September 3 2009
DA 09-0080
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 295N
JOEL VESSIE,
Petitioner and Appellant,
v.
AWNDRAY FRANCISCO,
Respondent and Appellee.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and For the County of Flathead, Cause No. DR-94-030(A)
Honorable Ted O. Lympus, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Kai Groenke, Kent Saxby; Johnson, Berg, McEvoy & Bostock, PLLP,
Kalispell, Montana
For Appellee:
Paul A. Shae; Law Office of George B. Best, Kalispell, Montana
Submitted on Briefs: August 12, 2009
Decided: September 2, 2009
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be
cited as precedent. It shall be filed as a public document with the Clerk of the Supreme
Court and its case title, Supreme Court cause number and disposition shall be included in
this Court’s quarterly list of noncitable cases published in the Pacific Reporter and
Montana Reports.
¶2 Joel Vessie (Vessie) appeals from findings of fact, conclusions of law, and order
by the Eleventh Judicial District Court, Flathead County, modifying child support
payments to require him to pay Awndray Francisco (Francisco) $837 per month. We
affirm.
¶3 We restate the issues on appeal as follows:
¶4 Whether the District Court violated Vessie’s procedural due process rights.
¶5 Whether the District Court’s findings were clearly erroneous.
¶6 Whether the District Court’s award of child support was an abuse of discretion.
¶7 Vessie and Francisco are the unmarried parents of C.F., a minor child who is
currently 16 years old. In 1994 the parties agreed that Vessie would pay Francisco $144
per month in child support. Another agreement raised this child support obligation to
$225 per month in 2004. Francisco claims that Vessie bullied and threatened her into
accepting these low child support agreements, forcing her to seek State aid to care for
C.F. while Vessie enjoyed a comfortable lifestyle. Eventually, Francisco retained
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counsel and filed a motion for modification of child support on April 9, 2008. Vessie’s
responses to discovery requests produced inconsistent financial information. Vessie
objected to the disclosure of financial information pertaining to his ownership interest in
Guardian Home Loans, LLP, a mortgage brokerage business, and filed a motion for a
protective order. On July 8, 2008, the District Court heard testimony on the pending
motions from both Vessie and Francisco, and ordered Vessie to provide the requested
information. Vessie provided supplemental information, which was filed with the court,
and both Francisco and Vessie provided their analysis of this information through written
court filings. The District Court issued its findings of fact, conclusions of law, and order
on January 7, 2009, granting Francisco’s motion for modification of child support, and
ordering Vessie to pay Francisco $837 per month in child support, as well as Francisco’s
attorney fees. Vessie appeals from this order.
¶8 Whether a person has been denied due process of law presents a constitutional
question of law; our review of such questions is plenary. In re Mental Health of E.T.,
2008 MT 299, ¶ 7, 345 Mont. 497, 191 P.3d 470. In child support modification cases,
this Court reviews a district court’s findings of fact to determine if they are clearly
erroneous. Midence v. Hampton, 2006 MT 294, ¶ 11, 334 Mont. 388, 147 P.3d 227. We
review a district court’s modification of child support obligations for abuse of discretion.
In re Marriage of Wilson, 2009 MT 203, ¶ 12, 351 Mont. 204, 210 P.3d 170.
¶9 Whether the District Court violated Vessie’s procedural due process rights.
¶10 Vessie argues that the District Court violated his procedural due process rights by
issuing a child support order depriving him of property without providing an opportunity
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to explain, argue, and rebut the information at a hearing. The record shows that Vessie
had an opportunity to explain, argue, and rebut the financial information provided to the
court at the July 8, 2008, hearing and through his September 2, 2008, response to
supplemental information filed by respondent. Vessie testified regarding his financial
situation at the July 8, 2008, hearing, and further explained, argued, and rebutted the
supplemental information provided in his seven-page written response. While Vessie
maintains that he had a right to a hearing after the supplemental information was filed, he
failed to request such a hearing, and cites no authority to support his claim that
procedural due process requires another hearing. We conclude that the District Court did
not violate Vessie’s procedural due process rights.
¶11 Whether the District Court’s findings were clearly erroneous.
¶12 Vessie argues that the District Court’s findings of fact are clearly erroneous since
they are based on counsel for Francisco’s “analysis” of information, rather than on
properly admitted evidence. Vessie further complains that the District Court merely
adopted the findings proposed by Francisco. “Where, as here, findings and conclusions
are sufficiently comprehensive and pertinent to the issue to provide a basis for decision,
and are supported by the evidence, they will not be overturned simply because the court
relied upon proposed findings and conclusions submitted by counsel.” In re Marriage of
Alt, 218 Mont. 327, 330, 708 P.2d 258, 260 (1985). Vessie offers no substantive reason
to support his claim that the findings of fact are clearly erroneous. Once again, Vessie
claims he was denied the benefit of a hearing to explain the supplemental financial
information provided. However, as noted above, Vessie had adequate opportunity to
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explain the information. The District Court heard testimony from both parties, received
proposed findings of fact from both parties, and received copies of all discovery
documents along with relevant explanations. As a result, the court had copies of tax
returns, bank statements, affidavits, business records, and paychecks. This information
was sufficient to establish an accurate income for both parties. We conclude that there is
substantial credible evidence to support the District Court’s findings of fact.
¶13 Whether the District Court’s award of child support was an abuse of discretion.
¶14 Vessie again relies on his claim that the District Court failed to provide him an
opportunity to present, explain, or rebut the financial information as proof that the court
abused its discretion by awarding increased child support requested by Francisco. Given
the above analysis, we conclude that the District Court did not abuse its discretion in
awarding increased child support to Francisco. The District Court’s decision applied
Montana statutory law and the Montana Child Support Guidelines. Montana law
provides that the court shall consider the financial resources of the parents in determining
child support. Section 40-4-204(2)(b), MCA. The District Court made its decision in a
realistic manner considering the actual income of both parties.
¶15 The District Court awarded Francisco attorney fees, which she requests again on
appeal, claiming that Vessie’s appeal is frivolous and filed for purposes of harassment
and delay. The request for attorney fees on appeal is denied.
¶16 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our 1996 Internal Operating Rules, as amended in 2003, which provides for
memorandum opinions. It is manifest on the face of the briefs and the record that the
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appeal is without merit because the issues are clearly controlled by settled Montana law;
the issues are factual and there clearly is sufficient evidence to support the findings of
fact below; and the issues are ones of judicial discretion and there clearly was not an
abuse of discretion.
¶17 Affirmed.
/S/ MIKE McGRATH
We concur:
/S/ PATRICIA O. COTTER
/S/ BRIAN MORRIS
/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON
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