                                    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   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.


COUNSELOF RECORD:
              For Appellant:
                     Kory Larsen,   Larsen and Neill,        Great    Falls,     Montana
              For Respondent:
                     Debra J. Upton, Montana Legal Services            Assoc.,       Great
                     Falls,  Montana


                                     Submitted      on Briefs:       August    24,    1995
                                                      Decided:       November 7, 1995
Filed:
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

                                                                                        2
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,

                                                                            4
         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         Petitioner-
mother 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.

                                                              6
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        because
the    court       did     not       include         the        supplementary              evidence            in     the
findings       does not mean the evidence                           was not          considered.               Rule    52
(a),   M.R.Civ.P.,          states          in part        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          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),                        Mont,              ,           , 895 P.Zd              631,
632.
         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

                                                                      8
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.

                                                                        9
         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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