Marriage of Evans

NO. 95-174

IN THE SUPREME COURT OF THE STATE OF MONTANA
1996

IN RE MARRIAGE OF
DOROTHY M. EVANS,
Petitioner and Respondent,
and
WILLIAM M. EVANS, SR.,
Respondent and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John M. McCarvel, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Robert M. Kampfer, Attorney at Law,
Great Falls, Montana
For Respondent:
Brenda R. Cole, Swandal, Douglass,
Frazier & Cole, Livingston, Montana

Submitted on Briefs: February 1, 1996
Decided: February 27, 1996
Filed:

Clerk
Justice Charles E. Erdmann delivered the opinion of the Court.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court

1995 Internal Operating Rules, the following decision shall not be

cited as precedent and shall be published by its filing as a public

document with the Clerk of the Supreme Court and by a report of its

result to State Reporter Publishing Company and West Publishing

Company.

This is an appeal of an order of the Eighth Judicial District

Court, Cascade County, granting Dorothy Evans (Dolly) half of the

net value of all marital party, awarding her sole custody of the

parties' children, awarding her $500 per child in monthly support,

and $500 per month in maintenance, and denying William M. Evans'

(Bill) motion for a new trial. We affirm in part and reverse in

part.
We restate the issues as follows:

1. Did the District Court err in adopting the proposed

findings and conclusions of one party?

2. Did the District Court err in dividing the marital

estate?

3. Did the District Court err in awarding Dolly maintenance?

4. Did the District Court err in awarding Dolly sole custody

of the parties' children?

5. Did the District Court err in entering a temporary order

for support and maintenance?
 6. Did the District Court err in not granting Bill's motion
for a new trial?

FACTS

Dolly and Bill were married in September 1990. A son,
Michael, was born to them six months prior to the marriage. During

their marriage, Bill adopted Luke, Dolly's son from a previous

marriage. At the time of trial, Luke was ten years old.
Bill is employed as an air traffic controller in Great Falls.

Bill is also a retired Master Sergeant from the United States Air

Force and receives disability payments from the Veterans'

Administration. Dolly attended school through the ninth grade and

is currently working on her G.E.D. While married, she primarily

remained at home with the children.

The home and two cars comprised the majority of the marital

property which was valued by the court at $92,719. Bill testified

to making significant contributions to the marital estate--$50,000

of inheritance and $27,000 from the sale of a house he owned prior

to the marriage.

At trial, Dolly testified that during their marriage Bill

physically and verbally abused her in front of the children. Bill

admitted to one incident of violence. Bill claimed Dolly had a

chemical dependency problem, had been violent toward the children,

and had improperly left the children in the care of others.

Bill filed a petition for dissolution of marriage in Park

County on July 2, 1992. Dolly filed a petition for dissolution of

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marriage in Cascade County on June 28, 1994. In July 1994, the two
actions were consolidated in the Cascade County District Court. A

hearing regarding the temporary orders was held on August 1, 1994.

A final hearing was held on December 14, 1994, from which the
District Court entered its decree on December 29, 1994. The

District Court granted Dolly one-half of the net value of the

marital property, sole custody of the children, $500 per child in

monthly support, and $500 per month maintenance for three years.

Bill moved to amend the decree or, in the alternative, for a new

trial. The court denied Bill's motion under Rule 59(d), M.R.Civ.P.,

by failing to rule. From the District Court's order, its

temporary order, and its denial of Bill's motion for new trial,

Bill appeals.

ISSUE 1
Did the District Court err in adopting the proposed findings

and conclusions of one party?

The District Court requested and was provided proposed

findings of fact and conclusions of law from both parties. The

court subsequently adopted verbatim those findings and conclusions

proposed by Dolly. For that reason, Bill claims the court failed

to exercise independent judgment.

We have held that adoption of a party's proposed findings and

conclusions is not in itself grounds for reversal. In re Marriage

of Purdy (1988), 234 Mont. 502, 764 P.2d 857.

[I]t is not error for a court to adopt a party's proposed
findings and conclusions if they are sufficiently

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 comprehensive and pertinent to the issues to provide a
basis for the decision and are supported by the evidence.

Purdv, 764 P.2d at 858 (citing In re Marriage of Jacobson (X987),

228 Mont. 458, 743 P.2d 1025).

Proposed findings of fact and conclusions of law adopted by

the district court are henceforth the court's own findings and

conclusions and shall be reviewed the same--for clear error of fact

and correctness of law. See Daines v. Knight (1995), 269 Mont.

320, 324, 888 P.2d 904, 906; Kreger v. Francis (Mont. 1995), 898

P.2d 672, 674, 52 St. Rep. 493, 494. In this case, the court's

findings and conclusions were sufficiently comprehensive and

pertinent to the issues and we will not reverse the court's

decision so long as the evidence supports those findings and

conclusions.

ISSUE 2

Did the District Court err in dividing the marital estate?

In the District Court's decree, Dolly was awarded a car worth

$5,300 and Bill received a truck worth $13,700. The marital estate

totaled $92,719 and Bill was ordered to pay $40,000 to Dolly in

order to equalize the division. The court did not divide Bill's

military retirement nor his disability benefits.
We review a district court's division of marital property to

determine if the district court's findings of fact are clearly

erroneous. In re Marriage of Smith (1995), 270 Mont. 263, 267-68,

891 P.2d 522, 525. In Interstate Production Credit Association v.

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D&aye (1991), 250 Mont. 320, 820 P.2d 1285, we adopted a

three-part test to determine if a finding is clearly erroneous

First, the Court will review the record to see if the
findings are supported by substantial evidence. Second,
if the findings are supported by substantial evidence, we
will determine if the trial court has misapprehended the
effect of evidence. Third, if substantial evidence
exists and the effect of the evidence has not been
misapprehended, the Court may still find that 1’[al
finding is 'clearly erroneous' when, although there is
evidence to support it, a review of the record leaves the
court with the definite and firm conviction that a
mistake has been committed."

DeSave, 820 P.2d at 1287 (citations omitted).

Bill contends that the District Court's award to Dolly was

inequitable considering the length of their marriage, her award of

maintenance, and Bill's financial contribution to the estate. In

apportioning a marital estate between spouses, a court must

consider factors that include the duration of the marriage,

occupation and employability, the needs of each party, custodial

and maintenance arrangements, and the opportunity for future

acquisitions. Section 40-4-202(l), MCA. In addition, the court

must consider the contribution of the respective estates and the

contribution of a spouse as a homemaker or to the family unit.

Section 40-4-202(l), MCA.
The fact remains that the court is empowered by statute to

divide the marital property however and whenever acquired and

irrespective of which party holds title. Section 40-4-202(l), MCA.

We have said that inheritance property may be included in the

marital estate so long as the district court applies the factors

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set forth in 5 40-4-202, MCA. In re Marriage of Smith (19941, 264
Mont. 306, 312, 871 P.2d 884, 887-88.

In dividing the parties' equity equally, the court found that

Dolly had not worked outside the home during the marriage and had

no assets of which to speak. The court further considered the

parties' opportunities for acquisition of future assets and found

that to be in favor of Bill. The court also found that Dolly had

an educational disadvantage since she only had a ninth grade

education. There is substantial evidence in the record to support

the court's findings and the court did not misapprehend this

evidence. We have no conviction that the court committed a mistake

in its decision. Therefore, we conclude the District Court did not

err in its division of the marital estate.

ISSUE 3

Did the District Court err in awarding Dolly maintenance?

The District Court ordered Bill to pay maintenance to Dolly in

the amount of $500 per month for three years. We review a district
court's award of maintenance to determine if the findings of fact

are clearly erroneous. In re Marriage of Eschenbacher (1992), 253

Mont. 139, 142, 831 P.2d 1353, 1355. As stated above, we use the
three-part test set forth in DeSave, 820 P.2d at 1287, to determine

if the court's findings are clearly erroneous.

Bill claims that Dolly has sufficient property and work

background to support herself, and the children have no special

needs which would preclude her from working. Section 40-4-203(l),

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MCA, provides that an award of maintenance is appropriate only if
the spouse seeking 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.
We have disallowed an award of maintenance where the spouse is
able to support himself through adequate employment. Marriacre of
Smith, 891 P.2d at 526. However, in that case, the spouse had two
college degrees he obtained prior to the marriage, was talented and
well-respected in the fishing industry, and was currently employed
with a yearly salary of $18,000. In the present case, the court
found that Dolly was unemployed and had not worked outside the home
during marriage at Bill's request. In addition, she was currently
working on her G.E.D., needed retraining, and had the added
responsibility of attending to the children.
Substantial evidence was presented to support the court's
award of maintenance and the court did not misapprehend that
evidence. We conclude no mistake was made, and therefore, the
District Court did not err in its award of maintenance.
ISSUE 4
Did the District Court err in awarding Dolly sole custody of
the parties' children?
The District Court granted sole legal and physical custody of
the parties' minor children to Dolly. Bill was awarded
unsupervised visitation on alternate weekends, extended weekends in

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the summer, and one-half of all other school vacations. Bill
claims the court erred in awarding sole custody because joint

custody is presumed in Montana to be in the best interests of the

children.

The standard of review for a district court's award of child

custody is whether the district court's findings are clearly

erroneous. In re Marriage of Dreesbach (1994), 265 Mont. 216,

220-21, 875 P.2d 1018, 1021. We determine clear error by using the

three-part test adopted in DeSave, 820 P.2d at 1287, and stated

above.

1n custody disputes, the court shall award custody according

to the best interest of the child. Section 40-4-223, MCA. The

court must consider the wishes of the child's parents, the wishes

of the child, the interaction and interrelationship of the child

with his parent or parents, his siblings, and any other person who

may significantly affect the child's best interest, and physical

abuse or threat of physical abuse by one parent against the other

parent. Section 40-4-213 (l), MCA. Section 40-4-224, MCA, provides

that, upon application of either party, the court shall presume

joint custody is in the best interest of the child. That

presumption may be rebutted, however, if the court finds, under the

factors set forth in § 40-4-212, MCA, that joint custody is not in

the child's best interest. The statute further provides that "a

finding that one parent physically abused the other parent or the
child is a sufficient basis for finding that joint custody is not

in the best interest of the child." Section 40-4-224(l), MCA.

On August 16, 1994, the District Court issued a temporary

order, finding that Bill had a history of violent outbursts, both

physical and verbal, directed at Dolly. The court made further

findings regarding Dolly's caretaking abilities and the children's

needs. There was sufficient evidence in the record to support the

court's findings and the court did not misapprehend that evidence.

However, in the transcript of the proceedings the court responded

to Bill's request for joint custody as follows: "There is no

question there is going to be granted joint custody, and legal

custody, no question about it." No evidence was produced

subsequent to that statement to which the court manifested a change

of opinion.
While we in no way condone Bill's abusive behavior, we find

significant contradictions in the record regarding the court's

intentions in the matter of custody. Accordingly, a review of the

record leaves us with the definite and firm conviction that a

mistake has been committed, and we vacate and remand to the

District Court for further proceedings on the issue of custody.

ISSUE 5

Did the District Court err in entering a temporary order for

support and maintenance?

On June 28, 1994, Dolly filed a motion requesting a temporary

order of maintenance and support. The District Court granted

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Dolly's motion and set a hearing for August 1 so that Bill could
show cause, if any, why the temporary order should not continue
through pendency of the trial. Dolly's motion and the court's
temporary order and order to show cause were served on Bill on
June 29, 1994. Bill failed to comply with the order requiring him
to pay support and maintenance. At the hearing and on appeal, Bill
contends his due process was violated because he did not receive
notice of Dolly's motion prior to the court's issuance of the
temporary order.
In In re Marriage of Houtchens (1979), 181 Mont. 70, 75, 592
P.2d 158, 161, we stated that "a motion is but an application for
an order. A motion is not a pleading and does not require
responsive pleadings." Dolly moved for an order granting her
temporary maintenance and child support pursuant to § 40-4-121,
MCA. Her motion was accompanied by an affidavit, as required by
5 40-4-121(l), MCA, setting forth the factual basis for the motion
and the amounts requested. In a previous decision of this Court
where no notice was given prior to the district court's grant of a
motion, we concluded "the court's action caused no prejudice to the
defendants and therefore, we shall not address the question."
Knoepke v. Southwestern Ry. Co. (1980), 190 Mont. 238, 246, 620
P.2d 1185, 1189.
An attorney's certification was filed along with Dolly's
motion noting that Bill had not been given notice and had not yet
retained counsel. The court granted Dolly's motion based on its

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content and the accompanying affidavit as required by statute. We

further note that 5 40-4-121(l), MCA, does not set forth a

requirement that notice be given for a temporary order of

maintenance and support. Bill was notified of the issuance of the

court's temporary order and the hearing set approximately one month

later where Bill was provided with the opportunity to contest the

order. We conclude Bill was not prejudiced by a lack of notice,

and therefore, the District Court did not err in granting Dolly's
motion for temporary support and maintenance.

ISSUE 6

Did the District Court err in not granting Bill's motion for

a new trial?

Bill moved the court for a new trial or amendment of findings.

The court failed to reply and so the motion was deemed denied after

the passage of forty-five days. See Rule 59(d), M.R.Civ.P. We

review a district court's denial of a motion for new trial for a

manifest abuse of discretion. Baxter v. Archie Cochrane Motors,

Inc. (Mont. 1995), 893 P.2d 337, 339, 52 St. Rep. 444, 444.

Bill argues that one of his witnesses was not available during

the hearing because she had been hospitalized at the time of trial.

Bill did not submit any evidence of her testimony at trial. The

witness's affidavit was filed with Bill's motion for new trial.

The witness stated in her affidavit that she did not smell alcohol

when she observed Dolly's unusual appearance and behavior. He

claims that her testimony would concern a new area of chemical

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abuse on the part of Dolly and would provide further evidence of

Dolly's physical abuse toward the children.

At trial, Bill presented testimony of the alleged chemical

dependency and physical abusiveness. The proposed evidence is

therefore cumulative and the District Court did not abuse its

discretion in denying a new trial. We conclude that the District

Court did not err in refusing to grant Bill's motion for new trial.

In summary, we vacate and remand to the District Court for
further proceedings on the issue of custody, and we affirm the

remainder.

-
Justice

~~
,
We concur:

. ‘T-
IT4 ief'Justice

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