Marriage of Snedigar ( 1995 )

No. 94-481
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
IN RE THE MARRIAGE OF
VICKIE A. SNEDIGAR,
Petitioner and Respondent,
and
HENRY 0. SNEDIGAR,
Respondent and Appellant.
APPEAL FROM: District Court of the Fifteenth Judicial District,
In and for the County of Roosevelt,
The Honorable M. James Sorte, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Henry 0. Snedigar, Pro Se, Payette, Idaho
For Respondent:
Carol Johns, Attorney at Law, Wolf Point, Montana
Submitted on Briefs: February 9, 1995
Decided: March I, 1995
Filed:
Justice W. William Leaphart delivered the Opinion of the Court.
Henry 0. Snedigar, appearing pro se, appeals from a
dissolution of marriage, property distribution and custody decree
entered in the District Court for the Fifteenth Judicial District,
Roosevelt County, Montana. We affirm.
The issues are as follows:
1. Did the District Court properly determine custody and
visitation?
2. Did the District Court properly determine Henry's child
support obligation?
3. Did the District Court equitably divide the marital
assets?
4. Was Henry denied a fair hearing in the District Court
dissolution proceeding?
The parties were married on October 9, 1976, in Roosevelt
County, Montana. Two children were born to the parties during the
course of the marriage, Russell A. Snedigar, age eleven and Annie
M. Snedigar, age nine. The parties separated on April 23, 1992
when Henry moved to Payette, Idaho in order to take a new job. On
December 16, 1992, Vickie Snedigar filed a petition for dissolution
of marriage. At the same time, she requested and received a
temporary restraining order and custody order. After a hearing
before the District Court on June 27, 1994, the court entered its
findings of fact, conclusions of law and decree of dissolution of
marriage on August 15, 1994.
In its decree, the District Court awarded Vickie sole custody
2
of the minor children subject to scheduled visitation with Henry.
Henry was ordered to pay $187.50 per child per month pursuant to
the Montana Child Support Guidelines. The court awarded Vickie the
family home in Culbertson, Montana, as well as all personal
property in her possession, including a 1989 Ford Tempo and
retirement accounts and bonds which are in her name. Henry was
awarded the rental unit in Culbertson, Montana, as well as personal
property in his possession including a 1984 Ford 4 x 4, a 1924
Model-T, Model-A, boat, trailer, motor, flatbed trailer, retirement
accounts and bonds which are in his name, and all accounts
including his employer-paid retirement account, which he
established at the parties' separation. Henry was also held
responsible for payment of his student loan.
1 . Did the District Court err in determining child
custody and visitation?
On appeal we review whether the district court's findings
concerning custody are supported by substantial credible evidence.
In re Marriage of Kovash (1993), 260 Mont. 44, 53, 858 P.2d 351,
356. The district court's findings concerning custody will not be
overturned unless they are clearly erroneous. In re Marriage of
Anderson (1993), 260 Mont. 246, 252, 859 P.2d 451, 454. Because
the district court is in the best position to observe the witnesses
and their demeanor, its judgment will not be substituted unless
there is a clear abuse of discretion. Marriaqe of Anderson, 859
P.2d at 454.
On appeal, Henry claims that he wants "a visitation that will
3
allow him a set time with his children." The District Court set
forth very detailed findings of fact in which it considered the
best interest of the children factors as required by § 40-4-212,
MCA, including the wishes of both parents and the children. The
District Court's visitation schedule included visitation during the
summer months, visitation during the Christmas holidays, as well as
visitation during other times including hunting season. As a
condition of visitation with the children, the court required Henry
to participate in and complete a parenting class approved by the
family services department of the community in which he resides.
In light of the substantial credible evidence supporting the
District Court's findings, including a finding of physical abuse
toward Vickie, Henry's history of having taken the children out of
state without Vickie's consent, and his refusal to return the
children to Montana without the necessity of a court order, the
District Court's visitation schedule and conditions of visitation
are entirely reasonable and are not an abuse of discretion.
We conclude that the District Court did not err in awarding
custody of the children to Vickie and in establishing a set
visitation schedule with a requirement that Henry participate in a
parenting class.
2 . Did the District Court properly determine Henry's
child support obligation?
The District Court ordered Henry to pay child support in the
amount of $375 per month, or $187.50 per child per month. There is
a presumption in favor of the district court's determination of
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child support and the district court's decision will not be
overturned absent an abuse of discretion. In re Marriage of
McClean (1993), 257 Mont. 55, 59, 849 P.Zd 1012, 1014. The
District Court, in accordance with the Montana Child Support
Guidelines, calculated Henry's support obligation on the basis of
gross income which did not include retirement contributions,
bonuses, savings contributions, or other benefits paid by Henry's
employer, as Henry refused to disclose those amounts. The court
also found that contrary to the court's order of September 24,
1993, Henry has paid no child support and as of June 27, 1994,
Henry was delinquent in the payment of his child support in the
amount of $4,180.
In his brief before this Court, Henry attaches a child support
determination worksheet in which he calculates that he should pay
Vickie a total of $28.83 per child per month. This worksheet is
dated October 15, 1994--two months after the District Court entered
its final decree on August 15, 1994. Henry's October 1994
calculations are not part of the record on appeal and will not be
considered by this Court, Jerome v. Jerome (1978), 175 Mont. 429,
431, 574 P.2d 997, 998, even considering that Henry is proceeding
pro se. We conclude that the child support determination is
supported by the record on appeal, including income tax returns for
both parties for the years 1990 through 1993. There was no abuse
of discretion in the District Court's application of the child
support guidelines.
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3 . Did the District Court equitably divide the marital
assets?
The District Court awarded Vickie the following: (I) family
home valued at $18,000; (2) personal property items in her
possession including the retirement account and bonds in her name,
accounts which she has established since the parties' separation;
and (3) the 1989 Ford Tempo.
Henry was awarded: (1) the rental property valued at $5,250;
and (2) the personal property items in his possession, including
retirement accounts in his name, the bonds in his name, all
accounts, including his employer-paid retirement account, which had
been established in his name since the parties' separation, the
boat, the boat trailer, boat motor, flatbed trailer, antique cars,
guns, and the 1985 Ford 4 x 4 with topper. Henry claims that
Vickie received more than one-half of the marital estate and he
believes he is entitled to compensation.
In reviewing a distribution of marital assets, we are guided
by the following two principles: First, "an equitable distribution
is not necessarily an equal distribution." In re Marriage of Scott
(1992), 254 Mont. 81, 87, 835 P.2d 710, 714. Second, the district
court's division of property will be overturned only if its
findings are clearly erroneous. In re Marriage of Sacry (1992),
253 Mont. 378, 384, 833 P.2d 1035, 1039. In the case at hand, we
find that there was substantial credible evidence in the record
which supports the District Court's division of the marital assets.
In valuing the parties' home, the court relied upon an appraisal
made by a local bank employee who is in the business of lending
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money on real property in the Culbertson area and has current
knowledge of local property values. The bank employee also
appraised the parties' rental unit at $5,250. The court also
relied on figures presented by a local realtor who stated a price
range of $17,500 to $28,000 for the parties' residential property
and a range of $4,900 to $8,500 for the rental unit. Henry
presented no appraisals of either of the properties and relied
solely on his personal valuations. Vickie also presented
valuations of personal property from individuals in the business of
buying and selling similar items of personal property. The
District Court found these valuations to be both reasonable and
credible. The District Court rejected Henry's claim that Vickie
had hidden other assets, finding that Vickie's testimony concerning
complete disclosure was credible.
The district court is free to adopt any reasonable valuation
of marital property which is supported by the record. In re
Marriage of Luisi (1988), 232 Mont. 243, 247, 756 P.2d 456, 459.
We conclude that the District Court's distribution of marital
property is supported by substantial credible evidence in the
record and that the District Court's findings are not clearly
erroneous.
4 . Was Henry denied a fair hearing in the District Court
dissolution proceeding?
Henry has alleged bias by the court, perjury by Vickie,
perjury by Vickie's counsel and that Vickie's counsel used her
"personal relationship" with the District Court Judge to have ex
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parte meetings for the purpose of apprising the Judge of "false
information." This Court finds that there is no merit to Henry's
allegations of lying, perjury and biased treatment. On the
contrary, the record indicates that the District Court was very
lenient in allowing Henry to proceed, pro se, in a manner which was
very abusive of Vickie as well as her counsel.
Affirmed.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this 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 Montana Law Week, State Reporter and West Publishing Company.
--~,.,,,, -
March 7, 1995
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
Henry 0. Snedigar
917 N. 6th St.
Payette, ID 83661
Carol Johns
Attorney at Law
P.O. Box 995
Wolf Point, MT 59201
Hon. M. James Sorte
Roosevelt County Courthouse
P.O. Box 978
Wolf Point, MT 59201
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA