Marriage of Dreesbach, In re, 93-421

Decision Date28 June 1994
Docket NumberNo. 93-421,93-421
Citation875 P.2d 1018,265 Mont. 216
PartiesIn re the MARRIAGE OF Antionette Marie DREESBACH, Petitioner and Appellant, and Alan William Dreesbach, II, Respondent and Respondent.
CourtMontana Supreme Court

Christopher Daly, Attorney at Law, Missoula, for appellant.

Christine Somers, Haxby & Somers, Butte, for respondent.

Kevin Callaghan, Missoula, guardian ad litem.

HARRISON, Justice.

Appellant Antionette Marie Dreesbach (Antionette) appeals the findings of fact, conclusions of law and decree of dissolution from the Second Judicial District Court, Silver Bow County. Antionette challenges several of the court's determinations, including issues of custody, contempt, visitation, division of marital assets, and modification of custody. We affirm in part and reverse in part.

Antionette raises eight issues on appeal. We consolidate and restate the issues which are properly before this Court:

1. Did the District Court err by awarding joint custody?

2. Did the District Court err by awarding visitation?

3. Did the District Court err by finding Antionette in contempt and in its related punishment?

4. Did the District Court err in dividing the marital assets?

5. Did the District Court err by modifying custody pending appeal?

This case arises from a protracted, bitter marriage dissolution. Alan William Dreesbach, Jr. (Alan) and Antionette were married on July 18, 1987. Antionette entered the marriage with a daughter, Reva Wansrath (Reva), from a previous relationship. Alan was not Reva's natural father, nor did he adopt her. Alan and Antionette had one child, Morgan Antone Dreesbach (Morgan), on February 26, 1987.

Antionette alleges that over the course of their marriage, Alan physically abused Morgan, and physically and sexually abused Reva. Alan adamantly denied these allegations. Because of this alleged abuse, the District Court appointed a guardian ad litem to represent Morgan's best interest and to assist the court with its custody decision. Despite a court order, Antionette refused to allow Alan to visit Morgan.

Antionette's experts testified that they had uncovered circumstantial evidence of abuse through sessions with Antionette and the two minor children; however, neither of these experts evaluated Alan. The District Court appointed Dr. Sarah Baxter to conduct a custodial evaluation. Dr. Baxter could not confirm sexual or physical abuse. Rather, Dr. Baxter concluded that Antionette suffered from acute paranoia, was terrified of losing control of Morgan, and was extremely hostile toward Alan.

After several hearings, a hearing to dissolve the marriage between Alan and Antionette was held on May 18, 1993. In its order of July 2, 1993, the District Court granted joint custody of Morgan, and designated Antionette as Morgan's primary physical custodian. The District Court determined that Antionette's allegations of physical and sexual abuse were false; that there was insufficient evidence to substantiate sexual or physical abuse of the children; and that Antionette had intentionally and persistently interfered with Alan's right to visit Morgan. The court found Antionette in contempt for frustrating Alan's visitation attempts. The District Court also divided the couple's marital assets and elected not to remove Alan's name from Reva's birth certificate.

On August 26, 1993, the District Court issued a temporary order modifying custody, pending appeal. That order gave Alan sole custody of Morgan. Antionette filed a writ of supervisory control with this Court, which was denied on September 16, 1993. Antionette appeals.

I

Did the District Court err by awarding joint custody?

Our standard of review in a child custody case is whether the district court's findings are clearly erroneous. In re Marriage of Maxwell (1991), 248 Mont. 189, 193, 810 P.2d 311, 313. The court's decision will be upheld unless a clear abuse of discretion is shown. In re Marriage of Susen (1990), 242 Mont. 10, 13-14, 788 P.2d 332, 334.

We have held that findings of fact must be based on substantial credible evidence. In re Marriage of Hurley (1986), 222 Mont. 287, 296, 721 P.2d 1279, 1285. Furthermore, a presumption exists in favor of joint custody. Section 40-4-222, MCA.

The district court is required to consider the child's "best interest" when determining custody. Section 40-4-212, MCA. The statute provides a list of factors which the court must consider in making its determination; however, the court is not required to make specific findings on each individual factor. In re Marriage of Merriman (1991), 247 Mont. 491, 493, 807 P.2d 1351, 1353.

In the present case, the parties presented conflicting evidence as to Morgan's best interest. Antionette wanted sole custody of Morgan, while Alan wanted joint custody. The District Court granted joint custody of Morgan, with Antionette as the primary physical custodian. Despite the District Court's specific findings to the contrary, Antionette insists that Alan sexually abused the children.

According to Antionette, the court adopted the majority of its findings of fact nearly verbatim from the findings proposed by the guardian ad litem. In so doing, Antionette argues, the District Court failed to exercise independent judgment. See In re Marriage of Tahija (1992), 253 Mont. 505, 508, 833 P.2d 1095, 1096 (citation omitted). For example, she argues that Finding 20(b) indicates that Antionette willfully and consistently frustrated visitation, while the record indicates that both parties frustrated visitation. Moreover, the court found that Marsha Kirchner, a professional counselor from the Department of Family Services, was credible at an April 6, 1992, hearing; however, the court found that Ms. Kirchner was not credible during the May 18, 1993, trial.

The record demonstrates that the court did, in fact, exercise independent judgment. First, the District Court appointed a guardian ad litem to represent Morgan's interests. It also ordered a custodial evaluation, which was conducted by Dr. Sarah Baxter, a psychologist, and Dr. William Stratford, a psychiatrist.

The court further heard testimony from Dr. Baxter that Morgan did not mention any sexual abuse by Alan. Moreover, Dr. Baxter could not confirm or discredit the allegations of sexual and physical abuse in her evaluations of Morgan and the parents.

The custodial evaluation also indicated that Alan and Morgan interacted well together; that Alan displayed no hostility to either Morgan or Antionette; and that during the supervised visitation, Alan behaved appropriately. Notably, even Antionette's expert witness, Ms. Kirchner, testified that she had not ruled out the possibility that Antionette might have caused Morgan's withdrawal symptoms.

The District Court considered--and we have reviewed--the depositions of Lynn Stewart, a professional counselor, and Dr. Timothy Carte, both of whom were retained by Antionette. The District Court found that Ms. Stewart's deposition and testimony were not credible. However, the court found the evaluations of Drs. Baxter and Stratford and the testimony of Dr. Baxter to be persuasive. The District Court was in the best position to observe the witnesses and their demeanor. See In re Marriage of Ernst (1990), 243 Mont. 114, 122, 793 P.2d 777, 782.

The District Court thoroughly analyzed the record before it. The court reviewed, considered and relied on the opinions of the neutral experts, which were requested by the court to conduct a custodial evaluation. See In re Marriage of Ereth (1988), 232 Mont. 492, 494, 757 P.2d 1312, 1313-14. Contrary to Antionette's assertions, the record is replete with substantial credible evidence which supports the District Court's findings. Furthermore, the court carefully considered the factors set out in § 40-4-212, MCA, when it made its determination. The District Court's findings were not clearly erroneous.

II

Did the District Court err by awarding visitation which differed from the proposal of the custody evaluator?

Our standard of review for visitation is whether substantial credible evidence supports the district court's findings. In re Marriage of Nash (1992), 254 Mont. 231, 234, 836 P.2d 598, 600. We will overturn a court's visitation decision only when the court's findings and conclusions clearly demonstrate an abuse of discretion. In re Marriage of Anderson (1993), 260 Mont. 246, 254-55, 859 P.2d 451, 454.

During trial, Dr. Baxter recommended that: 1) Antionette continue receiving psychotherapy; 2) Alan and Morgan be involved in joint family therapy; 3) therapy should be overseen by someone other than Ms. Stewart; 4) overnight or lengthy, unsupervised visits between Alan and Morgan were not favored at that time; 5) Alan and Antionette have no contact; and 6) the guardian ad litem or a case manager should be appointed to ensure that therapy appointments were kept.

Antionette argues that the District Court ignored these recommendations when it made its findings. Antionette contends that the court essentially "rubber stamped" the guardian ad litem's proposed findings and failed to exercise independent judgment by not conforming its findings to Dr. Baxter's testimony. Antionette is mistaken.

Although the District Court adopted the visitation schedule proposed by the guardian ad litem, it specifically found that Dr. Baxter or her chosen representative should supervise Alan and Morgan's visitation "for the shortest duration [which Dr. Baxter or a professional chosen by Dr. Baxter] deem[s] appropriate and reasonable" before unsupervised visitation begins. The District Court allowed for joint therapy at Dr. Baxter's discretion "to repair the damage to [Alan and Morgan's] relationship which has been caused by [Antionette's] conduct."

While it is true that a separate case manager was not appointed to ensure that therapy appointments were...

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