No. 14977
IN THE SUPREME COURT OF THE STATE OF MONTANA
1979
IN RE THE MARRIAGE OF
VICKIE A. FREDERICKSEN,
Petitioner and Appellant,
VS.
BRAD R. FREDERICKSEN,
Respondent and Respondent.
Appeal from: District Court of the Thirteenth Judicial District,
Honorable Nat Allen, Judge presiding.
Counsel of Record:
For Appellant:
Jerrold L. Nye, Billings, Montana
For Respondent:
Doris Poppler, Billings, Montana
Submitted on briefs: November 13, 1979
Filed: ,rr.
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Clerk
Mr. Chief Justice Frank I Haswell delivered the Opinion of
.
the Court.
Appellant wife appeals from an order apportioning the
marital estate and denial of her motion for a new trial.
The parties to this action had been married for about
three and one-half years at the time the wife filed for dissol-
ution of the marriage. The wife was 22 and the husband was 23
at that time. The couple had no children.
The major marital assets were the family home in Billings,
some household furnishings and a 1966 Chevrolet race car. The
home had a market value of $39,500 and an outstanding mortgage
of approximately $30,000. The husband purportedly sold the race
car and a trailer for $1,175 prior to the dissolution. The couple
had other debts of approximately $2,100.
The only issues presented at trial concerned the value of
the marital estate and its proper division. In the final order
the trial court subtracted from the value of the house ($39,500)
the cost of selling the house and the other debts of the marriage
to arrive at a net worth of $4,838.20. The husband was awarded
the home and he was required to assume the remaining debts of the
marriage. He was to pay $2,419.10 to the wife as her share of
the net worth of the marital property.
Thereafter, the wife filed a motion for a new trial on
the ground that certain of the District Court's findings did not
conform to the evidence and on the basis of newly discovered
evidence, viz. the race car had not been sold prior to dissolu-
tion as testified to by the husband. From a denial of this motion
and from the final decree, the wife appeals.
The following issues are presented by the wife:
(1) Did the trial court properly divide the marital es-
tate pursuant to section 40-4-202, MCA?
(2) Did the trial court abuse its discretion in denying
the wife's motion for a new trial?
Distribution of marital property is governed by section
40-4-202, MCA. This Court will not disturb the decision of
the trial court absent a clear abuse of discretion. Eschenburg v.
Eschenburg (1976), 171 Mont. 247, 250, 557 P.2d 1014. The test
for abuse of discretion is whether the trial court acted arbitrar-
ily without the employment of conscious judgment or exceeded the
bounds of reason. Berthiaume v. Berthiaume (1977), Mont . I
, 567 P.2d 1388, 34 St.Rep. 921, 924.
In the present case the wife states that it was error for
of
the trial court to omit the value/the race car in determining the
value of the marital estate. In its findings of fact, the Dis-
trict Court found that the car had been sold and that the proceeds
were used to pay the bills of the parties, Under such circum-
stances, the District Court did not abuse its discretion in re-
fusing to include the value of the car in the gross marital estate.
The wife indicates several other instances where she does
not agree with the court's valuation of the marital estate. As
a reviewing court we are not justified in substituting our judg-
ment for that of the trial court. After reviewing the record we
cannot say that the trial court acted arbitrarily or exceeded the
bounds of reason. There is no indication that the final order
was contrary to the guidelines set forth in section 40-4-202, MCA.
Consequently, we affirm the trial court's division of the marital
estate.
Section 25-11-102(4), MCA, states that a new trial may be I
granted where there is newly discovered evidence. The language
of the statute indicates that an application for a new trial
I
based upon newly discovered evidence is addressed to the sound I
discretion of the trial court. Gould v Lynn (1930), 88 Mont.
.
501, 505, 293 P. 968.
In the present case, the wife contends that the husband
had not sold the racing car and that its value should have been
added to the gross estate. She contends that evidence that the
car was not sold is newly discovered evidence and she was en-
titled to a new trial on that basis. At a hearing on this motion
counsel for the wife produced four photographs of the car, taken
after the District Court's final decree, showing the car parked
in front of the husband's house, newly painted and restored, and
bearing the words "Brad Fredericksen, owner." The husband pro-
duced evidence in the form of a letter and a transfer of title
which indicate that the car had been sold to one Les Kraft in
August 1978.
The trial court must decide whether there was sufficient
new evidence to grant a new trial. The evidence is conflicting,
but the District Court's denial of the motion for a new trial is
supported by the letter from Les Kraft and the indication of
transfer of title. We cannot say that there was an abuse of dis-
cretion in refusing to grant a new trial on this basis.
Affirmed.
Chief Justice
We concur:
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