Recycle Technology(4) Household goods(5) 1988 Buick(6) 1984 Ford (7) 1987 Oldsmobile  $117,500 11,000 7700 3500 1000  $30,000 1500  

Federal Reserve
(8)

Thrift Plan 90,344
(9)

Galusha Retirement 18,366
(10)

Prudential Life Insurance Policy6136

(11)

Federal Reserve Retirement 76,720


(12)
AIC, Inc.0
(13)
AIC Properties81,000 AIC Loan 13,430
(14)

Total Assets $255,546 $202,650 Percent of Total 56% 44%
Debts
(1)
Mortgage onResidence 82,000
(2)
Post-separationCredit Card debt 4392
(3)

Property Taxes1000

(4)

Valley Bank debt8100

(5)

AIC credit line ??

(6)

Bank America debt ??

(7)

First Bank debt 6500


(8)
Pre-separationCredit Card debt 1958
Total Debts $ 87,392 $ 16,558Percent of Total 84% 16%
NET DISTRIBUTION $168,154 $186,092PERCENT OF TOTAL 47% 53% On January 28, 1994, Bob moved the District Court to amend its findings and conclusions. The District Court denied the motion. Bob filed notice of appeal on April 11, 1994. ISSUE 1 Did the District Court properly estop
Bob from changing his position at trial regarding the value of the recycling machine investment?
When this Court reviews a district court's conclusions of law, we are not bound by the district court's conclusions and are free to reach our own. In re Marriage of Danelson (1992),
253 Mont. 310, 317, 833 P.2d
215, 219. Our determination on appeal is simply whether the district court correctly or incorrectly applied the law. Danelson, 833 P.2d
at 220 (citing Steer, Inc. v. Dept. of Revenue (1990),
245 Mont. 470, 803 P.2d
601).
The record reveals that on November 22, 1993, two days before the hearing, Bob filed supplemental answers to Cathy's first set of combined discovery requests. Interrogatory No. 26 instructed Bob to Ut[l]ist
the items that you believe comprise the marital estate, assigning values to each item and stating the basis therefore in each case."
Among the list of marital assets, Bob included the Recycle Technologies cash can investment and assigned a value of $30,000 to it. Bob also placed a value of $30,000 on the cash can investment on two other occasions: On May 17, 1993, in Attachment No. 5 to his answer to Cathy's first set of combined discovery requests; and on July 30, 1993, in his supplemental answers.
When Bob took the stand at the hearing, however, he testified that the value of the cash can was only $3000. He stated, "[w]e're
not going to get [$]30,000
out of it so I would take it for $3,000 and try to chase it down, see if I couldn't work something out of it."
Bob also called Dwayne Anderson, owner of Recycle Technologies, to testify to the value of the cash can investment. Anderson stated that, if the equipment were sold as scrap metal, its salvage value "could be $2500.1'
However, Anderson stated that this "would be a bad idea." Furthermore, Anderson testified that, although no profit had been made from the venture, "being
the eternal optimist, I would like to think there is prospect of [profit] at some point." Prior to Anderson's testimony as to the value of the investment, Cathy's attorney objected, stating that "[iIf
the intent of his testimony is to establish a value, [Bob is] precluded by his own admissions . . . in which he signed answers to interrogatories stating the value of this investment was $30,000."

In its findings of fact and conclusions of law, the District Court concluded that "Bob
is judicially estopped from changing the valuation of [the cash can investment] some two days after filing his interrogatory with the Court," and placed a value of $30,000 on the cash can investment. We agree.
"Under
well established concepts of law, a party cannot take one position during pretrial discovery and then change his position at the time of trial or on appeal." Montana Rail Link v. Byard (19931,
260 Mont. 331, 343, 860 P.2d
121, 128; Plouffe v. Burlington Northern, Inc. (1986)
t
224 Mont. 467, 474, 730 P.2d
1148, 1153. Section 26-l-601(1),
MCA, provides that the following is a conclusive presumption:
[T]he
truth of a declaration . . . of a party, as againstthat party in any litigation arising out of suchdeclaration . . . whenever he has, by such declaration . . . intentionally led another to believe a particularthing true and to act upon such belief.
In Bvard, this Court upheld the hearing examiner's decision to exclude testimony which Montana Rail Link (MRL) sought to introduce but which contradicted MRL'S
pretrial answers to Byard's
interrogatory requests. At no time prior to trial did MRL seek to modify its answer or indicate in any way that it would present contrary testimony. Likewise, at no time prior to trial in the instant case did Bob seek to modify the stated value of $30,000, nor did he indicate prior to trial that he would present testimony contrary to his pretrial position. Although the District Court, sitting without a jury, allowed Bob and Dwayne Anderson to testify contrary to Bob's pretrial answers, it correctly refused to consider that testimony in determining the cash can's value and correctly concluded that Bob was estopped from changing his position at trial.
ISSUE 2
Was the District Court's valuation of the marital assets
clearly erroneous?
In addition to the valuation of the cash can investment, Bob attacks the District Court's valuation of AIC Properties at $81,000 and the Federal Reserve Thrift Plan at $90,344. Citing In re Marriage of Hall (1987),
228 Mont. 36, 740 P.2d
684, Bob asserts that the proper
standard of review of distribution and valuation of marital property is that the Supreme Court will reversea District Court only upon a showing that the DistrictCourt has acted arbitrarily or has committed a clearabuse of discretion, resulting in either instance insubstantial injustice.
In 1992, however, this Court changed its standard of review regarding a district court's findings of fact in the division of marital estates from an abuse of discretion standard to a clearly erroneous standard. In re Marriage of Sacry (1992),
253 Mont. 378, 381, 833 P.2d
1035, 1037; In re Marriage of Danelson (1992),
253 Mont. 310, 317, 833 P.2d
215, 219; In re Marriage of Taylor (1993),
257 Mont. 122, 125-26, 848 P.2d
478, 480. Therefore, we review the district court's findings of fact to determine whether those findings are clearly erroneous. Danelson, 833 P.2d
at 219; Taylor, 848 P.2d
at 480.

This Court has established several principles by which we review a district court's valuation of marital property. It is well settled law that "[w]hen
there is a dispute over property in a marriage dissolution, the district court may assign any value that is within the range of values presented into evidence.*' Tavlor, 848 P.2d
at 481 (citing In re
Marriage of Kramer (1987),
229 Mont. 476, 747 P.2d
865). Wowever,
if the values are widely conflicting, then the district court must state its reasons for determining a certain value." Tavlor, 848 P.2d
at 481 (citing In re Marriage of Glass (1985),
215 Mont. 248, 697 P.2d
96).
Recycle Technoloqies Cash Can Investment
As discussed under Issue 1, the District Court properly estopped Bob from changing his position as to the value of the cash can investment at trial. In its findings of fact and conclusions of law, the District Court clearly set forth its reasons for rejecting Bob's proposed valuation of the cash can and for placing a value of $30,000 on it. We conclude that the District Court's valuation of the cash can investment was proper.
AIC Properties
Bob asserts that the District Court incorrectly valued AIC
Properties at $81,000. He argues on appeal that, in arbitration
proceedings between the McNellises and the Dagels, "an
arms length
value of $55,000.00
was arrived at as the value of the Dagel
one-half interest . . .'I
and based on that "arms
length" settle

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