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                                                                No. 99-001

                           IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                             1999 MT 306N



IN RE THE MARRIAGE OF

BOBBI JO HACKMANN,

f/k/a BOBBI JO BELLANGER,

Petitioner and Respondent,

and

LELAND H. BELLANGER,

Respondent and Appellant.




                                                          APPEAL FROM: District Court of the Seventh Judicial
                                                          District,

In and for the County of Richland,

The Honorable Richard G. Phillips, Judge presiding.




COUNSEL OF RECORD:

For Appellant:

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Loren J. O'Toole, II; O'Toole & O'Toole, Plentywood, Montana

For Respondent:

Phillip N. Carter, Attorney at Law, Sidney, Montana




Submitted on Briefs: July 22, 1999

Decided: December 7, 1999

Filed:




__________________________________________

Clerk

Justice W. William Leaphart delivered the Opinion of the Court.



      1. ¶ Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
         Operating Rules, the following decision shall not be cited as precedent but shall be
         filed as a public document with the Clerk of the Supreme Court and shall be
         reported by case title, Supreme Cgourt cause number, and result to the State
         Reporter Publishing Company and to West Group in the quarterly table of
         noncitable cases issued by this Court.
      2. ¶ Leland H. Bellanger (Leland) appeals from the judgment of the District Court for
         the Seventh Judicial District, Richland County, dissolving his marriage to Bobbi Jo
         Bellanger (Bobbi Jo) and dividing their marital assets and liabilities. We affirm.
      3. ¶ We restate the sole issue on appeal as whether the District Court’s allocation of the
         parties’ assets and liabilities in dividing the marital estate constituted an abuse of
         discretion. Leland’s notice of appeal states that he is appealing from the District

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       Court’s August 13, 1998 judgment. The District Court’s Findings of Fact,
       Conclusions of Law and Decree of Dissolution of Marriage were actually filed on
       August 7, 1998, but we interpret the notice of appeal as referring to that judgment
       rather than the order denying Leland’s motion to alter or amend judgment pursuant
       to Rule 59(g), M.R.Civ.P. The record reflects that Leland did not file a notice of
       appeal from the Order denying his Rule 59(g) motion dated October 9, 1998. Rule 4
       (c) of the Montana Rules of Appellate Procedure requires that the notice of appeal
       "shall designate the judgment, order or part thereof appealed from." We will not
       construe an appeal as encompassing an order not designated in the notice of appeal.
       See State v. Spotted Blanket, 1998 MT 59, ¶ 12, 288 Mont. 126, ¶ 12, 955 P.2d
       1347, ¶ 12 (citing State v. Delap (1989), 237 Mont. 346, 350_51, 772 P.2d 1268,
       1271). We therefore do not consider whether the District Court properly denied
       Leland’s Rule 59(g) motion.

                                                            Standard of Review

     4. ¶ We review a district court’s division of marital property to determine whether the
       findings of fact are clearly erroneous. If substantial credible evidence supports the
       court’s findings and judgment, we will not change the district court’s decision
       unless the court abused its discretion. See In re Marriage of Smith (1995), 270 Mont.
       263, 267-68, 891 P.2d 522, 525 (citation omitted). In a marriage dissolution
       proceeding, the test for an abuse of discretion is " 'whether the trial court acted
       arbitrarily without employment of conscientious judgment or exceeded the bounds
       of reason resulting in substantial injustice.' " See In re Marriage of Meeks (1996),
       276 Mont. 237, 242, 915 P.2d 831, 834 (citations omitted). Property valuation is a
       factual issue within the province of the trial court. When reviewing findings of fact,
       we do not set aside findings of a court sitting without a jury unless the findings are
       clearly erroneous. Marriage of Meeks, 276 Mont. at 247-48, 915 P.2d at 838.

                                               Factual and Procedural Background

     5. ¶ Bobbie Jo and Leland were married in Daniels County, Montana in 1994. They
       separated in 1997 and Bobbi Jo petitioned for dissolution of the marriage. After a
       hearing, the District Court issued its Findings of Fact, Conclusions of Law and
       Decree of Dissolution of Marriage. Leland subsequently moved the court to alter or
       amend the judgment pursuant to Rule 59(g) of the Montana Rules of Civil
       Procedure. The District Court denied Leland’s motion after briefing by both parties.

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          Leland appeals from that portion of the Findings of Fact, Conclusions of Law and
          Decree of Dissolution dividing the parties’ assets and liabilities.

                                                                   Discussion

     6. ¶ Did the District Court’s allocation of the parties’ assets and liabilities in dividing
          the marital estate constitute an abuse of discretion?
     7.   ¶ The District Court’s allocation of assets and liabilities between Leland and Bobbi
          Jo was set forth in the court’s Exhibit B, which was incorporated by reference into
          the court’s findings of fact. Leland contends that the court abused its discretion in
          omitting his $29,680 debt to Larrie and Karen Smith (Smith debt), his $25,000 debt
          to Bliss Farms (Bliss Farms debt), and his $10,000 debt to Commodity Credit
          Corporation (Commodity Credit debt) from Exhibit B. He further contends the court
          abused its discretion in valuing Leland’s swather at $10,000 and in allocating a
          $10,000 truck and corresponding $9,351.24 truck debt to Leland. Leland claims that
          as a result of these omissions and overstatements, his net worth was overvalued.
     8.   ¶ Judge Phillips noted in his findings of fact that he viewed Leland’s testimony with
          some distrust, that the financial information Leland provided was internally
          inconsistent, and that Leland had disposed of the swather in violation of a
          restraining order.
     9.   ¶ The division of property in a proceeding for dissolution of marriage is governed
          by § 40-4-202, MCA. Under this statute, the District Court has broad discretion to
          equitably distribute the parties’ property between them. See, e.g., In re Marriage of
          Baer, 1998 MT 29, ¶ 30, 287 Mont. 322, ¶ 30, 954 P.2d 1125, ¶ 30.
 10.      ¶ Leland argues that his Smith and Bliss Farm debts are undisputed in the record.
          Without further elaboration, Leland asserts that the court abused its discretion in
          ignoring these liabilities. Bobbi Jo responds and the record shows that Leland failed
          to list these debts on pretrial interrogatories and on a balance sheet admitted at trial
          which Leland and his father had submitted to the federal government for an
          operating loan.
 11.      ¶ We must give due regard to the opportunity of the trial court to judge the
          credibility of witnesses. Rule 52(a), M.R.Civ.P. It is the duty and function of the
          district court to resolve conflicts in evidence, and we will not substitute our
          judgment for that of the district court on such matters. In re Marriage of Pearson,
          1998 MT 236, ¶ 51, 291 Mont. 101, ¶ 51, 965 P.2d 268, ¶ 51 (citation omitted). It
          was within the province of the District Court to weigh Leland’s testimony that he
          owed the Smith and Bliss Farm debts with conflicting information and find that

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        Leland had not credibly established that he owed these debts. The fact that the
        District Court did not list the Smith and Bliss Farm debts on its Exhibit B does not
        indicate that the court simply ignored these debts and was not an abuse of discretion.
  12.   ¶ Leland also argues that the District Court’s Exhibit B failed to list or take his
        Commodity Credit debt into account. Leland first claimed he owed this debt in the
        middle of the trial and provided no documentation concerning this debt. The District
        Court’s omission of the Commodity Credit debt from its Exhibit B was also not an
        abuse of discretion.
  13.   ¶ Next, Leland argues that the District Court overstated his net worth by awarding
        him a 1989 Ford 4 x 4 pickup truck valued at $10,000 and the corresponding debt of
        $9,351.24 owed to Citizen State Bank. Leland argues that the truck has been
        repossessed by the bank and his net worth has therefore been overstated. If the truck
        had been repossessed, the bank would have extinguished the debt. Therefore, the
        District Court did not abuse its discretion by awarding the truck and the
        corresponding debt to Leland.
  14.   ¶ Finally, Leland argues that the District Court incorrectly valued his swather at
        $10,000. Leland argued at trial that the swather was worth $0 because it had no
        motor. Leland also testified at trial that he had given the swather away. This violated
        the District Court’s restraining order, of which Leland testified he was aware. Bobbi
        Jo valued the swather at $10,000. The District Court did not abuse its discretion by
        estimating the value of the swather Leland had given away in violation of a court
        order to be $10,000 and assigning that asset to Leland.
  15.   ¶ Affirmed.

/S/ W. WILLIAM LEAPHART




We concur:

/S/ J. A. TURNAGE

/S/ JIM REGNIER


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/S/ TERRY N. TRIEWEILER

/S/ KARLA M. GRAY




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