No. 03-813
IN THE SUPREME COURT OF THE STATE OF MONTANA
2005 MT 46
IN RE THE MARRIAGE OF
YVONNE S. EPPERSON,
Petitioner and Appellant,
and
ROBERT H. EPPERSON,
Respondent and Respondent.
APPEAL FROM: District Court of the Nineteenth Judicial District,
In and for the County of Lincoln, Cause No. DR 2002-081
The Honorable Michael C. Prezeau, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Peter F. Carroll, Attorney at Law, Kalispell, Montana
For Respondent:
David W. Harman, Attorney at Law, Libby, Montana
Submitted on Briefs: April 7, 2004
Decided: February 23, 2005
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Yvonne Epperson (Yvonne) seeks reversal of the District Court’s resolution of several
issues pertaining to the dissolution of her marriage from Robert Epperson (Robert). She also
requests a remand for a new trial before a new judge, claiming that the District Court judge
who presided over this case was biased against her. We affirm.
ISSUES
¶2 A restatement of Yvonne’s issues is:
¶3 1. Did the District Court err when it terminated the parties’ irrevocable trusts as a
result of the dissolution of the marriage?
¶4 2. Did the District Court abuse its discretion by designating Robert as the custodial
parent of the minor children?
¶5 3. Did the District Court abuse its discretion when it failed to conduct a child support
calculation?
¶6 4. Did the District Court err when it failed to award Yvonne maintenance?
¶7 5. Was the District Court biased against Yvonne and, if so, was such bias so prevalent
as to warrant a new trial?
FACTUAL AND PROCEDURAL BACKGROUND
¶8 The Eppersons were married in 1975. Seven children were born to the marriage and
at the time of dissolution in October 2003, four had reached the age of majority and three
were minors. The ages of the three minor children at the time of dissolution were 10, 12 and
13 years.
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¶9 During the years the Eppersons were married, the family moved many times before
finally settling in Bull Lake Valley, Montana, in 1992. Throughout the marriage, they lived
a somewhat self-contained existence in which Yvonne home-schooled the children and they
had little contact with other children or with any persons outside of the Tridentine Catholic
faith. Prior to their parents’ separation, the children did not participate in organized sports
activities. The family had no television or telephone but at some time did acquire a computer
to which the children had limited access. When the older boys reached age sixteen, they
opted to stop their “formal” education and go to work for their father in his logging and
construction business. The older daughter continued her education to approximately age
eighteen.
¶10 In 1999, the Eppersons executed two irrevocable trusts--the Mary’s Way Trust and
the Bent Wrench Trust. The corpus of the Mary’s Way Trust was approximately 60 acres of
timbered land in the Bull Lake Valley. The family had developed the land to include a large
log home, several out-buildings, a fish pond, an income-generating blueberry patch and an
orchard. The Bent Wrench Trust consisted of the machinery, equipment, vehicles and tools
primarily used in Robert’s business. Both trusts contained a “purpose” provision which
stated: “The grantors established this trust for their family, consisting of the persons
identified below, because they have contributed substantially and materially to the process
of acquiring the property and are, therefore, the equitable owners thereof.” The couple’s
seven children were then listed as the “family” and beneficiaries of the trusts. Yvonne was
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to get annual income distributions from the Mary’s Way Trust , and Robert was to get annual
distributions from the Bent Wrench Trust.
¶11 In 2002, Yvonne filed a Petition for Dissolution asserting that the marriage was
irretrievably broken. She sought custody of the minor children. Throughout the parties’
separation and dissolution proceeding, all seven of the children became increasingly
oppositional and defiant with Robert and professed to hate him and not want to see him or
speak to him. During this time, Robert moved to California where various members of his
family, including a brother, resided.
¶12 A non-jury trial was conducted on August 6-7, 2003. The District Court declined to
rule from the bench and in September 2003, issued its fifteen-page, single-spaced Findings
of Fact, Conclusions of Law, and Decree of Dissolution. In this Decree, the court designated
Robert as the custodial parent for the minor children. It terminated the irrevocable trusts
established by Yvonne and Robert and ordered that the corpuses of these trusts be distributed
as marital property between Yvonne and Robert. The court awarded a 2.5 acre parcel of the
property to Yvonne and ordered the sale of the remaining real property with the proceeds
being divided evenly between Robert and Yvonne. Each party had the option to purchase
items of equipment from the other party. If neither party wanted the equipment, the
equipment, too, would be sold with the proceeds divided equally. Additionally, it determined
that no maintenance would be awarded to Yvonne.
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¶13 Yvonne filed a Motion to Amend the Judgment in which she moved to stay the
transfer of the children to Robert and moved to stay the sale of the family property pending
appeal. She also requested a new trial based, in part, on her perception that the District Court
was biased against her. Robert opposed the Motion.
¶14 The District Court held a hearing during which both sides presented their positions
and arguments. Subsequently, the court issued an Order in which it stayed the sale of the
property pending appeal but required that the children go to Robert without further delay.
Additionally, the court denied Yvonne’s request for a new trial. On October 23, 2003, the
District Court issued its Amended Findings of Fact, Conclusions of Law, and Decree of
Dissolution (Decree). Yvonne filed a timely appeal.
¶15 We note that on November 28, 2003, approximately one month after Robert and the
children moved to California, Robert filed an Affidavit informing the District Court that the
relationship between he and his children had so deteriorated during the month that he had
moved back to Montana with the children and had enrolled them in public school in Troy.
STANDARD OF REVIEW
¶16 We review a district court’s findings of fact to determine whether they are clearly
erroneous. We review a district court’s conclusions of law to determine whether that court’s
interpretation of the law is correct. In Re Estate of Berthot, 2002 MT 277, ¶ 21, 312 MT 366,
¶ 21, 59 P.3d 1080, ¶ 21 (citing In re Mark K. Eggebrecht Irrevocable Trust, 2000 MT 189,
¶ 18, 300 Mont. 409, ¶ 18, 4 P.3d 1207, ¶ 18).
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¶17 Our standard of review for a district court’s award of child custody is whether the
district court’s findings are clearly erroneous. When the findings are supported by substantial
credible evidence, we will affirm the district court’s decision unless a clear abuse of
discretion is shown. In re Marriage of Baer, 1998 MT 29, ¶ 18, 287 Mont. 322, ¶ 18, 954
P.2d 1125, ¶ 18. The test for abuse of discretion is whether the trial court acted arbitrarily
without employment of conscientious judgment or exceeded the bounds of reason resulting
in substantial injustice. State v. Baker, 2004 MT 393, ¶ 13, 325 Mont. 229, ¶ 13, 104 P.3d
491, ¶ 13 (citation omitted).
DISCUSSION
¶18 Did the District Court err when it terminated the parties’ irrevocable trusts as a result
of the dissolution of the marriage?
¶19 At the time Yvonne and Robert established the Mary’s Way and Bent Wrench Trusts,
they specifically designated these Trusts as “irrevocable.” As the persons who established
the Trusts, Yvonne and Robert were the “grantors” or “trustors.” Yvonne and Robert were
also the “trustees” of the Trusts and, as such, were charged with holding the Trust property
and making annual distributions to themselves according to the terms of the Trusts. Their
seven children were named as beneficiaries in each Trust.
¶20 During the dissolution proceeding, Robert sought termination of the Trusts arguing
that the corpuses should be reclassified as marital assets and equitably distributed between
he and Yvonne. He testified that the dual “family” purposes of the Trusts were to pass on
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the family property to the children upon his and Yvonne’s deaths, and to use the Trusts as
estate planning tools allowing the beneficiaries to avoid probate and inheritance taxes. He
maintained that given the hostile circumstances in which the family found itself, such
“family” purposes ceased to exist and the Trusts were no longer viable. Yvonne did not rebut
this testimony; instead she testified that the Trusts were intentionally irrevocable, which
meant “that [she and Robert] were not going to change [their] minds, and that [they] wanted
the children to have the property when [they] passed away.” As a result, Yvonne asserted
that the Trusts should not be terminated.
¶21 There are limited methods by which an irrevocable trust may be modified or
terminated. Section 72-33-406, MCA, provides:
(1) Except as provided in subsection (2), if all beneficiaries of an irrevocable
trust consent, they may compel modification or termination of the trust upon
petition to the court.
(2) If the continuance of the trust is necessary to carry out a material purpose
of the trust, the trust cannot be modified or terminated unless the court, in its
discretion, determines that the reason for doing so under the circumstances
outweighs the interest in accomplishing a material purpose of the trust. . . .
In the case before us, the beneficiaries did not unanimously request or consent to terminating
the Trusts; rather, those beneficiaries who testified strongly opposed such termination.
¶22 Additionally, § 72-33-413(1), MCA, provides for the modification or termination of
a trust. It states:
On petition by a trustee or beneficiary, the court may modify the administrative
or dispositive provisions of the trust or terminate the trust if the continuation
of the trust under its terms would defeat or substantially impair the
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accomplishment of the purposes of the trust, whether by the imposition of tax,
the allocation of beneficial interest inconsistent with such purposes, or by other
reason. . . .
¶23 The District Court presided over several interim hearings as well as a two-day trial.
The presiding judge, Judge Prezeau, in an apparent effort to understand the motives,
concerns, and background of this family, engaged in extensive questioning of several of the
witnesses, including Yvonne and Robert. During the hearings and the trial, the court heard
conflicting testimony on many subjects. As we have stated on numerous occasions, the
District Court is in the best position to hear the evidence and weigh any conflicting testimony
that is presented. In re Marriage of McKenna, 2000 MT 58, ¶ 17, 299 Mont. 13, ¶ 17, 996
P.2d 386, ¶ 17. In nonjury trials, the credibility of a witness and the weight which his or her
testimony should be afforded is within the sound discretion of the district court. We will not
reweigh the evidence and substitute our judgment for that of the court under such
circumstances. In re J.C.B., 2004 MT 111, ¶ 14, 321 Mont. 110, ¶ 14, 88 P.3d 1280, ¶ 14
(internal citations omitted).
¶24 Based on the evidence presented throughout this proceeding, the court concluded that
the true purpose of the Trusts was to avoid probate and inheritance taxes, as opposed to
“rewarding the children for their work around the homestead.” While recognizing the
contribution of the children to the development of the property, the court observed that the
labor was typical of that expected of rural children. The court further noted that, contrary to
the Trust terms, the children contributed neither labor nor money to the acquisition of the
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property to the extent that they were “equitable owners.” The court also found that without
the assets contained in the Trusts, there were “very few assets in the marital estate.” As a
result of the court’s findings, its interpretation of the “purpose” of the Trusts and § 72-33-
413, MCA, the court determined that the purpose of the Trusts was defeated by the
disintegration of the family and that it was “unreasonable to continue the Trusts to the
extreme detriment of one or both of the trustees.”
¶25 We conclude that the District Court’s factual findings regarding the limited existence
of other marital assets and the children’s contributions of labor toward the acquisition and
development of the property were supported by the record; and are not otherwise clearly
erroneous.
¶26 The District Court’s application of § 72-33-413, MCA, to the Trust agreements
constitutes a conclusion of law which we review for correctness. As observed by the parties,
there is a complete absence of case law interpreting § 72-33-413, MCA.
¶27 Given the issues presented to him, Judge Prezeau was obligated to determine whether
continuation of the Trusts would defeat or substantially impair the accomplishment of the
purposes of the Trusts. Section 72-33-413(1), MCA. He determined, based upon the serious
disintegration of this family, Robert’s estrangement from the family, and the possibility that
both Robert and Yvonne could experience “extreme detriment” if the assets of the Trusts
were not distributed as marital property, that the “family purpose” of the Trusts was defeated.
Based upon the record before us, we cannot conclude that the District Court either incorrectly
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interpreted or applied the statute. To the contrary, the court carefully analyzed the evidence
presented in light of the statutory directives. We therefore affirm the District Court’s
decision to terminate the Trusts.
¶28 Did the District Court abuse its discretion by designating Robert as the custodial
parent of the minor children?
¶29 Yvonne challenges the District Court’s decision to grant primary residential custody
of the minor children to Robert. The District Court, in accordance with § 40-4-212, MCA,
determined that such a custodial arrangement was in the best interests of the children. If the
record supports the court’s factual findings, absent an abuse of discretion, we will not disturb
this determination.
¶30 Section 40-4-212, MCA, requires that a district court consider all relevant parenting
factors in determining what parenting arrangement is in the best interests of the affected
children. The statute then identifies thirteen factors that may be relevant to a particular case.
While recommended, it is not mandatory that a district court’s custody order contain specific
findings on each of these listed factors. It need only “express the ‘essential and determining’
facts upon which it rests its conclusions.” Lorenz v. Lorenz (1990), 242 Mont. 62, 68, 788
P.2d 328, 332 (citation omitted).
¶31 The District Court had the unenviable task of choosing between two parents who love
their children but who have raised them in an intolerant, inflexible and isolated environment.
To make this difficult decision, the court carefully considered each of the factors in § 40-4-
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212, MCA, and, while not obligated to do so, issued specific findings on each factor.
However, the court appeared to give substantial consideration to the following factors: 1) the
wishes of the children; 2) frequent and continuing contact with both parents; 3) the
developmental needs of the children; and 4) the lifestyle to which the children were subjected
while living with both parents.
¶32 The court did not interview the minor children, but surmised that there was “no
question” that, if asked, the children would express a strong preference to live with their
mother. The court stated that while the children’s wishes would normally receive some
degree of deference, it did “not regard the children’s estrangement from their father as a
positive development which should be facilitated by the Court.” The District Court further
speculated that naming Yvonne as the residential parent “would be tantamount to terminating
Robert’s parental rights.” The court observed that, “Yvonne can barely speak Robert’s name,
let alone be expected to promote or facilitate an ongoing relationship between Robert and the
children.” Noting that Yvonne displayed an extremely inflexible and judgmental demeanor
and attitude, the court found that it had “infinitely more confidence that Robert will promote
a healthy, respectful relationship between the children and their mother than it has in
Yvonne’s willingness or ability to do the same if the children were placed in her primary
custody.”
¶33 The court also gave significant consideration to the children’s developmental needs.
It noted that Yvonne had home-schooled the children throughout their lives with assistance
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from Robert in the sciences. The court determined that if the children remained with
Yvonne, their home-schooling might not provide them with an adequate educational basis
to pursue college should they choose to do so. There is little doubt that the court was
influenced by Robert’s testimony that he would allow the children to go to school. The court
found that it would be in the best interests of the children to be exposed to the outside world
and to ideas that were “not first sifted through their parents’ view of reality.” The court also
determined it was in their best interests under these circumstances to have their educational
needs met outside of their home.
¶34 Lastly, the court appears to have seriously contemplated the lifestyle in which Robert
and Yvonne raised their children. It observed that the family regularly shunned people for
“minor transgressions”such as reciting the rosary or saying grace at their dinner table in an
unacceptable manner. The court found that while both parents were intolerant and inflexible,
Yvonne “has demonstrated that she is even less flexible and more intolerant than Robert.”
After Yvonne and Robert separated, Robert reconciled with his brothers, who had been
ostracized at Yvonne’s request. The court appreciated Robert’s willingness and ability to
reconcile with people he had formerly shunned. It observed that Yvonne had not
demonstrated such a willingness to reconcile with people or a recognition that education was
more important than indoctrination.
¶35 Our review of the record reveals that it supports the court’s factual findings. Yvonne
has failed to show that the District Court clearly abused its discretion. Where, as here, the
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court properly considered the factors set forth in § 40-4-212, MCA, and set forth an analysis
of the facts of the case to support its custody decision, there is no clear abuse of discretion.
See Marriage of McKenna, ¶ 19.
¶36 Did the District Court abuse its discretion when it failed to conduct a child support
calculation?
¶37 The court issued the following Finding regarding child support:
Robert is presently unemployed, and Yvonne has not worked outside the home
in 25 years. Under the circumstances, it is virtually impossible to calculate
child support, and it is unlikely that Yvonne would pay it even if ordered to do
so. In lieu of child support, the Court finds that Robert should receive the
backhoe and dump truck, which he could use to earn a living or extra income
with which to support the children. The backhoe has a value of approximately
$16,000, its original purchase price, and the value of the dump truck is
approximately $3,000.
¶38 Yvonne argues that the court erred by awarding property to Robert in lieu of child
support without first calculating the amount of child support to which Robert was entitled
under the Child Support Guidelines. Under § 40-4-204(1) and (2), MCA, a court is required
to order a parent owing a duty of support to pay child support based upon consideration of
various relevant factors. Section 40-4-204(3)(c), however, authorizes a court to decline
imposing child support obligations. Under such circumstances, the court “shall state its
reasons for not ordering child support.” In re Marriage of Kuzara (1986), 224 Mont. 124,
129-30, 728 P.2d 786, 789.
¶39 The District Court in this case, based on the evidence presented, plainly stated its
reason for not ordering child support. Therefore, we affirm the District Court and hold that
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it did not abuse its discretion when it issued its Findings of Fact declining to calculate a
precise child support amount.
¶40 Did the District Court err when it failed to award Yvonne maintenance?
¶41 Under § 40-4-203(1)(a) and (b), MCA, the district court has the discretion to award
maintenance to a spouse seeking such maintenance providing the spouse “lacks sufficient
property to provide for his reasonable needs; and is unable to support himself through
appropriate employment . . . .” Here, the parties had extremely limited assets. The District
Court granted to Yvonne a greater share of the marital assets. The court did this after
considering that Robert had superior earning capacity, that Yvonne was providing a home
for the older children and needed furnishings, and that Robert had taken some cash and/or
gold with him when he left the family home. The District Court found that under such
circumstances an equitable resolution would be to grant Yvonne a greater percentage of the
assets.
¶42 The court then found that Yvonne had sufficient assets to provide for her reasonable
needs. The court noted also that while Yvonne had never worked outside the home, had
limited education, and may find it difficult to be in the workforce due to her “severe and
judgmental attitude”, she was, nonetheless, physically able to support herself through
appropriate employment. As we have held previously, “maintenance awards are generally
not favored in Montana.” Pfeifer v. Pfeifer (1997), 282 Mont. 461, 472, 938 P.2d 684, 691.
If they are granted, however, they must be granted pursuant to § 40-4-203, MCA. The
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District Court determined under the applicable statute that an award of maintenance was not
warranted. Again, the record supports the court’s findings; and such findings are not
otherwise clearly erroneous. Nor has Yvonne established that the court acted arbitrarily
without employment of conscientious judgment or that it exceeded the bounds of reason
resulting in substantial injustice. Baker, ¶ 13. We therefore affirm the District Court on this
issue.
¶43 Was the District Court biased against Yvonne and, if so, was such bias so prevalent
as to warrant a new trial?
¶44 There is no question that Judge Prezeau found fault with the lifestyle to which both
Robert and Yvonne had subjected the children. Moreover, he did conclude, as noted above,
that Yvonne would be less inclined than Robert to change that lifestyle for the better.
However, we conclude that the court’s findings and decisions were made carefully and
thoughtfully on the basis of the substantial evidence presented, and that the record reveals
no bias on the part of the court against Yvonne. Thus, no new trial is warranted.
CONCLUSION
¶45 Affirmed.
/S/ PATRICIA O. COTTER
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We Concur:
/S/ KARLA M. GRAY
/S/ JOHN WARNER
/S/ JIM RICE
/S/ W. WILLIAM LEAPHART
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Justice Jim Rice specially concurring.
¶46 I concur with the Court’s holding and rationale, and therefore have signed the opinion.
I write separately to offer comment regarding Issue 5, which asserts that the District Court
was biased.
¶47 In resolving the child custody issue, the District Court reasoned as follows:
Under the guise of protecting their children from drugs and immorality, the
Eppersons home schooled their children, essentially denying them access to the
outside world. They have no television, and until recently, had no telephone.
. . . Robert’s willingness to send the children to a public school at least opens
up the possibility that the children will receive an adequate education and be
exposed to ideas that are not first sifted through their parents’ view of reality.
This statement, taken at face value, can easily be construed as a judicial assault upon the
rights of parents to educate their children and to convey their morals and values to their
children. It ridicules parental effort to protect children from drugs and immorality if such
effort involves home-schooling and denial of access to worldly influences, faults a parental
decision to have no television, faults the parents’ choice of home-schooling over public
education and criticizes parental efforts to transmit their “view of reality” to their children.
If these things constitute impermissible parenting, then I submit that we have left freedom
behind and are within the grip of the totalitarian state.
¶48 The District Court attempted to mitigate these comments, at least about home-
schooling, by stating that “the Court wishes to make clear that it does not automatically
assume that every home schooling situation is necessarily inferior to every public education
situation.” (Emphasis added.) However, this condition-laden explanation is less than
convincing, and does not restore faith in the District Court’s impartiality. Worse, the District
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Court made no effort at all to mitigate its comments criticizing the transmission of the
parents’ views and values to their children.1
¶49 Further, the District Court made comments during the course of the trial about the
parties’ religion. During its own active examination of the witnesses, it formulated a
question that described the parties as “a family of isolated religious fundamentalists.” This
description may very well have been accurate, but the court’s later statements that the parties’
religion had “screwball aspects” and was “off beat” would infer that it viewed
fundamentalism in a negative light.2
¶50 In my view, these are inappropriate judicial comments. I would vote to reverse if I
believed that the District Court’s views on these matters led it to make an erroneous decision.
However, upon review of this complex family matter, I believe the District Court’s holding
was supported by its consideration of evidence unrelated to the rights of this family to home-
school, to insulate children from worldly influences, to convey moral values, and to worship
as it pleased.
/S/ JIM RICE
1
It should be noted that the record reflects the children were well adjusted to their
environment and well educated, if not exposed to all the wonders of the world.
2
Fundamentalism, as primarily defined, is a movement within twentieth century
Protestantism which emphasizes a literal interpretation of the Bible as fundamental to
Christian life and teaching. See Merrium-Webster’s Collegiate Dictionary, Tenth Edition,
1998. In contrast, the record discloses that the Epperson family adhered to the Tridentine
Catholic order or Tridentine Mass. A broader definition of fundamentalism is “strict and
literal adherence of a set of basic principles.” Ibid.
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