No. 14977 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1979 

IN RE THE MARRIAGE OF 

VICKIE A. FREDERICKSEN, 

Petitioner and Appellant, 

VS. 

BRAD R. FREDERICKSEN, 

Respondent and Respondent. 

Appeal from: District Court of the Thirteenth Judicial District, 

Honorable Nat Allen, Judge presiding. 

Counsel of Record: 

For Appellant: 

Jerrold L. Nye, Billings, Montana 

For Respondent: 

Doris Poppler, Billings, Montana 

Submitted on briefs: November 13, 1979 

Filed: ,rr. 

L- - qge0 

Clerk 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

Appellant wife appeals from an order apportioning the 

marital estate and denial of her motion for a new trial. 

The parties to this action had been married for about 

three and one-half years at the time the wife filed for dissolution of the marriage. The wife was 22 and the husband was 23 

at that time. The couple had no children. 

The major marital assets were the family home in Billings, 

some household furnishings and a 1966 Chevrolet race car. The 

home had a market value of $39,500 and an outstanding mortgage 

of approximately $30,000. The husband purportedly sold the race 

car and a trailer for $1,175 prior to the dissolution. The couple 

had other debts of approximately $2,100. 

The only issues presented at trial concerned the value of 

the marital estate and its proper division. In the final order 

the trial court subtracted from the value of the house ($39,500) 

the cost of selling the house and the other debts of the marriage 

to arrive at a net worth of $4,838.20. The husband was awarded 

the home and he was required to assume the remaining debts of the 

marriage. He was to pay $2,419.10 to the wife as her share of 

the net worth of the marital property. 

Thereafter, the wife filed a motion for a new trial on 

the ground that certain of the District Court's findings did not 

conform to the evidence and on the basis of newly discovered 

evidence, viz. the race car had not been sold prior to dissolution as testified to by the husband. From a denial of this motion 

and from the final decree, the wife appeals. 

The following issues are presented by the wife: 

(1) Did the trial court properly divide the marital estate pursuant to section 40-4-202, MCA? 

(2) Did the trial court abuse its discretion in denying 

the wife's motion for a new trial? 
Distribution of marital property is governed by section 

40-4-202, MCA. This Court will not disturb the decision of 

the trial court absent a clear abuse of discretion. Eschenburg v. 

Eschenburg (1976), 171 Mont. 247, 250, 557 P.2d 1014. The test 

for abuse of discretion is whether the trial court acted arbitrarily without the employment of conscious judgment or exceeded the 

bounds of reason. Berthiaume v. Berthiaume (1977), Mont . I 

, 567 P.2d 1388, 34 St.Rep. 921, 924. 

In the present case the wife states that it was error for 

of 

the trial court to omit the value/the race car in determining the 

value of the marital estate. In its findings of fact, the District Court found that the car had been sold and that the proceeds 

were used to pay the bills of the parties, Under such circumstances, the District Court did not abuse its discretion in refusing to include the value of the car in the gross marital estate. 

The wife indicates several other instances where she does 

not agree with the court's valuation of the marital estate. As 

a reviewing court we are not justified in substituting our judgment for that of the trial court. After reviewing the record we 

cannot say that the trial court acted arbitrarily or exceeded the 

bounds of reason. There is no indication that the final order 

was contrary to the guidelines set forth in section 40-4-202, MCA. 

Consequently, we affirm the trial court's division of the marital 

estate. 

Section 25-11-102(4), MCA, states that a new trial may be 

granted where there is newly discovered evidence. The language 

of the statute indicates that an application for a new trial 

based upon newly discovered evidence is addressed to the sound 

discretion of the trial court. Gould v. Lynn (1930), 88 Mont. 

501, 505, 293 P. 968. 

In the present case, the wife contends that the husband 

had not sold the racing car and that its value should have been 
added to the gross estate. She contends that evidence that the 

car was not sold is newly discovered evidence and she was entitled to a new trial on that basis. At a hearing on this motion 

counsel for the wife produced four photographs of the car, taken 

after the District Court's final decree, showing the car parked 

in front of the husband's house, newly painted and restored, and 

bearing the words "Brad Fredericksen, owner." The husband produced evidence in the form of a letter and a transfer of title 

which indicate that the car had been sold to one Les Kraft in 

August 1978. 

The trial court must decide whether there was sufficient 

new evidence to grant a new trial. The evidence is conflicting, 

but the District Court's denial of the motion for a new trial is 

supported by the letter from Les Kraft and the indication of 

transfer of title. We cannot say that there was an abuse of discretion in refusing to grant a new trial on this basis. 

Affirmed. 

Chief Justice 

We concur: (-