No. 86-228 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

IN RE THE MARRIAGE OF 

JEAN McINNES KINK, 

Petitioner and Respondent, 

and 

PAUL MARTIN KINK, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Joseph B. Gary, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Joseph W. Sabol, Bozeman, Montana 

For Respondent: 

Edmund P. Sedivy, Bozeman, Montana 

Submitted on Briefs: Feb. 5, 1987 

Decided: April 7, 1987 

Filed: APR 'i! -- 1907 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

Respondent husband appeals the order of the District 

Court of the Eighteenth Judicial District in and for Gallatin 

County, Montana. He challenges the court's jurisdiction to 

amend its original findings of fact and conclusions of law. 

We affirm the District Court. 

Paul and Jean Kink's seven year marriage was dissolved 

May 21, 1984. Each party had been married previously. Jean 

had three children from her previous marriage for whom she 

received $200 per month per child support. At the 

dissolution of that marriage she received a home in Bridger 

Canyon, Montana, furnishings, a car, interests in some 

contracts, and $300,000 cash. She invested these assets and 

at the time of the marriage to Paul she had considerable net 

worth. 

Paul had been married three times prior to his marriage 

to Jean. He had few assets and substantial debt when he 

married. A few days before their marriage he borrowed $6,000 

from her to pay off a debt, and several months later he 

borrowed $29,400 to pay other debts. 

Paul worked as a stock broker. During the early years 

of the marriage his income was used to pay off his debts of 

$78,000, and the family basically was supported by Jean's 

earnings from pre-marriage investments. After his debts were 

paid, Paul spent considerable money purchasing and raising 

Clydsdale and Belgian draft horses, and related tack, tools, 

and wagons. 

In September 1980, the parties bid to purchase some 

property known as the Bohart Ranch, consisting of nearly 300 

acres near the Bridger Bowl ski area. At the time they made 

their hid, they wrote a letter to the heirs of the late owner 
advising them of their (Kinks') intent to preserve the 

property for cross country skiing and to keep the property 

from falling into the hands of developers. The Kinks' bid 

was accepted. Jean made a downpayment of over $18,000 and 

mortgaged her home, enabling them to borrow $225,000 from the 

Federal Land Bank. 

The marriage was dissolved in May 1984. The District 

Court retained jurisdiction to determine the division of the 

marital property. Following a four day trial, the court 

awarded Jean the original assets she had brought into the 

marriage and certain assets which had been purchased during 

the marriage from the proceeds of sale of pre-marriage assets 

and earnings. Paul was awarded the Bohart property, the 

proceeds of a personal injury claim, and his rights to an 

unliquidated slander and wrongful termination claim. To 

equalize the property division, he was ordered to pay to Jean 

$82,541, in ten equal installments, and to remove the 

mortgage from Jean's home within three years. In awarding 

the Bohart property the court fashioned a joint venture 

between the parties for seven years. 

Both parties filed motions to amend these findings and 

a hearing was held. Subsequently the court ordered the 

parties to appear for the limited purpose of testifying to 

the respective proposals for handling the Bohart property. 

The court then issued amended findings of fact and 

conclusions of law. Respondent's motion to set aside the 

amended findings was denied and he appeals. 

Appellant contends the District Court lacked 

jurisdiction to issue the amended findings because it failed 

to rule on the motions to amend within 45 days, pursuant to 

Rules 52 (b) and 59 (d) , M.R.Civ.P. Rule 52 (b) says: 

Upon motion of a party made not later 

than 10 days after notice of entry of 
judgment the court may amend its findings 

or make additional findings and may amend 

the judgment accordingly. The motion may 

be made with a motion for a new trial 

pursuant to Rule 59. When findings of 

fact are made in actions tried by the 

court without a jury the question of the 

sufficiency of the evidence to support 

the findings may thereafter be raised 

whether or not the party raising the 

question has made in the district court 

an objection to such findings or has made 

a motion to amend them or a motion for 

judgment. 

Rule 59 (d) provides in pertinent part that " [i] f the 

court shall fail to rule on a motion for new trial within 45 

days from the time the motion is filed, the motion shall, at 

the expiration of said period, be deemed denied." 

Jean argues the District Court's order of November 8, 

1985, is in effect a ruling on the motions to amend the 

findings and conclusions. The order was issued 44 days after 

Jean filed her motion to amend, and 39 days after Paul's was 

filed. We do not conclude the order to be such a ruling, 

however. It is not styled as such, nor do its contents so 

indicate. The parties are ordered to appear for the purpose 

"of testimony limited to the respective proposals of handling 

the Bohart property and the retention of the cross country 

ski courses upon the same." This appears to be an order for 

a new trial and was so considered by the District Court. 

Rule 59 (e) , M.R.Civ.P. : 

Not later than 10 days after entry of 

judgment the court of its own initiative 

may order a new trial for any reason for 

which it might have granted a new trial 

on motion of a party. After giving the 

parties notice and an opportunity to be 

heard on the matter, the court may grant 

a motion for a new trial, timely served, 

for a reason not indicated in the motion. 
Rule 59 (f) , M.R.Civ.P. says: 

[Alny order of the court granting a new 

trial, shall specify the grounds therefor 

with sufficient particularity as to 

apprise the parties and the appellate 

court of the rationale underlying the 

ruling, and this may be done in the body 

of the order, or in an attached opinion. 

Grounds for a new trial are set forth in 5 25-11-102, 

MCA. The section provides no time constraints. The only 

time constraint on the District Court to order a new trial 

on its own initiative is that it be done within ten days of 

entry of judgment. No judgment had been entered on November 

8. The order expressed the court's concern "about the Cross 

Country course laid out on the Bohart property," and ordered 

a hearing on that issue only. Both parties presented 

testimony without objecting to the court's jurisdiction. 

Not only does a district court have jurisdiction to 

order a new trial on its own initiative pursuant to Rule 

59 (e) , M.R.Civ.P., it has broad discretion to reopen a case. 

Rule 59 (a) M.R.Civ.P. applies when a party desires a new 

trial, not when a case is reopened to receive further 

testimony. 

It is well settled that the ruling on a 

motion to reopen a case for taking 

further testimony is within the sound 

discretion of the district court, which 

will only be reversed on appeal for 

manifest abuse of that discretion. 

[Citations omitted.] 

Compton v. Alcorn (1976), 171 Mont. 230, 236, 557 P-2d 292, 

296. Jean's motion was a motion to amend and to reopen. We 

find the court had jurisdiction to order a new trial on its 

own initiative, or to reopen the case. Thus it had 

jurisdiction to amend the findings of fact and conclusions of 

law. 
Paul also argues the court abused its discretion when 

dividing the marital assets. We will not disturb a lower 

court's ruling unless there is clear error amounting to abuse 

of discretion. Rule 52 (a) , M.R.Civ.P. The test of abuse of 

discretion is whether the trial court acted arbitrarily 

without employment of conscientious judgment or exceeded the 

bounds of reason resulting in substantial injustice. In re 

Marriage of Goodman (Mont. 1986), 723 P.2d 219, 220, 43 

St.Rep. 1410, 1412. 

A careful examination of the revised findings does not 

reveal abuse. Paul contends the District Court erred in 

adopting the trial date as the date of distribution, with a 

resulting change in valuation figures. Paul's trial counsel 

argued for use of that date, however. Appellant counsel 

cannot now put the court in error. Further, it must be noted 

the amended order did not change the value of the items 

complained of. The marital estate was valued at slightly 

over one million dollars. Jean brought well over $400,000 

worth of assets to the marriage, while Paul was over $70,000 

in debt at the time of the marriage. His earning capacity 

continued to increase during the marriage. He acquired, and 

was allowed to keep, considerable personal property. The 

amended order awarded him assets valued at $182,500 and 

ordered Jean to pay to Paul a cash settlement of $100,561, 

plus interest, for real property which Jean retained. He has 

no debts. 

There is sufficient evidence the court employed 

conscientious judgment in dividing the marital estate. A 

hearing was held on the motions to amend the first findings 

and conclusions. It then ordered a new trial on the issue of 

disposition of the Bohart property. It considered the 

earning capacity and contributions to the family of both Paul 
and Jean, the assets Jean brought to the marriage and Paul's 

financial liabilities. 

The property and assets of the parties 

are extensive and complex. We will not 

attempt to review every element of a 

complex property distribution . . . Our 

function is to examine whether there is 

substantial evidence to support the 

property distribution. In re Marriage of 

Williams (Mont. 1986), 714 P.2d 548, 554, 

43 St.Rep. 319, 327. We find there is 

substantial credible evidence to support 

the property division. 

In re Marriage of Goodman, supra at 222, 43 St.Rep. at 1414. 

The order of the District Court is affirmed. 

We concur W