No. 91-328 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

. 

and 

RICHELLE BARNES, JAN 2 9 1992 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable G. Todd Baugh, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Bruce E. Lee, Billings, Montana 

For Respondent : 

Linda L. Harris; Harris Law Firm, Billings, Montana 

Submitted on Briefs: December 4, 1991 

Decided: January 23, 1992 

Filed: 
Justice R. C. McDonough delivered the Opinion of the Court. 

Richelle Barnes appeals from a judgment of the Thirteenth 

Judicial District Court, Yellowstone County, denying her motion for 

a new trial. We affirm. 

The sole issue on appeal is: Whether the District Court erred 

in denying appellant's combined motions for a new trial and relief 

from judgment under Rules 59 and 60(b), M.R.Civ.P. 

Gary and Richelle Barnes were married on August 20, 1973. 

Throughout their marriage the parties resided in Hysham, Montana, 

where they had a ranch/farm operation. The parties separated in 

July 1987. On August 21, 1987, husband petitioned for divorce. 

The parties have three minor children. The only dispute on appeal 

centers around the value of the marital estate. 

Whether a new trial is warranted is governed by Rules 59 and 

60, M.R.Civ.P., and 5 25-11-101, MCA, et seq. The relevant portion 

of Rule 59(a), M.R.Civ.P. is: 

A new trial may be granted to all or any of the 

parties and on all or part of the issues for any of the 

reasons provided by the statutes of the state of Montana ... 

Section 25-11-102(1) and (4), MCA, governs the facts before us: 

The former verdict or other decision may be vacated 

and a new trial granted on the application of the party 

aggrieved for any of the following causes materially 

affecting the substantial rights of such party: 

(1) irregularity in the proceedings of the court . . . or abuse of discretion by which either party was 

prevented from having a fair trial; 

.. 

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(4) newly discovered evidence material forthe party 

making the application which he could not, with 

reasonable diligence, have discovered and produced at the 

trial ; 

... 

We have previously set forth the guidelines for determining 

whether a new trial is justified in Marriage of Cherewick (1983), 

205 Mont. 75, 666 P.2d 742: 

the moving party after the trial; 

"1. The alleged 'newly discovered' evidence came to 

"2. It was not want of due diligence which 

precluded its earlier discovery; 

"3. The materiality of the evidence is so great it 

would probably produce a different result on retrial; 

and, 

"4. The alleged 'new evidence' is not merely 

cumulative, not tending only to impeach or discredit 

witnesses in the case." 

Cherewick at 80, 666 P.2d at 744-745; citing Kartes v. Kartes 

(1977), 175 Mont. 210, 214-215, 573 P.2d 191, 194. 

The pertinent portions of Rule 60(b) are: 

On motion and upon such terms as are just, the court 

may relieve a party or a party's legal representative 

from a final judgment, order, or proceeding for the 

following reasons . . . (2) newly discovered evidence 

which by due diligence could not have been discovered in 

time to move for a new trial under Rule 59(b); (3) fraud 

(whether heretofore denominated intrinsic or extrinsic), 

misrepresentation, or other misconduct of an adverse 

party; . . . 

The scope of our review of a decision to grant or deny a Rule 

60(b) motion depends on the issues involved. If there is a 

discretionary appraisal or weighing by the district court of the 

facts of a particular case, the district court's determination on 

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appeal is subject to abuse or misuse of discretion. Here, the 

scope of review is the standard abuse of discretion test. To 

determine whether or not the District Court abused its discretion, 

we must determine whether or not Richelle Barnes was prevented from 

having a fair trial, and whether the newly discovered evidence 

could have been discovered previously with exercise of reasonable 

diligence. 

On September 18, 27, 1989, and November 13, 1989, the 

Honorable G. Todd Baugh heard testimony presented by both husband 

and wife. Both parties were represented by counsel. Testimony 

presented to Judge Baugh revealed that Gary Barnes and his mother, 

Marie Barnes, entered into an informal partnership in 1975. Marie 

purchased Gary's half interest in the partnership in July 1987, 

after Gary and Richelle separated. The sale consisted of two 

sections of land for a purchase price of $40,000. 

Gary testified that his mother put eight sections of land into 

the partnership in addition to all her farm machinery. He 

contributed two sections of land and 25 cows. Gary further 

testified that his sisters had some interest in his two sections of 

land. At the time of the hearing, Gary testified he had sixteen 

cows and thirteen calves. 

At trial, Gary produced a list of farm equipment acquired by 

He valued the equipment 

Marie Barnes also testified as to the value and origin 

the partnership he had a half interest in. 

at $7,300. 

of the farm equipment. 

Judge Baugh issued a final decree on May 23, 1990. He made 

4 

tl c 
oral findings and conclusions on May 2, 1990. The District Court 

in recognizing some of the husband's property was gifted and not 

part of the marital estate allocated 60 percent to the husband and 

40 percent to the wife. He calculated the total net worth of the 

marital estate at $15,775, but he ordered Gary to pay Richelle 

$8,430. Gary has not objected to this division. 

Richelle argues on appeal that newly discovered evidence 

revealed Gary sold assets to his mother for less than adequate 

consideration. Essentially, she argues that Gary misrepresented 

his financial history at trial, and that his net worth is much more 

than indicated in Judge Baugh's findings and conclusions. 

Although the evidentiary record, as Judge Baugh pointed out, 

is certainly sketchy and inadequate, nothing Richelle presents on 

appeal meets the standard for reasonable diligence set forth above. 

After trial Richelle obtained a deposition and financial statements 

from the Bank of Hysham, and tax assessment information and real 

estate information fromthe Treasure County courthouse and the Soil 

Conservation Service. This information, while enlightening on the 

value of the marital estate, could have been discovered before 

trial with reasonable diligence. 

Richelle further argues that regardless of whether the 

evidence is "newly discovered", Gary misrepresented his financial 

situation, essentially depriving her of a fair trial. We have 

previously discussed a similar situation in Marriage of Lance 

(1981), 195 Mont. 176, 635 P.2d 571, which also involved the value 

of assets within the marital estate. Lance involved a claim of 

5 
fraud. We determined that the fraud must be such that the 

adversary is denied the opportunity to have a trial or fully 

present his/her side of the case, citing In re Marriage of Miller 

(1980), 189 Mont. 356, 616 P.2d 313. We noted that Lance's wife 

did not prevent him from contradicting her evidence or having his 

day in court. Lance at 180, 635 P.2d at 574. 

As we said in Miller, citing State ex rel. Sparrenberger v. 

District Court (1923), 66 Mont. 496, 214 P. 85, "the prohibited 

result of denying the other party access to a fair trial may be 

achieved by affirmatively misrepresenting facts." Miller at 364, 

616 P.2d at 318. However, we determined in Miller that the 

husband's statements or concealment did not materially thwart Mrs. 

Miller's ability to present her case. Miller at 365, 616 P.2d at 

319. 

In the case before us, Richelle had the opportunity to present 

her case. Gary's statements at trial regarding the value of his 

partnership assets did not materially thwart Richelle's ability to 

present her own evidence. Prior to the trial she was aware of the 

partnership between Gary and Marie Barnes, and the size of the 

farm/ranch operation and could have taken steps to gather the 

information she obtained after the final decree. We conclude that 

the District Court did not abuse its discretion in denying 

Richelle's combined motions for a new trial. 

Therefore, we affirm the judgment of the District Court. 

6 

Justice r/ 
we concur: 

i 

Justices 

7 
January 23, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

BRUCE E. LEE 

Attorney at Law 

P.O. Box 1222 

Billings, MT 59103 

Linda L. Harris 

HARRIS LAW FIRM 

Suite 15 - Main Plaza 

926 Main Street 

Billings, MT 59105 

ED SMITH 

CLERK OF THE SUPREME COURT