Kovarik v. Kovarik
| Citation | 954 P.2d 1147,287 Mont. 350 |
| Decision Date | 12 March 1998 |
| Docket Number | No. 97-308,97-308 |
| Parties | , 1998 MT 33 In re the Marriage of Curtis Alan KOVARIK, Petitioner/Respondent, v. Sandee Rae KOVARIK, Respondent/Appellant. |
| Court | United States State Supreme Court of Montana |
David C. Humphrey, Humphrey Law Office, Polson, for Appellant.
Keith W. McCurdy, McCurdy Law Firm, Polson, for Respondent.
¶1 The marriage of Sandee Rae Kovarik (Sandee) and Curtis Alan Kovarik (Curtis) was dissolved pursuant to the Findings of Fact, Conclusions of Law, and amended Decree of Dissolution entered by the Twentieth Judicial District Court, Lake County. Sandee appeals the court's decision regarding division of marital property, custody, child support, and maintenance. We affirm in part, reverse in part, and remand for further findings consistent with this opinion.
¶2 The issues on appeal are as follows:
¶3 1. Did the District Court err in valuing and dividing the marital property?
¶4 2. Did the District Court err in designating Curtis residential custodian of the parties' two youngest children?
¶5 3. Did the District Court err in its award of child support?
¶6 4. Did the District Court err in declining to award Sandee rehabilitative maintenance?
¶7 Sandee and Curtis were married in North Dakota in 1970. Together, they have seven children: M.K., K.K., J.K., and C.K., all adult children; A.K., a teenager; and R.K. and T.K., ages eleven and seven respectively. The parties' first residence consisted of a lot with a trailer home. When the family later became too big for the trailer home, the parties purchased and moved into a house on a nearby lot. Currently, the parties own both residences. In addition to these residences, the parties own a car, a two-ton truck and trailer, several pick-ups, a camper, numerous tools and items of equipment used in the family business, accounts receivable from the business, as well as personal and home effects. In addition to the debt incurred on some of the above items, the parties have consumer debt.
¶8 Curtis and Sandee both have high school educations. Throughout their marriage, Sandee was the primary homemaker and Curtis was the primary financial provider. For the last eighteen years, Curtis has owned and operated a drilling and blasting business known as Curt's Compressor Service. During this time, Sandee performed some odd jobs outside of the home. Until Angela was born, fifteen years ago, Sandee was employed as an Avon representative. Later, Sandee experimented for a short time with her own cheesecake business, selling cheesecakes out of her home.
¶9 During the last two to three years of marriage, Sandee assisted with the bookkeeping of the family business. To better qualify herself for this task, Sandee completed computer and accounting classes at a nearby community college. Sandee and Curtis also discussed the possibility of Sandee driving the trucks and taking on a more active role in the physical labor of the business. To this end, Sandee completed a truck-driving course at the community college. Although Sandee obtained her commercial driver's license, she has not yet put it to use. When Sandee first attempted to drive the family business trucks, she caused some damage to one of the trucks. Thereafter, Curtis decided not to have Sandee drive the trucks.
¶10 The marriage of Curtis and Sandee deteriorated over the years, and culminated in petitions for dissolution in July, 1996. On August 29, 1996, Curtis filed a motion for citation and order to show cause why he should not be granted temporary custody of the two youngest children, R.K. and T.K. Curtis also sought a temporary restraining order against his wife and exclusive control over the house during the pendency of the proceedings.
¶11 On September 18 and 19, 1996, the court conducted a hearing on the matter. Each of the five oldest children gave testimony describing the abusive nature of Sandee.
Three children testified that the verbal and physical abuse of their mother caused them to "run away" or move out. The eldest daughter testified that as each child moved out, it appeared Sandee would turn her aggressions on to the next child "down the line." This daughter also expressed her fear that if the two youngest children continued in the care of their mother, they too would have to endure the abuse. The eldest son recalled an incident where Sandee yelled at and hit Curtis, and then kicked the eldest son when he told her to stop. Another daughter testified that Sandee hit her on the ear with the phone for speaking with her sister. Another son testified that his mother hit him and that she "kicked him out" of the house
¶12 In her defense, Sandee put on witness testimony from school personnel that she was an involved parent, attentive to the needs of her children. A child development specialist testified that Sandee had consulted her about the special needs of C.K. and T.K., and that Sandee had joined a support group for parents of children experiencing Attention Deficit Disorder. R.K., a minor child, testified on behalf of her mother and stated that C.K. would "egg" his mother on, call her names, and provoke fights. However, Curtis stated that C.K. did this because he did not like Sandee's current lover, Brennan Jones (Jones).
¶13 The admitted love affair between Sandee and Jones was a point of contention regarding the best interests of the children. Jones was K.K.'s husband and Sandee's son-in-law. He is a convicted felon currently on probation for felony theft and aggravated assault. One skirmish between K.K. and Jones resulted in a gunshot wound in K.K.'s leg. Although K.K. has since divorced Jones, Curtis stated his belief that the relationship between Sandee and Jones was ongoing, as he had seen them together several times. Curtis believed Jones to be prone to violence and did not want the minor children to have any contact with him.
¶14 On September 19, 1996, based on the testimony elicited in the two hearings, the court granted Curtis temporary custody of the minor children during the pendency of the dissolution proceedings. The court also granted Curtis exclusive control of the home, ordered Sandee to vacate the home by September 30, 1996, and enjoined Sandee from entering the premises during the pendency of the proceedings. However, the court granted Sandee reasonable visitation as agreed by the parties, and awarded her temporary support at the rate of $300.00 per month during the pendency of the proceedings.
¶15 Shortly after the court issued its order, Sandee went to the family home to gather her personal items. She found some things missing, including some of her jewelry. Sandee testified that K.K. stole the jewelry. Sandee called Curtis' attorney and threatened to file a report if he did not recover and return the missing items to her. Curtis' attorney found the missing jewelry and returned it to Sandee. Sandee then moved out, rented an apartment, and obtained a $2400.00 loan to pay her rent and other expenses until she could find employment. Sandee soon found employment at a janitorial service and earned $5.50 per hour.
¶16 On November 1, 1996, Sandee moved the court to reconsider its prior order, and, based on alleged changed circumstances, requested that she be awarded custody of R.K. and T.K., as well as child support and maintenance, during the pendency of the proceedings. Sandee also requested a partial distribution of assets. On November 13, 1996, the court heard more testimony on these matters and ultimately denied Sandee's motion. The court did not rule on the issue of partial distribution of assets because the parties had not yet submitted their proposals for division of marital property, custody, and maintenance.
¶17 Over the course of the next few months, the parties engaged in discovery, and submitted to the court separate proposals regarding division of the property, custody, and maintenance. The court appointed guardians ad litem for R.K. and T.K. On February 10 and 12, 1997, the court conducted its final hearing on the matter. The parties submitted evidence as the basis for the values they assigned to the items listed in the marital estate. The guardian ad litem for T.K. testified that in his opinion, T.K.'s best interests would be served if Sandee were his primary residential custodian. The ¶18 On February 27 and 28, 1997, the parties each submitted to the court proposed findings and conclusions. On March 18, 1997, the court entered its Findings of Fact, Conclusions of Law, and Decree of Dissolution. Regarding division of property, the court awarded Curtis and Sandee equal portions of the net marital estate. Although Curtis received more tangible assets, the court assigned a larger share of debt to Curtis, and awarded Sandee supplemental cash in the amount of $19,631 to make up the difference. Regarding custody, the court awarded the parties joint custody, and designated Curtis the primary residential custodian. The court awarded liberal visitation with the minor children according to a set schedule. Further, the court ordered Sandee to pay $180.00 per month in child support. Regarding spousal maintenance, the court concluded that neither party was required to pay maintenance to the other.
guardian ad litem for R.K. testified that although in September R.K. expressed an interest to live with Sandee, R.K. had since changed her mind because she did not feel comfortable being around Jones. A.K., the parties' teenage daughter, told the court she preferred to live with Curtis.
¶19 On April 21, 1997, the court amended the original Findings of Fact, Conclusions of Law, and Decree to correct certain clerical and computational errors not relevant to this appeal. Additional facts will be provided as necessary to dispose of the issues raised.
¶20 In matters relating to the division of marital property, child custody, and...
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