MARRIAGE OF EVANS
Annotate this Case
Download PDF
NO. 95-174 IN THE SUPREME COURT OF THE STATE OF MONTANA 1996 IN RE MARRIAGE OF DOROTHY M. EVANS, Petitioner and Respondent, and WILLIAM M. EVANS, SR., Respondent APPEAL FROM: and Appellant. District Court of the Eighth Judicial In and for the County of Cascade, The Honorable John M. McCarvel, Judge District, presiding. COUNSEL OF RECORD: For Appellant: Robert M. Kampfer, Attorney Great Falls, Montana For at Law, Respondent: Brenda Frazier R. Cole, & Cole, Swandal, Livingston, Submitted Douglass, Montana on Briefs: Decided: Filed: Clerk February 1, February 27, 1996 1996 Justice Charles E. Pursuant to 1995 Internal cited Erdmann Section result with to Paragraph Rules, the and shall the Clerk State the I, Operating as precedent document delivered 3(c), the the Court. Supreme decision shall by its Supreme Court Publishing of Montana following be published of Reporter opinion filing and not be as a public and by a report Company Court of West Publishing Judicial its District Company. This Court, net is an appeal Cascade value of County, all parties' per $500 (Bill) granting in for of the Dorothy party, awarding month motion an order marital children, and of her Eighth Evans awarding her $500 per child maintenance, We affirm in half of the custody sole in and denying a new trial. (Dolly) of the monthly support, William part M. Evans' and reverse in part. We restate Did 1. findings the the issues District and conclusions the as follows: Court of District err in adopting the proposed one party? 2. Did Court err in dividing the marital 3. Did the District Court err in awarding Dolly maintenance? 4. Did the District Court err in awarding Dolly sole Court err estate? of the parties' 5. for support custody children? Did the District and maintenance? in entering a temporary order 6. for Did the District Court err in not granting Bill's motion a new trial? FACTS Dolly Michael, their and Bill was born to them marriage, marriage. Bill the six months Luke, time of trial, Luke as an air a retired Master Sergeant Administration. Dolly currently working at The property on her the home and two of inheritance to the son from years school G.E.D. a previous United from through While During in Great the son, old. controller from A States the the Air Veterans' ninth married, Falls. grade and she primarily children. cars was valued significant marriage. payments attended home with which to making disability to the was ten traffic receives 1990. Dolly's employed and remained September prior also is comprised by the the from of at $92,719. Bill court contributions and $27,000 majority to the the sale marital of the marital testified estate--$50,000 a house he owned prior marriage. At Dolly trial, physically testified and verbally admitted to chemical dependency and had one her of filed a petition on July 2, 1992. the front Bill had been violent children for Dolly in during violence. problem, left that abused incident improperly Bill County in is Force is married adopted Bill At Bill were in the dissolution filed 3 a petition their of marriage the toward of of Dolly the had a children, others. marriage for Bill children. claimed care Bill in dissolution Park of marriage in actions were hearing regarding A final hearing was District Court entered its District Court granted Dolly marital property, monthly support, Bill Cascade moved trial. the Bill in held and on $500 denied and order, on per the month 1994, the motion under the denial of 1994. which the 1994. The value of the child in for three alternative, District From A $500 per children, in 1, from net maintenance or, Court. 29, the two Rule years. for 59(d), a new M.R.Civ.P., Court's order, Bill's motion for adopting the proposed its new trial, appeals. Did the District and conclusions The findings court of fact conclusions held is (1988), [I]t is findings not not For that in and conclusions independent We have in requested adopted by Dolly. exercise err 1 findings one party? and subsequently Purdy Court Court District of proposed of of the on August December one-half ISSUE to 14, 1994, District was held decree of In July County December Bill's its 1994. Cascade decree rule. 28, orders custody amend the to the temporary sole to failing temporary on June consolidated The court by County of verbatim that was law from those reason, findings Bill claims provided both proposed parties. The and conclusions the court failed judgment. adoption itself 234 Mont. of a party's grounds 502, for 764 P.2d error for a court conclusions and if 4 to adopt they proposed reversal. findings In and re Marriage 857. a party's proposed sufficiently are comprehensive basis for the Purdv, 764 P.2d 228 Mont. 858 743 P.2d district court are 904, P.2d 672, 674, and pertinent to so See the the court's v. (X987), clear case, sufficiently we as will evidence and error (Mont. this by findings Francis v. 494. and adopted (1995), were the own Knight 493, issues law In Kreger Rep. conclusions long Jacobson of same--for Daines 906; 52 St. the of and conclusions be reviewed 888 P.2d findings fact law. 324, re Marriage henceforth of 320, In a 1025). of and shall correctness decision (citing findings conclusions and at 458, Proposed the and pertinent to the issues to provide decision and are supported by the evidence. of fact 269 Mont. 1995), the 898 court's comprehensive not reverse supports the those and court's findings and conclusions. ISSUE Did the In the $5,300 military and equalize determine if 891 P.2d 522, decree, 525. nor his worth to court disability of findings Smith Interstate (1995), Production 5 marital was awarded estate? a car The marital pay $40,000 did not to worth estate Dolly divide in Bill's benefits. division court's the $13,700. The court's district In Dolly division. In re Marriage erroneous. dividing was ordered a district the in a truck Bill the retirement We review err Court's received $92,719 to Court District and Bill totaled order District 2 of marital of property to fact are clearly 270 Mont. 263, 267-68, Credit Association v. D&aye (1991), three-part 250 test to Mont. 320, 820 if a finding determine P.2d 1285, is we clearly adopted a erroneous First, the Court will review the record to see if the findings are supported by substantial evidence. Second, if the findings are supported by substantial evidence, we will determine if the trial court has misapprehended the effect of evidence. Third, if substantial evidence exists and the effect of the evidence has not been the Court may still find that misapprehended, 1 [al finding is 'clearly erroneous' when, although there is evidence to support it, a review of the record leaves the court with the definite and firm conviction that a mistake has been committed." DeSave, 820 P.2d Bill length that employability, consider the contribution of the marital estate the the a MCA. the of each In or award must marriage, party, custodial for addition, the future the estates to of In court the respective was estate. opportunity a homemaker as to of Dolly her spouses, needs of that the property of which said marriage, duration and to court and family the unit. MCA. remains irrespective the contribution 40-4-202(l), fact the 40-4-202(l), a spouse their between arrangements, Section award contribution include and Court's of financial factors acquisitions. We have the estate maintenance divide omitted). District marital occupation The the a consider marital that and Bill's apportioning Section (citations considering maintenance, must 1287 contends inequitable and at party that however inheritance so long court empowered and title. Section may district 6 by whenever property holds as the is court statute acquired and 40-4-202(l), be included applies the to MCA. in the factors set forth Mont. in 306, In Dolly no 312, that outside the which be in its of There is since and the court in its Therefore, division of we conclude the marital the District The District the amount court's are Court $500 per award clearly Mont. 139, the of err ordered month erroneous. to 1353, set in DeSave, Bill claims background to needs would which are that support herself, preclude 1355. clearly Dolly her had grade to support misapprehend court this committed a mistake District Court Dolly maintenance? years. determine 831 P.2d findings Dolly ninth to pay maintenance three 142, court's that a the and found record not awarding In re Marriage forth and had did not 3 Bill for maintenance in test three-part if of Court the the that estate. ISSUE Did the found assets had in 264 considered found only did that marriage future evidence We have no conviction decision. the also she (19941, court further of The court Smith the court acquisition substantial findings equally, The Bill. of home during speak. for favor court's err to disadvantage education. in equity worked of evidence. 887-88. parties' educational the 884, opportunities to In re Marriage the had not assets MCA. 871 P.2d dividing parties' an 5 40-4-202, has and from 7 We review if of to Dolly the As stated 820 P.2d above, at a district findings Eschenbacher in of fact (1992), 253 we use the 1287, to determine property and erroneous. sufficient the children working. have Section no work special 40-4-203(l), MCA, provides the that an award of maintenance spouse seeking is appropriate only if maintenance (a) lacks sufficient property to provide for his reasonable needs; and (b) is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home. We have disallowed able to support Smith, himself degrees found that during salary Dolly marriage working on her responsibility District at Bill's G.E.D., needed was talented and was currently evidence the court the court no mistake did not err the home she was currently and had the added to the children. was presented and and employed case, In addition, retraining, of the spouse had two In the present request. We conclude Court industry, Marriacre was unemployed and had not worked outside maintenance evidence. case, to the marriage, $18,000. of attending Substantial of of where the spouse is employment. in that prior in the fishing a yearly adequate However, he obtained well-respected award through 891 P.2d at 526. college with an award of maintenance in its to did support not the court's misapprehend that was made, and therefore, the award of maintenance. ISSUE 4 Did the District the parties' err in awarding Dolly sole custody of custody of children? The District the Court Court parties' minor unsupervised visitation granted children sole legal to Dolly. on alternate 8 and physical weekends, Bill extended was awarded weekends in summer, and one-half claims the court erred custody is the presumed of all other in Montana in awarding to school sole be in vacations. custody the Bill because best joint interests of the children. The standard custody is In the re 875 P.2d three-part review whether erroneous. 220-21, of for district of Dreesbach adopted 1n custody in disputes, DeSave, award findings (1994), We determine 1021. test court's court's Marriage 1018, a district clear 820 P.2d are 265 error at of child clearly Mont. 216, by using 1287, and the stated above. to the court of best must the with interest his parent or that, Section presumption factors the physical application is set that child's parents, the interrelationship siblings, abuse in best best interest. one parent interest, by one parent MCA. Section either best interest however, The physically if the MCA, that statute abused wishes the child person who against the other MCA, provides court of the The and physical 40-4-224, party, § 40-4-212, of and any other the forth according MCA. of in custody 40-4-223, the child's (l), may be rebutted, child's finding the 40-4-213 custody of his award Section and or parents, of upon joint wishes affect shall child. interaction threat parent. court the the the may significantly abuse of consider child, the shall presume the child. That court joint further the finds, custody provides other parent under is not the in that "a or the child in is the a sufficient best basis interest of On August 16, finding that order, 1994, and verbal, findings regarding needs. There court's in to Bill's there is custody, no The in court did not the be about statement as granted it." No to which the responded "There custody, evidence court the evidence. court follows: joint further support that the both children's to misapprehend custody to made record proceedings joint court and the the not a temporary outbursts, abilities evidence going to that Dolly. is MCA. issued violent of question of at of custody 40-4-224(l), Court caretaking transcript for joint Section had a history and the question that District directed request subsequent the was sufficient the finding child." Dolly's findings However, the Bill physical for is and was no legal produced manifested a change behavior, we find opinion. While we in significant no way condone in contradictions intentions in leaves us mistake has District Court the support the regarding custody. Accordingly, the definite and and with been for further District Court we err in court's a review firm conviction vacate and on the proceedings the issue the that remand of of to a the custody. 5 entering a temporary order for and maintenance? On June order record of matter ISSUE Did abusive committed, the record Bill's of 28, 1994, maintenance Dolly and filed a motion support. 10 The requesting District a temporary Court granted Dolly's motion show cause, through and set if any, pendency temporary Bill to pay support his notice of due process should motion show cause were to comply with prior to not could continue and the the order court's on Bill requiring he did court's not on him and on appeal, because the Bill served At the hearing was violated motion of Houtchens 161, we stated order. A motion responsive that pleadings." temporary is 5 40-4-121(l), and the Bill receive issuance a pleading moved for and child support of the we concluded defendants and Knoepke v. Southwestern P.2d 1185, not pursuant for require granting to her § 40-4-121, as required the factual basis for the motion decision of this action we shall therefore, does an order to the district "the court's an application and In a previous prior 70, 75, 592 by an affidavit, forth requested. was given 181 Mont. is but not MCA, setting where no notice "a motion was accompanied amounts (1979), Dolly maintenance Her motion motion, order Dolly's to 1 so that order. P.2d 158, MCA. August temporary trial. failed In In re Marriage an for and maintenance. Dolly's temporary the and order June 29, 1994. contends why the of order a hearing court's address Court grant caused no prejudice not by the of a to the question." 1189. An attorney's motion retained noting that counsel. Ry. Co. certification Bill 190 Mont. (1980), was filed had not been given The court granted 11 Dolly's 238, along notice with 246, 620 Dolly's and had not yet motion based on its content and the further note that 5 that requirement maintenance court's accompanying be and support. where order Bill motion for the with temporary support did the District the forth not err the one month to contest a lack in of of approximately by a order issuance opportunity We of the notice, granting Dolly's and maintenance. ISSUE Did set temporary prejudiced Court not of set the was not District a was notified was provided by statute. does for and the hearing Bill and therefore, MCA, given Bill We conclude order. as required 40-4-121(l), notice temporary later affidavit Court err 6 in not granting Bill's motion for a new trial? Bill moved the The court the failed passage review Inc. of abuse (Mont. argues the hearing Bill did witness's when claims she observed that her 59(d), a motion Baxter v. 337, 339, any was in evidence filed her Dolly's testimony of with affidavit her Bill's that unusual would Archie 12 new trial was not 444, testimony motion a new not and during of trial. trial. for a 444. time at We Motors, available at the she did after for Cochrane Rep. appearance concern findings. M.R.Civ.P. for 52 St. witnesses of was deemed denied she had been hospitalized submit stated motion of one of his affidavit The witness denial 893 P.2d that or amendment See Rule discretion. because not days. court's of a new trial and so the forty-five 1995), Bill for to reply a district manifest court The new smell trial. alcohol behavior. area of chemical He abuse on the Dolly's part physical At Dolly abuse trial, dependency of Bill and and would toward the presented physical and discretion in a new trial. Court did In not err summary, further proceedings in refusing we vacate on the the of the The abusiveness. cumulative further District Court to grant and remand issue of Bill's to did the custody, - Justice ief'Justice 13 that motion remainder. ~~ , . TIT4 alleged proposed We conclude We concur: evidence of children. testimony therefore denying provide District and chemical evidence not the for abuse is its District new trial. Court we affirm for the
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
