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, Judgepresiding. Counsel of Record: ForAppellant: Jerrold L. Nye, Billings,Montana For Respondent: Doris Poppler,Billings,Montana

Submitted on briefs: November 13, 1979

Filed: 

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ClerkMr. 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 thewife filed for dissolution of themarriage. Thewife was 22 and the husband was 23 at that time. The couplehad no children. Themajor marital assets were the family home in Billings,
some household furnishingsand a 1966 Chevrolet race car. The home had amarket 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 issuespresented at trial concerned the value of themarital estate and itsproper 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 themarriage 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. Hewas to pay $2,419.10 to the wife as her share of the net worth of the marital property. Thereafter, thewife filed a motion for a new trial on the ground that certain of the District Court's findingsdid not conform to the evidence and on the basis of newly discovered evidence,viz. the race car had not been soldprior 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 arepresented by the wife:

(1) Did the trial courtproperly divide the marital estate pursuant to section 40-4-202,MCA? (2) Did the trial court abuse its discretion in denying the wife'smotion for a new trial?Distributionofmarital 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),171Mont. 247, 250, 557 P.2d 1014. The test for abuse of discretion iswhether the trial court acted arbitrarily without the employment of conscious judgment or exceeded the bounds of reason. Berthiaume v. Berthiaume (1977), Mont

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## , 567 P.2d 1388, 34 St.Rep. 921, 924. In the present case the wife states that itwas error for of the trial court to omit the value/the race car in determining the value of themarital estate. In its findingsof fact, the District Court found that the car had been sold and that the proceeds
were used to pay thebills of the parties, Under such circumstances, the District Court did not abuse its discretion in refusing to include thevalue 

### of the car in the grossmarital estate. Thewife indicates several other instanceswhere she does not agree with the court's valuation of themarital estate. As
a reviewing courtwe are not justified in substituting our judgment for that of the trial court. After reviewing the recordwe cannot say that the trial court acted arbitrarily or exceeded the bounds of reason. There isno 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 themarital estate. Section 25-11-102(4), MCA, states that a new trialmay be I granted where there is newly discovered evidence. The language of the statute indicates that an application for a new trial I based upon newly discovered evidence is addressed to the sound I discretionof the trial court. Gould v. Lynn (1930), 88Mont. 501, 505, 293 P. 968. In thepresent case, the wife contends that the husband had not sold the racing car and that itsvalue should have beenadded 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 thismotion counsel for the wife produced four photographs of the car,taken after the District Court's finaldecree, 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 themotion for a new trial is supportedby the letter fromLes 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: (-