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, HonorableAlfred B. Coate,Judgepresiding. Counsel of Record: For Appellant: StephensLaw 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:

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### 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 ofmarital property, the denial of her motion for a new trial, the denial of her motion for temporary maintenancepending trial and pending appeal, and the ordering of eachparty to pay his or her own attorney fees. The husband and wife were married in Miles City,Montana,

on November 6, 1965. Thewife was fromNew Jersey and the husband had been a lifelong resident of Montana. At the time of marriage the husband was 33 years old and thewife 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 childrenwho were born as issue of themarriage. Prior to themarriage the husband farmed land owned by his parents under a lease-sharearrangement. At the time of the marriage the husband had acquired approximately 130head of cattle. He also had $20,000 to $26,000 in bank deposits and notes receivable

aswell as some farm and ranch equipment. During the course of themarriage 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 themineral rights to some of the land. His mother had the life estate. There is conflicting testimony as to the amount ofwork which the wife performed in assisting the husband in farming and ranching operations. She did,however, somemilking of cows, some cooking for hired help, and somegardening. 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 thecorporate stock and thewife 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 theminor 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 guardianwas appointed for thewife. Shewas 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 findingspertinent 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 themarital estate was for 9 of the 13 years ofmarriage; that the wife should receive her share of the property in cash as a division of the ranchwould result in two uneconomical units; that thewife 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 themineral 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 1970division of corporate stock, which gave the wife 5.075%, indicated that the wife's contributionwas worth 1.015% interest in the operationper year. The District Court further reasoned that thewife onlycontributed to the marriage until 1974, for a total of 9 of the 13years of marriage. Consequently the wife was entitled to 9X 1.015 or 9.135% of the values listed above. Thewife also received the inheritance fromher parents (about $7,000),certain personal property such as furniture and kitchen utensils, a coin collection and jewelrywhich together were worth approximately $4,800. On January 3, 1979, thewife filed a combinedmotion for

a new trial or alternatively for amotion to amend the findings and conclusions. On January 25, these motions were repeated. Many reasonswere 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 tomental illness; therefore she was entitled to a new trial because this amounted to newly discovered evidence. The District Court denied themotions. 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 findingsand conclusions? (3) Did the District Court abuse its discretion in denying the wife's motions for temporarymaintenance and attorney fees pending trial, or for temporarymaintenance, attorney fees and costs and payment of medical expenses pending appeal? This Court has considered numerous cases in recentyears dealing with the distribution ofproperty 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 theexercise of its discretion act arbitrarily without employment of conscientious judgment, or exceed the bounds of reason inview 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 propertymust 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 factorswhen the apportionment

was made. In its finaldisposition of the property, the District Court followed the statute. Thewife was awarded 9.135% of the Oster Corporation and othermarital assets for a total of $43,909.73. She also received approximately $4,800 worth of jewelry and coins and $7,000 fromher 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. Thismotion was based upon the discovery that the wife was mentally ill. She claimed that thiswas 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 3motion. 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. Thematter was continued until March 19, 1979, at which time the hearing was held. The District Court held that themotion for a new trialcould 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 themotion within the time given under Rule 59(d), then themotion shallbe deemed denied. In the present case, the motion wasmade 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), 161Mont. 401, 506 P.2d 1375, this Court considered Rule 59 in a similar context. We stated: "Webelieve the purpose of the rule should be adhered to and while we do notwish to be technical, at the same time we cannot permit deviations." 161Mont. 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. Thewife alleges that the District Court erred in not granting temporarymaintenance and other costspending trial and pending appeal pursuant to section 40-4-106(1), MCA. The District Court made no decision on thematter until the findingsof fact and conclusionsof 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 temporarymaintenance is discretionarywith the District Court. In the present case, there was no abuse of this discretion. Prior to trial therewas no indication that the wife was unable to support herself through appropriate employment. In addition, she had at her disposal approximately $4,800worth of coins and jewelry. Thewife alsomoved for temporarymaintenance pendingappeal. The District Court denied thismotion also. It isnot disputed by theparties that the wife was suffering financialhardship pending appeal. Shehad not,however, attempted to execute upon her share of themarital estate which amounted to over $43,000. Her attorneys asserted that an executionupon this amountwould deprive her of the right to appeal. The District Court disagreed and refused to grant temporary maintenance pending appeal. Mont

# . In Fergusonv. Town Pump, Inc. (1978), 

### , 580 P.2d 915, 918, 35 St.Rep. 824,at 827,this Court set out the general rule that a litigantmay 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 cannotpossibly affect an appellant's right to the htnefit ac!ceptedunder the judgment. That is the situation in this case. The husband isnot contesting the amount of the award. From the record it is apparent that he never did indicate a dissatisfactionwith the award. On appeal the wife is insisting that her share of themarital estate should have been larger. The husband is asking that the DistrictCourt's judgment be affirmed. He isnot asking for a reduction. As was stated by one authority: "Applying the rule thatwhere 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 inconsistentwith the claim that the judgment isnot large enough, and the appeal may be maintained 

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# ." 29ALR3d 1184, 1209. Because the only possible issue on remand would be an increase in thewife's share of themarital 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 temporarymaintenance. For the same reason there was no abuse of discretion in refusing to grant attorney fees to the wife. Affirmed.Chief Justice

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