IN RE PETITION OF FENZAU

• Decision Date: 05 September 2002
• Docket Number: No. 00-853.,00-853.
• Citation: 54 P.3d 43,2002 MT 197
• Parties: In re The PETITION OF A. Caroline FENZAU, Petitioner and Respondent, and William Fenzau, Respondent and Appellant.
• Court: Montana Supreme Court

54 P.3d 43

2002 MT 197

In re The PETITION OF A. Caroline FENZAU, Petitioner and Respondent, and

William Fenzau, Respondent and Appellant.

No. 00-853.

Supreme Court of Montana.

Submitted on Briefs August 30, 2001.

Decided September 5, 2002.

Patrick D. Sherlock, Sherlock & Nardi, Kalispell, Montana, For Appellant.

George W. Best, Attorney at Law, Kalispell, Montana, For Respondents.

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 A. Caroline Fenzau, Petitioner and Respondent (Caroline), filed a petition for dissolution of marriage against William A. Fenzau, Respondent and Appellant (William), on May 27, 1998. William appeals the decree of dissolution entered by the District Court of the Eleventh Judicial District, Flathead County. We affirm in part and remand for further proceedings consistent with this opinion.

¶ 2 William raises the following issues on appeal:

¶ 3 1. Whether the District Court erred by allowing and considering evidence of physical and emotional abuse of Caroline by William.

¶ 4 2. Whether the District Court failed to equitably apportion the marital estate.

¶ 5 3. Whether the District Court erred by not exercising independent judgment when it adopted Caroline's proposed findings of fact and did not establish the marital estate's net worth.

¶ 6 4. Whether the District Court properly considered the issue of attorney fees.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 7 Caroline and William were married on March 12, 1993, in Reno, Nevada. No children were born of the marriage.

¶ 8 William was 60 years of age at the time of the dissolution, in good health, and retired from Turner Construction Company, where he had been a project manager for approximately thirteen years. At the time of the dissolution, William was incarcerated in federal prison on a weapons charge arising out of his earlier conviction of felony domestic violence upon Caroline. Caroline was 53 years old, in poor health, disabled, and receiving Social Security benefits of approximately $770 per month due to a parasitic problem in her stomach and a resulting clotting deficiency, conditions which predate her marriage to William. Although Caroline was receiving disability payments at the time of marriage, the present state of her disability is a direct result of physical abuse she sustained during the marriage with William.

¶ 9 Caroline entered the marriage with approximately $24,500 in cash; antiques worth $25,000; a doll collection worth $15,000; a vehicle valued at $17,000; $10,000 in equipment; and $5,000 from her mother's estate. William entered the marriage with $100,000 in cash, which was an inheritance from his mother; an Employee Stock Ownership Plan (ESOP) in the amount of approximately $11,321; a 401(K) plan valued at $51,000; a $588 per month pension once he turns age 65; and a coin collection valued at approximately $500.

¶ 10 In 1995, William and Caroline purchased a bed and breakfast business in Emigrant, Montana. In order to purchase the bed and breakfast, William liquidated his 401(K) and Caroline contributed most of her premarital assets. In 1997, the parties sold the bed and breakfast, and purchased a house for approximately $222,000 in Somers, Montana. They then divided their excess funds into two separate investment accounts, each placing $88,000 into separate Linsco/Private Ledger (LPL) stock accounts. At the time of dissolution, which followed losses in the stock market, William's account was valued at $6,683 and Caroline's account was valued at $1,285.

¶ 11 The District Court found that Caroline "sustained over seven years of abuse during the course of her relationship" with William. On one occasion, William cut Caroline's wrist while trying to cut the phone line when she was dialing 911. Caroline also suffered facial bruises, a concussion, and broken teeth. In another incident, William knocked Caroline to the floor and stomped on her lower back, crushing a disc in her back. She was transported to a hospital by ambulance, and hospitalized for seven days. In 1994, William pushed Caroline down an outside stairway, injuring her right knee, which required orthoscopic surgery. After the couple moved to Somers in May 1997, William attacked Caroline one night after she refused to have sex with him. He tied her hands and feet with a telephone cord, bent her over a desk, and raped her. William then locked Caroline in a closet, keeping her there for eighteen hours.

¶ 12 Caroline's testimony recounted additional incidents of abuse during the marriage, including over a half dozen concussions, the loss of most of her teeth, being kicked in the stomach, being sexually assaulted, and having a gun put to her head and threatened with her life. During their marriage, William was incarcerated for assault on numerous occasions.

¶ 13 William denied causing these injuries. William asserted that the injuries Caroline claims were either due to her disability or caused by accidents or other natural causes. He argues that none of the medical records indicate he caused any of these injuries to her. However, William does not deny being arrested for domestic abuse nor his criminal record arising from charges related to his abuse of Caroline.

¶ 14 Caroline has ongoing medical expenses as a result of her injuries. She takes several prescription medications for her physical pain and emotional injuries. The current cost of her prescriptions is about $150 to $190 per month. Caroline faces at least $10,000 in future dental bills to repair the teeth that were broken or knocked out. She also faces probable surgery on her back due to damaged discs. Caroline will require physical therapy throughout the course of her life at a cost of approximately $85 per week. Additionally, Caroline faces an estimated $33,000 in future counseling costs to address the mental and emotional consequences of William's actions.

¶ 15 Prior to the dissolution proceedings, William retained attorney Patrick D. Sherlock (Sherlock) to represent him on criminal charges of Partner Assault and Sexual Intercourse Without Consent (6 counts), arising out of his attacks upon Caroline, as well as other criminal charges. Initially, Sherlock consulted with District Court Judge Ted O. Lympus regarding William's eligibility for appointment of a public defender. Judge Lympus determined William was not entitled to a public defender, given the value of his assets. William then assigned one-half of his undivided half interest in the parties' home to Sherlock as security for the fees. Although Sherlock petitioned the District Court to approve his assignment and his fee, the Final Decree of Dissolution failed to address Sherlock's motion, simply holding that each party should pay their own attorney fees.

¶ 16 In distributing the assets in the Final Decree of Dissolution, the District Court awarded Caroline the following assets: the marital residence located in Somers, Montana; a 1992 Chevrolet pickup; an inoperable 1980 Datsun automobile; a 1995 sixteen-foot trailer; recreational equipment; and miscellaneous household furnishings, heirlooms, art, jewelry, silver, crystal, and china. Additionally, Caroline was awarded William's Turner Corporation ESOP. The assets awarded to Caroline were valued at $263,571. Caroline was assigned the debts incurred by her subsequent to the parties' separation, as well as all debt related to her medical expenses. ¶ 17 The District Court awarded William his Turner Corporation pension plan and personal effects, subject to any debt he had incurred subsequent to the parties' separation.

STANDARD OF REVIEW

¶ 18 In a dissolution proceeding, this Court reviews a district court's findings of fact to determine whether the district court clearly erred. The clearly erroneous standard involves a three-part test: (1) this Court will review the record to see if the findings are supported by substantial evidence; (2) if the findings are supported by substantial evidence, this Court determines if the trial court has misapprehended the effect of the evidence; and (3) if substantial evidence exists and the effect of the evidence has not been misapprehended, this Court may still find that a finding is clearly erroneous when, although there is evidence to support it, a review of the record leaves this Court with the definite and firm conviction that a mistake has been committed. Pfeifer v. Pfeifer (1997), 282 Mont. 461, 467, 938 P.2d 684, 688. We review a trial court's conclusions of law to determine whether those conclusions are correct. In re Marriage of Harper, 1999 MT 321, ¶ 17, 297 Mont. 290, ¶ 17, 994 P.2d 1, ¶ 17.

DISCUSSION

¶ 19 Did the District Court err by allowing testimony and evidence in relation to the physical and emotional abuse of Caroline by William?

¶ 20 William moved to strike allegations of his abuse of Caroline from her pleadings and to exclude evidence of such abuse in the dissolution proceeding. The District Court denied William's motions. On appeal, William asserts the District Court erred in admitting and considering evidence of the abuse, citing the prohibition against consideration of marital misconduct set forth in § 40-4-202, MCA, and this Court's affirmation of that principle in our decisions.

¶ 21 The District Court made extensive findings about the physical and emotional abuse inflicted upon Caroline by William, including the facts referenced earlier in this opinion, as well as numerous other instances. Although not raised as an issue on appeal, William's briefing also offers the contention that the findings of abuse are not supported by the evidence. However, the District Court's findings were clearly supported by substantial evidence. The Court found that "the present state of [Caroline's] disability is a direct result of her marriage to [William]." The District Court also noted the following findings about Caroline among the reasons it gave for the distribution of the marital estate:

She is left with a damaged and

...