Marriage of Jeppesen ( 1995 )

NO. 95-036
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
IN RE MARRIAGE OF
ROBIN N. JEPPPESEN,
Petitioner and Appellant,
and
KARL GRANT JEPPESEN,
Respondent and Respondent.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Joel G. Roth, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Barbara E. Bell, Bell & Marra,
Great Falls, Montana
For Respondent:
Joan E. Cook and M. Gene Allison,
Attorneys at Law, Great Falls, Montana
Submitted on Briefs: October 12, 1995
Decided: November 21, 1995
Filed:
Clefk
Justice Terry N. Trieweiler delivered the opinion of the Court.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1995 Internal Operating Rules, the following 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 State Reporter Publishing Company and West Publishing
Company.
Robin Jeppesen filed a petition in the District Court for the
Eighth Judicial District in Cascade County for dissolution of her
marriage to Karl Grant Jeppesen (Grant). Following a three-day
hearing, the court entered its decree of dissolution. In its
decree, the court divided the couple's personal and real property,
provided for joint custody of the couple's minor child, awarded
primary physical custody to Robin, and awarded reasonable
unsupervised visitation to Grant. The court also found that Robin
had frustrated visitation when she violated the temporary
visitation order, and ordered that she pay Grant's mileage and
attorney fees. Robin appeals from the District Court's decree. We
affirm the District Court.
There are six issues on appeal:
1. Did the District Court err when it adopted Grant's
proposed findings of fact and conclusions of law verbatim?
2. Did the District Court abuse its discretion when it
quashed the subpoena issued for Grant's employment records?
3. Did the District Court improperly limit Robin's rebuttal
time?
2
4. Did the District Court abuse its discretion when it
granted Robin and Grant joint custody of their minor child and
allowed unsupervised visitation by Grant?
5. Did the District Court abuse its discretion when it
divided the couple's real and personal property?
6. Did the District Court err when it found that Robin
frustrated Grant's visitation and awarded attorney fees and mileage
to Grant?
FACTUAL BACKGROUND
Robin and Grant dated and lived together for several years
prior to their marriage in 1982. During November 1986, Robin gave
birth to their daughter, Karlene. At that time, Grant was employed
as a deputy sheriff in Toole County. They lived in Sunburst,
Montana, in a house they purchased in 1983 for $18,500.
In 1991, Robin purchased a home in Cascade with funds she had
received from a personal injury settlement in 1988. She paid
$25,000 toward the purchase price. She agreed to pay the $30,000
balance periodically. She moved into the Cascade home in June
1993, and filed a petition for dissolution of her marriage to Grant
on August 13, 1993. On September 25, 1993, Robin's twenty-one-year
old daughter from a previous relationship, Casey, filed a sexual
abuse complaint against Grant. Casey alleged that Grant had
sexually abused her over a nine-year period, until she was
seventeen years old. Casey had made similar allegations in 1980,
when she was eight years old. Those charges were eventually
dismissed with prejudice.
3
As a result of Casey's allegations in 1993, the Toole County
Sheriff's office terminated Grant's employment. However, no
criminal charges were filed, and Grant later agreed to a release of
and settlement with Toole County which, in part, characterized his
termination of employment as retirement. In addition, the
agreement provided that the County would expunge all records
related to the charges from Grant's personnel file and that Grant
would release all claims against the County. On July 11, 1994, the
investigation was closed "with finality and with prejudice."
The issues raised by the parties were tried during three days
in November and December 1994. Both parties submitted separate
home studies related to the issue of custody. In addition, Casey
renewed her allegations that Grant had sexually abused her over a
period of nine years, and Robin's sister, Dawn, testified that she
had been sexually assaulted by Grant in 1977.
The District Court found that "credibility problems exist with
[Dawn and Casey]," and determined that "both [Robin and Grant] are
fit and proper persons to be granted custody and control of
[Karlene] .'I Based on those findings, the court decreed that Robin
and Grant should have joint custody of Karlene, that Robin would be
Karlene's primary caretaker, and that Grant would have reasonable
unsupervised visitation.
The District Court also divided the couple's real and personal
property, and ordered Robin to pay $1077.50 for attorney fees and
costs that Grant incurred as a result of Robin's frustration of his
visitation.
4
ISSUE 1
Did the District Court err when it adopted Grant's proposed
findings of fact and conclusions of law verbatim?
At the conclusion of the trial in this case, the District
Court ordered each party to prepare and submit proposed findings of
fact, conclusions of law, and an order. Robin asserts that the
District Court erred when it adopted Grant's twenty-three page
findings of fact and conclusions of law verbatim. She specifically
asserts that "the trial court has adopted findings which are overly
comprehensive of much unimportant and irrelevant detail, while at
the same time failing to address the main issues in the case."
Adoption of a party's proposed findings and conclusions is
specifically authorized by Rule 52(a), M.R.Civ.P., so long as the
findings are supported by substantial evidence and the conclusions
are correct. In In reMarriageofNikolaisen (1993), 257 Mont. 1, 5, 847
P.2d 207, 289, we set forth our standard of review:
When reviewing the adequacy of the findings of fact and
conclusions of law, we examine whether they are
sufficiently comprehensive and pertinent to provide a
basis for a decision, and whether they are supported by
substantial evidence.
While we acknowledge that the District Court's findings in
this case were in some instances over-inclusive and irrelevant, we
hold that the court did comprehensively address the allegations of
sexual abuse, the child custody considerations, and the division of
the couple's real and personal property. Although the court
adopted Grant's findings and conclusions verbatim, we hold that
those findings and conclusions were sufficiently comprehensive and
5
pertinent to provide a basis for the court's decision and that
those findings which were essential to the court's decision were
supported by substantial evidence and were not clearly erroneous.
We therefore hold that the court did not err when it adopted
Grant's proposed findings, conclusions, and order.
ISSUE 2
Did the District Court abuse its discretion when it quashed
the subpoena issued for Grant's employment records?
At trial, John Seidlitz testified that he had represented
Grant in negotiations with Toole County after Grant was terminated
from his employment in 1993. The release and settlement agreement
which resulted from those negotiations provided, in part, for
nondisclosure of facts related to Grant's termination. The
agreement provided:
The only information the County will provide to anyone
inquiring about [Grant's] present or past work status is
[Grant's] period of employment, his work classification,
his beginning of subsequent rates of pay, his rank, his
description of duties and that [Grant] retired from his
employment effective November 23, 1993.
Seidlitz's testimony did not exceed the parameters of this
confidentiality agreement.
After Seidlitz testified, however, Robin subpoenaed Grant's
employment records. The District Court granted Grant's motion to
quash on the grounds that revealing the records would violate the
confidentiality agreement between Grant and Toole County. On
appeal, Robin asserts that the court's decision to quash the
subpoena was erroneous and prejudicial because she was denied the
6
opportunity to effectively rebut Grant's testimony regarding
conduct which led to his termination. However, a review of the
record suggests otherwise. Criminal investigation records which
fully disclosed the extent of any evidence in support of Casey's
charge were available for Robin's use. However, she chose not to
use them during her cross-examination of Seidlitz or Grant. We,
therefore, hold that in light of the confidentiality agreement
between Grant and Toole County, and because there was another
available source of the information that Robin sought, the District
Court did not abuse its discretion when it granted Grant's motion
to quash Robin's subpoena.
ISSUE 3
Did the District Court improperly limit Robin's rebuttal time?
The Jeppesen's dissolution trial was scheduled for a three-day
period during the final weeks of the District Court Judge's term of
office. At the end of the second day of testimony, the Judge asked
if two to three hours would be sufficient time within which to
complete presentation of the evidence. Neither Grant nor Robin
objected. On the final afternoon of the trial, the Judge noted
that the testimony would have to be finished by 5 p.m., or the case
would be tried over again by his replacement after the first of the
year. After Grant's direct and cross-examination were complete,
five minutes remained for rebuttal evidence. Robin now asserts
that "because the court did not take the time to hear rebuttal, the
court has made erroneous findings and failed to address the issue
of whether [Grant] poses a threat to his daughter."
We conclude that the District Court did not deprive Robin of
time for rebuttal testimony. Robin failed to object to the court's
decision to allow three hours for testimony on the last day of
trial. Furthermore, the judge did not decline to hear Robin's
rebuttal, but merely remarked that he would not be the sitting
judge if the trial was continued. If Robin did need more time, she
had the option of requesting the court to continue the trial to a
future date.
ISSUE 4
Did the District Court abuse its discretion when it granted
Robin and Grant joint custody of their minor child and awarded
unsupervised visitation to Grant?
We review a district court's findings of fact in child
custody cases to determine whether those findings are clearly
erroneous. InreMarriageofDreesbach (19941, 265 Mont. 216, 220-21, 875
P.2d 1018, 1021. We will not reverse the final custody and
visitation determinations which are based on those findings unless
an abuse of discretion is clearly demonstrated. Dreesbach, 875 P.2d
at 1021-22.
Robin maintains that the District Court erred when it awarded
Grant joint custody and unsupervised visitation. She contends that
she should have been awarded sole custody of Karlene pending
determination of Grant's fitness, and that the court should have
continued to limit Grant to supervised visitation until he
completed a sex offender evaluation. Robin specifically asserts
8
that the court's findings are not supported by the record, that the
court failed to take her home study into account when it made its
determination, and that the court erroneously declined to require
Grant to undergo a sex offender evaluation.
The record demonstrates, however, that the District Court did
have the benefit of adequate testimony and evidence on which to
base its custody and visitation decision. The court heard
testimony from several unbiased observers who had personally
observed Grant's close relationship with Karlene. The court
interviewed Karlene in chambers without either parent present. The
court reviewed a home study submitted by each party. Finally,
although the court heard testimony from Robin's sister, Dawn, and
her daughter, Casey, about Grant's alleged sexual abuse of them, it
determined that neither witness was credible. The court further
noted that there was no evidence of any inappropriate behavior
between Grant and Karlene.
The record is also clear that the District Court did, in fact,
review both parties' home studies before it reached its final
determination. The court acknowledged both reports in its findings
of fact and stated: "The Court has reviewed the home studies and
finds that both parties have an adequate physical environment in
which to raise Karlene. [Robin] can provide a stable and suitable
home environment for Karlene." Where two separate reports with two
different recommendations are submitted, the district court is in
the best position to review and evaluate the information. Although
we require the district court to consider submitted reports, it
9
does not follow that the court must adopt a report's recommenda-
tions regardless of other evidence. See, e.g., Maxwell v. Maxwell ( 1991) ,
248 Mont. 189, 192-93, 810 P.2d 311, 313.
Finally, we hold that the District Court did not err when it
chose not to require that Grant participate in a sex offender
evaluation. The decision about whether to order such an examina-
tion is discretionary and will not be overturned absent a showing
that the court abused its discretion. In re Marriage of Njos ( 19 9 5 ) , 2 7 0
Mont. 54, 60, 889 P.2d 1192, 1196. Mere allegations of sexual
abuse, without more, are insufficient to trigger the requirement of
a sex offender evaluation. In this case, the District Court was in
the best position to determine whether the allegations had some
merit, and whether there was any potential for injury to Karlene.
We hold that the court did not abuse its discretion when it
determined that a sex offender evaluation was unnecessary.
For these reasons, we affirm the District Court's child
custody and visitation decision.
ISSUE 5
Did the District Court abuse its discretion when it divided
the couple's real and personal property?
A district court's division of marital property is reviewed to
determine whether the findings of fact on which the division is
based are clearly erroneous, and if not, whether the division based
on those facts was an abuse of discretion. In re Marriage of Smith
(1995), 270 Mont. 263, 267-68, 891 P.2d 522, 525.
10
The factors to be considered in the division of the marital
estate are set forth in § 40-4-202, MCA. The statute vests broad
discretion in the district court to equitably apportion marital
property. hzreMarriageofCollett (1981), 190 Mont. 500, 504, 621 P.2d
1093, 1095. A court need not articulate each factor separately as
long as the findings are sufficient to allow nonspeculative review
by this Court. InreMarriageofSyljuberget (1988), 234 Mont. 178, 185, 763
P.2d 323, 326.
Robin contends that the Court erred when it divided the
personal property based on the list presented for the first time in
Grant's proposed findings because Grant failed to present property
exhibits at trial, no testimony was presented concerning many items
on the list, and some of Grant's testimony directly contradicted
her testimony.
A review of the record reveals that either Robin or Grant
testified concerning nearly every item of personal property.
Moreover, those items not discussed at trial, but which were
awarded to Grant, were awarded consistent with Robin's proposed
distribution. We, therefore, conclude that the District Court did
not abuse its discretion when it divided the couple's personal
property.
Robin also challenges the District Court's division of the
real property located in Cascade and Sunburst. First, she alleges
that Grant was not entitled to any portion of the Cascade property
because she made the $25,000 down payment and has made all of the
11
payments from her personal injury settlement money. Second, Robin
contends that the court erred when it assigned a $90,000 value to
the Cascade property and divided it without any testimony regarding
its present value.
Robin cites our decision in InreMarriageofBradshaw (1995), 270
Mont. 222, 891 P.2d 506, to support her assertion that Grant was
not entitled to any of the Cascade property. In Bradshaw, we stated
that the source of the property was a major factor to be considered
by the court when it divided the property pursuant to § 40-4-202,
MCA, and held that the wife was not entitled to any share of equity
in the house purchased by husband prior to the marriage. Bradshaw ,
891 P.2d at 511.
Bradshaw is distinguishable from this case. In Bradshaw, the
property at issue was bought prior to the marriage and paid for
entirely out of the husband's personal injury compensation. The
couple in Bradshaw was separated within five months of the marriage
and filed for divorce during the first year of marriage. That
court found that the wife made no contributions to the maintenance
and value of the property. Bradshaw , 891 P.2d at 511.
In this case, testimony reveals that the property Was
purchased during Grant and Robin's eleven-year marriage as a family
vacation home. Furthermore, while testimony did establish that
Robin made the down payment, she was given credit for that payment
before the equity in the property was divided and there was no
evidence that the remaining payments were made from her settlement
money. Finally, evidence in the record supports the court's
finding that Grant contributed to the home by making repairs to it.
In fact, Grant testified that in the summer of 1993 he spent
thirty-nine days in Cascade working on their residence and making
necessary repairs. Specifically, Grant testified that he hooked
the underground pumping system up to the pump in the river, helped
drill the new well, helped "pin" the well, put in water heaters,
fixed the showers, fixed the bathroom sinks, and rewired the water
heater from gas to electric. Because the property in this case was
purchased during the marriage, and because Grant contributed to the
property, we hold that the District Court did not err when it
awarded a portion of the property to Grant.
Robin also contends that the court erred when it assigned a
$90,000 value to the Cascade property and divided it without any
testimony concerning the present value of the equity. Robin
testified that she purchased the Cascade property for $55,000, that
she had made a down payment in the amount of $25,000, and that
approximately $30,000 was still due for the property. Based on
that testimony, the court awarded each party one-half of the equity
in the property which it valued at approximately $90,000. The
equity was to be calculated after deducting Robin's initial $25,000
payment. Therefore, with or without testimony regarding the
property's present value, we conclude that Robin's share was
equitably determined.
13
For these reasons, we hold that the District Court did not
abuse its discretion when it awarded each party one-half of the
equity in the Cascade property.
Similarly, Robin alleges that the District Court erred by
failing to evaluate and assign repayment of the debt owed for the
Sunburst property. The parties agreed that the value of the
Sunburst property was $20,000 and the court found that each party
should be given one-half of the equity in the property. The court
dealt with the debt in Finding of Fact No. 108 which specifies that
both parties will be responsible for the joint debt on the real
property but that the judgment lien on the Sunburst property,
resulting from a premarital dispute, will be Grant's sole
obligation. Therefore, the judgment lien will not be included in
the determination of the equity in the Sunburst property, and
Robin's contention that the court erred by not specifying how the
allocation of debt affects the award of equity is misplaced.
Moreover, the amount of the debt is not relevant because the
equity, which is determined by subtracting the debts, is to be
equally divided.
Based on the record, we conclude that the District Court's
findings of fact were not clearly erroneous and that the court did
not abuse its discretion when it divided the couple's marital
property.
ISSUE 6
Did the District Court err when it found that Robin frustrated
Grant's visitation and awarded attorney fees and mileage to Grant?
14
Section 3-l-523, MCA, provides that contempt orders from the
district courts are final and not normally reviewable by this
Court; however, we make an exception in family law cases. In Ye
MarriageofDreesbach (1994), 265 Mont. 216, 223-24, 875 P.2d 1018, 1022.
Our review of contempt orders is limited to whether the district
court acted within its jurisdiction and whether the evidence
supports the order. In YE Marriage of Sullivan (19931, 258 Mont. 531,
539-40, 853 P.2d 1194, 1200.
Grant moved that the District Court hold Robin in contempt for
frustrating visitation when she failed to comply with the court
order pertaining to Grant's temporary rights to supervised
visitation. The District Court set a date for a contempt hearing
but, after stipulation by the parties, combined the contempt
proceedings with the final trial on the merits.
At trial, Grant testified that he was denied visitation on
sixteen occasions. Additionally, he testified that he was denied
visitation on all birthdays and holidays, including Father's day
and Easter Sunday. Furthermore, he testified that he was forced to
drive 110 miles one way for each unsuccessful visitation.
Robin asserted at trial that she was not under an obligation
to let Karlene go with Grant because he did not always use those
supervisors who had been approved by the court. However, an
approved supervisor for Grant and Karlene's visitation rebutted
Robin's testimony when she testified that Robin's attorney was
informed about substitute supervisors and although he indicated
15
that he might need to talk with them, never did. The supervisor
also testified that she and Grant encountered much difficulty
getting Robin to allow Grant to have his supervised visitation, and
that on at least five to ten occasions, she and Grant went to pick
up Karlene only to find that Robin had failed to deliver the
child.
Despite the court-ordered supervised visitation, Robin
attempted to keep Grant from seeing Karlene. Robin had no
authority to limit or place any restrictions on Grant's visitation.
The District Court's contempt order was, therefore, supported by
the evidence that Robin consistently frustrated the court's
visitation order.
We next consider whether the District Court's punishment for
contempt was appropriate. Section 3-1-519, MCA, provides in
pertinent part that " Eilf 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."
Robin challenges the contempt punishment because it exceeds
the $500 maximum. Specifically, the District Court awarded Grant
attorney fees and mileage in the amount of $1,077.50. However,
this Court has held that a district court has equitable powers to
punish a party for contempt beyond the terms of 5 3-l-519, MCA.
Dreesbach , 875 P.2d. at 1023. In Dreesbach, we affirmed a contempt
order which required the petitioner to seek professional counseling
and which resolved a conflict concerning child support arrearages
and day care obligations against the petitioner. Dreesbach, 875 P.2d
16at 1023. Similarly, we have upheld contempt punishments which
imposed a thirty-day jail term and reasonable attorney fees. In re
MarriageofBoharski (1993), 257 Mont. 71, 77, 847 P.2d 709, 713; Inre
MarriageofRedfern (1984), 214 Mont. 169, 173, 692 P.2d 468, 470.
We conclude, after a review of the record, that the District
Court was warranted in awarding attorney fees and costs to Grant.
Although the award exceeds the $500 provided for in § 3-l-519, MCA,
we hold that the evidence supports the finding of contempt and that
the court acted within its jurisdiction and equitable powers when
it imposed the punishment.
For the reasons stated above, we affirm the decree of the
District Court.
/ Jus ic'e
We concur:
rA%Y -/7