NO. 95-155
IN THE SUPREMECOURT OF THE STATE OF MONTANA
1995
IN RE MARRIAGE OF
DEBRA RUTH MINER,
Petitioner and Respondent,
v.
JOHN NATHAN MINER,
Respondent and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John M. McCarvel, Judge presiding.
COUNSELOF RECORD:
For Appellant:
Kory Larsen, Larsen and Neill, Great Falls, Montana
For Respondent:
Debra J. Upton, Montana Legal Services Assoc., Great
Falls, Montana
Submitted on Briefs: August 24, 1995
Decided: November 7, 1995
Filed:
Justice William E. Hunt, Sr., delivered the Opinion of the Court.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1995 Internal Operating Rules, the following decision shall not be
cited as precedent and shall be published by its filing as a public
document with the Clerk of this Court and by a report of its result
to State Reporter Publishing Company and West Publishing
Company.
Appellant John Miner appeals the Findings of Fact and
Conclusions of Law entered on December 16, 1994, and the subsequent
denial of a motion for a new trial entered in the Eighth Judicial
District Court of Montana, Cascade County.
We affirm.
We restate the following issues raised on appeal:
1. Did the District Court err in its findings of facts and
conclusions of law:
a) in awarding MS. Miner maintenance;
b) in dividing the property of the marriage;
c) in adopting Ms. Miner's proposed findings verbatim?
2. Did the District Court err in denying John Miner's motion
for a new trial?
FACTS
John and Debra Miner were married on May 31, 1975. There are
two children of the marriage; Michael, born April 12, 1979 and
Heather, born March 31, 1983. John, respondent and appellant,
resides in Mississippi with the son. The custody of Michael is
under the jurisdiction of Mississippi and is not affected by this
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action. Debra, petitioner and respondent, and the daughter live in
Great Falls. The marriage of the parties was dissolved by a
British Court on August 11, 1992; that court did not decide custody
issues, child support, maintenance or property distribution.
John joined the U.S. Air Force in 1974 and received an
honorable discharge on August 13, 1992. He then moved to
Mississippi and began working for Beech Aerospace in July of 1993.
Upon discharge from the service, John received a lump sum payment
of approximately $32,000. He has served over eighteen years in the
military which may eventually be put towards a retirement pension.
Debra received enough credits to obtain an Associate Degree
prior to the divorce. She is currently a part time student at the
College of Great Falls working towards a double major in psychology
and sociology. Debra has a work study position and in addition to
student loans she is receiving Aid to Families with Dependent
Children.
The order from which John appeals awarded the parties joint
custody of both children, with Debra as the primary physical
custodian of Heather. Debra was awarded maintenance, calculated at
$500 a month for sixty-five months. In addition, John was ordered
to pay Debra two lump sum maintenance payments of $3,000 each in
1995 to offset her student loans. Each party was then awarded
personal property currently in his or her possession. John filed
a motion for a new trial, which was denied on March 9, 1995.
ISSUE 1
Did the District Court err in its findings of fact and
conclusions of law?
The standard we use when reviewing a district court's findings
of fact is whether they are clearly erroneous. Interstate
Production Credit v. DeSaye (1991), 250 Mont. 320, 322, 820 P.2d
1285, 1287. The standard of review of a district court's
conclusions of law is whether the court's interpretation of the
law is correct. Carbon County v. Union Reserve Coal Co. (1995),
Mont. _, 898 P.2d 672.
A
Appellant first contends the District Court erred in awarding
Debra maintenance. A court may award maintenance after the marital
property has been equitably divided. In re Marriage of
Eschenbacher (1992), 253 Mont. 139, 142, 831 P.2d 1353, 1355. The
court then applies § 40-4-203, which reads as follows:
In a proceeding for dissolution of marriage or legal
separation or a proceeding for maintenance following
dissolution of the marriage by a court which lacked
personal jurisdiction over the absent spouse, the court
may grant a maintenance order for either spouse only if
it finds that the spouse seeking maintenance:
(a) lacks sufficient property to provide for his
reasonable needs; and
(b) is unable to support himself through
appropriate employment or is the custodian of a child
whose condition or circumstances make it appropriate that
the custodian not be required to seek employment outside
the home.
(2) The maintenance order shall be in such amounts
and for such periods of time as the court deems just,
without regard to marital misconduct, and after
considering all relevant facts including:
(a) the financial resources of the party seeking
maintenance, including marital property apportioned to
him, and his ability to meet his needs independently,
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including the extent to which a provision for support of
a child living with the party includes a sum for that
party as custodian;
(b) the time necessary to acquire sufficient
education or training to enable the party seeking
maintenance to find appropriate employment;
(c) the standard of living established during the
marriage;
Cd) the duration of the marriage;
(e) the age and the physical and emotional
condition of the spouse seeking maintenance; and
(f) the ability of the spouse from whom maintenance
is sought to meet his needs while meeting those of the
spouse seeking maintenance.
On appeal John argues the court failed to consider Debra's property
and her ability to support herself through appropriate employment.
As for the property of the marriage, testimony reveals the
location of much of the property of the marriage is in dispute.
There were several different shipments from England, and some items
were placed in storage prior to the couple's departure overseas.
The court specifically awarded Debra maintenance after considering
the property of the marriage: "[rlather than award Petitioner-
mother property that she will never obtain, a monthly payment will
better serve her rehabilitation and education needs."
As for Debra's employment, Debra testified that she is
working towards two degrees and plans on looking for a seasonal
job. Debra has limited employment opportunities without extensive
further education, and as the court found her employment history
had been "significantly impacted by accompanying Respondent-father
on his overseas military assignments." By going to college, Debra
is working towards providing for both herself and her daughter by
furthering her education.
The court lists six reasons as to why Debra is to receive an
award of maintenance. The findings reflect adequate consideration
of both the property and Debra's employment. Absent any clear
error, we will affirm the District Court's award of maintenance.
In re Marriage of D.F.D and D.G.D (1993), 261 Mont. 186, 201, 862
P.2d 368, 377; Eschenbacher , 831 P.2d 1353.
The District Court's findings were substantiated by evidence
presented at trial, therefore we affirm the award of maintenance.
B
Appellant also contends the court erred in the division of the
marital property. John argues the personal property was equitably
divided by the parties at the time of the dissolution. John
testified Debra had the opportunity to take from the marriage all
the personal property she desired. John further argues the court's
error in the division of the property unfairly contributed to the
decision to award maintenance.
At trial Debra testified she came back to Montana with a
suitcase and some clothes. In addition she received either one or
two shipments of property from England. As mentioned before, the
parties dispute both the value and the location of most of the
items. The court found Debra to be the more credible witness and
therefore found her valuations of the property to be the most
reasonable. In this case Debra valued items by memory and looking
at catalogues. The District Court adoption of her valuations and
the subsequent disposition of this property does not reflect an
abuse of discretion. See In re Marriage of Luisi (1988), 232 Mont.
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243, 247, 756 P.2d 456, 459. The court's interpretation of the law
was correct.
Therefore we affirm the District Court's findings regarding
the disposition of property.
c
John argues the court's adoption of Debra's proposed findings
verbatim is error. In support of his argument, John contends that
supplemental evidence submitted by counsel on December 12, 1994, is
not reflected in the findings of fact and conclusions of law, and
therefore the court ignored this evidence. However, just because
the court did not include the supplementary evidence in the
findings does not mean the evidence was not considered. Rule 52
(a), M.R.Civ.P., states in part that:
The court may require any party to submit proposed
findings of fact and conclusions of law for the court's
consideration and the court may adopt such proposed
findings or conclusions so long as they are supported by
the evidence and the law.
The record shows the findings of fact and conclusions of law
submitted by the respondent are supported by the evidence.
Therefore, we affirm the District Court's findings and
conclusions.
ISSUE 2
Did the District Court err in denying John Miner's motion for
a new trial?
The decision to grant or deny a new trial is within the sound
discretion of the trial judge and will not be disturbed absent a
showing of manifest abuse of that discretion. Baxter v. Archie
7
Cochrane Motors, Inc. (1995), Mont, , , 895 P.Zd 631,
632.
John bases his motions for new trial on § 25-ll-102(4), MCA,
which reads as follows:
Grounds for new trial. 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,
jury, or adverse party or any order of the court or abuse
of discretion by which either party was prevented from
having a fair trial;
. . .
(4) newly discovered evidence material for the
party making the application which he could not, with
reasonable diligence, have discovered and produced at the
trial;
. . .
(6) insufficiency of the evidence to justify the
verdict or other decision or that it is against law;
. . .
On appeal John contends there is newly discovered evidence,
insufficiency of evidence, and an irregularity of the proceedings.
The newly discovered evidence John wants to present concerns
the custody wishes of the daughter Heather. John alleges that
Heather changed her mind concerning her custody preference shortly
after spending the evening with her father and his family.
A party moving for a new trial on the basis of newly
discovered evidence must show: 1) this evidence came to the party's
knowledge since the trial; 2) it was not through want of diligence
that the evidence was not discovered earlier; 3) the evidence is so
material that it would probably produce a different result upon
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retrial; 4) the evidence is not merely cumulative; 5) the witness
whose evidence is newly discovered has signed an affidavit which
supports the application; and 6) the evidence does not tend only to
impeach the character or credibility of a witness. Donovan v.
Graff (1988), 231 Mont. 456, 458, 753 P.2d 878, 879 (citing
Kerrigan v. Kerrigan (1943), 115 Mont. 136, 144-45, 139 P.2d 533,
535).
At trial, the judge in this case had a private discussion with
the daughter, at that time the girl expressed a preference to live
with her mother. Then after spending time with her father,
perhaps Heather changed her mind. However, John has failed to
provide the necessary basis to justify a new trial. The record
does not contain an affidavit from the daughter in support of this
motion, rather the counsel for the father submitted an affidavit.
Furthermore, John has failed to show that Heather's change in
preference is so substantial as to warrant a different result
regarding Heather's custody.
Heather has been in the continuous care of her mother since
birth, and made statements at trial to the effect of wanting to
continue to live with her mother. Testimony supports a finding
that Heather has a good home in Great Falls. This court did not
abuse its discretion in denying a new trial based on new evidence.
As for John's argument of insufficient evidence, appellant
refers back to his argument concerning the award of maintenance.
Since the evidence submitted was sufficient to support an award of
maintenance, a new trial was not warranted.
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Last, John contends there was an irregularity in proceedings.
Again he refers back to his argument in regard to maintenance.
While the Judge in this matter perhaps spoke prematurely regarding
the award of maintenance, this does not provide John with a
"manifest abuse of discretion" sufficient to grant a new trial.
Furthermore the transcript shows counsel made no objection to the
Judge's remarks. Objecting during the trial alerts the trial court
that it may be subjecting itself to an appeal. See Gee v. Egbert
(1984) r 209 Mont. 1, 19, 679 P.2d 1194, 1203. We therefore affirm
the District Court denial of the appellant's motion for a new
trial.
Affirmed.
We Concur:
'Chief/Justice
Justiccs 7 '
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