Marriage of Baer, In re

• Decision Date: 26 February 1998
• Docket Number: No. 97-544,97-544
• Citation: 287 Mont. 322,954 P.2d 1125
• Parties: , 1998 MT 29 In re MARRIAGE OF Tammi Maria BAER, Petitioner and Appellant, and Monte Wayne Baer, Respondent and Respondent.
• Court: Montana Supreme Court

Page 1125

954 P.2d 1125

287 Mont. 322, 1998 MT 29

In re MARRIAGE OF Tammi Maria BAER, Petitioner and Appellant and Monte Wayne Baer, Respondent and Respondent.

No. 97-544.

Supreme Court of Montana.

Submitted on Briefs Jan. 15, 1998.

Decided Feb. 12, 1998.

Rehearing Denied Feb. 26, 1998.

David C. Humphrey, Humphrey Law Office, Polson, for Petitioner and Appellant.

James A. Manley, Law Offices of Manley & O'Rourke-Mullins, Polson, Respondent and Respondent.

TRIEWEILER, Justice.

¶1 Tammi Baer filed a petition for dissolution of her marriage to Monte Baer in the District Court for the Twentieth Judicial District in Lake County. After a trial, the District Court granted the dissolution, divided the marital property, and awarded residential custody of their children to Monte. Tammi appeals. We affirm in part and reverse in part the judgment of the District Court.

¶2 There are three issues on appeal:

¶3 1. Did the District Court err when it awarded custody of the couple's children to Monte?

¶4 2. Did the District Court err when it divided the marital estate?

¶5 3. Did the District Court err when it declined to hold Monte in contempt of court?

FACTUAL BACKGROUND

¶6 Tammi and Monte Baer were married in September 1993, in Lake County. They have three children: Dawson Jerome, who is now three years old; Megan Amber, who is now two years old; and Cody Tyler Dillon, who is now one year old. Tammi is also the mother of five-year-old Eric, to whom she gave birth prior to her marriage; Monte is not Eric's biological father.

¶7 Monte is a licensed pilot and certified aircraft mechanic. Prior to and during the marriage, Monte owned and operated Mission Aviation, a business which repairs and sells small aircraft. His father, Wayne Baer, has a similar business and owns a hangar and runway in Ronan. Monte has an informal agreement with Wayne that he can use the hangar and runway in exchange for his services when Wayne needs help on a project. The two also sometimes invest in aircraft together. Monte's income during the marriage averaged approximately $1,000 per month, and at no point during the marriage did Tammi work outside of the home.

¶8 Soon after their marriage, Monte and Tammi, who was pregnant at the time, went to Alaska where Monte had temporary work. They returned to Montana after three months and moved into a mobile home next to the hangar on land owned by Monte's parents. Elsewhere on the land owned by Monte's parents was a school and church in which the family were active participants. Monte returned to work in Alaska in 1994 for approximately six months, and then again for ten weeks in 1995. After he returned, Monte and Tammi borrowed money from Monte's brother and purchased a different mobile home, which they placed on Monte's parents' land near the end of the runway.

¶9 With the exception of the couple's mobile home, their only other significant asset is a 1990 van, which they purchased with a $6,000 loan from Wayne. Monte owned a plane prior to the marriage, but he sold it in 1994, used the proceeds to purchase a one-half interest in a second plane, and rebuilt it with Wayne in an attempt to sell it; they have not yet sold the plane. Monte and Tammi still owe approximately $4,800 to Wayne for the van, and approximately $9,000 for the mobile home.

¶10 On March 25, 1996, Tammi filed a petition for dissolution in the District Court. On April 10, the District Court entered an order to enforce a temporary stipulation between the parties. The stipulation provided that Tammi was to have custody of the children and remain in the mobile home while the action was pending, and that Monte was to refrain from any interference to her occupancy. It also prohibited Tammi and Monte from disturbing each other's peace or encumbering each other's assets. Finally, the stipulation set forth Monte's visitation schedule with the children and required Monte to pay Tammi $350 per month for child support.

¶11 During the period of the stipulation, numerous conflicts occurred between the parties regarding Monte's visitation with the children. The exchange of the children became so volatile that Tammi tape-recorded the exchanges and conversations, and Monte always had one of his family members accompany him to videotape the exchanges. Additionally, Tammi and/or her family involved law enforcement officials in the exchanges on several occasions.

¶12 Other problems occurred as well. For example, Monte stopped making child support payments to Tammi in August 1996. Tammi sought assistance from the State, and eventually the Child Support Enforcement Division assumed responsibility for the collection and distribution of child support payments. However, Monte has apparently not made any payments since August 1996. In September 1996, Wayne served an eviction notice on Tammi. Monte had tried to dissuade Wayne from evicting Tammi, but he nonetheless accompanied Wayne when Wayne served the notice. Wayne also filed liens against the van and mobile home.

¶13 On February 4, 1997, Tammi filed a motion for citation and order to show cause why Monte should not be held in contempt for violation of the stipulation. She submitted affidavits that described Monte's role in the attempted eviction and lien filings, and his failure to pay child support. She also alleged that Monte violated the order and harassed her when they exchanged the children, and that at times he refused to return the children. Finally, she alleged abuse by Monte after Eric had been spanked and Cody sustained a head injury during visitations with Monte. Tammi also complained of the incidents to the Lake County Department of Family Services.

¶14 The District Court issued the order and set a hearing at which to show cause for February 26, 1997. On February 10, Monte requested a final hearing date and that the show cause hearing be held at the same time, based on the fact that evidence and witnesses would be the same at each hearing. Two days later, the District Court vacated the initial show cause hearing date and set March 10, 1997, for the final hearing and show cause hearing. Tammi first sought to vacate the March 10 hearing date due to a conflict with counsel's schedule, and then moved the District Court to reinstate the February 26 show cause hearing. After the parties briefed the issue, the District Court granted Tammi's motion and vacated the March 10 hearing date, but denied her request to reinstate the original show cause hearing date. Instead, it set the hearing and trial for May 22, 1997.

¶15 The parties continued to seek a hearing and moved to alter temporary custody and visitation. Both Tammi and Monte alleged abuse by the other as the cause of the injury to Cody. The District Court refused to hold a separate hearing to consider the motions and retained May 22 as the date for trial.

¶16 A three-day trial was held, after which the District Court issued findings of fact, conclusions of law, and a decree of dissolution. The District Court awarded the parties joint legal custody, and found that it would be in the best interests of the children if Monte was the primary residential custodian. It also concluded that neither party should receive maintenance nor child support. The District Court awarded Monte the van and the mobile home, along with responsibility for the debt on those items, and found that the business inventory and plane were a part of his premarital property to which Tammi was not entitled. Tammi retained the car which she owned prior to the marriage and received miscellaneous household items as her share of the marital property. Finally, the District Court concluded that all of Tammi's motions to have Monte held in contempt should be denied.

ISSUE 1

¶17 Did the District Court err when it awarded custody of the couple's children to Monte?

¶18 Our standard of review for a district court's award of child custody is whether the district court's findings are clearly erroneous. See In re Marriage of Dreesbach (1994), 265 Mont. 216, 220, 875 P.2d 1018, 1021. When the findings are supported by substantial credible evidence, we will affirm the district court's decision unless a clear abuse of discretion is shown. See In re Marriage of Hogstad (1996), 275 Mont. 489, 494, 914 P.2d 584, 587; Dreesbach, 265 Mont. at 221, 875 P.2d at 1021.

¶19 In a marriage dissolution, a district court shall determine child custody matters in accordance with the best interests of the child. See § 40-4-212, MCA. The statute lists many factors for the district court to consider in its determination of a child's best interest, and although it need not make specific findings pertaining to each factor, a district court must consider the guidelines in the statute. See In re Marriage of DeWitt (1995), 273 Mont. 513, 516, 905 P.2d 1084, 1086; In re Marriage of Saylor (1988), 232 Mont. 294, 297-98, 756 P.2d 1149, 1151.

¶20 Here, the District Court made specific findings for each factor. Tammi claims that three of the findings are erroneous. She contends that the District Court erred when it characterized the children's relationship with Monte as excellent and with Tammi as good, and when it found that Tammi's and her mother's "frequent" and "unnecessary" involvement of law enforcement officers was not in the children's best interests. See § 40-4-212(1)(c), MCA (1995). Tammi also asserts that the District Court erred when it found that the children's adjustment to their home, church, and community is better when they are with Monte than when they are with Tammi. See § 40-4-212(1)(d), MCA (1995). Finally, she argues that the District Court erred when it found that there was no evidence of physical abuse or threat of physical abuse by either parent against each other or the children. See § 40-4-212(1)(f), MCA (1995).

¶21 The District Court heard testimony from many individuals who knew both Tammi and Monte and their relationship with the children. Each party attempted to portray...