No. 87-404
IN THE SUPREME COURT OF THE STATEOF MONTANA
1988

IN RE THEMARRIAGE OF NORDIS J. POWELL, Petitioner and Respondent, and
ARLO W. POWELL, Respondent and Appellant.

APPEAL FROM: District Court of the Eleventh Judicial District, In and for the County ofFlathead, The Honorable Michael Keedy, Judge presiding.
COUNSEL OF RECORD:
ForAppellant: George B. Rest,Kalispell.,Montana
For Respondent:
M. DeanJellison, Kalispell,Montana

Submitted onBriefs: Feh. 4, 1988 Decided: March 8, 1988
Filed: 

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ClerkMr. Justice William E. Hunt, Sr., delivered the opinion of the Court.

Arlo Powell appeals the property settlement ordered 

### by the District Court of the Eleventh Judicial District, FlatheadCounty. We affirm. The issues raised on appeal are as follows: 1. Did the District Court err in admitting into evidence petitioner's Exhibits A, B and C and further compound the error by denying the admittance of respondent's deposition? 2. Did the District Court abuse its discretion by failing to base the finding of value of marital property and the respondent's individual net worth on credible evidence? 3. Did the District Court abuse its discretion by failing toproperly consider the elementsof 5 40-4-202,MCA? Petitioner, Nordis Powell (wife) and respondent, Arlo Powell (husband)were married on February 2, 1975 in Chico, California. At that time, wifewas 62years old and husband
was 55 years old. Wife is a retired civil servant. During their marriage husband worked for a fewyears as a telephone industry consultant in private practice but has since retired. Both partiesheld substantial assets at the time of their marriage. Flife had approximately $80,000, mostly in certificatesof deposit, stocksand bonds. Husband had a net worth of approximately $144,000. During the course of their marriage, the parties kept their accounts a.ndassets totally separate. Each paid for specific thingswith each providing exclusively for their ownpersonal needs and expenses. The parties were married for approximately eightyears. They separated in March, 1983. The decree of dissolutionwasentered on March 26, 1985,reserving the property settlement until a laterdate. At a hearing at which only the wife, her attorney and husband's attorney appeared, the court found that, at the time of their separation, the parties' marital estate was worth approximately $862,000. As of May 31, 1984,wife's assets were found to have increased from $80,000 to approximately $137,000. The court found that on April 10, 1983, husband's assets had increased from $144,000 to approximately $725,000. The court found no formal antenuptial agreementwas drafted by the parties,yet itwas clear from theparties conduct throughouttheirmarriage that they intended to keep their assets separate, retaining them for eventual distribution to their children from prior marriages. Husband's first alleged error concerns the admissionof certain evidence by wife and the exclusion of husband's depositionas evidence. Wife petitioned the court for dissolution on July 24, 1983. In spite of wife's attempts to conduct discovery relating to husband's assets, husband refused to candidly answer interrogatories or cooperate with the discovery process. Husband was held in contempt of court for transferring property held in his name to his son despite a restraining order prohibiting the transfer or sale of any assets pending the final property distribution. After numerous delays, a hearing date was set to resolve the property distribution. Husband requested a further continuance,which was denied by the court. Husband failed to showup for the hearing,but gave no excuse or reason for his absence other than his attorney having difficulty in locat-inghim togivehim notice of thehearing.Wife appeared with her attorney at the hearing and gave testimony concerning the parties' assets. Wife introduced Exhibit A, which was a document prepared by husband, in husband's handwriting,dated January 10, 1974. The document
was an inventory of husband's assets and liabilities at the time ofhispreviouswife's death, for estatepurposes. Wife found the original document among her husband's papers and copied it, presenting the copy to the court as evidence of husband's net worth near thedate of theirmarriage. Wife's Exhibit Bwas also a documentprepared by husband in his handwriting. It is an inventory of his assets and liabilities as of April 10, 1983. Wife obtained this document in the same manner as she obtained the document in Exhibit A. The court accepted both of these as relevant evidence accurately depicting husband's assets and liabilities on January 10, 1974 and April 10, 1983. Wife's Exhibit C was prepared by her attorney for illustrative purposes. Exhibit C copied all of the information contained in Exhibits A and B so that they were more easily read and compared. Exhibit C also contained wife's assets and liabilities on the date of the parties' marriage and on May 31, 1984, just following their separation. At the hearing, wife verified the amounts as accurate. The court admitted Exhibit C for illustrativepurposes. We hold that Exhibits A, B, and C were properly admitted. Under Rule 801(d)(2)

## ,M.R.Evid., ExhibitsA and B
were properly admitted. An admissionby a party-opponent is not hearsay and is admissible if the statement is offered against aparty and ishis own statement. The copies of the original documents were admissible under Rule 1004(3)

### , M.R.Evid. Exhibit C was properly admitted for illustrative purposes. Rule 1006,M.R.Evid.Since husband did not appear at the hearing, his attorney offered his deposition and several affidavits as evidence of his testimony. Rule 32(a)

## , M.R.Civ.P. outlines theuses of depositions in courtproceedings. Husband argues that his deposition should have been admitted pursuant to Rule 32(a) (3)which allows the use of aparty's deposition if that person is at a distance greater than 100miles from the place of thehearing. No proof was offered at the hearing that husband was unable to attend because of too great a distance to travel. The record did indicate, however, that husband was uncooperative with the court and the opposing party throughout the proceedings and decided not to attend the hearing forpersonal reasons. The decisionnot to attendwas husband's prerogative, but he cannot later introduce testimony which cannot be verified or cross-examined. We hold that the court properly refused to admit husband's depositionasevidence at thehearing. Husband's next contention is that the District Court erred by failing to base the values placed on the marital estate at the time of separation and his individual networth at the time of marriage on credibleevidence. All the court had to base its calculations on were the exhibits and testimony introduced by wife. No evidencewas presented to refute either the value which sheplaced on the net worth of her assets at the time ofmarriage, nor the networth of her assets at the time the parties separated. The evidence presented to the court evidencing husband's assets at the time of marriage and date of separation were documents prepared by husband himself near the dates in question. These figures are reasonablyreliable. "The trial judge is free to select and reject appraisal values ashe wishes, so long as there is substantial credibleevidence in support of the values he selects." In re Marriage of Williams (Mont. 1986), 714 P.2d 548, 554, 43 St.Rep. 319, 326. (Quoting In re Marriage of Glass (Mont. 1985), 697 P.2d 96, 100-01, 42 St.Rep. 328, 332 (citations omitted).) In order to prevail on appeal, husband must show
an abuse ofdiscretionby the District Court and overcome the presumption that the judgment of the District Court is correct. In re Marriage of Blades (Mont. 1984), 692 P.2d 1215, 1217, 41 St.Rep. 1806, 1809. We find no evidence that the District Court abused its discretion in relying on the evidencepresented. Husband's last contentionis that the District Court did not properly consider the elements of $ 40-4-202, MCA, in dividing the marital estate. In this case, both parties entered a marriage with considerable personal assets. Although no formal antenuptial agreement existed, the conduct of the parties during their marriage reflected their intent to keep separate those assets which they brought into the marriage. Premarital property is a factor which the court shall and, in this case, did consider, but the court is not bound to restore the parties to theirpremarital status. In
re the Marriage of Tonne (Mont. 1987), 733 P.2d 1280, 1283, 44 St.Rep. 411, 414; In re the Marriage of Keepers (Mont. 1984), 691P.2d 810, 812, 41 St.Rep. 2163, 2165-66. In its findings of fact, the District Court considered the duration of the parties' marriage, their respective ages and health, their retired status and apparent needs and wife's contributions as a homemaker during their marriage. From the findings, the District Court concluded that each party should be awarded the value of the property he or she originally contributed to the marital estate. This amount
was $80,000 for thewife and $144,000for thehusband.The court found that thevalue of the marital estate on the date of the parties' separationwas $862,000. Although wife requested half of the increase ($638,000 

## - 2 = $319,000), the court awarded her only the corresponding percentage of the appreciated estate shehad contributedwhen married. This amounted to $170,714 with 10 percent interest from the date of separation. The District Court has far-reaching discretion in the division of maritalproperty. InreMarriage of Perry (Mont. 1985), 704 P.2d 41, 43, 42 St.Rep. 1101, 1104. We find no
error nor abuse of discretion 

### by the court in this case. Affirmed.

We concur: I