Marriage of Sewell

NO. 92-117
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
IN RE THE MARRIAGE OF
RICHARD J. SEWELL,
Petitioner and Appellant,
and
SUSAN R. SEWELL,
nka SUSAN S A W ,
Respondent and Cross-Appellant.
APPEAL FROM: District Court of the Third Judicial District,
In and for the County of Powell,
The Honorable James E. Purcell, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
R. J. "Jimw Sewell, Jr., Smith Law Firm,
Helena, Montana
For Respondent:
Barbara E. Bell, Attorney at Law,
Great Falls, Montana
Submitted on Briefs: December 17, 1992
Decided: January 12, 1993
STATE OF P&0l;dmr"&PdA
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Appellant Richard J. Sewell appeals from the decision of the
District Court for the Third Judicial District, Powell County.
Following a trial in this matter the District Court awarded the
parties joint custody of their minor child, with primary physical
residential custody to respondent, Susan R. Sewell, n/k/a Susan
Salak. The District Court also determined child support and
medical reimbursement issues which are contested on appeal. We
affirm.
Richard raises two issues on appeal:
1. Was it an abuse of discretion for the District Court to
receive into evidence certain testimonial and documentary evidence
relating to child support and medical reimbursement issues?
2. Were the District Court's findings of fact, conclusions
of law, and order concerningthe custody determination sufficiently
comprehensive and based upon substantial evidence?
Susan and Richard were married on September 11, 1976, in Great
Falls. During the course of their marriage, the parties had one
child, Kristopher Shane Sewell, who was born in February 1984. On
October 12, 1984, a decree of dissolution was entered in Lewis and
Clark County. Prior to their dissolution, the parties had resided
in Helena. The petition for dissolution requested that the
District Court approve and incorporate into the decree of
dissolution a property settlement, custody, and support agreement
previously entered into by the parties. The District Court found
2
the partiesf agreement to be fair, reasonable, and not
unconscionable, and incorporated the agreement in the decree of
dissolution.
Since the partiesf dissolution of marriage in October 1984,
there have been numerous interim modifications of the custody and
support agreement. The District Court found that throughout this
time period the parties have had joint custody of their minor
child, with the child's primary residence varying from time to
time. The District Court also found that no permanent or final
custody or support agreement had ever been executed by the parties.
In March 1987, Richard filed a petition to have permanent
custody determined by the District Court. Susan filed a
counterpetition seeking similar relief. Subsequent to March 1987,
several more interim agreements were entered into by the parties.
This matter finally came to trial in Septenber 1991.
Richard now resides in Deer Lodge where he is employed by
Cottonwood Vending, a family-owned business which owns and leases
gaming and vending machines. Richard and his new wife have a son
who was two years old at the time of trial. Susan now lives
outside of Chicago, Illinois. She has also remarried and has an
infant daughter. Susan is employed as an area director/manager
with Kindercare, a corporation which operates daycare centers.
At trial both parties agreed that they should continue to have
joint custody of their minor child, but disagreed as to which party
should have primary physical residential custody during the school
3
year. Child support and reimbursement for medical expenses
incurred were also issues at trial. The District Court entered its
lengthy findings of fact, conclusions of law, and order in November
1991. The District Court found both parties to be fit parents and
that there was no indication that either parent lacked adequate
caretaking skills. The District Court awarded the parties joint
custody, with primary physical residential custody to Susan. The
minor child was to reside with Susan during the school year and
with Richard during the summer. The District Court ordered Richard
to pay child support in the amount of $162 per month. The District
Court also determined that Richard owed Susan $1725.20. This
amount was based primarily on medical expenses paid by Susan for
which Richard was obligated, under the interim agreements, to
reimburse her. Finally, the District Court ordered that each party
pay their own attorney fees and costs. This appeal followed.
I
Was it an abuse of discretion for the District Court to
receive into evidence certain testimonial and documentary evidence
relating to child support and medical reimbursement issues?
Richard alleges that substantially all of Susan's evidence
relating to child support and reimbursement for paid medical
expenses should have been excluded by the District Court because of
Susan's alleged failure to comply with discovery. The control of
discovery activities and rulings on the admissibility of evidence
are within the discretion of the district court. Bache v. Gilden
4
(1992), 252 Mont. 178, 827 P.2d 817. Absent an abuse of
discretion, this Court will not reverse a district court's ruling
on the admissibility of evidence. Cooper v. Rosston (1988), 232
Mont. 186, 756 P.2d 1125. However, even an abuse of discretion by
a district court in allowing into evidence that which properly
should have been excluded is not always grounds for reversal. The
abuse of discretion will not warrant a reversal, unless it is so
significant as to materially affect the substantial rights of the
complaining party. Rule 61, M.R.Civ.P.; Zeke's ~istributingCo. v.
Brown-Forman Corp. (1989), 239 Mont. 272, 779 P.2d 908.
Specifically, Richard alleges that Susan failed to produce her
tax returns, bank statements, copies of medical records/statements
and records of past child support payments. Richard filed a motion
to compel discovery pursuant to Rule 37, M.R.C~V.P., and alleges
that while a written order was not entered by the District Court,
Susan was directed orally by the District Court during a telephone
conference call to provide the requested discovery. Richard made
a motion in limine prior to trial requesting that the District
Court exclude all evidence Susan might attempt to offer which had
not been furnished in response to discovery requests. Richard
asserts that the District Court's award of $1725.20 to Susan was
based upon inadmissible evidence and should be reversed. Richard
does not appear to contest the accuracy of the District Court's
determination of child support pursuant to the Child Support
Guidelines, but argues that the District Court's determination was
based upon inadmissable evidence.
Susan contends she did comply with Richard's discovery
requests. Susan points out that she submitted financial
information on the form requested by the District Court. Susan
also indicates that while she did not produce her tax returns, she
did produce her W-2 forms. At trial, the District Court clearly
indicated that production of the W-2 forms was sufficient. At the
time Susan filed her motion for reimbursement of paid medical
bills, Susan alleges that she listed the bills, to whom they were
owed, and the amounts she was seeking. Susan contends that
throughout the time period in question the insurance was in
Richard's name and that he was receiving most of the statements
from the insurer. Prior to trial, Susan alleges that she produced
the bills and statements that were in her possession. Susan
concedes that she did not produce copies of past bank statements,
but argues that if she had been able to find these documents she
would have been able to prove her entitlement to additional
reimbursements. Finally, Susan notes that the District Court
advised Richard, after he initially objected to the introduction of
the evidence, that he would be allowed sufficient time to review
the documents so that he could adequately prepare to conduct
cross-examination.
While the production of some of these documents by Susan did
not occur until shortly before trial, it does not appear that Susan
6
failed to comply with discovery requests. Additionally, it appears
that Richard was either in possession, or should have been in
possession, of the many of the documents he requested. The
District Court did not abuse its discretion in allowing in this
evidence.
I1
Were the District Court's findings of fact, conclusions of
law, and order concerning the custody determination sufficiently
comprehensive and based upon substantial evidence?
The District Court awarded the parties joint custody of their
minor child, with the child to reside with Susan during the school
year and with Richard during the summer. Richard contends the
District Court erred in awarding the parties joint custody of the
minor child with primary physical residential custody with Susan
and liberal visitation rights to Richard. Richard had requested
joint custody with primary residency with him. On appeal, Richard
contends that the District Court's findings were insufficiently
comprehensive and that the findings and conclusions were not based
on substantial evidence.
Section 40-4-212, MCA, requires custody determinations be made
in accordance with the best interests of the child as determined by
the District Court after considering the following criteria:
(a) the wishes of the child's parent or parents as
to his custody;
(b) the wishes of the child as to his custodian;
(c) the interaction and interrelationship of the
child with his parent or parents, his siblings, and any
other person who may significantly affect the child's
best interest;
(d) the child 's adjustment to his home, school, and
community ;
(e) the mental and physical health of all
individuals involved;
(f) physical abuse or threat of physical abuse by
one parent against the other parent or the child; and
(g) chemical dependency, as defined in 53-24-103,
or chemical abuse on the part of either parent.
This list is not all inclusive. This Court has suggested that the
parents' ability to cooperate in their parental roles and the
geographical proximity of the parents' residences are at least two
additional factors which the district court should consider. In re
Custody and Support of B.T.S. (1986), 219 Mont. 391, 712 P.2d 1298.
When reviewing custody issues, this Court must first determine
if the factors set out in B 40-4-212, MCA, were considered by the
district court. In re Marriage of Jacobson (1987), 228 Mont. 458,
743 P.2d 1025. While it is encouraged, the trial court need not
make specific findings on each of the factors. However, failure to
at least consider all of the statutorily mandated factors is error.
In re Marriage of Speer (1982), 201 Mont. 418, 654 P.2d 1001. The
custody determination must be based on substantial evidence
relating to the statutory factors and must be set forth explicitly
in the findings. In re Marriage of J.J.C. and P.R.C. (1987), 227
Mont. 264, 739 P.2d 465. The findings should, at a minimum, set
forth the llessential and determining facts upon which the District
Court rested its conclusion on the custody issue.1f In re Marriage
of Cameron (1982), 197 Mont. 226, 231, 641 P.2d 1057, 1060.
The District Court received considerable evidence regarding
the child's health and situation in school. Richard argues that
the child, who at time suffers from a severe asthmatic condition,
generally suffered fewer problems while residing in Montana.
Additionally, Richard criticized the medical treatment the child
received while in ~llinois. Richard also attempted to prove that
the child's performance in school improved while he was residing in
Montana. Richard contends that the District Court ignored the
evidence presented concerning the child's health and his adjustment
to and performance in school, and that the custody determination
should be reversed.
Upon reading the District Court's lengthy findings of fact
concerning these two issues, we disagree. The District Court,
after listening to and observing the testimony of the witnesses,
specifically found that the medical needs of the child were being
met while he was residing in Illinois. The District Court also
found that due to the circumstances it was not possible to make a
valid comparison between schools.
Upon reviewing the District Court's extensive findings of fact
concerning the custody issue, it is clear the District Court
considered all of the required statutory criteria and based the
custody decision on the best interests of the child. The court's
9
findings of fact explicitly set forth the essential and determining
facts upon which it based its conclusions. The findings and
conclusions were based on substantial evidence. The custody
determination made by the District Court is affirmed.
Susan raises the issue of attorney fees and alleges the
District Court abused its discretion in not awarding her attorney
fees. The decision to award attorney fees in these situations is
within the sound discretion of the district court. Section
40-4-110, MCA; In re Marriage of Smith (1990), 242 Mont. 495, 791
P.2d 1373. The District Court did not abuse its discretion in not
awarding attorney fees in this case.
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.
We concur: