97-544

No. 97-544

IN THE SUPREME COURT OF THE STATE OF MONTANA

1998 MT 29

IN RE MARRIAGE OF

TAMMI MARIA BAER,

Petitioner and Appellant,

and

MONTE WAYNE BAER,

Respondent and Respondent.

APPEAL FROM: District Court of the Twentieth Judicial District,

In and for the County of Lake,

The Honorable C. B. McNeil, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

David C. Humphrey, Humphrey Law Office,

Polson, Montana

For Respondent:

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

Polson, Montana

Submitted on Briefs: January 15, 1998

Decided: February 12, 1998

Filed:

__________________________________________

Clerk

Justice Terry N. Trieweiler delivered the opinion of the Court.

¶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.

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¶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 onehalf 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,

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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

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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

themselves as the better parent and, as Tammi contends, there was evidence presented

which was favorable to Tammi. Our inquiry on appeal, however, focuses instead on

whether there is substantial credible evidence to support the District Court's finding that

the children had a better relationship with and were better adjusted while with Monte. 

¶22 Tammi directs this Court to the testimony that she offered regarding Monte's

alleged abuse of the children and the need to involve law enforcement when they

exchanged the children as support for her contention that the District Court erred when

it found Monte's relationship with the children better than her relationship. Upon review

of the record, however, we find testimony which not only disputes that testimony, but

which specifically depicts Monte as a better parent. Especially here, where the testimony

often conflicted and where each party elicited negative testimony regarding the other

parent's behavior, character, and parenting skills, we recognize that the weight to be

given that testimony and a determination of the witnesses' credibility is squarely within

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the province of the District Court. See In re Marriage of Smith (1988), 232 Mont. 527,

529, 757 P.2d 784, 785; In re Marriage of Speer (1982), 201 Mont. 418, 422, 654 P.2d

1001, 1003; see also In re Marriage of Mitchell (1991), 248 Mont. 105, 108, 809 P.2d

582, 584. Therefore, we conclude that the District Court was not clearly erroneous when

it found that the children's relationship and adjustment is better while they are with Monte

than it is while they are with Tammi. See also In re Marriage of Rolfe (1985), 216

Mont. 39, 44-45, 699 P.2d 79, 82.

¶23 Tammi also asserts that the District Court erred when it found that there was no

evidence or threat of physical abuse by Tammi or Monte against each other or the

children. Upon review of the record, we find that each party made allegations of abuse

and that they each offered evidence to attribute the children's injuries to the other's abuse.

¶24 Tammi relies heavily on a doctor's report that described Cody's injury as

inconsistent with Monte's explanation of the incident, and on what she describes as a

substantiated finding of abuse against Eric from the DFS. At trial, however, a DFS

official testified that she determined that Monte had not physically abused Cody, and that

the physicians' reports do not "come to a consensus about how the injury could have

occurred." There was also testimony that the DFS findings were being reviewed and

challenged for, among other reasons, the DFS's failure to interview eyewitnesses to the

incident. Given the conflict and uncertainty in the testimony, we conclude that the

District Court was not clearly erroneous when it found that the mutual allegations of

abuse did not give rise to a finding of physical abuse against either parent.

¶25 Finally, Tammi asserts that because she was the primary caretaker, the District

Court erred when it denied her residential custody, pursuant to § 40-4-212(3)(a), MCA

(1995). The statute states:

 (3) The following are rebuttable presumptions and apply unless

contrary to the best interest of the child:

 (a) Custody should be granted to the parent who has provided

most of the primary care during the child's life.

We stated in In re Marriage of Abrahamson (1996), 278 Mont. 336, 343, 924 P.2d 1334,

1338-39, that the statute creates only a rebuttable presumption, and that a district court's

failure to mention it does not necessarily mean that it failed to consider the presumption

or that it committed reversible error. Rather, we recognize that the statute affords the

primary caregiver an initial presumption in the district court that it is in the children's

best interests for the primary caregiver to be awarded custody, but that the non-primary

caregiver can rebut that presumption with substantial credible evidence of his own that

the children's best interests would be served through an award of custody to him.

¶26 Here, Monte put forth substantial credible evidence to support his contention that

it would be in the children's best interests for him to have residential custody. As we

stated above, the findings reflect that the District Court considered the best interests of

the children, the findings are not clearly erroneous, and we conclude that the District

Court did not abuse its discretion when it determined that Monte should have custody. 

¶27 We affirm the District Court's judgment as to the custody of the children.

 

ISSUE 2

¶28 Did the District Court err when it divided the marital estate?

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¶29 We review a district court's division of marital property to determine whether the

findings on which it relied are clearly erroneous. See In re Marriage of Stufft (1996),

276 Mont. 454, 459, 916 P.2d 767, 770. If the findings are not clearly erroneous, we

will affirm the distribution of property unless the district court abused its discretion. See

Stufft, 276 Mont. at 459, 916 P.2d at 770; Hogstad, 275 Mont. at 496, 914 P.2d at 588;

In re Marriage of Smith (1995), 270 Mont. 263, 267-68, 891 P.2d 522, 525. In a

marriage dissolution proceeding, the test for an abuse of discretion is whether the district

court acted arbitrarily without employment of conscientious judgment or exceeded the

bounds of reason resulting in substantial injustice. See In re Marriage of Meeks (1996),

276 Mont. 237, 242, 915 P.2d 831, 834.

¶30 The division of marital property is governed by § 40-4-202, MCA. Pursuant to

the statute, the district court has broad discretion to distribute the marital estate in a

manner which is equitable to each party according to the circumstances of the case. See

In re Marriage of Maedje (1994), 263 Mont. 262, 265, 868 P.2d 580, 582.

¶31 Tammi contends that the District Court erred when it found that a used motorcycle

and a one-half interest in a used Ford van were Monte's premarital property. She

contends that he wrote the checks for the items during the marriage, and therefore, that

she is entitled to a share of their value. Monte, on the other hand, asserts that there was

no testimony to support Tammi's alleged interest in the motorcycle or van. 

¶32 Unless a statutory exception exists to call into question the joint nature of the

property, such as in the case of property acquired by gift or devise, property acquired

during the marriage is generally presumed to be marital property in which both spouses

share an interest and which is subject to equitable apportionment by the district court. 

See § 40-4-202, MCA. Here, Monte purchased the motorcycle with a $1,600 check on

February 28, 1994, and his interest in the Ford van with a check dated January 2, 1995. 

Both checks were admitted at trial, but there was only limited testimony about the

acquisition of the motorcycle and Ford van. Even if the parties' testimony did not

explicitly establish when the motorcycle and van were acquired, the record clearly reflects

that the motorcycle and Ford van were acquired during the marriage. Moreover, Monte

has never suggested that they were acquired by gift, devise, or some other means which

would lead us to consider them his exclusive property. Accordingly, we conclude that

the District Court erred when it ignored the record and found that the motorcycle and

Ford van were Monte's premarital property, and when on that basis it failed to include

those assets in its calculation of the parties' respective shares of the marital estate.

¶33 Tammi also contends that the District Court erred when it failed to award her a

share of the appreciated value of Monte's one-half interest in the plane that he owns with

his father and a share of the appreciated value of the Mission Aviation inventory. 

¶34 Tammi admits that Monte's business inventory was property that he owned prior

to their marriage, and as such, she asserts an interest in only the appreciated value of the

inventory. She used figures from the parties' tax forms to assert that the value of the

inventory increased $24,500 during the marriage. At trial, however, Monte testified that

the 1993 tax form on which Tammi relies underestimated the inventory and that during

the course of the marriage the business inventory had in fact been slightly reduced. He

submitted that the current value of the inventory was $26,100, and the District Court

adopted that figure; that value was $200 greater than the premarital value adopted by the

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District Court. 

¶35 As stated above, the District Court has broad discretion to achieve an equitable

distribution of the marital estate. Similarly, it has discretion to adopt any reasonable

valuation of property that is supported in the record. See In re Marriage of Luisi (1988),

232 Mont. 243, 247, 756 P.2d 456, 459. The determination of property valuation is a

factual issue within the province of the district court. See Meeks, 276 Mont. at 247, 915

P.2d at 838. We conclude that the value assigned by the District Court to the inventory

was supported by the record, was not clearly erroneous, and that the District Court did

not act arbitrarily without employment of conscientious judgment or exceed the bounds

of reason when it distributed the property.

¶36 Because the District Court must make an equitable division of the marital property,

the fact that it did not award Tammi an equal share of the appreciated inventory does not

necessarily mean that it erred or that it abused its discretion. Rather, in light of the

overall division of the marital estate, we conclude that the District Court did not abuse

its discretion when it declined to award Tammi a share of the minimal appreciation in the

business inventory.

¶37 Tammi also contends that she is entitled to a share of what she alleges is the

appreciated value of Monte's interest in the plane. The District Court found that the

plane in which Monte currently owns a one-half interest with his father constituted

Monte's premarital property. Although Monte purchased the plane during the marriage,

the funds which he used to purchase the plane can be traced directly to the proceeds from

the sale of the plane he owned prior to the marriage. Tammi claims, however, that the

plane has a value of $57,000, based on its list price in a sale publication, and that because

Monte allegedly used $6,000 of marital income, as well as his own labor, to improve the

plane during the marriage, she is entitled to a share of his interest. 

¶38 Monte testified at trial that he received $25,000 from the sale of a plane that he

owned prior to the marriage. He also testified that he invested $16,000 from the

proceeds of that sale to purchase the plane that he currently owns with his father, and that

he later gave his father another $6,000 from the proceeds to complete repairs and work

on the second plane. Also in the record was testimony that the value of Monte's interest

in the plane that he owns with his father is approximately the same as the value of the

plane that he owned prior to the marriage. 

¶39 Tammi's only basis for her assertion that the plane is worth $57,000 is the price

at which Monte and Wayne have listed it for sale. Without a sale, however, that price

does not necessarily reflect the plane's value. Furthermore, the only basis for her

assertion that the $6,000 check to Wayne was marital income, as opposed to the

remainder of Monte's proceeds from the sale of his first plane, was the fact that it was

written during the marriage and after they had returned from Alaska where Monte had

earned the majority of his income that year. Given the entirety of the record and absent

some other proof from Tammi, it is difficult to ascertain whether the plane has in fact

appreciated above and beyond the value of Monte's premarital interest in the first plane. 

As stated above, we will not substitute our judgment for the District Court's. 

Accordingly, we conclude that there is substantial credible evidence to support the

District Court's findings, its findings regarding Monte's interest in the plane were not

clearly erroneous, and the District Court did not abuse its discretion when it found that

Tammi was not entitled to a share of Monte's interest in the plane.

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¶40 We affirm the District Court's distribution of the plane and business inventory. 

We reverse the District Court's exclusion of the motorcycle and the Ford van from the

marital estate, and remand to the District Court for reconsideration of the property

distribution after inclusion of those items in the marital estate.

 ISSUE 3

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

¶42 Although contempt orders by a district court are final and generally not reviewable

by this Court, we make an exception in marriage dissolution proceedings. See

Dreesbach, 265 Mont. at 223-24, 875 P.2d at 1022; In re Marriage of Boharski (1993),

257 Mont. 71, 77, 847 P.2d 709, 713. Our review, however, is limited to whether the

district court acted within its jurisdiction and whether the evidence supports the findings. 

See In re Marriage of Sullivan (1993), 258 Mont. 531, 539-40, 853 P.2d 1194, 1200.

¶43 Tammi asserts that the District Court erred when it failed to hold Monte in

contempt for his alleged multiple violations of the stipulation. She contends that Monte

violated the stipulation when he: (1) failed to pay child support; (2) disturbed her peace;

(3) encumbered the van and mobile home; and (4) assisted Wayne's effort to evict her

from the mobile home. The claim relies on her allegation that the District Court erred

when it ignored substantial credible evidence and, in so doing, abused its discretion when

it failed to find Monte in contempt.

¶44 Although it is well-established that we make an exception to review a district

court's contempt decision in family law matters, the majority of our prior cases have

addressed review of a court's order to find a party in contempt. See Dreesbach, 265

Mont. 216, 875 P.2d 1018; Sullivan, 258 Mont. 531, 853 P.2d 1194; Boharski, 257

Mont. 71, 847 P.2d 709; In re Marriage of Sessions (1988), 231 Mont. 437, 753 P.2d

1306. In that context, we agree that our review should be limited to determine whether

the record supported the district court's findings. In a case such as this, however, where

we are being asked to review a district court's decision not to find a party in contempt,

we recognize that a different standard of review is appropriate. 

¶45 A district court has the responsibility to enforce its own orders. See In re

Marriage of Boyer (1995), 274 Mont. 282, 289, 908 P.2d 665, 669. We stated in In re

Marriage of Jacobson (1987), 228 Mont. 458, 464, 743 P.2d 1025, 1028, that contempt

is a discretionary tool of the court to enforce compliance with its decisions. We also

stated that its power to inflict punishment by contempt is necessary to preserve the dignity

and authority of the court. See also Woolf v. Evans (1994), 264 Mont. 480, 483, 872

P.2d 777, 779. Accordingly, where a district court has found that there is no such need

to enforce compliance with its order or that the actions of a party do not present a

challenge to its dignity and authority, we will not reverse its decision absent a blatant

abuse of discretion.

¶46 Here, the District Court found that Tammi failed to satisfy her burden to prove the

allegations of contempt, and that Monte offered evidence that he was not in violation of

the stipulation. Upon review of the record, we conclude that it supports the District

Court's findings; Tammi's assertion that the District Court ignored substantial credible

evidence to make its decision is insufficient to find that it erred when there is also

substantial credible evidence to support the decision. Accordingly, we hold that the

District Court's findings related to the contempt issue are not clearly erroneous. 

Moreover, even if we agreed with Tammi's factual allegations and could conclude with

certainty from the record that Monte violated the terms of the stipulation in the ways that

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she alleges, the District Court's decision to find him in contempt would still be a matter

within its discretion, based upon its perceived need to enforce its order or the threat to

its authority. Under the circumstances in this case, we find no abuse of discretion.

¶47 We affirm the District Court's decision to award custody to Monte and its decision

that Monte was not in contempt of court. We also affirm the District Court's distribution

of the interest in the plane and business inventory, but we reverse its findings related to

the motorcycle and Ford van and remand to the District Court for a reconsideration of

the property distribution, if necessary, after inclusion of the van and motorcycle in the

marital estate.

 /S/ TERRY N. TRIEWEILER

We Concur:

/S/ J. A. TURNAGE

/S/ W. WILLIAM LEAPHART

/S/ JAMES C. NELSON

/S/ JIM REGNIER 

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