In Re the Marriage of Kink

No. 8 6 - 2 2 8
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
IN RE THE MARRIAGE OF
JEAN McINNES KINK,
Petitioner and Respondent,
and
PAUL MARTIN KINK,
Respondent and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Joseph B. Gary, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Joseph W. Sabol, Bozeman, Montana
For Respondent:
Edmund P. Sedivy, Bozeman, Montana
Submitted on Briefs: Feb. 5, 1 9 8 7
Decided: A p r i l 7 , 1 9 8 7
Filed: APR 'i! -- 1907
Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
Respondent husband appeals the order of the District
Court of the Eighteenth Judicial District in and for Gallatin
County, Montana. He challenges the court's jurisdiction to
amend its original findings of fact and conclusions of law.
We affirm the District Court.
Paul and Jean Kink's seven year marriage was dissolved
May 21, 1984. Each party had been married previously. Jean
had three children from her previous marriage for whom she
received $200 per month per child support. At the
dissolution of that marriage she received a home in Bridger
Canyon, Montana, furnishings, a car, interests in some
contracts, and $300,000 cash. She invested these assets and
at the time of the marriage to Paul she had considerable net
worth.
Paul had been married three times prior to his marriage
to Jean. He had few assets and substantial debt when he
married. A few days before their marriage he borrowed $6,000
from her to pay off a debt, and several months later he
borrowed $29,400 to pay other debts.
Paul worked as a stock broker. During the early years
of the marriage his income was used to pay off his debts of
$78,000, and the family basically was supported by Jean's
earnings from pre-marriage investments. After his debts were
paid, Paul spent considerable money purchasing and raising
Clydsdale and Belgian draft horses, and related tack, tools,
and wagons.
In September 1980, the parties bid to purchase some
property known as the Bohart Ranch, consisting of nearly 300
acres near the Bridger Bowl ski area. At the time they made
their hid, they wrote a letter to the heirs of the late owner
advising them of their (Kinks') intent to preserve the
property for cross country skiing and to keep the property
from falling into the hands of developers. The Kinks' bid
was accepted. Jean made a downpayment of over $18,000 and
mortgaged her home, enabling them to borrow $225,000 from the
Federal Land Bank.
The marriage was dissolved in May 1984. The District
Court retained jurisdiction to determine the division of the
marital property. Following a four day trial, the court
awarded Jean the original assets she had brought into the
marriage and certain assets which had been purchased during
the marriage from the proceeds of sale of pre-marriage assets
and earnings. Paul was awarded the Bohart property, the
proceeds of a personal injury claim, and his rights to an
unliquidated slander and wrongful termination claim. To
equalize the property division, he was ordered to pay to Jean
$82,541, in ten equal installments, and to remove the
mortgage from Jean's home within three years. In awarding
the Bohart property the court fashioned a joint venture
between the parties for seven years.
Both parties filed motions to amend these findings and
a hearing was held. Subsequently the court ordered the
parties to appear for the limited purpose of testifying to
the respective proposals for handling the Bohart property.
The court then issued amended findings of fact and
conclusions of law. Respondent's motion to set aside the
amended findings was denied and he appeals.
Appellant contends the District Court lacked
jurisdiction to issue the amended findings because it failed
to rule on the motions to amend within 45 days, pursuant to
Rules 52 (b) and 59 (d), M.R.Civ.P. Rule 52 (b) says:
Upon motion of a party made not later
than 10 days after notice of entry of
judgment the court may amend its findings
or make additional findings and may amend
the judgment accordingly. The motion may
be made with a motion for a new trial
pursuant to Rule 59. When findings of
fact are made in actions tried by the
court without a jury the question of the
sufficiency of the evidence to support
the findings may thereafter be raised
whether or not the party raising the
question has made in the district court
an objection to such findings or has made
a motion to amend them or a motion for
judgment.
Rule 59 (d) provides in pertinent part that " [i]f the
court shall fail to rule on a motion for new trial within 45
days from the time the motion is filed, the motion shall, at
the expiration of said period, be deemed denied."
Jean argues the District Court's order of November 8,
1985, is in effect a ruling on the motions to amend the
findings and conclusions. The order was issued 44 days after
Jean filed her motion to amend, and 39 days after Paul's was
filed. We do not conclude the order to be such a ruling,
however. It is not styled as such, nor do its contents so
indicate. The parties are ordered to appear for the purpose
"of testimony limited to the respective proposals of handling
the Bohart property and the retention of the cross country
ski courses upon the same." This appears to be an order for
a new trial and was so considered by the District Court.
Rule 59 (e), M.R.Civ.P. :
Not later than 10 days after entry of
judgment the court of its own initiative
may order a new trial for any reason for
which it might have granted a new trial
on motion of a party. After giving the
parties notice and an opportunity to be
heard on the matter, the court may grant
a motion for a new trial, timely served,
for a reason not indicated in the motion.
Rule 59 (f), M.R.Civ.P. says:
[Alny order of the court granting a new
trial, shall specify the grounds therefor
with sufficient particularity as to
apprise the parties and the appellate
court of the rationale underlying the
ruling, and this may be done in the body
of the order, or in an attached opinion.
Grounds for a new trial are set forth in 5 25-11-102,
MCA. The section provides no time constraints. The only
time constraint on the District Court to order a new trial
on its own initiative is that it be done within ten days of
entry of judgment. No judgment had been entered on November
8. The order expressed the court's concern "about the Cross
Country course laid out on the Bohart property," and ordered
a hearing on that issue only. Both parties presented
testimony without objecting to the court's jurisdiction.
Not only does a district court have jurisdiction to
order a new trial on its own initiative pursuant to Rule
59 (e), M.R.Civ.P., it has broad discretion to reopen a case.
Rule 59 (a) M.R.Civ.P. applies when a party desires a new
trial, not when a case is reopened to receive further
testimony.
It is well settled that the ruling on a
motion to reopen a case for taking
further testimony is within the sound
discretion of the district court, which
will only be reversed on appeal for
manifest abuse of that discretion.
[Citations omitted.]
Compton v. Alcorn (1976), 171 Mont. 230, 236, 557 P-2d 292,
296. Jean's motion was a motion to amend and to reopen. We
find the court had jurisdiction to order a new trial on its
own initiative, or to reopen the case. Thus it had
jurisdiction to amend the findings of fact and conclusions of
law.
Paul also argues the court abused its discretion when
dividing the marital assets. We will not disturb a lower
court's ruling unless there is clear error amounting to abuse
of discretion. Rule 52 (a), M.R.Civ.P. The test of 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. In re
Marriage of Goodman (Mont. 1986), 723 P.2d 219, 220, 43
St.Rep. 1410, 1412.
A careful examination of the revised findings does not
reveal abuse. Paul contends the District Court erred in
adopting the trial date as the date of distribution, with a
resulting change in valuation figures. Paul's trial counsel
argued for use of that date, however. Appellant counsel
cannot now put the court in error. Further, it must be noted
the amended order did not change the value of the items
complained of. The marital estate was valued at slightly
over one million dollars. Jean brought well over $400,000
worth of assets to the marriage, while Paul was over $70,000
in debt at the time of the marriage. His earning capacity
continued to increase during the marriage. He acquired, and
was allowed to keep, considerable personal property. The
amended order awarded him assets valued at $182,500 and
ordered Jean to pay to Paul a cash settlement of $100,561,
plus interest, for real property which Jean retained. He has
no debts.
There is sufficient evidence the court employed
conscientious judgment in dividing the marital estate. A
hearing was held on the motions to amend the first findings
and conclusions. It then ordered a new trial on the issue of
disposition of the Bohart property. It considered the
earning capacity and contributions to the family of both Paul
and Jean, the assets Jean brought to the marriage and Paul's
financial liabilities.
The property and assets of the parties
are extensive and complex. We will not
attempt to review every element of a
complex property distribution ... Our
function is to examine whether there is
substantial evidence to support the
property distribution. In re Marriage of
Williams (Mont. 1986), 714 P.2d 548, 554,
43 St.Rep. 319, 327. We find there is
substantial credible evidence to support
the property division.
In re Marriage of Goodman, supra at 222, 43 St.Rep. at 1414.
The order of the District Court is affirmed.
We concur W