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[T] Copp v. Copp12/9/2003
ivide any net recovery between the parties." Order, Conclusion of Law No. 10.
In addition to ruling that Dean must divide any future FELA claim equally with Marcy, the court concluded that Dean must pay Marcy maintenance in the sum of $300 per month for twenty-four months and pay $1,500 to Marcy's attorney, representing approximately one-half of her attorney's fees.
STANDARD OF REVIEW
We review a district court's division of marital property to determine whether the findings of fact on which the court relied are clearly erroneous. Our review gives due regard to the opportunity of the trial court to judge the credibility of the witnesses. See Koeppen v. Bolich , 2003 MT 313, 26, ___ Mont. ___, 26, ___ P.3d ___, 26. Findings are clearly erroneous if they are not supported by substantial evidence, the court misapprehends the effect of the evidence, or this Court's review of the record convinces it that a mistake has been made. In re Marriage of Hedges , 2002 MT 204, 12, 311 Mont. 230, 12, 53 P.3d 1273, 12 (internal citations omitted).
If the findings are not clearly erroneous, we will affirm the distribution of property unless the court abused its discretion. To conclude that a district court abused its discretion in a marital dissolution proceeding, we must determine that the district court acted arbitrarily, without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice. In re Marriage of Rolf , 2003 MT 194, 14, 316 Mont. 517, 14, 75 P.3d 770, 14 (internal citations omitted).
We review a district court's interpretation of law de novo, to determine whether it is correct. Rolf , 15.
DISCUSSION
Dean argues that the District Court's Finding of Fact No. 10, and its related Conclusion of Law No. 10, are clearly erroneous. Additionally, he maintains that the court abused its discretion in awarding Marcy 50% of his unsettled FELA claim.
The District Court's Finding of Fact No. 10 reflected the court's opinion that Dean had agreed to share equally with Marcy any prospective FELA recovery. Dean maintains that his testimony during the trial, which included a statement that he had not filed a FELA claim against BNSF, does not support the court's finding that he agreed to share equally such a claim. He argues that the proceeds of any FELA claim would include both pre-dissolution damages, such as wages lost while married, and post-dissolution damages, such as future medical bills and loss of future earnings. He also contends that any portion of his FELA claim designated for pain and suffering and the loss of his established course of life would be personal to him, and therefore not part of the marital estate.
Marcy counters that disability benefits are a valid component of a marital estate and that Dean has cited no authority that separates personal proceeds for pain and suffering, future medical expenses and loss of way of life, from the other components of a disability claim. Moreover, Marcy argues that it was obvious from other testimony that the District Court was going to split their assets equally and that if Dean did not believe the FELA claim should be divided equally, he had the opportunity to argue how the claim should be divided but chose not to do so. She contends that such an argument should have been made to the District Court and that it is too late to make that argument now.
In non-jury trials such as the one before us, the district court judge is charged with listening to and weighing the evidence presented. The judge must determine the credibility of each witness based upon their demeanor, temper
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