No. 87-404 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

IN RE THE MARRIAGE 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 of Flathead, 

The Honorable Michael Keedy, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

George B. Rest, Kalispell., Montana 

For Respondent: 

M. Dean Jellison, Kalispell, Montana 

Submitted on Briefs: Feh. 4, 1988 

Decided: March 8, 1988 

Filed: MAR 8 - 1988 

Clerk 
Mr. 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, 

Flathead County. 

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 to properly consider the elements of 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, wife was 62 years old and husband 

was 55 years old. Wife is a retired civil servant. During 

their marriage husband worked for a few years as a telephone 

industry consultant in private practice but has since 

retired. Both parties held substantial assets at the time of 

their marriage. Flife had approximately $80,000, mostly in 

certificates of deposit, stocks and bonds. Husband had a net 

worth of approximately $144,000. During the course of their 

marriage, the parties kept their accounts a.nd assets totally 

separate. Each paid for specific things with each providing 

exclusively for their own personal needs and expenses. 

The parties were married for approximately eight years. 

They separated in March, 1983. The decree of dissolution was 
entered on March 26, 1985, reserving the property settlement 

until a later date. 

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 agreement was drafted by the parties, yet it was 

clear from the parties conduct throughout their marriage 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 admission of 

certain evidence by wife and the exclusion of husband's 

deposition as 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 show up for the hearing, but gave no excuse or reason for 

his absence other than his attorney having difficulty in 

locat-ing him to give him notice of the hearing. 
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 of his previous wife's death, for estate purposes. 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 the date of their marriage. 

Wife's Exhibit B was also a document prepared 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 illustrative purposes. 

We hold that Exhibits A, B, and C were properly 

admitted. Under Rule 801 (d) (2) , M. R.Evid., Exhibits A and B 

were properly admitted. An admission by a party-opponent is 

not hearsay and is admissible if the statement is offered 

against a party and is his 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 

the uses of depositions in court proceedings. Husband argues 

that his deposition should have been admitted pursuant to 

Rule 32(a) (3) which allows the use of a party's deposition if 

that person is at a distance greater than 100 miles from the 

place of the hearing. 

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 for personal reasons. The decision not to attend was 

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 

deposition as evidence at the hearing. 

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 net worth 

at the time of marriage on credible evidence. All the court 

had to base its calculations on were the exhibits and 

testimony introduced by wife. No evidence was presented to 

refute either the value which she placed on the net worth of 

her assets at the time of marriage, nor the net worth 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 reasonably reliable. 

"The trial judge is free to select and reject appraisal 

values as he wishes, so long as there is substantial credible 
evidence 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 of discretion by 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 

evidence presented. 

Husband's last contention is 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 their premarital 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), 691 P.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 the wife and $144,000 for the husband. 
The court found that the value of the marital estate on 

the date of the parties' separation was $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 she had contributed when 

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 marital property. In re Marriage 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