Marriage of Danelson, In re

• Decision Date: 09 July 1992
• Docket Number: No. 91-255,91-255
• Citation: 833 P.2d 215,253 Mont. 310,49 St.Rep. 597
• Parties: In re the MARRIAGE of Bennie Lee DANELSON, Petitioner and Appellant, and Clo Ann Danelson, Respondent and Respondent.
• Court: Montana Supreme Court

Page 215

833 P.2d 215

253 Mont. 310

In re the MARRIAGE of Bennie Lee DANELSON, Petitioner and

Appellant,

and

Clo Ann Danelson, Respondent and Respondent.

No. 91-255.

Supreme Court of Montana.

Submitted on Briefs Dec. 12, 1991.

Decided July 9, 1992.

Richard A. Simonton, Simonton, Howe & Schneider, Glendive, for petitioner and appellant.

Jerrold L. Nye, Nye & Meyer, Billings, for respondent and respondent.

HUNT, Justice.

Appellant Bennie Lee Danelson brought a petition for dissolution of marriage on September 24, 1987. On November 18, 1988, following a bench trial, the District Court of the Fifteenth Judicial District, Daniels County, entered a decree of dissolution. Respondent Clo Ann Danelson then filed a motion for a new trial which was granted on January 11, 1989, over appellant's objection. Following the new trial, the District Court entered a second decree on March 13, 1991. The second decree was more favorable to respondent than the first. Appellant brought this appeal attacking both the order granting the new trial and the decree resulting from the new trial. We affirm in part and reverse in part.

We phrase the issues before the Court as follows:

1. Did the District Court err in granting respondent a new trial?

2. Did the District Court err in its distribution of the marital estate following the second trial?

The parties were married on March 25, 1967. Two children were born to the parties. Neither child custody nor support issues were involved in the second trial and are not at issue on appeal. The issues in the second trial concerned the distribution of the parties' property. Over the 21-year marriage, the parties accumulated a considerable amount of land, farm equipment, and livestock, which were held in two Montana corporations. The marital estate consisted primarily of stock in these two corporations. Each party owned a 50 percent interest in Bennie Lee Danelson, Inc. Additionally, each party owned a 25 percent interest in Lazy D Diamond, Inc., with two other individuals owning the other 50 percent interest.

At the conclusion of the first trial, which was held in October 1988 without a jury, the District Court determined the net worth of Bennie Lee Danelson, Inc., to be $81,135. This was discounted by 40 percent, making the final value $48,681. The District Court found the net worth of Lazy D Diamond, Inc., to be negative $550,560.93. (The court noted that while all four owners of Lazy D Diamond, Inc., personally guaranteed the loans, the other two owners had completed a Chapter 12 bankruptcy and no longer had any liability on their individual guarantees for the corporate loans.) Combining these two figures the court found the marital estate of the parties was a negative $501,879.

Finding no net marital estate to be divided, the court determined that it was not in the best interests of the parties to allow the ownership of the corporations to continue as it was. The court ordered respondent to transfer all of her shares of stock in the corporations to appellant. Appellant was to assume all liabilities of both corporations and was to hold respondent harmless and indemnify her from the liabilities and creditors of both corporations. Appellant was ordered to pay maintenance in the amount of $350 per month for 68 months, and to pay $10,000 to respondent for her to purchase dependable transportation. Respondent, after a lengthy marriage, did not receive any other property from the marital estate.

Respondent filed a motion for a new trial or in the alternative an amended judgment. Over appellant's objection, the District Court granted a new trial in January 1989. In light of the order for a second trial, respondent did not turn over her shares in the corporations as ordered in the first trial. In January 1991, a second nonjury trial was held regarding the issues of maintenance and property distribution. At the conclusion of the second trial, the judge issued findings of fact and conclusions of law which varied from the results reached in the first trial.

Following the second trial, the District Court determined that the net worth of Bennie Lee Danelson, Inc., was $132,615. The court further determined that the net marital estate in Bennie Lee Danelson, Inc., should be divided equally between the parties. To this end, the court ordered that appellant pay respondent $10,000 within 30 days of the decree. Additionally, appellant was to pay the remainder over a seven-year period at ten percent interest in equal annual payments of $11,197.80. Respondent was to hold her shares in the stock of Bennie Lee Danelson, Inc., as security for the payment of her share of the corporate net worth. As long as the payments were current, the shares held by respondent would be nonvoting shares and she would not participate in corporate affairs. Once the final payment was made, respondent was to turn over to appellant all of her shares in Bennie Lee Danelson, Inc.

In the first trial, the District Court ordered respondent to turn over her shares of Lazy D Diamond, Inc., to appellant. In return, appellant was to assume all the liabilities of the corporation and hold respondent harmless for these debts. Because the District Court granted a new trial, this order was not carried out, and at the time of the second trial respondent still held her shares in the corporation. In the second trial, the District Court determined that appellant did not have the means to hold respondent harmless in the event she turned her shares in the corporation over to appellant. Therefore, the District Court determined that respondent would keep her shares. Respondent would have the right to her share of the corporate earnings and would be liable for the corporate liabilities. Maintenance was to remain as initially determined in the first trial. Appellant brought this appeal attacking both the order granting the new trial and the findings and conclusions of the District Court following the second trial.

I

Did the District Court abuse its discretion in granting respondent a new trial?

The decision to grant a new trial is within the sound discretion of the district court and will not be disturbed by this Court absent a manifest abuse of discretion. Larson v. K-Mart Corp. (1990), 241 Mont. 428, 430-31, 787 P.2d 361, 362. Appellant presents three arguments in support of his contention that it was an abuse of discretion for the District Court to grant respondent a new trial. First, appellant argues that respondent was incorrectly allowed to argue matters additional to those initially raised in the motion for a new trial. Second, appellant alleges the District Court erred in not ruling on his motion to reconsider the order granting the new trial. Finally, in granting the new trial, appellant contends that the District Court did not state with particularity in the order the reasons for granting the new trial.

All the grounds argued by appellant in support of his contention that the District Court abused its discretion in granting a new trial must fail. Appellant failed to object or bring an appeal in a timely fashion.

Appellant initially contends that respondent's second counsel was allowed to present arguments by way of an affidavit and a brief in support of the original motion for a new trial which went beyond the grounds relied on in the original motion. However, appellant had the opportunity to object to these arguments but failed to do so. Appellant filed both a reply brief and a supplemental reply brief in opposition to respondent's motion for a new trial. After reviewing these briefs it is clear that appellant did not raise this objection. The objection is now raised for the first time on appeal and will not be considered by this Court. In re Marriage of Glass (1985), 215 Mont. 248, 697 P.2d 96.

Second, appellant alleges the District Court erred in not ruling on his motion to reconsider the order granting the new trial. The District Court entered the order granting the new trial on January 11, 1989. Appellant's motion to reconsider was filed on February 15, 1990, more than a year after the District Court's order granting a new trial. Appellant's motion to reconsider was not timely filed pursuant to the Montana Rules of Civil Procedure. In any event Rule 60(c), M.R.Civ.P., provides that such a motion is deemed denied if the trial court fails to rule on the motion within 45 days from the time it is filed.

Finally, in granting the new trial, appellant contends the District Court did not state with particularity in the order the reasons for granting the new trial. Rule 59(f), M.R.Civ.P., provides that in granting a new trial the District Court:

[S]hall 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.

The order granting the new trial in this case clearly did not comply with the requirement of Rule 59(f), M.R.Civ.P.

However, despite the fact that Rule 1, M.R.App.P., makes an order granting a new trial immediately appealable to this Court, appellant failed to appeal the District Court's order. Instead, appellant waited until after the second trial, which took place two years after the order granting the new trial, to object to the content of the District Court's order. It is not entirely clear what appellant is requesting that this Court do at this stage, but it appears that appellant is requesting that the matter be remanded to the District Court for a ruling on appellant's motion to reconsider. As previously mentioned, the motion is deemed denied by the trial court's failure to rule on the motion within 45 days. In any event, the question of the propriety of the trial court's order is one which should have been considered earlier and is now rendered moot by the fact that a second trial has already occurred. The proper procedure would have been to appeal...