No. 83-346
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
IN RE THE MARRIAGE OF
DEBRA D. CONCEPCION,
Petitioner and Respondent,
and
ELIAS CONCEPCION,
Respondent and Appellant.
APPEAL FROM: The District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable James B. Wheelis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Stewart A. Pearce, 11, Missoula, Montana
For Respondent:
Terry A. Wallace, P.lissoula, PIontana
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Submitted on Briefs: April 12, 1984
Decided: August 30, 1984
.AUG
Filed. 3 0 1984
Debra D. Concepcion, wife, petitioned the District Court
of the Fourth Judicial District, Missoula County, and
obtained a court order distributing the marital estate.
Elias Concepcion, husband, appeals. We affirm.
The issues raised by the husband are:
1. Did the District Court commit prejudicial error in
refusing to grant husband's motion for continuance?
2. Are the findings of fact and conclusions of law
proper?
3. Did the trial court err in awarding attorney's fees
to wife?
4. Did the trial court abuse its discretion in
establishing the visitation rights of the husband?
The uncontested findings of fact by the District Court
show that the parties were married in 1975. The wife's
petition for dissolution of the marriage was served upon the
husband on August 30, 1979. The marriage was dissolved on
December 15, 1980; and the wife was granted custody of the
parties' two minor children. The court reserved ruling on
the distribution of the marital estate. A hearing on
distribution of the marital estate took place on May 21,
1982, approximately 17 months after the dissolution decree
was entered.
The District Court findings show that, at the time of
the hearing, wife was 25 years of age, in good health and
received approximately $1,150 per month from various sources.
She had been unemployed for over a year. At the same time,
the husband was 29 years of age, a disabled veteran, in
chronically poor health, and completely paralyzed below the
neck as the result of a traffic accident. Husband received
veteran's and social security benefits in excess of $3,600
per month. Wife, without significant vocational slcills or
education, had no real opportunity for future acquisition of
capital assets and income. Husband, with a high monthly
level of benefits, had a substantial opportunity to acquire
capital assets and income. All of the personal property
acquired during the marriage had been divided between the
parties. The estimated value of the parties' residence in
Puerto Rico was between $80,000 and. $100,000. The equity in
the residence had been paid mostly by veteran's benefits of
the husband, including a $30,000 grant used as a down
payment. The court found that although petitioner's
contribution to the marriage as a homemaker and her monetary
contributions to the marriage entitled her to a share of the
residence, due to the husband's physical condition, it would
be inequitable to award her any portion of it except for
$208.83.
The parties do not take issue with the disposition of
marital property based upon the foregoing findings.
I
Was it prejudicial error to refuse to grant husband's
motion for continuance?
Husband argues that a continuance was required because
of insufficient preparation time, schedule conflicts, and the
wife's abuse of rules of discovery, including failure to obey
orders to compel discovery, by virtue of which husband's
discovery was incomplete. The record does not show facts to
substantiate these contentions.
Under section 25-4-501, MCA, a motion to postpone on the
grounds of absence of evidence shall be made only upon
affidavit showing the materiality of the evidence and that
due diligence has been used to procure it. No such affidavit
was here presented.
Section 25-4-503, MCA provides:
"Upon good cause shown and in furtherance of
justice, the court may, - - discretion, postpone
in its
a trial or proceeding upon other grounds than the
absence of evidence under such conditions as the
court may direct." (emphasis added)
The record does not disclose any grounds which warranted
postponement. As a result, we affirm the District Court's
denial of the husband's request for a continuance.
Were the findings of fact and conclusions of law proper?
Our review of the transcript discloses that husband
limited his appearance to cross-examination of the wife and
failed to submit any evidence in his case in chief. The
transcript contains substantial evidence to support the
findings of fact and conclusions of the District Court.
Under Rule 52(a), M.R.Civ.P., findings of fact shall not
be set aside unless clearly erroneous. This Court's standard
of review was stated in Jensen v. Jensen (Mont. 1981) , 629
P.2d 765, 768, 38 St.Rep. 927, 930 and recently cited with
approval in In re the Marriage of Beitz (Mont. 1984),
"This Court will not substitute its judgment for
that of the trier of fact. We will consider only
whether substantial credible evidence supports the
findings and conclusions. Findings will not be
overturned unless there is a clear preponderance of
evidence against them, recognizing that evidence
may be weak or conflicting, yet still support the
findings."
Husband has totally failed to show how the findings are
erroneous. We find substantial evidence to support the
findings and conclusions of the District Court. We hold that
the findings and conclusions were proper.
Did the trial court err in awarding attorney's fees to
the wife?
By affidavit filed with the District Court on June 4,
1982, wife's counsel established attorney's fees of
$1,575.00. The record discloses no specific objection on the
part of the husband. The findings of fact, conclusions of
law and opinion of the court were made and entered on April
13, 1983. The husband filed notice of appeal prior to the
actual entry of a District Court order awarding the fees.
The husba.nd has failed to present any evidence bearing upon
the question of attorney's fees. It was therefore
appropriate for that court to award attorney's fees in
accordance with the affidavit submitted by the wife's counsel
approximately eleven months before entry of the court ' s
findings of fact, conclusions of law and opinion.
IV
Did the District Court abuse its discretion in
establishing the husba-nd's visitation rights?
The transcript sets forth substantial evidence upon
which to base a restriction of the husband's visitation to
the continental United States, leaving the visitation
schedule to be worked out between the parties and making the
husband responsible for all costs attendant to visitation.
Absent evidence to substantiate a different conclusion, we
affirm the visitation rights of the husband as determined by
the decree.
We affirm the District Court and return this proceeding
to that court in order that it may make an appropriate order
for attorney fees at the district court level and such other
order as it deems appropriate in accordance with this
opinion.
We concur: