MARRIAGE OF MINER
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NO. 95-155 IN THE SUPREMECOURT OF THE STATE OF MONTANA 1995 IN RE MARRIAGE OF DEBRA RUTH MINER, Petitioner and Respondent, v. JOHN NATHAN MINER, Respondent APPEAL FROM: and Appellant. District Court of the Eighth Judicial District, In and for the County of Cascade, The Honorable John M. McCarvel, Judge presiding. COUNSELOF RECORD: For Appellant: Kory Larsen, Larsen and Neill, Great Falls, Montana For Respondent: Debra J. Upton, Montana Legal Services Falls, Montana Submitted Filed: on Briefs: Decided: Assoc., August 24, Great 1995 November 7, 1995 Justice William E. Hunt, Pursuant to 1995 Internal cited to Section with Rules, State the Clerk this Opinion of Montana Supreme decision 3(c), shall following be published of Reporter the Paragraph and shall the delivered I, Operating as precedent document Sr., Court Publishing by its filing and Court. Court not be as a public and by a report Company the of West its result Publishing Company. Appellant Conclusions denial John Miner appeals on December of Law entered of District a motion Court for of the 16, a new trial Montana, Findings 1994, entered Cascade in of and the the Fact and subsequent Eighth Judicial County. We affirm. We restate the 1. District Did conclusions the of following issues Court err in awarding MS. Miner b) in dividing the property c) for in in adopting Ms. Miner's District Court Did its on appeal: findings of facts and law: a) 2. raised the maintenance; err of marriage; proposed in the findings denying John verbatim? Miner's motion a new trial? FACTS John two and Debra children of born Heather, resides under in the the March Mississippi jurisdiction Miner were married Michael, marriage; 31, 1983. with of on May 31, born April John, son. the Mississippi 2 respondent The custody and is not 1975. 12, and of affected There are 1979 and appellant, Michael is by this action. Debra, Great petitioner Falls. The and respondent, marriage of the parties 1992; that court British Court on August 11, issues, child support, maintenance John joined honorable the Mississippi from approximately military prior to for be put she obtain towards study Aid July of to 1993. sum payment years in the pension. time at student major position to moved Degree a double receiving in an an Associate a part has a work a custody a retirement currently is then eighteen working Debra loans to by received a lump over towards credits decide and He She is Falls and sociology. 1974 received may eventually divorce. not in distribution. 1992. John live dissolved Beech Aerospace service, enough did in He has served of Great student 13, working the received the College Force $32,000. which Debra Air daughter was or property August on and began Upon discharge of U.S. discharge and the in psychology and in Families the addition with to Dependent Children. The custody order of custodian from both for to two 1995 to children, of Heather. $500 a month pay which Debra offset sixty-five lump her personal property a motion for Debra appeals with was awarded which his the Each or party parties primary maintenance, payments loans. in as the joint physical calculated In addition, sum maintenance currently awarded Debra months. student a new trial, John John of was her on March was ordered $3,000 then each 9, in awarded John possession. was denied at 1995. filed ISSUE Did the conclusions District of fact is 1285, Credit 1287. law is of law correct. Mont. they v. The conclusions in its we use when reviewing whether Production err Court findings of fact and law? The standard of 1 are DeSaye is of whether Carbon County 898 P.2d _, clearly (1991), standard a district 250 Mont. the findings erroneous. review v. court's 320, of court's Interstate a 322, 820 P.2d district court's interpretation of the Union Reserve Coal Co. (1995), 672. District Court erred in awarding after the marital re Marriage A Appellant Debra maintenance. property has Eschenbacher court first then contends A court been (1992), applies the may award equitably 253 Mont. § 40-4-203, maintenance In divided. 139, which 142, 831 P.2d reads 1353, 1355. 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: lacks sufficient property to provide for his (a) 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, marital without regard to 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, 4 of The 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; of the marriage; Cd) the duration (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 and her ability to support As for location There were several were placed the in of better serve As working job. that prior she will two degrees Debra has limited education, overseas and plans is working towards providing furthering her education. for both overseas. Petitioner- a monthly payment will needs." testified that for she extensive her employment history Respondent-father By going herself is a seasonal without by accompanying assignments." and some items considering on looking found dispute. award opportunities court impacted military Debra in the after than and education employment is departure never obtain, and as the had been "significantly on his "[rlather employment, reveals from England, to the couple's marriage: Debra's towards further shipments her rehabilitation for the marriage property employment. testimony awarded Debra maintenance the mother property of Debra's appropriate of the marriage, different storage to consider through the property specifically property failed herself the property of much of The court the court to college, Debra and her daughter by The court lists six reasons as to why Debra is to receive award of maintenance. The findings reflect of and Debra's employment. both error, the property we will affirm the District In re Marriage of D.F.D P.2d 368, Eschenbacher 377; The District presented at trial, Court's and D.G.D Court's adequate an consideration Absent any clear award of maintenance. (1993), 261 Mont. 186, 201, 862 , 831 P.2d 1353. findings therefore were substantiated we affirm by evidence the award of maintenance. B Appellant also contends marital property. divided by testified John argues the parties at property in the division decision At erred the personal the time Debra had the opportunity the personal error the court in the division property of the to take she desired. was equitably dissolution. John from the marriage John further of the property of the argues unfairly all the court's contributed to the to with to award maintenance. trial suitcase Debra testified and some clothes. two shipments dispute items. The court therefore both found reasonable. her In this either As mentioned value location valuations and the of the case Debra valued The District the disposition abuse of discretion. she received of Debra to be the more credible at catalogues. subsequent Montana from England. the found came back In addition of property parties she Court of this items adoption property See In re Marriage 6 property to a one or before, most of witness be the the the and most by memory and looking of her valuations does not of Luisi (1988), reflect and an 232 Mont. 243, 247, 756 P.2d 456, 459. The court's interpretation of the law was correct. Therefore we affirm the disposition the District Court's findings regarding of property. c John argues verbatim is error. supplemental therefore findings (a), submitted did ignored not of Debra's of his of fact this include the states in part proposed findings John contends that on December 12, 1994, is and conclusions evidence. of law, However, supplementary does not mean the evidence M.R.Civ.P., argument, by counsel in the findings the court court adoption In support evidence not reflected the the court's was not just and because evidence in considered. Rule the 52 that: 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 submitted shows the findings by the respondent Therefore, of fact and conclusions are supported we affirm the of law by the evidence. 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 discretion showing of the of manifest to grant trial or deny a new trial judge abuse of and will that 7 is within not be disturbed discretion. Baxter the sound absent v. Archie a Cochrane Motors, Inc. (1995), , Mont, , 895 P.Zd 631, 632. John which bases reads his motions for new trial on § 25-ll-102(4), MCA, as follows: The former verdict or other Grounds for new trial. decision may be vacated and a new trial granted on the for any of the application of the party aggrieved following causes materially affecting the substantial rights of such party: irregularity in the proceedings of the court, (1) 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; . . . newly discovered evidence material for the (4) party making the application which he could not, with reasonable diligence, have discovered and produced at the trial; . . . insufficiency of the evidence to justify the (6) verdict or other decision or that it is against law; . . . On appeal John insufficiency custody Heather after knowledge the material party evidence that with for trial; was not it John would discovered a her her new show: 2) it and his the concerns alleges family. basis want 3) the a different that shortly of came to the through earlier; proceedings. preference evidence produce 8 John on was not probably present custody trial discovered the to wants father 1) this evidence, of Heather. concerning must the newly daughter mind moving evidence the evening the since evidence of her spending discovered that wishes is and an irregularity discovered changed A there of evidence, The newly the contends of newly party's diligence evidence result is so upon retrial; 4) the evidence whose evidence is is not merely newly supports the application; impeach the discovered Graff Kerrigan 231 or credibility Mont. v. Kerrigan has signed and 6) the evidence character (1988), cumulative; 456, (1943), of 458, an affidavit which does not tend only a witness. 753 115 Mont. 5) the witness P.2d 136, to Donovan v. 878, 879 144-45, (citing 139 P.2d 533, 535). At trial, the judge in this the daughter, with her at that mother. perhaps Heather provide the necessary rather is birth, that to Heather abuse its live However, justify to John as to her father, has failed to The record of this an affidavit. Heather's warrant with to live in support submitted show that change a different in result custody. with continuous at trial her mother. in denying care Falls. a new trial of back to his argument concerning a new trial effect Testimony argument submitted of her mother to the John's maintenance, with a new trial. has a good home in Great Since the evidence time the father failed has been in the discretion As for refers has spending discussion a preference from the daughter for and made statements continue to so substantial Heather's Heather basis expressed mind. an affidavit John regarding her the counsel Furthermore, preference the girl Then after changed does not contain motion, time case had a private insufficient the was sufficient was not warranted. 9 of wanting supports This since to a finding court did not based on new evidence. evidence, appellant award of maintenance. to support an award of Last, John contends Again he refers While the Judge in this the award "manifest back of to argument matter perhaps this the transcript remarks. that the r 209 Mont. District Objecting itself denial of trial. Affirmed. We Concur: 'Chief/Justice Justiccs 7 to ' 10 maintenance. grant regarding John alerts 1203. appellant's with a a new trial. made no objection to an appeal. the to provide the trial 1, 19, 679 P.2d 1194, Court regard not sufficient during in proceedings. spoke prematurely shows counsel may be subjecting (1984) in does discretion" Judge's it was an irregularity his maintenance, abuse of Furthermore there to the the trial court See Gee v. Egbert We therefore motion for affirm a new
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