No. 87-442
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
INRE: THE MARRIAGE OF
GERALD E. SESSIONS,
Petitioner and Appellant,
DORA F. SESSIONS,
Respondent and Respondent.
APPEAL FROM: District Court of the Tenth Judicial District,
In and for the County of Fergus,
The Honorable Peter L. Rapkoch, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Timothy J. O'Hare, Lewistown, Montana
For Respondent:
Craig R. Buehler, Lewistown, Montana
Submitted on Briefs: March 24, 1988
Decided: April 26, 1988
APR 2 6 1988
Clerk
Mr. Justice William E. Hunt, Sr. , delivered the Opinion of
the Court.
Petitioner appeals from a judgment of the District
Court, Tenth Judicial District, County of Fergus, dissolving
the marriage between the parties and distributing the marital
property.
The issues are:
1. Whether the District Court abused its discretion in
dividing the marital property where it adopted verbatim
wife's proposed findings of fact and conclusions of law?
2. Whether the District Court's order of contempt and
order to purge contempt was proper?
3. Whether the District Court's subsequent order of
contempt is void as a matter of law because it was entered
after notice of appeal was filed?
The parties were married on November 8, 1965. Their
marriage was dissolved by judgment of the District Court
dated July 31, 1987. At the time of dissolution the couple
had one minor child left at home. The wife was 41 years of
age and the husband 44 years of age when the marriage was
dissolved.
The husband has held several jobs, including that of
computer terminal technician, throughout the marriage. At
the time of trial he was unemployed and living outside
Montana. The wife has no formal training but worked in the
couple's various business endeavors throughout the marriage.
She was a cocktail waitress at the time of trial and living
in the marital home.
The major marital assets were awarded to the parties as
follows:
Wife Value
Family home $ -0- plus $16,000 mortgage
Jensen contract $12,944 discounted value plus
(sale of catalog store) $23,366 owing on the
underlying debt
Vacant lot in Idaho $ 4,000 plus $950.00 tax lien
Car $ 500
Husband Value
Hackamore Supper Club $24,325
Truck $ 2,500
Life insurance policy [value not provided]
Family checking account $ 255
The rest of the assets were divided according to wife's
proposed findings and conclusions. Appellant husband
initially argues that the court abused its discretion by
dividing the property as it did because it adopted verbatim
the wife's proposed findings and conclusions. This
contention lacks merit.
As has been reiterated by this Court several times, the
standard of review for adopted findings of fact and
conclusions of law is the same as for court-prepared
findings. In Re Marriage of LeProwse (1982), 198 Mont. 357,
362, 646 P.2d 526, 528-29; Goodmundson v. Goodmundson (1982),
201 Mont. 535, 538, 655 P.2d 509, 511. Although we recognize
the possible ethical considerations present in verbatim
adoption of one party's proposed findings the Court has
consistently held that no legal error occurs where the
District Court's decision is supported by law and evidence.
In re Marriage of Watson (Mont. 1987), 739 P.2d 951, 954, 44
St.Rep. 1167, 1170; Parenteau v. Parenteau (1983), 204 Mont.
239, 244, 664 P.2d 900, 903; - Prowse, 646 P.2d at 529.
Le
A review of the record shows that there was conflicting
evidence given as to the value of most of the marital assets.
Both parties had experts give an estimate of the value of the
family home based on appraisals. Wife's expert testified
that, after making a visual inspection, the home was worth
$19,000. She further testified that there was no equity
position on the property. It's not disputed that the
remaining liability on the home was approximately $16,000.
Husband's expert gave an appraisal of $22,000 but did not do
a visual inspection of the home because he had sold it to the
Sessions some months before. When conflicting expert
testimony is given the trier of fact has full discretion to
give weight to the testimony as he sees fit. In re Marriage
of McCormack (Mont. 1986), 726 P.2d 319, 321, 43 St.Rep.
1833, 1835; In re Marriage of ~ i l l i a m s (Mont. 1986), 714 P.2d
548, 552, 43 St.Rep. 319, 325. The court chose to rely on
the wife's expert and substantial evidence supports the
court's finding here.
The husband also contends that contradictory testimony
about the value of the Jensen contract shows an abuse of
discretion. In 1986, the parties sold a Sears catalog store
they had owned for which the balance owed to them at trial
was $41,049.90 subject to an underlying mortgage of
$22,366.59. The husband testified the fair market value of
this contract was $18,683.31. The wife introduced a
statement from a prospective purchaser that it would buy the
contract for $12,944. At the same time, the wife testified
that the figure given on the document was $27,944. This was
apparently a misstatement which the court recognized when it
adopted the $12,944 figure listed in the wife's proposed
findings . There is substantial evidence to support this
value also.
The last major asset we will discuss is the parties'
interest in the Hackamore Supper Club bought by the husband
and his brother in 1986. The husband disputes the value
placed on his interest because he testified that, as it was a
losing concern, he felt it had no value. The District Court
valued the husband's interest at $24,325 consisting of a
$20,000 initial contribution and $4,325 of later
contributions. The record shows that the Club was run by the
parties as partners. After filing the petition for
dissolution but before the trial was held, the husband
transferred his interest to his brother without his wife's
approval. It was not improper for the District Court to
include it as a marital asset and award it to the husband at
the value stated under these circumstances.
The husband disputes the values of several other
household items and vehicles. We hold that the District
Court's findings as to these items are also fully supported
by substantial credible evidence and decline to discuss them
further. We affirm the District Court's property
distribution.
Appellant's second issue disputes the propriety of the
~istrict Court's order of contempt and order requiring the
husband to purge the contempt. Although contempt of court
orders by the District Court are final and usually
unreviewable by this Court in any manner except by writ of
certiorari, 3-1-523, MCA, an exception is made in
dissolution of marriage proceedings. In re Marriage of Smith
(Mont. 1984), 686 P.2d 912, 914, 41 St.Rep. 1695, 1697. We
must limit our review to see whether the District Court was
within its jurisdiction and whether the evidence supports the
finding of the court. Smith, 686 P.2d at 912; Schneider v.
Ostwald (Mont. 1980), 617 P.2d 1293, 1295, 37 St.Rep. 1728,
1730.
By order dated March 9, 1987, the husband was required
to pay respondent $300.00 per month for support and
maintenance. Respondent also asserts that at a hearing the
husband agreed to pay approximately $2,000 in household bills
and appellant's counsel was asked to draft an order to that
effect. There is no record of this hearing but apparently
this order was never drafted. The husband does not dispute
this contention but argues the bills were already paid by the
time of trial. The District Court ordered the husband to pay
$2,900 for support, maintenance and bills. Testimony by the
husband reveals that the support and maintenance payments and
the bill payments had not been made by the time of trial.
Appellant points to no contradictory evidence. We therefore
affirm this order of the District Court.
L,astly, appellant asks us to void the District Court
November 25, 1987 order again finding the husband in contempt
for not paying the sum of $2,300. He argues that the notice
of appeal dated August 31, 1987 stripped the District Court
of its jurisdiction and therefore the order is void. We
disagree.
Although the record is silent on this point, the
respondent admits that support in the sum of $600 was paid
April 27, 1987. Apparently the District Court was aware of
this payment and subtracted it from its previous order to pay
$2,900. There is no evidence as to any other payments.
This Court has held that a contempt proceeding is
separate and independent of the civil action from which it
arose. Myhre v. Myhre (19761, 168 Mont. 521, 522, 548 P.2d
1395, 1396 (per curiam). The District Court therefore is not
divested of jurisdiction over a contempt matter by the filing
of an appeal of the underlying civil matter. Accordingly, we
affirm the decree and orders of the District Court.
Affirmed.
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4 AzLL)
Justices