NO. 95-155 INTHESUPREME

COURTOFTHESTATEOFMONTANA 1995
IN REMARRIAGEOF DEBRARUTHMINER,

Petitioner andRespondent,
v. JOHNNATHANMINER,

Respondent andAppellant.

APPEALFROM: District Court of the Eighth Judicial District,

In andfor the County of Cascade, TheHonorable JohnM.McCarvel, Judge presiding.

COUNSELOFRECORD:

ForAppellant: Kory Larsen, Larsen andNeill, Great Falls, Montana For Respondent: DebraJ. Upton, MontanaLegal Services Assoc., Great Falls, Montana

Filed: Submitted onBriefs: August 24, 1995 Decided: November 7, 1995Justice William E. Hunt, Sr., delivered the Opinion of the Court.

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1995 Internal Operating Rules, the following decision shall not be cited as precedent and shall bepublished by its filing as apublic document with the Clerk of this Court and by areport of its result to State Reporter Publishing Company and West Publishing Company. Appellant John Miner appeals the Findings of Fact and Conclusions of Lawentered onDecember 16, 1994, and the subsequent denial of amotion for anew trial entered in the Eighth Judicial District Court of Montana, Cascade County. Weaffirm. Werestate the following issues raised on appeal: 1. Did the District Court err in its findings of facts and conclusions of law:

a) in awarding MS. Miner maintenance; b) in dividing the property of the marriage; c) in adopting Ms. Miner's proposed findings verbatim? 2. Did the District Court err in denying John Miner's motion for anew trial? FACTS John and Debra Miner were married onMay 31, 1975. There are two children of the marriage; Michael, born April 12, 1979 and Heather, born March 31, 1983. John, respondent and appellant, resides in Mississippi with the son. The custody of Michael is under the jurisdiction of Mississippi and is not affected by this 2action. Debra, petitioner and respondent, and the daughter live in

Great Falls. The marriage of the parties was dissolved by a British Court onAugust 11, 1992; that court did not decide custody issues, child support, maintenance or property distribution. John joined the U.S. Air Force in 1974 and received an honorable discharge on August 13, 1992. He then moved to Mississippi and began working for Beech Aerospace in July of 1993. Upon discharge from the service, John received a lump sumpayment of approximately $32,000. Hehas served over eighteen years in the military which mayeventually beput towards aretirement pension. Debra received enough credits to obtain an Associate Degree prior to the divorce. She is currently apart time student at the College of Great Falls working towards adouble major in psychology and sociology. Debra has awork study position and in addition to student loans she is receiving Aid to Families with Dependent Children. The order from which John appeals awarded the parties joint custody of both children, with Debra as the primary physical custodian of Heather. Debra wasawarded maintenance, calculated at $500 amonth for sixty-five months. In addition, John was ordered to pay Debra two lump sum maintenance payments of $3,000 each in 1995 to offset her student loans. Each party was then awarded personal property currently in his or her possession. John filed
amotion for anew trial, which was denied on March 9, 1995.ISSUE 1

Did the District Court err in its findings of fact and conclusions of law? The standard weuse when reviewing adistrict court's findings of fact is whether they are clearly erroneous. Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 322, 820 P.2d 1285, 1287. The standard of review of a district court's conclusions of law is whether the court's interpretation of the law is correct. Carbon County v. Union Reserve Coal Co. (1995), Mont. _, 898 P.2d 672. A Appellant first contends the District Court erred in awarding Debra maintenance. Acourt mayaward maintenance after the marital property has been equitably divided. In re Marriage of Eschenbacher (1992), 253 Mont. 139, 142, 831 P.2d 1353, 1355. The court then applies §40-4-203, which reads as follows: In a proceeding for dissolution of marriage or legal separation or a proceeding for maintenance following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse, the court may grant amaintenance order for either spouse only if it finds that the spouse seeking maintenance: (a) lacks sufficient property to provide for his reasonable needs; and (b) is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home. (2) The maintenance order shall be in such amounts and for such periods of time as the court deems just, without regard to marital misconduct, and after considering all relevant facts including: (a) the financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, 4including the extent to which aprovision for support of

a child living with the party includes a sumfor that party as custodian; (b) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment; (c) the standard of living established during the marriage; Cd) the duration of the marriage; (e) the age and the physical and emotional condition of the spouse seeking maintenance; and (f) the ability ofthe spousefromwhommaintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.
Onappeal Johnargues the court failed to consider Debra's property andher ability to support herself through appropriate employment. Asfor the property of the marriage, testimony reveals the location of muchof the property of the marriage is in dispute. Therewere several different shipments from England, andsomeitems
were placed in storage prior to the couple's departure overseas. Thecourt specifically awarded Debra maintenance after considering the property of the marriage: "[rlather than award Petitionermother property that shewill never obtain, amonthly payment will better serve her rehabilitation andeducation needs." As for Debra's employment, Debra testified that she is working towards two degrees andplans on looking for a seasonal job. Debra haslimited employment opportunities without extensive further education, and asthe court found her employment history hadbeen "significantly impacted byaccompanying Respondent-father
onhis overseas military assignments." Bygoing to college, Debra is working towards providing for both herself andher daughter by furthering her education.Thecourt lists six reasons asto whyDebra is to receive an

award of maintenance. Thefindings reflect adequate consideration of both the property and Debra's employment. Absent any clear error, wewill affirm the District Court's award of maintenance. In re Marriage of D.F.D andD.G.D (1993), 261Mont. 186, 201, 862 P.2d 368, 377; Eschenbacher , 831P.2d 1353. TheDistrict Court's findings were substantiated by evidence presented at trial, therefore weaffirm the award of maintenance. B Appellant also contends the court erred inthe division of the marital property. Johnargues the personal property wasequitably divided by the parties at the time of the dissolution. John testified Debra hadthe opportunity to take from the marriage all the personal property shedesired. Johnfurther argues the court's
error in the division of the property unfairly contributed to the decision to award maintenance. At trial Debra testified she cameback to Montana with a suitcase andsomeclothes. In addition shereceived either oneor two shipments of property from England. Asmentioned before, the parties dispute both the value and the location of most of the items. Thecourt found Debra to bethe more credible witness and therefore found her valuations of the property to be the most reasonable. In this caseDebra valued items bymemoryandlooking at catalogues. TheDistrict Court adoption of her valuations and the subsequent disposition of this property does not reflect an abuseof discretion. SeeIn reMarriage of Luisi (1988), 232Mont.
6243, 247, 756P.2d 456, 459. Thecourt's interpretation of the law

wascorrect. Therefore weaffirm the District Court's findings regarding the disposition of property.
c Johnargues the court's adoption of Debra's proposed findings verbatim is error. In support of his argument, John contends that supplemental evidence submitted bycounsel onDecember 12, 1994, is not reflected in the findings of fact andconclusions of law, and therefore the court ignored this evidence. However, just the court did not include the supplementary evidence findings does not meanthe evidence wasnot considered. (a), M.R.Civ.P., states in part that: because in the Rule 52

The court may require any party to submit proposed findings of fact andconclusions of law for the court's consideration and the court may adopt such proposed findings or conclusions solong asthey are supported by the evidence andthe law.
The record shows the findings of fact and conclusions of law submitted bythe respondent are supported bythe evidence. Therefore, we affirm the District Court's findings and conclusions. ISSUE2 Did the District Court err in denying JohnMiner's motion for
anewtrial? Thedecision to grant or deny anewtrial is within the sound discretion of the trial judge andwill not bedisturbed absent a showing of manifest abuse of that discretion. Baxter v. Archie 7Cochrane Motors, Inc. (1995),

632. Mont, , 895 P.Zd 631, ,

John bases his motions for newtrial on §25-ll-102(4), MCA, which reads as follows:
Grounds for new trial. The former verdict or other decision may be vacated and anew 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, jury, or adverse party or any order of the court or abuse of discretion by which either party was prevented from having afair trial;

. . .(4) newly discovered evidence material for the party making the application which he could not, with reasonable diligence, have discovered andproduced at the trial;

. . .(6) insufficiency of the evidence to justify the verdict or other decision or that it is against law;

. . . On appeal John contends there is newly discovered evidence, insufficiency of evidence, and an irregularity of the proceedings. The newly discovered evidence John wants to present concerns the custody wishes of the daughter Heather. John alleges that Heather changed her mind concerning her custody preference shortly after spending the evening with her father and his family. A party moving for a new trial on the basis of newly discovered evidence must show: 1) this evidence came to the party's knowledge since the trial; 2) it was not through want of diligence that the evidence wasnot discovered earlier; 3) the evidence is so material that it would probably produce a different result upon

8retrial; 4) the evidence is not merely cumulative; 5) the witness

whose evidence is newly discovered has signed anaffidavit which supports the application; and6)the evidence doesnot tend only to impeach the character or credibility of awitness. Donovan v. Graff (1988), 231 Mont. 456, 458, 753 P.2d 878, 879 (citing Kerrigan v. Kerrigan (1943), 115Mont. 136, 144-45, 139P.2d 533, 535).At trial, the judge in this casehadaprivate discussion with the daughter, at that time the girl expressed apreference to live with her mother. Then after spending time with her father, perhaps Heather changed her mind. However, John has failed to provide the necessary basis to justify anewtrial. The record doesnot contain anaffidavit from the daughter in support of this motion, rather the counsel for the father submitted anaffidavit. Furthermore, John has failed to show that Heather's change in preference is so substantial as to warrant a different result regarding Heather's custody. Heather has been in the continuous care of her mother since birth, and madestatements at trial to the effect of wanting to continue to live with her mother. Testimony supports afinding that Heather has agood homein Great Falls. This court did not abuse its discretion in denying anewtrial based onnewevidence. As for John's argument of insufficient evidence, appellant refers back to his argument concerning the award of maintenance. Since the evidence submitted wassufficient to support anaward of maintenance, anewtrial wasnot warranted.
9Last, Johncontends there wasanirregularity in proceedings.

Again he refers back to his argument in regard to maintenance. While the Judge in this matter perhaps spoke prematurely regarding the award of maintenance, this does not provide John with a "manifest abuse of discretion" sufficient to grant anewtrial. Furthermore the transcript showscounsel madenoobjection to the Judge's remarks. Objecting during the trial alerts the trial court that it maybe subjecting itself to anappeal. SeeGeev. Egbert (1984) r209Mont. 1, 19, 679P.2d 1194, 1203. Wetherefore affirm the District Court denial of the appellant's motion for a new trial. Affirmed.

WeConcur:

'Chief/Justice

Justiccs 7 '

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