No. 91-328
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
.
and
RICHELLE BARNES, JAN 2 9 1992
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable G. Todd Baugh, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Bruce E. Lee, Billings, Montana
For Respondent :
Linda L . Harris; Harris Law Firm, Billings, Montana
Submitted on Briefs: December 4, 1991
Decided: January 23, 1992
Filed:
Justice R. C. McDonough delivered the Opinion of the Court.
Richelle Barnes appeals from a judgment of the Thirteenth
Judicial District Court, Yellowstone County, denying her motion for
a new trial. We affirm.
The sole issue on appeal is: Whether the District Court erred
in denying appellant's combined motions for a new trial and relief
from judgment under Rules 59 and 60(b), M.R.Civ.P.
Gary and Richelle Barnes were married on August 20, 1973.
Throughout their marriage the parties resided in Hysham, Montana,
where they had a ranch/farm operation. The parties separated in
July 1987. On August 21, 1987, husband petitioned for divorce.
The parties have three minor children. The only dispute on appeal
centers around the value of the marital estate.
Whether a new trial is warranted is governed by Rules 59 and
60, M.R.Civ.P., and 5 25-11-101, MCA, et seq. The relevant portion
of Rule 59(a), M.R.Civ.P. is:
A new trial may be granted to all or any of the
parties and on all or part of the issues for any of the
reasons provided by the statutes of the state of Montana
. . .
Section 25-11-102(1) and (4), MCA, governs the facts before us:
The former verdict or other decision may be vacated
and a new trial granted on the application of the party
aggrieved for any of the following causes materially
affecting the substantial rights of such party:
(1) irregularity in the proceedings of the court
... or abuse of discretion by which either party was
prevented from having a fair trial;
..
2
(4) newly discovered evidence material forthe party
making the application which he could not, with
reasonable diligence, have discovered and produced at the
trial ;
...
We have previously set forth the guidelines for determining
whether a new trial is justified in Marriage of Cherewick (1983),
205 Mont. 75, 666 P.2d 742:
"1. The alleged 'newly discovered' evidence came to
the moving party after the trial;
" 2. It was not want of due diligence which
precluded its earlier discovery;
"3. The materiality of the evidence is so great it
would probably produce a different result on retrial;
and,
"4. The alleged 'new evidence' is not merely
cumulative, not tending only to impeach or discredit
witnesses in the case."
Cherewick at 80, 666 P.2d at 744-745; citing Kartes v. Kartes
(1977), 175 Mont. 210, 214-215, 573 P.2d 191, 194.
The pertinent portions of Rule 60(b) are:
On motion and upon such terms as are just, the court
may relieve a party or a party's legal representative
from a final judgment, order, or proceeding for the
following reasons . . . (2) newly discovered evidence
which by due diligence could not have been discovered in
time to move for a new trial under Rule 59(b); ( 3 ) fraud
(whether heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse
party; . . .
The scope of our review of a decision to grant or deny a Rule
60(b) motion depends on the issues involved. If there is a
discretionary appraisal or weighing by the district court of the
facts of a particular case, the district court's determination on
3
appeal is subject to abuse or misuse of discretion. Here, the
scope of review is the standard abuse of discretion test. To
determine whether or not the District Court abused its discretion,
we must determine whether or not Richelle Barnes was prevented from
having a fair trial, and whether the newly discovered evidence
could have been discovered previously with exercise of reasonable
diligence.
On September 18, 27, 1989, and November 13, 1989, the
Honorable G. Todd Baugh heard testimony presented by both husband
and wife. Both parties were represented by counsel. Testimony
presented to Judge Baugh revealed that Gary Barnes and his mother,
Marie Barnes, entered into an informal partnership in 1975. Marie
purchased Gary's half interest in the partnership in July 1987,
after Gary and Richelle separated. The sale consisted of two
sections of land for a purchase price of $40,000.
Gary testified that his mother put eight sections of land into
the partnership in addition to all her farm machinery. He
contributed two sections of land and 25 cows. Gary further
testified that his sisters had some interest in his two sections of
land. At the time of the hearing, Gary testified he had sixteen
cows and thirteen calves.
At trial, Gary produced a list of farm equipment acquired by
the partnership he had a half interest in. He valued the equipment
at $7,300. Marie Barnes also testified as to the value and origin
of the farm equipment.
Judge Baugh issued a final decree on May 23, 1990. He made
4
tl c
oral findings and conclusions on May 2, 1990. The District Court
in recognizing some of the husband's property was gifted and not
part of the marital estate allocated 60 percent to the husband and
40 percent to the wife. He calculated the total net worth of the
marital estate at $15,775, but he ordered Gary to pay Richelle
$8,430. Gary has not objected to this division.
Richelle argues on appeal that newly discovered evidence
revealed Gary sold assets to his mother for less than adequate
consideration. Essentially, she argues that Gary misrepresented
his financial history at trial, and that his net worth is much more
than indicated in Judge Baugh's findings and conclusions.
Although the evidentiary record, as Judge Baugh pointed out,
is certainly sketchy and inadequate, nothing Richelle presents on
appeal meets the standard for reasonable diligence set forth above.
After trial Richelle obtained a deposition and financial statements
from the Bank of Hysham, and tax assessment information and real
estate information fromthe Treasure County courthouse and the Soil
Conservation Service. This information, while enlightening on the
value of the marital estate, could have been discovered before
trial with reasonable diligence.
Richelle further argues that regardless of whether the
evidence is "newly discovered", Gary misrepresented his financial
situation, essentially depriving her of a fair trial. We have
previously discussed a similar situation in Marriage of Lance
(1981), 195 Mont. 176, 635 P.2d 571, which also involved the value
of assets within the marital estate. Lance involved a claim of
5
fraud. We determined that the fraud must be such that the
adversary is denied the opportunity to have a trial or fully
present his/her side of the case, citing In re Marriage of Miller
(1980), 189 Mont. 356, 616 P.2d 313. We noted that Lance's wife
did not prevent him from contradicting her evidence or having his
day in court. Lance at 180, 635 P.2d at 574.
As we said in Miller, citing State ex rel. Sparrenberger v.
District Court (1923), 66 Mont. 496, 214 P. 85, "the prohibited
result of denying the other party access to a fair trial may be
achieved by affirmatively misrepresenting facts." Miller at 364,
616 P.2d at 318. However, we determined in Miller that the
husband's statements or concealment did not materially thwart Mrs.
Miller's ability to present her case. Miller at 365, 616 P.2d at
319.
In the case before us, Richelle had the opportunity to present
her case. Gary's statements at trial regarding the value of his
partnership assets did not materially thwart Richelle's ability to
present her own evidence. Prior to the trial she was aware of the
partnership between Gary and Marie Barnes, and the size of the
farm/ranch operation and could have taken steps to gather the
information she obtained after the final decree. We conclude that
the District Court did not abuse its discretion in denying
Richelle's combined motions for a new trial.
Therefore, we affirm the judgment of the District Court.
Justice r/
6
we concur:
i
Justices
7
January 23, 1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
BRUCE E. LEE
Attorney at Law
P.O. Box 1222
Billings, MT 59103
Linda L. Harris
HARRIS LAW FIRM
Suite 15 - Main Plaza
926 Main Street
Billings, MT 59105
ED SMITH
CLERK OF THE SUPREME COURT