NO. 95-155 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1995 

IN RE MARRIAGE OF 

DEBRA RUTH MINER, 

Petitioner and Respondent, 

v. 

JOHN NATHAN MINER, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable John M. McCarvel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Kory Larsen, Larsen and Neill, Great Falls, Montana 

For Respondent: 

Debra J. Upton, Montana Legal Services Assoc., Great 

Falls, Montana 

Filed: 

Submitted on Briefs: August 24, 1995 

Decided: November 7, 1995 
Justice 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 be published by its filing as a public 

document with the Clerk of this Court and by a report of its result 

to State Reporter Publishing Company and West Publishing 

Company. 

Appellant John Miner appeals the Findings of Fact and 

Conclusions of Law entered on December 16, 1994, and the subsequent 

denial of a motion for a new trial entered in the Eighth Judicial 

District Court of Montana, Cascade County. 

We affirm. 

We restate 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 a new trial? 

FACTS 

John and Debra Miner were married on May 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 

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action. Debra, petitioner and respondent, and the daughter live in 

Great Falls. The marriage of the parties was dissolved by a 

British Court on August 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 sum payment 

of approximately $32,000. He has served over eighteen years in the 

military which may eventually be put towards a retirement pension. 

Debra received enough credits to obtain an Associate Degree 

prior to the divorce. She is currently a part time student at the 

College of Great Falls working towards a double major in psychology 

and sociology. Debra has a work 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 was awarded maintenance, calculated at 

$500 a month 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 

a motion for a new 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 we use when reviewing a district 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. A court may award 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 a maintenance 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, 

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including the extent to which a provision for support of 

a child living with the party includes a sum for 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 of the spouse from whom maintenance 

is sought to meet his needs while meeting those of the 

spouse seeking maintenance. 

On appeal John argues the court failed to consider Debra's property 

and her ability to support herself through appropriate employment. 

As for the property of the marriage, testimony reveals the 

location of much of the property of the marriage is in dispute. 

There were several different shipments from England, and some items 

were placed in storage prior to the couple's departure overseas. 

The court specifically awarded Debra maintenance after considering 

the property of the marriage: "[rlather than award Petitionermother property that she will never obtain, a monthly payment will 

better serve her rehabilitation and education needs." 

As for Debra's employment, Debra testified that she is 

working towards two degrees and plans on looking for a seasonal 

job. Debra has limited employment opportunities without extensive 

further education, and as the court found her employment history 

had been "significantly impacted by accompanying Respondent-father 

on his overseas military assignments." By going to college, Debra 

is working towards providing for both herself and her daughter by 

furthering her education. 
The court lists six reasons as to why Debra is to receive an 

award of maintenance. The findings reflect adequate consideration 

of both the property and Debra's employment. Absent any clear 

error, we will affirm the District Court's award of maintenance. 

In re Marriage of D.F.D and D.G.D (1993), 261 Mont. 186, 201, 862 

P.2d 368, 377; Eschenbacher , 831 P.2d 1353. 

The District Court's findings were substantiated by evidence 

presented at trial, therefore we affirm the award of maintenance. 

B 

Appellant also contends the court erred in the division of the 

marital property. John argues the personal property was equitably 

divided by the parties at the time of the dissolution. John 

testified Debra had the opportunity to take from the marriage all 

the personal property she desired. John further argues the court's 

error in the division of the property unfairly contributed to the 

decision to award maintenance. 

At trial Debra testified she came back to Montana with a 

suitcase and some clothes. In addition she received either one or 

two shipments of property from England. As mentioned before, the 

parties dispute both the value and the location of most of the 

items. The court found Debra to be the more credible witness and 

therefore found her valuations of the property to be the most 

reasonable. In this case Debra valued items by memory and looking 

at catalogues. The District Court adoption of her valuations and 

the subsequent disposition of this property does not reflect an 

abuse of discretion. See In re Marriage of Luisi (1988), 232 Mont. 

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243, 247, 756 P.2d 456, 459. The court's interpretation of the law 

was correct. 

Therefore we affirm the District Court's findings regarding 

the disposition of property. 

c 

John argues the court's adoption of Debra's proposed findings 

verbatim is error. In support of his argument, John contends that 

supplemental evidence submitted by counsel on December 12, 1994, is 

not reflected in the findings of fact and conclusions of law, and 

therefore the court ignored this evidence. However, just 

the court did not include the supplementary evidence 

findings does not mean the evidence was not 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 and conclusions of law for the court's 

consideration and the court may adopt such proposed 

findings or conclusions so long as they are supported by 

the evidence and the law. 

The record shows the findings of fact and conclusions of law 

submitted by the respondent are supported by the evidence. 

Therefore, we affirm the District Court's findings and 

conclusions. 

ISSUE 2 

Did the District Court err in denying John Miner's motion for 

a new trial? 

The decision to grant or deny a new trial is within the sound 

discretion of the trial judge and will not be disturbed absent a 

showing of manifest abuse of that discretion. Baxter v. Archie 

7 
Cochrane Motors, Inc. (1995), 

632. 

Mont, , , 895 P.Zd 631, 

John bases his motions for new trial on § 25-ll-102(4), MCA, 

which reads as follows: 

Grounds for new trial. 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, 

jury, or adverse party or any order of the court or abuse 

of discretion by which either party was prevented from 

having a fair trial; 

. . . 

(4) newly discovered evidence material for the 

party making the application which he could not, with 

reasonable diligence, have discovered and produced 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 was not discovered earlier; 3) the evidence is so 

material that it would probably produce a different result upon 

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

whose evidence is newly discovered has signed an affidavit which 

supports the application; and 6) the evidence does not tend only to 

impeach the character or credibility of a witness. Donovan v. 

Graff (1988), 231 Mont. 456, 458, 753 P.2d 878, 879 (citing 

Kerrigan v. Kerrigan (1943), 115 Mont. 136, 144-45, 139 P.2d 533, 

535). 

At trial, the judge in this case had a private discussion with 

the daughter, at that time the girl expressed a preference 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 a new trial. The record 

does not contain an affidavit from the daughter in support of this 

motion, rather the counsel for the father submitted an affidavit. 

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 made statements at trial to the effect of wanting to 

continue to live with her mother. Testimony supports a finding 

that Heather has a good home in Great Falls. This court did not 

abuse its discretion in denying a new trial based on new evidence. 

As for John's argument of insufficient evidence, appellant 

refers back to his argument concerning the award of maintenance. 

Since the evidence submitted was sufficient to support an award of 

maintenance, a new trial was not warranted. 

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Last, John contends there was an irregularity 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 a new trial. 

Furthermore the transcript shows counsel made no objection to the 

Judge's remarks. Objecting during the trial alerts the trial court 

that it may be subjecting itself to an appeal. See Gee v. Egbert 

(1984) r 209 Mont. 1, 19, 679 P.2d 1194, 1203. We therefore affirm 

the District Court denial of the appellant's motion for a new 

trial. 

Affirmed. 

We Concur: 

'Chief/Justice 

Justiccs 7 ' 

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