No. 14746 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1979 

GAIL BURKE OSTER, 

Petitioner and Appellant, 

and 

CHARLES EDWARD OSTER, 

Respondent and Respondent. 

Appeal from: District Court of the Sixteenth Judicial District, 

Honorable Alfred B. Coate, Judge presiding. 

Counsel of Record: 

For Appellant: 

Stephens Law Firm, Billings, Montana 

William B. Dunn, Miles City, Montana 

For Respondent: 

Cecil N. Brown, Terry, Montana 

Gene Huntley, Baker, Montana 

Submitted on briefs: November 7, 1979 

Decided : fEB 2 - 1989 -- 

St = " Filed: &@ 1 - fga 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

This is an appeal by a wife contesting the District 

Court's distribution of marital property, the denial of her 

motion for a new trial, the denial of her motion for temporary 

maintenance pending trial and pending appeal, and the ordering 

of each party to pay his or her own attorney fees. 

The husband and wife were married in Miles City, Montana, 

on November 6, 1965. The wife was from New Jersey and the husband had been a lifelong resident of Montana. At the time of 

marriage the husband was 33 years old and the wife was 29. The 

wife brought two children to the marriage, Eric, then age 5 1/2, 

and Sharyl, then age 3. The husband treated Eric and Sharyl as 

though they were his own children. The parties had two additional 

children who were born as issue of the marriage. 

Prior to the marriage the husband farmed land owned by 

his parents under a lease-share arrangement. At the time of the 

marriage the husband had acquired approximately 130 head of cattle. 

He also had $20,000 to $26,000 in bank deposits and notes receivable 

as well as some farm and ranch equipment. 

During the course of the marriage the husband purchased 

from his parents a portion of the land which he had been farming. 

He continued leasing the other portion of the farm. In addition 

the husband had a remainderman's interest in the mineral rights 

to some of the land. His mother had the life estate. 

There is conflicting testimony as to the amount of work 

which the wife performed in assisting the husband in farming and 

ranching operations. She did, however, some milking of cows, some 

cooking for hired help, and some gardening. There is no dispute 

that the wife did the housework and helped keep some books, as 

well as caring for the children. In 1970 the ranching operation 

was incorporated. The husband received approximately 95% of the 
corporate stock and the wife received the remainder. 

In the divorce action both parties requested custody of 

the two minor children of the parties. Additionally, the husband 

sought custody of Sharyl, the daughter of the wife. Eric had 

reached the age of majority. The trial court awarded the custody 

of all three of the minor children to the husband and this aspect 

of the District Court's order is not contested by the wife. 

After the trial the wife was examined by psychologists 

in Miles City who rendered a diagnosis of paranoid schizophrenia. 

A guardian was appointed for the wife. She was involuntarily 

committed to a psychiatric ward in Billings and later to the Warm 

Springs State Hospital from which she has now been released. 

In the findings of fact the District Court made the following findings pertinent to a property settlement agreement: The 

property had been essentially accumulated by the husband prior to 

marriage. The wife made no initial contribution to the ranch 

property. The wife's contribution to the marital estate was for 

9 of the 13 years of marriage; that the wife should receive her 

share of the property in cash as a division of the ranch would 

result in two uneconomical units; that the wife had received a 

5.075% share of the family corporation in 1970; that the net value 

of the land was $295,090; that the value of the husband's interest 

in the mineral rights on the land was worth $15,000; that the net 

worth of the Oster Corporation was $76,427.89; that the husband 

had acquired $93,157.90 worth of cash, savings and notes since 

the beginning of the marriage; and that the wife was entitled to 

9.135% of these amounts, or $43,909.73. 

The District Court reasoned that the 1970 division of 

corporate stock, which gave the wife 5.075%, indicated that the 

wife's contribution was worth 1.015% interest in the operation per 

year. The District Court further reasoned that the wife only 
contributed to the marriage until 1974, for a total of 9 of the 

13 years of marriage. Consequently the wife was entitled to 9 X 

1.015 or 9.135% of the values listed above. The wife also received the inheritance from her parents (about $7,000), certain 

personal property such as furniture and kitchen utensils, a coin 

collection and jewelry which together were worth approximately 

$4,800. 

On January 3, 1979, the wife filed a combined motion for 

a new trial or alternatively for a motion to amend the findings 

and conclusions. On January 25, these motions were repeated. 

Many reasons were given by the wife's counsel as to why their 

motions should have been granted, but only one of those reasons 

need be discussed here. The wife's attorneys contended that the 

wife was incompetent at the time of trial due to mental illness; 

therefore she was entitled to a new trial because this amounted 

to newly discovered evidence. The District Court denied the motions. 

The following issues are presented on appeal: 

(1) Did the District Court err in its distribution of 

marital property? 

(2) Did the District Court abuse its discretion in denying the wife's motion for a new trial or in the alternative to 

amend findings and conclusions? 

(3) Did the District Court abuse its discretion in denying the wife's motions for temporary maintenance and attorney fees 

pending trial, or for temporary maintenance, attorney fees and 

costs and payment of medical expenses pending appeal? 

This Court has considered numerous cases in recent years 

dealing with the distribution of property following a divorce 

pursuant to section 40-4-202, MCA. The scope of our review has 

been consistently stated as follows: 

"'The criteria for reviewing the district court's 

discretion is: Did the district court in the 
exercise of its discretion act arbitrarily 

without employment of conscientious judgment, 

or exceed the bounds of reason in view of all 

the circumstances.'" Kramer v. Kramer (1978), 

Mont. at , 580 P.2d 439, at 442, 

35 St-Rep. 700, at 704. 

Section 40-4-202, MCA, provides that the court in apportioning marital property must consider several factors. In the 

findings of fact in the instant case, these various factors are 

listed by the District Court. Consequently, we know that the 

District Court was aware of these factors when the apportionment 

was made. In its final disposition of the property, the District 

Court followed the statute. The wife was awarded 9.135% of the 

Oster Corporation and other marital assets for a total of $43,909.73. 

She also received approximately $4,800 worth of jewelry and coins 

and $7,000 from her mother's estate. The husband received custody 

of the three minor children, thereby relieving the wife of any 

financial obligation to support them. Applying the Kramer test 

we find no abuse of discretion in the District Court's division 

of the marital property. 

The wife next alleges that the District Court abused its 

discretion by denying her motion for a new trial. This motion was 

based upon the discovery that the wife was mentally ill. She 

claimed that this was newly discovered evidence which entitled her 

to a new trial pursuant to section 25-11-120(4), MCA. 

On January 3, 1979, the wife's attorneys filed a combined 

motion for new trial or to amend the findings and conclusions. On 

January 25, the wife filed an amended motion which was essentially 

the same as the January 3 motion. Briefs were filed by both parties 

on the amended motion and hearing was set for February 7. Due to 

the weather at that time the District Court judge was unable to 

get to the hearing. The matter was continued until March 19, 1979, 

at which time the hearing was held. 

The District Court held that the motion for a new trial 
could not be granted because the time limit, which Rule 59(d), 

M.R.Civ.P. provides for a hearing, had expired. Rule 59(d) says 

that a hearing on a motion for a new trial shall be had within 

10 days after the motion has been served, except that the court 

may continue the hearing not to exceed 30 days. If the court 

fails to rule upon the motion within the time given under Rule 59(d), 

then the motion shall be deemed denied. In the present case, the 

motion was made on January 25, but the hearing was not had until 

March 19. This is more than the time allowed under the rule. 

In Cain v. Harrington (1973), 161 Mont. 401, 506 P.2d 1375, 

this Court considered Rule 59 in a similar context. We stated: 

"We believe the purpose of the rule should be 

adhered to and while we do not wish to be technical, at the same time we cannot permit 

deviations." 161 Mont. at 404. 

The District Court in the present case was correct in ruling as it did. The District Court had no jurisdiction to grant a 

new trial under Rule 59. 

The wife alleges that the District Court erred in not 

granting temporary maintenance and other costs pending trial and 

pending appeal pursuant to section 40-4-106(1), MCA. The District 

Court made no decision on the matter until the findings of fact 

and conclusions of law were issued. The court ordered that each 

party pay his or her own attorney fees and costs. The property 

division was to be an alternative to a future maintenance award. 

The language of section 40-4-106(1), MCA, clearly indicates 

that the award of temporary maintenance is discretionary with 

the District Court. In the present case, there was no abuse of 

this discretion. Prior to trial there was no indication that the 

wife was unable to support herself through appropriate employment. 

In addition, she had at her disposal approximately $4,800 worth 

of coins and jewelry. 

The wife also moved for temporary maintenance pending 
appeal. The District Court denied this motion also. 

It is not disputed by the parties that the wife was 

suffering financial hardship pending appeal. She had not, however, attempted to execute upon her share of the marital estate 

which amounted to over $43,000. Her attorneys asserted that an 

execution upon this amount would deprive her of the right to 

appeal. The District Court disagreed and refused to grant temporary maintenance pending appeal. 

In Ferguson v. Town Pump, Inc. (1978), Mont . , 580 

P.2d 915, 918, 35 St.Rep. 824, at 827, this Court set out the 

general rule that a litigant may not accept the benefit of a judgment and at the same time appeal that judgment. In the Ferguson 

case, however, we noted an exception to this rule where the reversal of a judgment cannot possibly affect an appellant's right 

to the htnefit ac!cepted under the judgment. That is the situation 

in this case. The husband is not contesting the amount of the 

award. From the record it is apparent that he never did indicate 

a dissatisfaction with the award. On appeal the wife is insisting that her share of the marital estate should have been larger. 

The husband is asking that the District Court's judgment be affirmed. 

He is not asking for a reduction. As was stated by one authority: 

"Applying the rule that where the only question on appeal is whether the recovery should 

be greater than that allowed by the trial 

court, the acceptance of the amount adjudged due 

is not inconsistent with the claim that the 

judgment is not large enough, and the appeal may 

be maintained . . ." 29 ALR3d 1184, 1209. 

Because the only possible issue on remand would be an increase in 

the wife's share of the marital estate, she could have collected 

the judgment and preserved her right to appeal. Consequently, 

there was no abuse of discretion in denying wife's motion for 

temporary maintenance. For the same reason there was no abuse 

of discretion in refusing to grant attorney fees to the wife. 

Affirmed. 
Chief Justice 

0' u tices