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[T] Copp v. Copp12/9/2003
ament, attitude and candor, among other things. For these reasons, this Court defers to the district court's discretion in matters of evidence weight and witness credibility. See Albrecht v. Albrecht , 2002 MT 227, 47, 311 Mont. 412, 47, 56 P.3d 339, 47; In re A.F. , 2003 MT 254, 24, 317 Mont. 367, 24, 77 P.3d 266, 24. This is especially true when conflicting evidence is presented. Koeppen, 42.
In the case at bar, the court presided over two hearings, a pre-trial conference, and a non-jury trial. In addition, evidence of the value of the parties' assets and liabilities, living expenses and future earnings potential was presented. Frequently, Marcy's and Dean's testimonies as to these values conflicted. Moreover, the underlying District Court record contains a letter from BNSF to Dean's attorney indicating that Dean had filed a FELA claim against BNSF prior to the April 2002 trial, but that the claim had no determined value at that time. This evidence conflicts with Dean's testimony that he had not filed a claim, and that any claim would have no value. The court was therefore presented with significant concerns about Dean's credibility. Furthermore, as indicated above, when there is conflicting evidence, "it is within the province of the trier of fact to weigh the evidence and determine the credibility of witnesses." Koeppen , 42.
In the case before us, the District Court weighed the evidence presented, adjudged the credibility of the witnesses, complied with the relevant "division of property" statute, § 40-4-202, MCA, and divided the parties' assets, including Dean's unrealized FELA award and debts, as equally as possible. The court was not presented with any evidence regarding the various components of a FELA award, nor did Dean say how he wanted any prospective award divided.
We will not hold the District Court in error for failing to take into consideration evidence not presented. If, as Dean argued at trial, the FELA claim is valueless, Marcy gets nothing. If, on the other hand, the claim has value and Marcy is able to share in the entirety of the claim, including components that may have been personal to Dean, this is not the fault of the District Court. It simply awarded the proceeds of a questionable claim as it saw fit, without any input from Dean.
We hold that the District Court's finding of fact and conclusion of law are not erroneous and that the District Court did not abuse its discretion in awarding 50% of Dean's potential FELA award to Marcy.
Dean also argues that the District Court erred in awarding Marcy maintenance and attorney's fees. He submits that the court failed to issue findings of fact specific to the statutory provisions of § 40-4-203, MCA, which gives the court discretion to grant maintenance if it finds that the spouse requesting 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. The court is also required to consider the following factors before awarding maintenance:
(a) the financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, 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
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