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                                                                 No. 99-038



                               IN THE SUPREME COURT OF THE STATE OF MONTANA



                                                              1999 MT 184N




IN RE THE MARRIAGE OF



BARBARA JEAN ZIMDAR,



Petitioner and Respondent,



and



GERALD LEE ZIMDAR,



Respondent and Appellant.




APPEAL FROM: District Court of the Fifth Judicial District,



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In and for the County of Jefferson,

Honorable Frank M. Davis, Judge Presiding.




COUNSEL OF RECORD:



For Appellant:



Michael Scott Winsor, Winsor Law Firm, Helena, Montana



For Respondent:



Julia M. Weddle, Helena, Montana




Submitted on Briefs: July 15, 1999



Decided: July 28, 1999



Filed:




__________________________________________

Clerk

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Chief Justice J. A. Turnage 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 Court 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. Gerald Lee Zimdar (Jerry) appeals from the judgment entered by the Fifth
Judicial District Court, Jefferson County, in this dissolution of marriage. We affirm.

¶3. Jerry argues that the District Court should have continued the dissolution
hearing at which he failed to personally appear. He initially alleges that the court's
failure to continue the hearing deprived him of property without due process of law.
He makes this argument despite his admissions that he received notice of the hearing
and that his counsel was present at the hearing but did not move for a continuance.
Jerry has not cited any case law supporting his argument, but he has pointed out two
cases which undermine it: In re Marriage of Miller (1993), 260 Mont. 15, 858 P.2d
338, and In re Marriage of Robbins (1985), 219 Mont. 130, 711 P.2d 1347. Under the
facts of this case, we see no due process violation.

¶4. Moving beyond the constitutional argument, our standard of review for
discretionary trial court rulings such as denial of a motion for a continuance is
whether the district court abused its discretion. In re Marriage of Zuelke (1995), 274
Mont. 362, 367, 909 P.2d 684, 686. Sections 25-4-501 and -503, MCA, set forth two
statutory grounds on which a court may grant a continuance. Section 25-4-501,
MCA, provides that "[a] motion to postpone a trial on grounds of the absence of
evidence shall only be made upon affidavit showing the materiality of the evidence
expected to be obtained and that due diligence has been used to procure it." Section
25-4-503, MCA, states that "[u]pon good cause shown and in furtherance of justice,
the court may, in its discretion, postpone a trial or proceeding upon other grounds
than the absence of evidence under such conditions as the court may direct."


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¶5. A court does not abuse its discretion in denying a motion for continuance to
obtain additional evidence if no affidavit is filed to support the motion. Matter of T.M.
M. (1988), 234 Mont. 283, 289, 762 P.2d 866, 870-71. In this case, not only was no
affidavit filed, but Jerry's counsel specifically asked the court to proceed with the
hearing and enter a decree of dissolution. We hold the court did not abuse its
discretion in failing to grant a continuance.

¶6. Jerry next argues that the court's property distribution was based upon Barbara
Zimdar's incomplete and self-serving testimony and did not comport with the
standards set forth at § 40-4-202, MCA. Jerry asserts that the court did not inquire
about the duration of the marriage, prior marriages, valuation of the real property,
marital contributions, valuation of personal property, proof of who made payments
on real or personal property, or retirement benefits and life insurance policies.

¶7. We have noted that the factors set forth at § 40-4-202, MCA, are not requisite
criteria to be individually itemized in every property distribution decree. Cruikshank
v. Cruikshank (1986), 222 Mont. 152, 154, 720 P.2d 1191, 1193. As long as the trial
court gives the basis of its ultimate conclusions and findings of fact, this Court will
not interfere with the exercise of the trial court's discretion. Cruikshank, 222 Mont.
at 154, 720 P.2d at 1193.

¶8. Contrary to Jerry's assertions, the hearing transcript includes inquiries about the
duration of the parties' marriage, marital contributions, and the value of the 1960
mobile home, the largest item of personal property. The record indicates that marital
property was minimal. While Jerry complains that the court included in the marital
estate property owned by his father, the court properly noted that the extent of the
marital interest in that property was "a contingency to a life estate remainder." To
the extent that this represented a marital interest in the property, the court awarded
that interest to Jerry.

¶9. The District Court adequately set forth the basis of its property distribution
decree in its findings, conclusions, and judgment. We hold that the court did not act
arbitrarily or exceed the bounds of reason in dividing the parties' property.

¶10. We affirm the decision of the District Court.




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/S/ J. A. TURNAGE



We concur:



/S/ JAMES C. NELSON

/S/ TERRY N. TRIEWEILER

/S/ WILLIAM E. HUNT, SR.

/S/ W. WILLIAM LEAPHART




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