IN RE MARRIAGE OF BOCK v. Smith, 03-629

CourtUnited States State Supreme Court of Montana
Citation2005 MT 40,326 Mont. 123,107 P.3d 488
Docket NumberNo. 03-629,03-629
PartiesIN RE THE MARRIAGE OF JOHN W. BOCK, Petitioner and Appellant, v. MARIANNE C. SMITH, f/k/a MARIANNE C. S. BOCK, Respondent and Respondent.
Decision Date22 February 2005

For Appellant: Byron Wade Boggs, Attorney at Law, Missoula, Montana

For Respondent: Cynthia K. Thiel, Boone & Karlberg, Missoula, Montana

Justice W. William Leaphart delivered the Opinion of the Court.

¶ 1 John Bock (Bock) appeals from the District Court's distribution of the marital estate, award of child custody to his ex-wife Marianne Smith (Smith), conclusion of law making the order of protection permanent, and order temporarily amending the parenting plan. We affirm the first three and dismiss on the last issue.

¶ 2 We address the following issues on appeal:

¶ 3 1. Whether the District Court abused its discretion in distributing the marital estate, including the award to Smith of one-half of Bock's PERS account.

¶ 4 2. Whether the District Court abused its discretion in awarding primary custody of the children to Smith.

¶ 5 3. Whether the District Court abused its discretion in making the order of protection permanent.

¶ 6 4. Whether the District Court erred in temporarily amending the parenting plan on December 17, 2003.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 7 Bock and Smith married in 1989. Their union produced three boys, born in 1990, 1993, and 1997. For most of their marriage the couple resided in Missoula, Montana,but when they could not find suitable employment they moved to Tulsa, Oklahoma, in 1998. Both worked for the same company in Tulsa for a number of months before the company declared bankruptcy. In May 1999, shortly after both lost their jobs, Smith took the children and drove back to Missoula. Around the same time she let Bock know that she did not wish to continue in the marriage. Bock later initiated this dissolution proceeding.

¶ 8 Smith alleges that over the course of their marriage Bock subjected her and the children to repeated emotional abuse, and subjected the children to occasional physical abuse. Bock counters that there was no abuse of any kind, and he cites several witnesses who testified at trial that they never saw any signs of abuse. Smith's abuse allegations are largely based on her own testimony, although the allegations find support in the reports and testimony of psychologists who interviewed Smith, the children, and Bock, and concluded that there is reason to believe that Bock has been abusive.

¶ 9 Very shortly after moving back to Missoula, Smith petitioned for, and was granted, an order of protection that limited Bock's contact with Smith and the children. Although Bock was allowed some phone contact with the children and was later awarded occasional visits with them, he violated the order of protection repeatedly, sometimes calling Smith several times a day. The order of protection is still in effect, and since it was first put in place Bock has been convicted of three misdemeanor counts for violating its terms.

¶ 10 After Smith and the children left Tulsa, Bock moved in with his parents in Michigan where he still resides rent-free. Soon after moving he obtained a job with the State of Michigan. Smith worked a few different jobs in Missoula before retraining herself in software design. After three years of living in Missoula, Smith moved with the children to where her mother lives in Pennsylvania. During Smith's time back in Missoula, and also since her move to Pennsylvania, Bock has enjoyed limited visits with the children, usually by visiting the area where Smith and the children are living.

¶ 11 Following the trial below, the District Court awarded primary custody of the children to Smith and distributed the marital estate. At the time of separation the couple owned a home in Tulsa as well as a van. In addition, Bock still has a PERS retirement account from his days working for the University of Montana. The value of Bock's PERS contributions made during the marriage was $38,960.83. After Smith returned to Missoula, taking the van with her, Bock made payments on the mortgage until the home sold, and, at first, made payments on the van. However, after some time, he ceased making payments on the van, and, since Smith could not afford to make the payments, the van was repossessed. Bock also made payments on the children's COBRA insurance until he included them in his health insurance at his job in Michigan. Even so, during the first few months of separation, Bock did not provide any child support for Smith and the children.

¶ 1 The court held that Bock was responsible for the children's medical, dental, and counseling debts, and that Smith was entitled to half of the marital portion of the PERS account. The court also held that Smith was not liable for a "loan" that Bock's father (William Bock) gave the family during their marriage nor for funds William Bock loaned to Bock after the separation.

¶ 2 Some months after the District Court's dissolution decree, and while this appeal was pending in this Court, Smith moved for an emergency amendment to the parenting plan. The court granted that motion, issuing an order temporarily amending Bock's visitation rights. Bock appeals from that order as well as the earlier distribution of the marital estate, award of custody, and conclusion of law making permanent the order of protection.

STANDARD OF REVIEW

¶ 3 In a dissolution proceeding, this Court reviews the District Court's findings to determine if they are clearly erroneous. In re Marriage of Herrera, 2004 MT 40, ¶ 18, 320 Mont. 71, ¶ 18, 85 P.3d 781, ¶ 18. "A finding is clearly erroneous if it is not supported by substantial evidence, if the district court misapprehended the effect of the evidence, or if our review of the record convinces us the district court made a mistake." Marriage of Herrera, ¶ 18. In reviewing discretionary district court rulings, such as the distribution of a marital estate or the valuation of those distributions, we review for abuse of discretion. Siefke v. Siefke, 2000 MT 281, ¶ 7, 302 Mont. 167, ¶ 7, 13 P.3d 937, ¶ 7. In cases awarding child custody, we review whether the District Court's findings of fact are clearly erroneous. If clear error is not apparent, we will uphold the decision below unless the court abused its discretion. McDermott-Yeargin v. McDermott, 2003 MT 283, ¶ 9, 318 Mont. 13, ¶ 9, 79 P.3d 245, ¶ 9 (citing Czapranski v. Czapranski, 2003 MT 14, ¶ 10, 314 Mont. 55, ¶ 10, 63 P.3d 499, ¶ 10) .

DISCUSSION
ISSUE ONE

¶ 4 Whether the District Court abused its discretion in distributing the marital estate, including the award to Smith of one-half of Bock's PERS account.

¶ 5 The District Court found that Smith was due one-half of the portion of Bock's PERS account resulting from contributions made during the marriage. In light of the distribution of the other assets in the marital estate, Bock argues that the court erred in not awarding him the entirety of the PERS account. Bock contends that the District Court erred in finding that he failed to support the children in the past and in finding that Smith was not liable for the funds that William Bock loaned to the couple before separation.

¶ 6 Each party testified at length regarding the support, and lack of support, that Bock gave to Smith and the children after Smith took them back to Missoula. The record supports Bock's claims that he paid the mortgage on the Tulsa house until it sold, initially made some payments on the family van that Smith took with her, and made COBRA insurance payments for the children before he found a job in Michigan. However, Smith's claim that Bock did not provide support for living expenses after the initial separation is also supported, as is the claim that he ceased making payments on the van, which led to its repossession. Taking all of this evidence into account, we conclude that the District Court was not clearly erroneous and did not abuse its discretion in finding that Bock failed to support the children when he was financially able.

¶ 7 William Bock testified that when he gave $27,000 to the couple during their marriage, it was understood to be a "loan" that must be repaid. Smith's testimony indicated that she understood the funds were a gift intended to help the struggling couple rather than a loan. William Bock kept a list of funds that he had "loaned" to the family and this was offered as evidence that he expected to be paid back. However, Smith gave credible testimony that she did not know of this list and that she had no reason to know that the family was expected to pay the funds back. One amount supposedly "loaned" was the cost of a flight for William Bock to see Smith and her youngest son in Seattle when her son was there for medical reasons. Smith stated that William Bock simply showed up unannounced. At the time Smith merely considered this an act of kindness and not a "loan" she would have to later repay.

¶ 8 John Bock cites Siefke and Marriage of Stewart (1988), 232 Mont. 40, 757 P.2d 765, for authority in contending that Smith shares responsibility in repaying the "loan" from his father. Neither of these cases assist Bock in his argument. In Siefke we upheld the district court's finding that an advance on the husband's inheritance was not part of the marital estate. Siefke, ¶ 15. Similarly, the "loan" Bock received from his father should not be a part of this marital estate. In Stewart the husband took out loans, and we upheld the district court's finding that the wife shared in the debt even though she purported to be unaware of the loans. Stewart, 232 Mont. at 42-43, 757 P.2d at 767. However, unlike the instant case, the loans in Stewart were bona fide debts. Here, there exists substantial credible evidence that the loan could just as easily have been understood to be a gift. Therefore, we determine that the District Court was not...

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