No. !33-472
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
IN RE THE MARRIAGE OF
RAE ANN BEITZ,
Petitioner and Appellant,
and
ROBERT LEE BEITZ,
Respondent and Respondent.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Sanders,
The Honorable Douglas Harkin, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Milodragovich, Dale & Dye, Missoula, Montana
For Respondent:
James A. Manley, St. Ignatius, Montana
John McCrae, Dept. of Revenue, Plissoula, Montana
Submitted on Briefs: P l r h 1, 1984
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Decided: June 28, 1984
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Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Mrs. Beitz , Appellant, sought dissolution of her
marriage from Mr. Beitz, Respondent. The Fourth Judicial
District Court, Sanders County, granted temporary custody of
the children to Mrs. Beitz and entered its decree of
dissolution of the marriage. The parties executed a property
settlement agreement which was approved by the District
Court. Two years later the District Court granted permanent
custody of Cody Beitz, child, to Mr. Beitz and denied Mrs.
Reitz' motion to set aside the property settlement agreement.
We affirm the actions of the District Court.
The issues presented by the parties are:
1. Are the findings of fact and conclusions of law of
the District Court supported by substantial credible
evidence?
2. Did the District Court apply the wrong legal
standard in making its final custody determination as to Cody
Beitz?
3. Did the District Court err in denying Mrs. Beitz'
motion to reject the property settlement agreement on the
grounds of unconscionability?
Mr. & Mrs. Beitz were married in 1972. Mrs. Beitz had
two children which were adopted by Mr. Beitz. The parties
had one child born of their marriage, Cody Beitz. In July
1981, Mrs. Beitz filed her petition for dissolution of
marriage. On July 30, 1981, the court granted Mrs. Beitz
custody of the minor children during the pendency of the
action, with a provision that the order was made without
prejudice to the rights of the parties or their children. On
September 28, 1981, the court dissolved the marriage and
reserved all other issues, including child custody and
division of property. On October 21, 1981, a property
settlement and stipulation agreement was executed by the
parties and their attorneys, and was approved by the court on
the same date. Hearing on the other issues reserved by the
court was held on July 26 and August 31, 1983. At that time
both parties had attorneys different from those that
represented them in 1981. The court made its findings of
fact, conclusions of law and order dated September 19, 1983,
as entered on August 31, 1983. The court granted custody of
Cody Beitz to Mr. Beitz subject to reasonable rights of
visitation for Mrs. Beitz and denied Mrs. Beitz' motion to
set aside the property settlement agreement. Additional
facts will be set forth in our discussion of the issues.
I
Are the findings of fact, conclusions and decree
awarding custody of Cody Beitz supported by substantial
credible evidence?
Mrs. Beitz makes extensive arguments with regard to the
sufficiency of the evidence in various particulars. Mrs.
Beitz argues that the finding that Cody's desire to live with
his mother was ambivalent and was influenced by his mother is
not supported by the evidence; that the finding of time
available on the part of the other Beitz children to spend
with Cody is not supported by the evidence; that the findings
as to Cody's adjustment to home, school and community and the
stability of Mr. Beitz' home are inaccurake and incomplete;
and that the court's findings contain a series of assertions
which are based on speculation or which demonstrate no harm
to the best interests of Cody.
Extensive testimony was presented by a total of twelve
witnesses which included both Mr. and Mrs. Beitz, all three
of the Beitz children, who were interrogated separately in
chambers by the District Court, and other persons. The
evidence is replete with contradictions, such as the
statement of Cody Beitz, an eight year old, that he would
prefer to stay with Mrs. Beitz, a.nd evidence showing that
Mrs. Beitz had significant problems with discipline and
control of her children, including evidence showing that the
oldest Beitz child dropped out of school at age sixteen. The
record is filled with evidence indicating problems on the
part of both Mr. and Mrs. Beitz with regard to such parental
concerns as absence of discipline or overly strict
discipline, love of Cody as compared to giving him his own
way, whether the amount of parental time spent with Cody was
sufficient to establish the necessary parental control as he
developed, particularly with regard to school performance,
and problems concerning the type of persons the parents
associated with as related to Cody's development. Both Mr.
and Mrs. Beitz desired Cody's custody. Although the record
suggests Cody may have some problems in making friends in new
towns, there have been a number of changes of residence and
lack of a stable home and supervision.
We relate these elements only to point out the obvious
contradictions in the evidence which had to be resolved by
the District Court. We emphasize that this Court does not
become a trier of fact where there are these types of
contradictions. The District Court had the unique
opportunity of both seeing and hearing the twelve witnesses,
including the three children. It would be singularly
inappropriate that we should second guess that court.
Our standard of review is stated in In Re Marriage of
C.C.W. (Mont. 1983), 668 P.2d 1065, 1066, 40 St.Rep. 1455,
1456, quoting Jensen v. Jensen (Mont. 1981), 629 P.2d 765,
768, 38 St.Rep. 927, 930:
"'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.'"
A review of the transcript and other evidence discloses
that there is substantial credible evidence to support all of
the contested findings and conclusions of the District Court.
Mrs. Beitz has failed to demonstrate a clear preponderance of
evidence against such findings and conclusions. We hold that
the findings, conclusions and decree are supported by
substantial credible evidence and should not be overturned.
Did the District Court apply the wrong legal standard in
making its final custody determination as to Cody Beitz?
Mrs. Reitz argues that the District Court modified an
existing decree which had been in effect for several years
and to which Mr. Beitz had consented, at least by
implication. She further argues that this modification
disturbs custodial continuity, a principle that has been
approved in other cases.
While the principles argued in behalf of Mrs. Beitz are
appropriate, they do not control under these specific facts.
The District Court in 1981 granted temporary custody, but
provided that this custody award was without prejudice to the
rights of the parties or the children. As a result, that
determination cannot be treated as binding upon. the parties
or the children in any manner.
Mrs. Beitz further argues that the court failed to take
into consideration that she was the primary person involved
in the care, education and rearing of Cody and that this
custody change will result in a severe break in the
continuity of that relationship. Such evidence was submitted
for consideration by the District Court. There is also
evidence to the contrary in terms of Cody's best interest.
There is substantial evidence to support the District Court's
custody determination.
We conclude that the District Court did not apply the
wrong legal standard in making its custody determination as
to Cody. We are not approving the delay of approximately two
years from the original dissolution to the final custody
determination. We have previously emphasized that property
settlement and custody should be decided without delay after
dissolution of marriage. In the present case, however, the
two year delay allowed Mrs. Beitz to have temporary custody
of her son during that period and allowed the court to
evaluate that custody. We affirm the District Court's
custody determination as to Cody Beitz.
I11
Was the property settlement and stipulation agreement
unconscionable?
On October 21, 1981, the property settlement agreement
was executed by Mr. and Mrs. Beitz and their counsel, and was
approved by the District Court. The court in its September
19, 1983 order pointed out that the agreement states there
was no fraud, coercion or undue influence which af fected the
property settlement agreement and that no credible evidence
of any impropriety was submitted to the court. The court
further noted that the conscionability of the agreement and
its provisions was reviewed and approved by the court. The
court concluded that Mrs. Beitz had not proved sufficient
grounds for setting aside the property settlement agreement.
Under the terms of the property settlement agreement,
Mrs. Beitz received the house and also executed a note for
$6,600, payable to Mr. Beitz at the rate of $300 per month.
Her $300 per month payments were subject to the obligation of
Mr. Beitz to pay $300 per month child. support payments to
Mrs. Beitz. For several years Mr. Beitz paid $300 per month
to a bank escrow account, and that bank then returned the
$300 to Mr. Beitz as required under the terms of the Mrs.
Beitz - Mr. Beitz note. Mrs. Beitz now argues that such
conduct by Mr. Beitz constituted an abandonment of his
obligation to support the children, so that the property
settlement was unconscionable. As a result of the $300 per
month payments, Mrs. Beitz had discharged her $6,600 note to
Mr. Beitz and held full title to the house by August 1983.
The District Court found nothing unconscionable under the
facts of the case. There is substantial evidence to support
that conclusion and we affirm the holding of the District
Court.
The September 19, 1983 decree of the District Court is
affirmed.
We concur:
J-
Just ' ce