In Re the Marriage of Dreesbach , 51 State Rptr. 374 ( 1994 )

IN THE SUPREME COURT OF THE STATE OF MONTANA
IN RE THE MARRIAGE OF
ANTIONETTE MARIE DREESBACH,
Petitioner and Appellant,
and
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable James E. Purcell, Judge presiding.
COUNSEL OF RECORD:
For A2pellant:
Christopher Daly, Attorney at Law, Missoula, Montana
For Respondent:
Christine Somers; Haxby & Somers, Butte, Montana
Kevin Callaghan, Attorney at Law, Missoula, Montana
(guardian ad litem)
Submitted on Briefs: February 24, 1991
Decided: April 21, 1994
Filed:
Justice John Conway Harrison delivered the opinion of the Court.
Appellant Antionette Marie Dreesbach (Antionette) appeals the
findings of fact, conclusions of law and decree of dissolution from
the Second Judicial District Court, Silver Bow county. Antionette
challenges several of the court's determinations, including issues
of custody, contempt, visitation, division of marital assets, and
modification of custody. We affirm in part and reverse in part.
Antionette raises eight issues on appeal. We consolidate and
restate the issues which are properly before this Court:
1. Did the District Court err by awarding joint custody?
2. Did the District Court err by awarding visitation?
3. Did the District Court err by finding Antionette in
contempt and in its related punishment?
4. Did the District Court err in dividing the marital assets?
5. Did the District Court err by modifying custody pending
appeal?
This case arises from a protracted, bitter marriage
dissolution. Alan William Dreesbach, Jr. (Alan) and Antionette
were married on July 18, 1987. Antionette entered the marriage
with a daughter, Reva Wansrath (Reva), from a previous
relationship. Alan was not Revals natural father, nor did he adopt
her. Alan and Antionette had one child, Morgan Antone Dreesbach
(Morgan), on February 26, 1987.
Antionette alleges that over the course of their marriage,
Alan physically abused Morgan, and physically and sexually abused
Reva. Alan adamantly denied these allegations. Because of this
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alleged abuse, the District Court appointed a guardian ad litem to
represent Morgan's best interest and to assist the court with its
custody decision. Despite a court order, Antionette refused to
allow Alan to visit Morgan.
Antionette's experts testified that they had uncovered
circumstantial evidence of abuse through sessions with Antionette
and the two minor children; however, neither of these experts
evaluated Alan. The District Court appointed Dr. Sarah Baxter to
conduct a custodial evaluation. Dr. Baxter could not confirm
sexual or physical abuse. Rather, Dr. Baxter concluded that
Antionette suffered from acute paranoia, was terrified of losing
control of Morgan, and was extremely hostile toward Alan.
After several hearings, a hearing to dissolve the marriage
between Alan and Antionette was held on May 18, 1993. In its order
of July 2, 1993, the District Court granted joint custody of
Morgan, and designated Antionette as Morgan's primary physical
custodian. The District Court determined that Antionettels
allegations of physical and sexual abuse were false; that there was
insufficient evidence to substantiate sexual or physical abuse of
the children; and that Antionette had intentionally and
persistently interfered with Alan's right to visit Morgan. The
court found Antionette in contempt for frustrating Alan's
visitation attempts. The District Court also divided the couple's
marital assets and elected not to remove Alan's name from Reva's
birth certificate.
On August 26, 1993, the District Court issued a temporary
order modifying custody, pending appeal. That order gave Alan sole
custody of Morgan. Antionette filed a writ of supervisory control
with this Court, which was denied on September 16, 1993.
Antionette appeals.
I
Did the District Court err by awarding joint custody?
Our standard of review in a child custody case is whether the
district court's findings are clearly erroneous. In re Marriage of
Maxwell (l99l), 248 Mont. 189, 193, 810 P.2d 311, 313. The court's
decision will be upheld unless a clear abuse of discretion is
shown. In re Marriage of Susen (1990), 242 Mont. 10, 13-14, 788
P.2d 332, 334.
We have held that findings of fact must be based on
substantial credible evidence. In re Marriage of Hurley (1986)'
222 Mont. 287, 296, 721 P.2d 1279, 1285. Furthermore, a
presumption exists in favor of joint custody. Section 40-4-222,
MCA.
The district court is required to consider the child's "best
interest" when determining custody. Section 40-4-212, MCA. The
statute provides a list of factors which the court must consider in
making its determination; however, the court is not required to
make specific findings on each individual factor. In re Marriage
of Merriman (1931), 247 Mont. 491, 493, 807 P.2d 1351, 1353.
In the present case, the parties presented conflicting
evidence as to Morgan's best interest. Antionette wanted sole
custody of Morgan, while Alan wanted joint custody. The District
Court granted joint custody of Morgan, with Antionette as the
primary physical custodian. Despite the District Court's specific
findings to the contrary, Antionette insists that Alan sexually
abused the children.
According to Antionette, the court adopted the majority of its
findings of fact nearly verbatim from the findings proposed by the
guardian ad litem. In so doing, Antionette argues, the District
Court failed to exercise independent judgment. See In re Marriage
of Tahija (l992), 253 Mont. 505, 508, 833 P.2d 1095, 1096 (citation
omitted). For example, she argues that Finding 20(b) indicates
that Antionette willfully and consistently frustrated visitation,
while the record indicates that both parties frustrated visitation.
Moreover, the court found that Marsha Kirchner, a professional
counselor from the Department of Family Services, was credible at
an April 6, 1992, hearing; however, the court found that Ms.
Kirchner was not credible during the May 18, 1993, trial.
The record demonstrates that the court did, in fact, exercise
independent judgment. First, the District Court appointed a
guardian ad litem to represent Morgan's interests. It also ordered
a custodial evaluation, which was conducted by Dr. Sarah Baxter, a
psychologist, and Dr. William Stratford, a psychiatrist.
The court further heard testimony from Dr. Baxter that Morgan
did not mention any sexual abuse by Alan. Moreover, Dr. Baxter
could not confirm or discredit the allegations of sexual and
physical abuse in her evaluations of Morgan and the parents.
Rather, the custodial evaluation indicated that Antionette's
allegations may have resulted from Antionette's vfextreme
paranoid
disorderfRa condition which she cannot control.
The custodial evaluation also indicated that Alan and Morgan
interacted well together; that Alan displayed no hostility to
either Morgan or Antionette; and that during the supervised
visitation, Alan behaved appropriately. Notably, even ~ntionette's
expert witness, Ms. Kirchner, testified that she had not ruled out
the possibility that Antionette might have caused Morgan's
withdrawal symptoms.
The District Court considered--and we have reviewed--the
depositions of Lynn Stewart, a professional counselor, and Dr.
Timothy Carte, both of whom were retained by Antionette. The
District Court found that Ms. Stewart's deposition and testimony
were not credible. - However, the court found the evaluations of
Drs. Baxter and Stratford and the testimony of Dr. Baxter to be
persuasive. The District Court was in the best position to observe
the witnesses and their demeanor. See In re Marriage of Ernst
(1990), 243 Mont. 114, 122, 793 P.2d 777, 782.
The District Court thoroughly analyzed the record before it.
The court reviewed, considered and relied on the opinions of the
neutral experts, which were requested by the court to conduct a
custodial evaluation. See In re ~arriageof Ereth (1988), 232
Mont, 492, 494, 757 P.2d 1312, 1313-14. Contrary to Antionettefs
assertions, the record is replete with substantial credible
evidence which supports the District Court ' s findings .
Furthermore, the court carefully considered the factors set out in
5 40-4-212, MCA, when it made its determination. The District
Court's findings were not clearly erroneous.
II
Did the District Court err by awarding visitation which
differed from the proposal of the custody evaluator?
Our standard of review for visitation is whether substantial
credible evidence supports the district court's findings. In re
Marriage of Nash (l992), 254 Mont. 231, 234, 836 P.2d 598, 600. We
will overturn a court's visitation decision only when the court's
findings and conclusions clearly demonstrate an abuse of
,
discretion. In re Marriage of Anderson (1993) 260 Mont . 246, 254-
55, 859 P.2d 451, 454.
During trial, Dr. Baxter recommended that: 1) Antionette
continue receiving psychotherapy; 2) Alan and Morgan be involved in
joint family therapy: 3) therapy should be overseen by someone
other than Ms. Stewart; 4) overnight or lengthy, unsupervised
visits between Alan and Morgan were not favored at that time; 5)
Alan and Antionette have no contact; and 6) the guardian ad litem
or a case manager should be appointed to ensure that therapy
appointments were kept.
Antionette argues that the District Court ignored these
recommendations when it made its findings. Antionette contends
that the court essentially "rubber stamped" the guardian ad litem's
proposed findings and failed to exercise independent judgment by
not conforming its findings to Dr. Baxter's testimony. Antionette
is mistaken.
Although the District Court adopted the visitation schedule
proposed by the guardian ad litem, it specifically found that Dr.
Baxter or her chosen representative should supervise Alan and
Morgan's visitation "for the shortest duration [which Dr. Baxter or
a professional chosen by Dr. Baxter] deem[s] appropriate and
reasonablew before unsupervised visitation begins. The District
Court allowed for joint therapy at Dr. Baxter's discretion "to
repair the damage to [Alan and Morgan's] relationship which has
been caused by [Antionette's] conduct."
While it is true that a separate case manager was not
appointed to ensure that therapy appointments were kept, this Court
concludes that there is no need for a separate case manager.
Rather, as the District Court determined, Dr. Baxter or her chosen
representative shall be entrusted to supervise visitation and
oversee the process until unsupervised visitation is deemed
appropriate. We hold that the District Court's visitation
determination was based on substantial credible evidence, was not
clearly erroneous, and will not be overturned.
Antionette also challenges the award of visitation to Morgan's
great grandmother and great-great grandmother on Alan's side of the
family. She argues that Montana's grandparent visitation statutes
do not address great-grandparent visitation. See IS 40-9-101 et
seq., MCA. However, the record is clear that no independent
grandparent or great-grandparent visitation rights have been sought
or granted. District Court Finding No. 20(s) provides that I1[t]he
Respondent's grandparental visitations shall be had during
visitations with the Respondent." Absent allegations of attempted
independent great-grandparent visitation or a District Court
finding on independent great-grandparent visitation rights, we
conclude that the issue is moot. However, we note that nothing
prohibits the great-grandmother and great-great grandmother from
visiting Morgan when Alan is exercising his visitation rights.
I11
Did the District Court err by finding Antionette in contempt
and in its related punishment?
Although contempt orders by the district court are final and
not normally reviewable by this Court, per 5 3-1-523, MCA, we make
an exception in family law cases. In re Marriage of Boharski
(1993), 257 Mont. 71, 77, 847 P.2d 709, 713 (citations omitted).
Our review is limited to whether the district court acted within
its jurisdiction and whether the evidence supports the contempt.
In re Marriage of Sullivan (1993), 258 Mont. 531, 539-40, 853 P.2d
1194, 1200.
The District Court found, and the record shows, that
Antionette repeatedly frustrated Alan's visitation attempts. For
example, although ordered by the court to allow Alan supervised
visitation with Morgan at a day care center, Antionette on one
occasion never showed up with the child. On two other occasions,
Antionette met Alan at the day care center, but insisted that he
sign a sheet of "visitation rulesM--prepared by Antionette--before
he could see Morgan. On both occasions, Alan refused and was
denied the right to visit Morgan. In all instances, Alan had
driven from Butte to Missoula to visit, and called to confirm the
visits before making the trips.
The District Court held a contempt hearing on July 30, 1992;
however, it reached no decision and the contempt proceedings were
incorporated into the final trial on the merits. Antionette claims
that her rules arose from revelations by Morgan to Lynn Stewart
during therapy--apparently that Alan had physically abused Morgan.
Antionette contends that she had a right to require Alan to sign
her rules because she believed she was acting in Morgan's best
interest. According to Antionette, this Court has held that if a
party disregards a court order based on concerns for a child's
health and not on a desire to restrict access, contempt is not
proper. In re Marriage of Jacobson (1987), 228 Mont. 458, 464, 743
P.2d 1025, 1028.
In the present case, the court ordered supervised visitation.
It was Anti0nett.e--not the court--who decided that visitation would
endanger Morgan's health. Antionette had no authority to limit, or
place any restrictions on, Alan's visitation. Undoubtedly, the
District Court was correct in finding Antionette in contempt for
consistently frustrating Alan's visitation of Morgan and for
levying "false accusations of sexual and physical abuse against
[Alan] without reasonable justification in a calcualted [sic]
attempt to deprive [Alan] contact with his child and to gain
advantage in this proceeding."
We turn, then, to whether the District Court's punishment for
contempt was appropriate. Section 3-1-519, MCA, provides in
pertinent part, that:
[i]f it be adjudged that he is guilty of the contempt, a
fine may be imposed on him not exceeding $500 or he may
be imprisoned not exceeding 5 days or both.
Antionette challenges the contempt punishment imposed by the
District Court, which required Antionette to seek on-going
professional counseling and bear the costs of that counseling. It
also resolved the issue of Alan's alleged child support arrearages
and day care obligations in his favor. Antionette contends that
requiring her to pay counseling costs amounts to an "open-ended
blank check." She further argues that the court's equitable powers
cannot contravene Montana statutes, which limit the financial
punishment for contempt to $500. Section 3-1-519, MCA.
Alan contends that despite the finding that she was in
contempt, Antidnette went unpunished for contempt. First, Alan
correctly argues that the court, in Finding No. 28, had already
found him to be current in his child support and day care
obligations. Second, Alan argues, and we agree, that the District
Court has equitable powers to punish a party for contempt beyond
the confines of 5 3-1-519, MCA. See Boharski, 847 P.2d at 713
(thirty-day jail term for contempt upheld); In re Marriage of
Redfern (1984), 214 Mont. 169, 173, 692 P.2d 468, 470 (reasonable
attorney's fees permissible in a contempt action).
Despite the District Court's decree, we note that Antionette's
attorney continues to refer to Alan as a "substantiated child
abuser." We further note that the District Court did not, as it
could have, find Antionette in contempt for each of her numerous
acts of contempt. Moreover, for the most part, the wpunishmentsN
levied against Antionette were not, in fact, punishments. Rather,
Finding No. 21 already required--upon recommendation of the
guardian ad litem and custodial evaluator, Dr. Baxter--that
Antionette seek and continue psychological counseling and therapy.
After a careful review of the record, w e are convinced that
the District Court was warranted in ordering Antionette to continue
therapy for two years. Although the two-year therapy requirement
will likely cost Antionette more than the $500 provided for in 5 3-
1-519, MCA, we hold that 1) the evidence supports the finding of
contempt; 2) the court acted within its jurisdiction and equitable
powers when imposing the punishment; and 3) the contempt penalties
imposed by the court had, in large part, been previously imposed
through ind ding Nos. 21 and 28.
IV
Did the District Court err in dividing the marital assets?
The District Court appointed a special master to handle the
financial aspects of this case. Antionette contends that when, as
here, a special master is used, the procedures outlined in Rule 53,
M.R.Civ.P., must be followed. Antionette also argues that the
District Court failed to consider the total value of the marital
estate when dividing the marital assets, as required by this Court
in In re Marriage of Peterson (1981), 195 Mont. 157, 159, 636 P.2d
821, 822-24.
When a special master is appointed, the district court must
follow the procedures outlined in Rule 53, M.R.Civ.P. The district
court must give the special master an order of reference to follow.
See Rule 53(c), (d), and (e), M.R.Civ.P.
The order of reference to the master may specify or limit
the master's powers and may direct the master to report
only upon particular issues or to do or perform
particular acts or to receive and report evidence only
and may fix the time and place for beginning and closing
the hearings and for the filing of the master's report.
Rule 53 (c), M.R.Civ.P. Rule 53 (e)(1), M.R.Civ.P., requires the
special master to provide the district court with a report based on
the order of reference and file the report with the clerk of court.
The parties then have ten days to object to the special master's
report. Rule 53(e)(2), M.R.Civ.P.
Here, the District Court failed to submit an order of
reference to the special master and the special master's proposed
decision went directly to the District Court. The court, in turn,
stated in its findings that there was an equitable division of the
debts and assets. Although the District Court erred by not
following the procedures outlined in Rule 53, M.R.Civ.P., we
conclude that the error was harmless. In re Marriage of Lopez
(1992), 255 Mont. 238, 245, 841 P.2d 1122, 1126. [TIo warrant
reversal, [an error] must materially affect the substantial rights
of the party." Lopez, 841 P.2d at 1126.
Here, Antionette's rights were not materially affected. Even
though the District Court adopted the special master's findings,
the findings were not clearly erroneous. See In re Marriage of
Danelson (1992).,253 Mont. 310, 317, 833 P.2d 215, 219. In fact,
the findings reflected a thorough consideration of the factors
listed in 5 40-4-201, MCA.
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Further, Alan contends that the District Court was not
required to make a specific determination as to net worth of the
marital assets because it did not order a distribution of property.
Rather, Alan argues that the District Court considered the parties1
net worth in terms of income and income producing ability.
We must examine the record to determine whether the district
court's findings as a whole are sufficient to determine the net
worth and to decide if the distribution was equitable. In re
Marriage of Stevenson (l989), 237 Mont. 157, 160, 772 P.2d 846, 848
(citation omitted). In this case, the District Court fully
considered the factors in E, 40-4-201(1), MCA. It considered the
incomes and financial affidavits of both parties, which evidenced
significant debts. For example, Antionette owed more than $3,400
in litigation/attorney expenses, almost $ 5,900 in student loans,
$3,500 to Lynn Stewart, and $1,700 in other loans. Alan, on the
other hand, owed $4,200 in litigation-related expenses, more than
$10,000 in student loans, $2,800 to Dr. Baxter, and $400 in credit
card bills.
Antionette challenges the "heavy" burden imposed on her by the
District Court. The court ordered her to handle all of Reva's
psychological costs and those of Morgan not covered by Alan's
insurance; all of her own psychotherapy; all family therapy--
including that between Alan and Morgan not covered by Alan's
insurance; all of her attorney's fees, half of Morgan's other
uninsured medical expenses, and half of the guardian ad litem's
fees. Alan was ordered to provide insurance coverage for Morgan
and Reva, and to pay $500 per month in child support to Antionette.
The court found that the special master, as instructed, had
equitably divided the marital property. It further determined that
each party pay its own attorney's fees, and that Antionette was
employed full-time and had sufficient assets to pay her own
attorney's fees. After a thorough review of the record, we hold
that the District Court's division of liabilities and acceptance of
the special master's division of marital property was not clearly
erroneous, We further hold that the District Court's failure to
specify the net worth of the parties, in light of the record before
us, was not reversible error.
v
Did the District Court err by modifying custody pending
appeal?
On August 12, 1993, Antionette appealed the District Court's
decision. On August 26, 1993, the District Court ordered a
temporary change in custody, a temporary restraining order against
Antionette, and an order to show cause. The order, based on a
motion by the guardian ad litem and supported by the affidavits of
Alan and Dr. Baxter, was based on the following concerns: I) that
~ntionettehad not sought therapy--designed to safeguard Morgan's
best interest--as required by the District Court; 2) that
Antionette continued to challenge the decreed visitation plan,
which successfully progressed from supervised to extended
unsupervised visitation; 3) that Antionette continued to allege
that Alan sexually abusing Morgan, and sought medical examinations
to prove such abuse; and 4) that Dr. Baxter, who has withdrawn from
the case (based on the appeal and on Antionette's dissatisfaction
with her performance) in favor of Dr. Cindy Miller, is concerned
that Antionette "is continuing to stifle Morgan's normal emotional
responses and desire for a relationship with her father."
The order placed Morgan in Alan's sole custody and limited
Antionette to supervised visitation only. It required Antionette
to undergo immediate psychological evaluation to determine
whether Petitioner and her demonstrated course of conduct
constitute a danger to Morgan's physical, mental and
emotional health and ... whether Petitioner is capable
of obeying the specific orders of this Court and the
conditions imposed upon her previously awarded
residential custody.
The order required Antionette to transfer custody of Morgan to
Alan; restrained Antionette from harassing, molesting or disturbing
the peace of Morgan or Alan; temporarily waived Alanls child
support obligation; and ordered Antionette to appear before the
District Court on September 3, 1993, to show cause for her actions.
Antionette did not appear before the court on September 3rd.
According to Antionettelsattorney, the reason she failedto appear
is that she was "too terrified" of the District Court Judge to
appear before him again. Antionette's attorney maintains that
Antionette has remained in telephone contact with him, but refuses
to disclose herilocation.
We note that Morgan is now living with Alan in Butte, and
Antionette has not attempted to visit Morgan. On August 24, 1993,
Antionette moved this Court for a writ of supervisory control,
seeking a stay of the decreed visitation and substitution of the
16
judge. We denied her motion on September 16, 1993.
When, as here, a notice of appeal has been filed, the long-
established rule in Montana is that jurisdiction passes from the
district court and vests with this Court. Powers Mfg. Co. v. Leon
Jacobs Ent. (1985), 216 Mont. 407, 411, 701 P.2d 1377, 1380
(citation omitted). Some exceptions exist, however. See, e.g.,
Churchill v. Holly Sugar Corp. (l98l), 192 Mont. 533, 536, 629 P.2d
758, 760 (court retains jurisdiction over ancillary matters);
Northern Plairfs Resource Council v. Board of Health and
Environmental Sciences (l979), 184 Mont. 466, 472, 603 P.2d 684,
688 (court can correct clerical errors); State ex rel. Kaasa v.
District Court (l978), 177 Mont. 547, 551, 582 P.2d 772, 775 (court
can award necessary maintenance, child support and suit monies
after judgment has been entered in a dissolution proceeding pending
appeal) .
The present case falls under no exception of which this Court
is aware. The District Court, though arguably acting in the best
interest of Morgan, lacked jurisdiction to generate any orders
relating to those issues on appeal to this Court. Therefore, we
vacate the District Court's temporary order of August 26, 1993.
Finally, we will address an issue not raised but discussed in
the briefs, whether the court erred in failing to remove Alan's
name from Reva's birth certificate. Testimony at trial indicated
that Alan, during the initial hearing in April, 1992, testified
that it was his belief that Antionette wanted him to adopt her
daughter, Reva. In fact, Alan had hired an attorney to assist them
in the adoption proceedings. Alan was uncertain as to why they
never followed through with the procedure, although Antionette
obtained Revatsbirth certificate on her own and it was amended to
state that Alan was Revats father.
We conclude that this matter is not properly before this Court
on appeal and that an alternative procedure for a change of name,
pursuant to $ 5 27-31-101 et seq. MCA, is available to Antionette if
she desires to have Revats last name amended on her birth
certificate.
Because of the sensitive nature of this case, the unusual
events which have transpired, and the potential emotional harm to
Morgan, we remand this case to the District Court for a hearing on
the issue of custody. We reinvest with the District Court
jurisdiction for the limited purpose of determining custody. A
custody hearing will ensure the due process rights of Antionette
and Alan, and provide them ample opportunity to present evidence
and be heard with regard to custody. To promote stability and
continuity in Morgan's life until a final custody determination is
made, Alan shall retain sole custody of Morgan. We direct the
District Court to expedite the hearing on this matter.
Affirmed in part and remanded for a custody hearing to be
conducted consistent with this opinion.
we concur: