IN THE SUPREME COURT OF THE STATE OF MONTANA

IN RE THE MARRIAGE OF ANTIONETTE MARIE DREESBACH, Petitioner and Appellant, and

APPEAL FROM: District Court of the Second Judicial District, In and for the County of Silver Bow, The Honorable James E. Purcell, Judge presiding.

COUNSEL OF RECORD: 

### For A2pellant: Christopher Daly,Attorney

### atLaw,Missoula,Montana

For Respondent: Christine Somers;Haxby & Somers, Butte, Montana 

### Kevin Callaghan, Attorney at Law,Missoula,Montana

(guardianad litem)

Submitted on Briefs: February 24, 1991 Decided: April 21, 1994 Filed:Justice John Conway Harrison delivered the opinion of the Court. Appellant Antionette Marie Dreesbach (Antionette)appeals the findings of fact,conclusions of lawand decree of dissolution from the SecondJudicial 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 consolidateand 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 theDistrictCourt err individing themarital 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 Revalsnatural 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 2alleged abuse, the DistrictCourt appointed a guardian ad litem to representMorgan's best interest and to assist the court with its custody decision. Despite a court order, Antionette refused to allowAlan to visit Morgan. Antionette's experts testified that they had uncovered circumstantial evidence of abuse through sessionswith 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 andAntionette was held onMay 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 Antionettels allegations of physical and sexualabuse 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 temporaryorder modifying custody,pending appeal. That ordergaveAlan sole custody of Morgan. Antionette filed awrit 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 iswhether the district court's findingsare clearlyerroneous. Inre Marriage of Maxwell (l99l), 248Mont. 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 courtmust consider in making its determination; however, the court is not required to make specific findings on each individual factor. In re Marriage of Merriman (1931), 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 DistrictCourt 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 toAntionette, the courtadopted themajority of its findings of factnearlyverbatim from the findingsproposed by the guardian ad litem. In so doing, Antionette argues, the District Court failed to exercise independent judgment. See In re Marriage ofTahija (l992), 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 thatbothparties frustratedvisitation. 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 guardianad litemto representMorgan's interests. Italso ordered

a custodial evaluation,which was conductedby Dr. Sarah Baxter, a psychologist, and Dr. William Stratford,a psychiatrist. The court furtherheard testimony from Dr. Baxter thatMorgan 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. Rather, the custodial evaluation indicated that Antionette'sallegations may have resulted fromAntionette's vfextreme paranoid disorderfRa conditionwhich she cannot control. 

### 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, Alanbehaved appropriately. Notably,even~ntionette's expertwitness,Ms. Kirchner, testifiedthat shehad 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 Courtwas in thebest 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 ~arriageof Ereth (1988), 232 Mont, 492, 494, 757 P.2d 1312, 1313-14. Contrary to Antionettefs 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 in5 40-4-212, MCA, when it made its determination. The District Court's findings were not clearly erroneous. I I Did the District Court err by awarding visitation which differed from theproposal of the custody evaluator? Our standard of review for visitation is whether substantial credible evidence supports the district court's findings. In re Marriage ofNash (l992),254Mont. 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. InreMarriage ofAnderson (1993)

### ,260Mont

# . 246,254- 55, 859 P.2d 451, 454. During trial, Dr. Baxter recommended that: 1) Antionette continue receiving psychotherapy;2) Alan andMorganbe 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 courtessentially "rubber stamped"the guardianad 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 "forthe shortest duration [whichDr. Baxter or

a professional chosen by Dr. Baxter] deem[s] appropriate and reasonablewbefore 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 therapyappointments were kept,thisCourt concludes that there is no need for a separate case manager. Rather, as the District Court determined,Dr. Baxter or her chosen representative shall be entrusted to supervise visitation and

oversee the process until unsupervised visitation is deemed appropriate. We hold that the District Court's visitation determinationwas based on substantial credible evidence,was not clearly erroneous, and will not be overturned. Antionette also challengesthe awardofvisitation toMorgan's great grandmotherand great-great grandmother onAlan's sideof the family. She argues thatMontana's grandparentvisitation statutes do not address great-grandparent visitation. See 

### IS 40-9-101 et seq., MCA. However, the record is clear that no independent grandparent or great-grandparent visitationrights havebeen sought

or granted. District Court FindingNo. 20(s) provides that I1[t]he Respondent's grandparental visitations shall be had duringvisitationswith theRespondent." Absent allegations of attempted independent great-grandparent visitation or a District Court finding on independent great-grandparent visitation rights, we conclude that the issue is moot. However, we note that nothing prohibits the great-grandmother and great-great grandmother from visiting Morgan when Alan is exercising his visitation rights. I11 Did the District Court err by finding Antionette in contempt and in its related punishment? Although contempt orders by the district court are final and not normally reviewable by this Court,per 5 3-1-523,MCA,we make

an exception in family law cases. In re Marriage of Boharski

(1993), 257 Mont. 71, 77, 847 P.2d 709, 713 (citations omitted). Our review is limited to whether the district court acted within its jurisdiction and whether the evidence supports the contempt. In re Marriage of Sullivan (1993),258 Mont. 531, 539-40, 853 P.2d 1194, 1200. The District Court found, and the record shows, that Antionette repeatedly frustrated Alan's visitation attempts. For example, although ordered by the court to allow Alan supervised visitation with Morgan at a day care center, Antionette on one occasion never showed up with the child. On two other occasions, Antionette met Alan at the day care center, but insisted that he sign a sheet of "visitationrulesM--preparedbyAntionette--before he could see Morgan. On both occasions, Alan refused and was denied the right to visit Morgan. In all instances, Alan haddriven from Butte to Missoula to visit, and called to confirm the visits before making the trips. The District Court held a contempt hearing on July 30, 1992; however, it reached no decision and the contempt proceedings were incorporated into the final trial on themerits. Antionette claims that her rules arose from revelations by Morgan to Lynn Stewart during therapy--apparently thatAlan had physically abusedMorgan. Antionette contends that she had a right to require Alan to sign her rules because she believed she was acting in Morgan's best interest. According to Antionette, this Court has held that if a party disregards a court order based on concerns for a child's health and not on a desire to restrict access, contempt is not proper. InreMarriage of Jacobson (1987), 228 Mont. 458, 464,743 P.2d 1025, 1028. In thepresent case, the court ordered supervisedvisitation. ItwasAnti0nett.e--notthe court--who decided thatvisitationwould endangerMorgan's health. Antionettehad no authorityto limit,or place any restrictions on, Alan's visitation. Undoubtedly, the District Court was correct in finding Antionette in contempt for consistently frustrating Alan's visitation of Morgan and for levying "false accusations of sexual and physical abuse against [Alan] without reasonable justification in a calcualted [sic] attempt to deprive [Alan] contact with his child and to gain advantage in this proceeding." We turn, then, towhether the District Court's punishment for contempt was appropriate. Section 3-1-519, MCA, provides inpertinent part, that: [i]f itbe adjudged thathe is guilty of the contempt, a finemay be imposed on him not exceeding $500 or he may be imprisoned not exceeding 5 days or both. Antionette challenges the contempt punishment imposed by the District Court, which required Antionette to seek on-going professional counseling andbear the costs of that counseling. It also resolved the issue ofAlan's alleged child supportarrearages and day care obligations in his favor. Antionette contends that requiring her to pay counseling costs amounts to an "open-ended blank check." She furtherargues that thecourt's equitable powers cannot contravene Montana statutes, which limit the financial punishment for contempt to $500. Section 3-1-519,MCA. Alan contends that despite the finding that she was in contempt, Antidnette went unpunished for contempt. First, Alan correctly argues that the court, in Finding No. 28, had already found him to be current in his child support and day care obligations. Second,Alan argues,andwe agree, that the District Court has equitable powers to punish a party for contempt beyond the confines of 5 3-1-519, MCA. See Boharski, 847 P.2d at 713

(thirty-day jail term for contempt upheld); In re Marriage of Redfern (1984),214 Mont. 169, 173, 692 P.2d 468, 470 (reasonable attorney's fees permissible in a contempt action). DespitetheDistrictCourt's decree, wenote thatAntionette's attorney continues to refer to Alan as a "substantiated child abuser." We further note that the District Court did not, as it could have, find Antionette in contempt for each of her numerousacts of contempt. Moreover, for the most part, the wpunishmentsN levied against Antionette

### were not, in fact,punishments. Rather, Finding No. 21 already required--upon recommendation of the guardian ad litem and custodial evaluator, Dr. Baxter--that Antionette seekand continuepsychological counseling and therapy. After a careful review of the record, we are convinced that theDistrict Courtwaswarranted inordering Antionette tocontinue therapy for two years. Although the two-year therapy requirement will likely costAntionettemore than 

### the $500provided for in 5 3- 1-519,MCA, we hold that 1) the evidence supports the finding of contempt; 2) the court actedwithin its jurisdiction and equitable powers when imposing the punishment; and 3) the contempt penalties imposed by 

### the court had, 

### in large part, been previously imposed through 

### ind ding Nos. 21 and 28. IV Did the District Court err in dividing the marital assets? The District Court appointed a special master to handle 

### the financial aspects of this case. Antionette contends thatwhen, 

### as here, a special master is used,theprocedures outlined inRule 53, M.R.Civ.P., must be followed. Antionette also argues that the District Court failed to consider the total 

### value of 

### the marital estate when dividing themarital assets, as requiredby this Court in In 

### re Marriage of Peterson (1981), 195Mont. 157, 159, 636 P.2d 821, 822-24. When 

### a special master is appointed, the district court must followtheprocedures outlined inRule 53,M.R.Civ.P. Thedistrictcourt must give the specialmaster an order of reference to follow. See Rule 53(c), (d), and (e), M.R.Civ.P. The order of reference to themaster may specify or limit the master's powers and may direct the master to report only upon particular issues or to do or perform particular acts or to receive and report evidence only andmay fix the time and place forbeginning and closing the hearings and for the filing of the master's report. Rule 53(c)

### , M.R.Civ.P. Rule 53 (e)(1)

## , M.R.Civ.P., requires the specialmaster toprovide the district courtwith a reportbased on the order of referenceand file the report with the clerk of court. The parties then have ten days to object to the special master's report. Rule 53(e)(2), M.R.Civ.P. Here, the District Court failed to submit an order of reference to the special master and the special master's proposed decisionwent directly to the District Court. The court, in turn, stated in its findings that therewas an equitable division of the debts and assets. Although the District Court erred by not following the procedures outlined in Rule 53, M.R.Civ.P., we conclude that the error was harmless. In re Marriage of Lopez

(1992), 255 Mont. 238, 245, 841 P.2d 1122, 1126. [TI o warrant reversal, [anerror] must materially affect the substantial rights of the party." Lopez, 841 P.2d at 1126. Here,Antionette's rights were not materially affected. Even though the District Court adopted the special master's findings, the findings were not clearly erroneous. See In re Marriage of Danelson (1992).,253 Mont. 310, 317, 833 P.2d 215, 219. In fact, the findings reflected a thorough consideration of the factors listed in 5 40-4-201,MCA. 13Further, Alan contends that the District Court was not required to make a specific determination as to net worth of the marital assetsbecause itdidnot order adistribution ofproperty. Rather,Alan argues that theDistrictCourt consideredtheparties1 net worth in terms of income and incomeproducing ability. We must examine the record to determine whether the district court's findings as a whole are sufficient to determine the net worth and to decide if the distribution was equitable. In re Marriage of Stevenson (l989), 237 Mont. 157, 160,772 P.2d 846,848

(citation omitted). In this case, the District Court fully considered the factors in E, 40-4-201(1), MCA. It considered the incomes and financial affidavits of both parties,which evidenced significant debts. For example, Antionette owed more than $3,400 in litigation/attorney expenses, almost $ 5,900 in student loans, $3,500 to Lynn Stewart, and $1,700 in other loans. Alan, on the other hand, owed $4,200 in litigation-related expenses,more than $10,000 in student loans, $2,800to Dr. Baxter, and $400 in credit card bills. Antionette challengesthe "heavy"burden imposed onherby the District Court. The court ordered her to handle all of Reva's psychological costs and those of Morgan not covered by Alan's insurance; all of her own psychotherapy; all family therapy-- including that between Alan and Morgan not covered by Alan's insurance; all of her attorney's fees, half of Morgan's other uninsured medical expenses, and half of the guardian ad litem's fees. Alan was ordered to provide insurance coverage for Morganand Reva, and topay $500permonth inchild supporttoAntionette. The court found that the special master, as instructed, had equitably divided themarital property. It further determinedthat each party pay its own attorney's fees, and that Antionette was employed full-time and had sufficient assets to pay her own attorney's fees. After a thorough review of the record, we hold that theDistrict Court's division of liabilitiesand acceptance of the special master's division of marital property was not clearly erroneous, We further hold that the District Court's failure to specifythe net worth of theparties, in light of the record before us, was not reversible error. 

### v Did the District Court err by modifying custody pending appeal? On August 12, 1993,Antionette appealed the District Court's decision. On August 26, 1993, the District Court ordered a temporary change in custody,a temporary restraining order against Antionette, and an order to show cause. The order, based on a motion by the guardian ad litem and supportedby the affidavits of Alan and Dr. Baxter, was based on the following concerns: I) that ~ntionette had not sought therapy--designed to safeguardMorgan's best interest--as required by the District Court; 2) that Antionette continued to challenge the decreed visitation plan, which successfully progressed from supervised to extended unsupervised visitation; 3) 

### that Antionette continued to allege thatAlan sexuallyabusingMorgan, and sought

### medical examinationsto prove such abuse;and 4) that Dr. Baxter, who haswithdrawn from the case (based on the appeal and on Antionette's dissatisfaction with her performance) in favor of Dr. Cindy Miller, is concerned thatAntionette "is continuing to stifleMorgan's normal emotional responses and desire for a relationshipwith her father." The order placed Morgan in Alan's sole custody and limited Antionette to supervised visitation only. It required Antionette to undergo immediate psychological evaluation to determine whether Petitionerandher demonstratedcourseof conduct constitute a danger to Morgan's physical, mental and emotional health and 

# . . .whether Petitioner is capable of obeying the specific orders of this Court and the conditions imposed upon her previously awarded residential custody. The order requiredAntionette to transfer custody of Morgan to Alan; restrained Antionette fromharassing, molesting ordisturbing the peace of Morgan or Alan; temporarily waived Alanls child support obligation; and ordered Antionette to appear before the District Court on September 3,1993,to showcause for her actions. Antionette did not appear before the court on September 3rd. According toAntionettelsattorney,the reason she failedtoappear is that she was "too terrified" of the District Court Judge to appear before him again. Antionette's attorney maintains that Antionette has remained in telephone contact with him,but refuses to disclose herilocation. We note that Morgan is now living with Alan in Butte, and Antionette has not attempted tovisit Morgan. OnAugust 24, 1993, Antionette moved this Court for a writ of supervisory control, seeking a stay of the decreed visitation and substitution of the 16judge. We denied her motion on September 16, 1993. When, as here, a notice of appeal has been filed, the longestablished rule in Montana is that jurisdiction passes from the district court and vests with this Court. PowersMfg. Co. v. Leon Jacobs Ent. (1985), 216 Mont. 407, 411, 701 P.2d 1377, 1380

(citationomitted). Some exceptions exist, however. See, e.g., Churchillv. Holly SugarCorp. (l98l), 192Mont. 533, 536, 629P.2d 758, 760 (court retains jurisdiction over ancillary matters); Northern Plairfs Resource Council v. Board of Health and Environmental Sciences (l979), 184 Mont. 466, 472, 603 P.2d 684, 688 (court can correct clerical errors); State ex rel. Kaasa v. District Court (l978),177Mont. 547, 551, 582 P.2d 772, 775 (court

can award necessary maintenance, child support and suit monies after judgmenthasbeen entered ina dissolution proceedingpending appeal)

# . Thepresent case falls under no exception of which this Court is aware. The District Court, though arguably acting in the best interest of Morgan, lacked jurisdiction to generate any orders relating to those issues on appeal to this Court. Therefore, we vacate the District Court's temporary order of August 26, 1993. Finally, we will address an issue not raised but discussed in the briefs, whether the court erred in failing to remove Alan's

name from Reva's birth certificate. Testimony at trial indicated that Alan, during the initial hearing in April, 1992, testified that it was his belief that Antionette wanted him to adopt her daughter,Reva. In fact,Alan had hired an attorneytoassist themin the adoption proceedings. Alan was uncertain as to why they

never followed through with the procedure, although Antionette obtained Revatsbirth certificate on her own and it was amended to state that Alan was Revatsfather. We conclude that thismatter isnotproperlybefore thisCourt

on appeal and that an alternative procedure fora change of name, pursuant to $5 27-31-101et seq.MCA, is available toAntionette if she desires to have Revats last name amended on her birth certificate. Because of the sensitive nature of this case, the unusual events which have transpired,and the potential emotional harm to Morgan,we remand this case to the District Court for a hearing on the issue of custody. We reinvest with the District Court jurisdiction for the limited purpose of determining custody. A custody hearing will ensure the due process rights of Antionette and Alan, and provide them ample opportunity to present evidence and be heard with regard to custody. To promote stability and continuity inMorgan's lifeuntil a final custodydetermination is made, Alan shall retain sole custody of Morgan. We direct the District Court to expedite the hearing on this matter. Affirmed in part and remanded for a custody hearing to be conducted consistent with this opinion.we concur: