No. 86-228
IN THE SUPREMECOURT OF THE STATEOF MONTANA
1987

IN RE THEMARRIAGE OF JEANMcINNES KINK, Petitionerand Respondent, and
PAULMARTIN KINK, Respondentand Appellant.

APPEAL FROM: District Court of the Eighteenth JudicialDistrict, In and for the County of Gallatin, TheHonorable JosephB. Gary,Judgepresiding.
COUNSEL OF RECORD:
ForAppellant: JosephW. Sabol,Bozeman,Montana
For Respondent: Edmund P. Sedivy,Bozeman, Montana

Submitted onBriefs: Feb. 5, 1987 Decided: April7, 1987 Filed: 

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ClerkMr. Justice JohnConway Harrison delivered the Opinion of the Court.
Respondent husband appeals the order of the District Court of the Eighteenth JudicialDistrict in and forGallatin County, Montana. He challenges the court's jurisdiction to amend its original findings of fact and conclusions of law. We affirm theDistrict Court. Paul and Jean Kink's sevenyearmarriage 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 considerablenet worth.Paulhad beenmarried three timesprior to hismarriage to Jean. He had few assets and substantial debt when he married. A fewdaysbefore their marriage he borrowed $6,000 from her to pay off a debt, and several months later he borrowed $29,400topay 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 theirhid, theywrote a letter to the heirs of the late owneradvising 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 toborrow $225,000 from the FederalLand 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 ofpre-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 theproperty division,he was ordered topay 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 theparties for sevenyears. 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 findingswas denied and he appeals. Appellant contends the District Court lacked jurisdiction to issue the amended findingsbecause 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 ofjudgment the courtmay amend its findings ormake additional findings andmay amend the judgmentaccordingly. The motionmay 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 orhas 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 amotion for new trial within 45 days from the time the motion is filed,the motion shall,at the expirationof saidperiod,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 findingsand conclusions. The orderwas issued 44days after Jean filed her motion to amend, and 39 days after Paul'swas 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 "oftestimony limited to the respectiveproposals ofhandling 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 courtmay grant a motion for a new trial, timely served, for a reason not indicated in themotion.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 onNovember 8. The order expressed the court's concern "about the Cross Country course laid out on the Bohartproperty," 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.

[Citationsomitted.] Compton v. Alcorn (1976), 171 Mont. 230, 236, 557 P-2d292, 296. Jean's motion was amotion 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 conclusionsof 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 clearerror 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 cannotnowput the court in error. Further, itmust 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 themarriage, while Paulwas 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 realpropertywhich 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 contributionsto the family ofboth Pauland 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 reMarriage 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 DistrictCourt is affirmed.

We concur 

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