Bradshaw v. Bradshaw

• Decision Date: 09 March 1995
• Docket Number: No. 94-289,94-289
• Citation: 891 P.2d 506,270 Mont. 222
• Parties: In re the Marriage of Daniel G. BRADSHAW, Petitioner and Respondent, v. Michelle Norick BRADSHAW, Respondent and Appellant.
• Court: Montana Supreme Court

Page 506

891 P.2d 506

270 Mont. 222

In re the Marriage of Daniel G. BRADSHAW, Petitioner and Respondent, v. Michelle Norick BRADSHAW, Respondent and Appellant.

No. 94-289.

Supreme Court of Montana.

Submitted on Briefs Dec. 8, 1994.

Decided March 9, 1995.

[270 Mont. 225] Laurence J. Ginnings, Missoula, for respondent and appellant.

John C. Schulte, Missoula, for petitioner and respondent.

NELSON, Justice.

This is an appeal and a cross-appeal from the Findings of Fact, Conclusions of Law and Final Decree of Dissolution of the Fourth Judicial District Court, Missoula County. We affirm in part and reverse and remand in part.

The following are issues on appeal and cross-appeal:

APPEAL ISSUES

I. Did the District Court err in awarding the wife $6,000 equity in the house?

II. Did the District Court err in ordering the husband to pay for the wife's future dental expenses associated with tooth repair?

III. Did the District Court err in ordering the husband to undergo and pay for counseling as a condition of exercising unsupervised visitation?

IV. Did the District Court err when it refused to award the husband a variance from child support for the court-ordered counseling?

CROSS-APPEAL ISSUES

I. Did the District Court err in granting grandparent visitation when there was no petition by the grandparents for such visitation?

II. Did the District Court err when it did not order that the beneficiary of the husband's annuity be the child?

III. Did the District Court err in not awarding the wife maintenance?

IV. Did the District Court err in not awarding the wife a higher share of the equity in the house?

V. Did the District Court err in not awarding the wife attorney's fees?

FACTUAL AND PROCEDURAL BACKGROUND

Daniel G. Bradshaw (Daniel) and Michelle Norick Bradshaw (Michelle) were married in Missoula, Montana on September 2, 1992, and they were separated in early February, 1993. Daniel and Michelle have one child, Daniel Richard Bradshaw, (Danny), who was born on June 17, 1992.

Daniel's petition for dissolution came on for hearing on August 27, 1993, and September 1, 1993, before Susan P. Leaphart, a Special Master. The Special Master filed her Recommended Findings of Fact, Conclusions of Law and Opinion on September 17, 1993. The District Court adopted the Special Master's recommendations with a few minor changes on January 13, 1994, with an Order regarding Objections to the Special Master's Findings of Fact and Conclusions of Law and Final Decree of Dissolution. The following factual information comes from the Special Master's Findings:

Daniel suffers from serious physical impairments sustained in a head injury when he was 15 years old. He also has a learning disability which causes problems in processing information and communicating orally and in writing. Michelle is able-bodied and in good health.

Daniel's physical and mental impairments impede his ability to obtain employment and his options seem to be manual labor positions such as dishwashing and custodial work, positions which he has held in the past. At the time of the dissolution he was unemployed and receiving unemployment benefits of $103 which were about to expire.

Also about the time of the dissolution, Michelle, who had been unemployed, was hired by a health care facility for $5.10 per hour with an increase to $5.60 per hour when she receives her Nurse's Aide certification. Immediately prior to her hiring at the health care facility, she was receiving $310 per month in general assistance and $161 per month in food stamps.

Daniel received a structured settlement due to his head injury and receives a monthly annuity of $1,200.00, which increases by four percent annually, and a lump sum of $2,500.00 in July of each year which increases by three percent annually.

Daniel's major asset is the home at 2300 Woodcock in Missoula, which he purchased on December 7, 1989, for $48,000, paying $16,000 as a down payment. He purchased the home with funds from his personal injury settlement. Daniel has paid all mortgage payments, taxes and insurance payments associated with the home. Michelle has not contributed in any meaningful way, either economically or non-economically, to the value of the home. The increase in value of the house is due entirely to the inflation of home values in the Missoula area. An expert valued the home at $64,000 at the time of the dissolution.

Michelle has been Danny's primary caregiver and Daniel has cared for Danny for only a few brief time periods. Although Daniel and Danny have an affectionate relationship, Daniel's disabilities prevent him from adequately parenting Danny on a full-time basis. The social worker who performed the custody assessment recommended that Daniel be granted reasonable supervised visitation while Michelle should be designated as the primary custodial parent.

The social worker recommended supervised visitation until such time as Daniel completes a Child Abuse Potential Inventory, an Adult Parent Inventory, and counseling which offers training and education in child development and parenting skills. Moreover, the social worker recommended that Daniel receive counseling with a therapist trained in working with head injury victims. Periods of depression and violent outbursts concerned the social worker as they may affect Daniel's parenting of his son. Unsupervised visitation may be appropriate upon completion of the above mentioned programs and a recommendation by Daniel's primary treating therapist.

The social worker also recommended that Michelle continue in counseling with her therapist and that she attend educational counseling with Daniel's therapist regarding head injuries. The social worker also suggested that the entire family be monitored by a case manager for 12 months.

The social worker also testified that it would be in Danny's best interests if Daniel's parents, who live in Libby, could exercise visitation. This practice would be contingent upon Daniel's parents signing an agreement that Danny would never be left alone with Daniel on any of the visits. Daniel's mother has stated that she would be agreeable to such an agreement and that the paternal grandparents would provide Danny's transportation on such visits.

Daniel had the following expenses at the time of the dissolution:

1. Rent--$100.00 per month

2. Purchase or mortgage payments and taxes--$360.27 per month

3. Utilities--$50.00 per month

4. Food--$175 per month

5. Transportation--$150 per month

6. Insurance--$275 every 3 months

7. Recreation--$25.00 per month

8. Other regular or extraordinary expense--$225.00 per month

9. Water--$20.00 per month

10. Montana Power Company--$75.00 per month

11. Telephone--$100.00 per month

12. Chapter 13 payments--$200.00 per month

13. Repair to truck--$2400.00

TOTAL--$1347.27 PER MONTH

Michelle had the following expenses at the time of the dissolution:

1. Doctor bills--$25.00 per month (until $130 balance is paid)

2. Telephone--$16.00 to 19.00 per month

3. Garbage--$11.00 per month ($40.00 owing)

4. Gas--$100.00 per month

5. Clothing for Danny--$200.00 per month

6. Personal bills--minimum of $50.00 per month

7. Repair to tooth--total approximately $3000.00

TOTAL--$405.00 PER MONTH

The monthly totals do not include the costs of repairing Michelle's tooth or Daniel's truck. The parties filed bankruptcy and Daniel has been making Chapter 13 payments of $200.00 per month to retire this debt. These payments are to continue for three years.

The following conclusions of law from the Special Master's opinion, adopted by the District Court, are pertinent to the issues on appeal:

1. The home at 2300 Woodcock was awarded to Daniel.

2. Michelle was awarded $6,000, a portion of the equity in the home.

3. Michelle will not be awarded maintenance because she is able to support herself through employment commensurate with her education and skills.

4. Michelle is designated as the primary custodial parent with Daniel granted supervised visitation.

5. Daniel shall be evaluated for parenting skills and, if appropriate, receive counseling and education to develop necessary parenting skills.

6. Daniel shall receive counseling with a primary therapist who is knowledgeable about head injuries.

7. Daniel may exercise supervised visitation with Danny twice a week and supervision shall be arranged through Extended Family Services in Missoula.

8. Danny's paternal grandparents shall have visitation with Danny once a month, providing for Danny's transportation, if they will sign a stipulation stating that they will not leave Danny alone with Daniel.

9. Daniel shall pay child support in the amount of $539.00.

10. Daniel shall pay for the repair of Michelle's tooth.

11. Each party will be responsible for his/her attorney fees.

From the order of the District Court, adopting the Special Master's Findings of Fact and Conclusions of Law, with some modifications, both parties appeal.

STANDARD OF REVIEW

The standard of review for findings of fact of a district court is whether the court's findings are clearly erroneous and whether its conclusions of law are correct. In re Marriage of Rada (1994), 263 Mont. 402, 405, 869 P.2d 254, 255. This Court is not bound by a lower court's conclusions of law; this Court remains free to reach its own conclusions. In re Marriage of Danelson (1992), 253 Mont. 310, 317, 833 P.2d 215, 219.

ISSUE I--$6,000 EQUITY IN THE HOUSE FOR MICHELLE

The Special Master found that Daniel had purchased the home prior to the marriage, making a downpayment of $16,000 from his settlement monies and that he had paid all mortgage payments, taxes and insurance payments associated with the house from his settlement and annuity. Moreover, Michelle "ha[d] not contributed substantially to the value of the house either monetarily or as a homemaker."

The distribution of property is governed by § 40-4-202, MCA, which provides in pertinent part:

(1) ... In dividing property acquired prior to the marriage; ......