No. 83-346 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

IN RE THE MARRIAGE OF 

DEBRA D. CONCEPCION, 

Petitioner and Respondent, 

and 

ELIAS CONCEPCION, 

Respondent and Appellant. 

APPEAL FROM: The District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable James B. Wheelis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Stewart A. Pearce, 11, Missoula, Montana 

For Respondent: 

Terry A. Wallace, P.lissoula, PIontana 

.-- 

Submitted on Briefs: April 12, 1984 

Decided: August 30, 1984 

.AUG 3 0 1984 Filed. 
Debra D. Concepcion, wife, petitioned the District Court 

of the Fourth Judicial District, Missoula County, and 

obtained a court order distributing the marital estate. 

Elias Concepcion, husband, appeals. We affirm. 

The issues raised by the husband are: 

1. Did the District Court commit prejudicial error in 

refusing to grant husband's motion for continuance? 

2. Are the findings of fact and conclusions of law 

proper? 

3. Did the trial court err in awarding attorney's fees 

to wife? 

4. Did the trial court abuse its discretion in 

establishing the visitation rights of the husband? 

The uncontested findings of fact by the District Court 

show that the parties were married in 1975. The wife's 

petition for dissolution of the marriage was served upon the 

husband on August 30, 1979. The marriage was dissolved on 

December 15, 1980; and the wife was granted custody of the 

parties' two minor children. The court reserved ruling on 

the distribution of the marital estate. A hearing on 

distribution of the marital estate took place on May 21, 

1982, approximately 17 months after the dissolution decree 

was entered. 

The District Court findings show that, at the time of 

the hearing, wife was 25 years of age, in good health and 

received approximately $1,150 per month from various sources. 

She had been unemployed for over a year. At the same time, 

the husband was 29 years of age, a disabled veteran, in 

chronically poor health, and completely paralyzed below the 

neck as the result of a traffic accident. Husband received 

veteran's and social security benefits in excess of $3,600 

per month. Wife, without significant vocational slcills or 
education, had no real opportunity for future acquisition of 

capital assets and income. Husband, with a high monthly 

level of benefits, had a substantial opportunity to acquire 

capital assets and income. All of the personal property 

acquired during the marriage had been divided between the 

parties. The estimated value of the parties' residence in 

Puerto Rico was between $80,000 and. $100,000. The equity in 

the residence had been paid mostly by veteran's benefits of 

the husband, including a $30,000 grant used as a down 

payment. The court found that although petitioner's 

contribution to the marriage as a homemaker and her monetary 

contributions to the marriage entitled her to a share of the 

residence, due to the husband's physical condition, it would 

be inequitable to award her any portion of it except for 

$208.83. 

The parties do not take issue with the disposition of 

marital property based upon the foregoing findings. 

I 

Was it prejudicial error to refuse to grant husband's 

motion for continuance? 

Husband argues that a continuance was required because 

of insufficient preparation time, schedule conflicts, and the 

wife's abuse of rules of discovery, including failure to obey 

orders to compel discovery, by virtue of which husband's 

discovery was incomplete. The record does not show facts to 

substantiate these contentions. 

Under section 25-4-501, MCA, a motion to postpone on the 

grounds of absence of evidence shall be made only upon 

affidavit showing the materiality of the evidence and that 

due diligence has been used to procure it. No such affidavit 

was here presented. 
Section 25-4-503, MCA provides: 

"Upon good cause shown and in furtherance of 

justice, the court may, -- in its discretion, postpone 

a trial or proceeding upon other grounds than the 

absence of evidence under such conditions as the 

court may direct." (emphasis added) 

The record does not disclose any grounds which warranted 

postponement. As a result, we affirm the District Court's 

denial of the husband's request for a continuance. 

Were the findings of fact and conclusions of law proper? 

Our review of the transcript discloses that husband 

limited his appearance to cross-examination of the wife and 

failed to submit any evidence in his case in chief. The 

transcript contains substantial evidence to support the 

findings of fact and conclusions of the District Court. 

Under Rule 52(a), M.R.Civ.P., findings of fact shall not 

be set aside unless clearly erroneous. This Court's standard 

of review was stated in Jensen v. Jensen (Mont. 1981) , 629 

P.2d 765, 768, 38 St.Rep. 927, 930 and recently cited with 

approval in In re the Marriage of Beitz (Mont. 1984), 

"This Court will not substitute its judgment for 

that of the trier of fact. We will consider only 

whether substantial credible evidence supports the 

findings and conclusions. Findings will not be 

overturned unless there is a clear preponderance of 

evidence against them, recognizing that evidence 

may be weak or conflicting, yet still support the 

findings." 

Husband has totally failed to show how the findings are 

erroneous. We find substantial evidence to support the 

findings and conclusions of the District Court. We hold that 

the findings and conclusions were proper. 

Did the trial court err in awarding attorney's fees to 

the wife? 
By affidavit filed with the District Court on June 4, 

1982, wife's counsel established attorney's fees of 

$1,575.00. The record discloses no specific objection on the 

part of the husband. The findings of fact, conclusions of 

law and opinion of the court were made and entered on April 

13, 1983. The husband filed notice of appeal prior to the 

actual entry of a District Court order awarding the fees. 

The husba.nd has failed to present any evidence bearing upon 

the question of attorney's fees. It was therefore 

appropriate for that court to award attorney's fees in 

accordance with the affidavit submitted by the wife's counsel 

approximately eleven months before entry of the court ' s 

findings of fact, conclusions of law and opinion. 

IV 

Did the District Court abuse its discretion in 

establishing the husba-nd's visitation rights? 

The transcript sets forth substantial evidence upon 

which to base a restriction of the husband's visitation to 

the continental United States, leaving the visitation 

schedule to be worked out between the parties and making the 

husband responsible for all costs attendant to visitation. 

Absent evidence to substantiate a different conclusion, we 

affirm the visitation rights of the husband as determined by 

the decree. 

We affirm the District Court and return this proceeding 

to that court in order that it may make an appropriate order 

for attorney fees at the district court level and such other 

order as it deems appropriate in accordance with this 

opinion. 
We concur: