Marriage of Lee , 2007 MT 114N ( 2007 )

No. DA 06-0178
IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 114N____________________________________
TERI JANE LEE,
Plaintiff and Respondent,
v.
CHRISTOPHER VAUGHN LEE,
Defendant and Appellant.
____________________________________
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead, Cause No. DR-04-043(B),
The Honorable Ted O. Lympus, Presiding Judge.
COUNSEL OF RECORD:
For Appellant:
Christopher Lee (pro se), Shelby, Montana
For Respondent:
Michael H. Keedy, Henning & Keedy, Kalispell, Montana
____________________________________
Submitted on Briefs: April 4, 2007
Decided: May 8, 2007
Filed:
_____________________________________________
Clerk
Justice Brian Morris 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 Appellant Christopher V. Lee (Christopher) appeals from the Findings of Fact,
Conclusions of Law, and Decree of Dissolution issued by the Eleventh Judicial District
Court, Flathead County, terminating his marriage to Respondent Teri J. Lee (Teri) and
distributing the parties’ marital estate. We affirm.
¶3 Teri filed a petition for dissolution on January 21, 2004. Teri was represented by
counsel throughout the proceedings. Christopher originally proceeded pro se, but
apparently retained the services of attorney Kenneth Wesson to represent him. Attorney
Wesson filed a notice of appearance on December 9, 2005. Attorney Wesson
immediately filed a motion for continuance on Christopher’s behalf of the trial set for
December 14, 2005. Attorney Wesson noted that he had recently been retained by
Christopher’s family and that he had not even spoken to Christopher. Christopher was
incarcerated at that time and remains incarcerated today. The District Court granted the
continuance and rescheduled the trial for January 27, 2006.
¶4 Teri appeared at trial with counsel. Christopher made no appearance. Christopher
alleges that Attorney Wesson absconded with the retainer provided by his family and that
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he has had no further contact with Attorney Wesson. The court awarded Teri primary
care of the parties’ four minor children, ranging in age from 6 to 12. The court ordered
Christopher to pay child support in the amount of $406 per month. The court also
divided the parties’ marital estate, including assets and debts. The court issued its decree
on January 27, 2006.
¶5 Christopher timely filed a notice of appeal on February 24, 2006, from “the final
judgment entered in this action on the 27th of January, 2006.” Christopher, proceeding
pro se on appeal, argues that he filed a motion pursuant to M. R. Civ. P. 60(b) to set aside
the judgment in the District Court. He claims that he appeals from the District Court’s
denial of his Rule 60(b) motion. Christopher has failed to provide a copy of the District
Court’s order denying his motion and our review of the record reveals no indication that
Christopher ever filed such a motion pursuant to Rule 60(b) or that the court ever
addressed such a motion. It appears, therefore, that based on the language in
Christopher’s notice of appeal, and from our review of the record that Christopher, in
fact, appeals from the District Court’s order dissolving his marriage to Teri and
distributing the marital estate.
¶6 We review a district court’s division of marital property to determine whether the
findings upon which the district court relied are clearly erroneous. In re Marriage of
Clark, 2003 MT 168, ¶ 7, 316 Mont. 327, ¶ 7, 71 P.3d 1228, ¶ 7. Findings are clearly
erroneous if they are not supported by substantial evidence, the court misapprehends the
effect of the evidence, or this Court’s review of the record convinces us that a mistake
has been made. In re Marriage of Schmieding, 2003 MT 246, ¶ 14, 317 Mont. 320, ¶ 14,
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77 P.3d 216, ¶ 14. We will affirm the district court’s distribution of property absent an
abuse of discretion if the findings are not clearly erroneous. Clark, ¶ 7. The test for
abuse of discretion in a dissolution proceeding is whether the district court “acted
arbitrarily without employment of conscientious judgment,” or whether the district court
“exceeded the bounds of reason resulting in a substantial injustice.” Clark, ¶ 7.
¶7 We have determined to decide this case pursuant to Section 1, Paragraph 3(d), of
our 1996 Internal Operating Rules, as amended in 2003, that provides for memorandum
opinions. It is manifest on the face of the briefs and record before us that substantial
evidence supports the District Court’s findings of fact, the legal issues are clearly
controlled by settled Montana law that the District Court correctly interpreted, and that
there was no abuse of discretion by the District Court.
¶8 We affirm the judgment of the District Court.
/S/ BRIAN MORRIS
We Concur:
/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
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