                                                                                        February 19 2013


                                           DA 12-0276

                   IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2013 MT 42N


IN RE MARRIAGE OF:
JEFFERY D. BAIN,

               Petitioner and Appellant,

         v.

WILHELMINA J. BAIN,

               Respondent and Appellee,

         and

TRAVIS BAIN,

               Appellant and Intervenor.


APPEAL FROM:            District Court of the Seventh Judicial District,
                        In and For the County of Dawson, Cause No. DR 08-043
                        Honorable Richard A. Simonton, Presiding Judge


COUNSEL OF RECORD:

                 For Appellant:

                        Albert R. Batterman, Attorney at Law, Baker, Montana

                 For Appellee:

                        Peter O. Maltese, Attorney at Law, Sidney, Montana


                                                    Submitted on Briefs: January 9, 2013
                                                               Decided: February 19, 2013


Filed:

                        __________________________________________
                                          Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1     Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not serve

as precedent. Its case title, cause number, and disposition shall be included in this Court’s

quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2     Jeffery Bain appeals from the District Court’s Findings of Fact, Conclusions of Law

and Decree of Dissolution of Marriage filed October 6, 2011, and the Order Amending

Findings of Fact filed April 12, 2012. We affirm.

¶3     The parties were married in 1989 and separated in 2008. Prior to separation the

parties operated a trucking company. Major issues in the property division arose from

valuation of the assets and liabilities of that enterprise, and from the respective ownership

interests of Jeffery, Wilhelmina and their son Travis, who intervened as a party in the

divorce action. The District Court conducted a bench trial in July 2011 and issued findings

of fact, conclusions of law and an order in October, 2011. Wilhelmina moved to alter or

amend, in April 2012, and the District Court entered an order amending its findings and

order. Jeffery argues that the District Court’s division of the marital assets is not supported

by substantial evidence; that the Court’s conclusions of law are clearly erroneous; and that

the Court abused its discretion by accepting medical expense evidence from Wilhelmina.

¶4     A district court’s division of marital property is governed by § 40-4-202, MCA, which

requires consideration of all relevant factors to “equitably apportion” the property between

the parties. Arnold v. Sullivan, 2010 MT 30, ¶ 23, 355 Mont. 177, 226 P.3d 594. This Court

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reviews a district court’s findings of fact regarding the division of marital assets to determine

whether the decision is clearly erroneous. A finding is clearly erroneous if it is not supported

by substantial evidence, if the district court misapprehended the effect of the evidence, or if

our review of the evidence convinces us that the district court made a mistake. In re

Marriage of Tummarello, 2012 MT 18, ¶ 21, 363 Mont. 387, 270 P.3d 28. If the factual

findings are not clearly erroneous, we will reverse the district court’s decision if there has

been an abuse of discretion; which occurs when the district court acts arbitrarily without

employment of conscientious judgment or exceeds the bounds of reason, resulting in a

substantial injustice. In re Marriage of Jackson, 2008 MT 25, ¶ 9, 341 Mont. 227, 177 P.3d

474.

¶5     Here the District Court conducted a bench trial, and received hundreds of pages of

exhibits along with the briefs of the parties prior to issuing its findings of fact and

conclusions of law. The District Court specifically found: “Complicating this case is the

absence of any expert testimony in the form of accountants and appraisers. The Court is

limited to witnesses who generally do not agree and exhibits which often do not support the

testimony.” Nonetheless, the District Court allocated the trucking business, its assets and its

indebtedness to Jeffery because he “is the experienced trucker and he has had sole control

over the trucking assets for the past three years, and he has incurred any indebtedness that is

associated with that business. . . .”

¶6     The District Court considered further arguments and evidence upon Wilhelmina’s

motion to alter or amend, and issued amended findings. The District Court noted that Jeffery

raised the issue of a $30,000 tax liability for the first time post-trial, resulting from amended
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tax returns that Jeffery filed. This liability arose from the trucking company, covered tax

years after the parties separated, and “is being assumed by Jeffery.” The amended findings

increased Jeffery’s debt and reduced Wilhelmina’s debt, resulting in a determination that

there should be a $50,000 equalization payment to her, reduced from $90,000 as initially

ordered. While there was conflicting evidence, the District Court achieved as equitable a

division of the parties’ complicated assets and liabilities as was possible under the

circumstances. Jeffery has not established that the District Court’s findings of fact are

clearly erroneous or that its conclusions of law are an abuse of discretion.

¶7     The District Court’s findings of fact are supported by substantial evidence and there

was not an abuse of discretion. We have determined to decide this case pursuant to Section

I, Paragraph 3(d) of our Internal Operating Rules, which provides for memorandum

opinions.

¶8     Affirmed.

                                                  /S/ MIKE McGRATH

We concur:

/S/ BETH BAKER
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ JIM RICE




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