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 at Law, Missoula, Montana 

For Respondent: 

Christine Somers; Haxby & Somers, Butte, Montana 

Kevin Callaghan, Attorney at Law, Missoula, Montana 

(guardian ad 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 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 Revals 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 

2 
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 Antionettels 

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 (l99l), 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 (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 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 (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 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. 

Rather, the custodial evaluation indicated that Antionette's 
allegations may have resulted from Antionette's vfextreme paranoid 

disorderfR a condition which 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, Alan behaved appropriately. Notably, even ~ntionette'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 ~arriage of 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 in 
5 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 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 (l992), 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 

reasonablew 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 kept, this Court 

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 

determination was based on substantial credible evidence, was not 

clearly erroneous, and will not be overturned. 

Antionette also challenges the award of visitation to Morgan's 

great grandmother and great-great grandmother on Alan's side of the 

family. She argues that Montana's grandparent visitation 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 visitation rights have been sought 

or granted. District Court Finding No. 20(s) provides that I1[t]he 

Respondent's grandparental visitations shall be had during 
visitations with the Respondent." 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 "visitation rulesM--prepared by Antionette--before 

he could see Morgan. On both occasions, Alan refused and was 

denied the right to visit Morgan. In all instances, Alan had 
driven 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 the merits. Antionette claims 

that her rules arose from revelations by Morgan to Lynn Stewart 

during therapy--apparently that Alan had physically abused Morgan. 

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. In re Marriage of Jacobson (1987), 228 Mont. 458, 464, 743 

P.2d 1025, 1028. 

In the present case, the court ordered supervised visitation. 

It was Anti0nett.e--not the court--who decided that visitation would 

endanger Morgan's health. Antionette had no authority to 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, to whether the District Court's punishment for 

contempt was appropriate. Section 3-1-519, MCA, provides in 
pertinent part, that: 

[i]f it be adjudged that he is guilty of the contempt, a 

fine may 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 and bear the costs of that counseling. It 

also resolved the issue of Alan's alleged child support arrearages 

and day care obligations in his favor. Antionette contends that 

requiring her to pay counseling costs amounts to an "open-ended 

blank check." She further argues that the court'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, and we 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). 

Despite the District Court's decree, we note that Antionette'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 numerous 
acts 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 seek and continue psychological counseling and therapy. 

After a careful review of the record, we are convinced that 

the District Court was warranted in ordering Antionette to continue 

therapy for two years. Although the two-year therapy requirement 

will likely cost Antionette more than the $500 provided for in 5 3- 

1-519, MCA, we hold that 1) the evidence supports the finding of 

contempt; 2) the court acted within 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 that when, as 

here, a special master is used, the procedures outlined in Rule 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 the marital assets, as required by this Court 

in In re Marriage of Peterson (1981), 195 Mont. 157, 159, 636 P. 2d 

821, 822-24. 

When a special master is appointed, the district court must 

follow the procedures outlined in Rule 53, M.R.Civ.P. The district 
court must give the special master an order of reference to follow. 

See Rule 53(c), (d), and (e), M.R.Civ.P. 

The order of reference to the master 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 

and may fix the time and place for beginning 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 

special master to provide the district court with a report based on 

the order of reference and 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 

decision went directly to the District Court. The court, in turn, 

stated in its findings that there was 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, [an error] 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. 

13 
Further, Alan contends that the District Court was not 

required to make a specific determination as to net worth of the 

marital assets because it did not order a distribution of property. 

Rather, Alan argues that the District Court considered the parties1 

net worth in terms of income and income producing 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, $2,800 to Dr. Baxter, and $400 in credit 

card bills. 

Antionette challenges the "heavy" burden imposed on her by 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 Morgan 
and Reva, and to pay $500 per month in child support to Antionette. 

The court found that the special master, as instructed, had 

equitably divided the marital property. It further determined that 

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 the District Court's division of liabilities and acceptance of 

the special master's division of marital property was not clearly 

erroneous, We further hold that the District Court's failure to 

specify the net worth of the parties, 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 supported by the affidavits of 

Alan and Dr. Baxter, was based on the following concerns: I) that 

~ntionette had not sought therapy--designed to safeguard Morgan'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 

that Alan sexually abusing Morgan, and sought medical examinations 
to prove such abuse; and 4) that Dr. Baxter, who has withdrawn from 

the case (based on the appeal and on Antionette's dissatisfaction 

with her performance) in favor of Dr. Cindy Miller, is concerned 

that Antionette "is continuing to stifle Morgan's normal emotional 

responses and desire for a relationship with 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 Petitioner and her demonstrated course of 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 required Antionette to transfer custody of Morgan to 

Alan; restrained Antionette from harassing, molesting or disturbing 

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 show cause for her actions. 

Antionette did not appear before the court on September 3rd. 

According to Antionettels attorney, the reason she failedto appear 

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 heri location. 

We note that Morgan is now living with Alan in Butte, and 

Antionette has not attempted to visit Morgan. On August 24, 1993, 

Antionette moved this Court for a writ of supervisory control, 

seeking a stay of the decreed visitation and substitution of the 

16 
judge. 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. Powers Mfg. Co. v. Leon 

Jacobs Ent. (1985), 216 Mont. 407, 411, 701 P.2d 1377, 1380 

(citation omitted). Some exceptions exist, however. See, e.g., 

Churchill v. Holly Sugar Corp. (l98l), 192 Mont. 533, 536, 629 P.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), 177 Mont. 547, 551, 582 P.2d 772, 775 (court 

can award necessary maintenance, child support and suit monies 

after judgment has been entered in a dissolution proceeding pending 

appeal) . 

The present 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 attorney to assist them 
in the adoption proceedings. Alan was uncertain as to why they 

never followed through with the procedure, although Antionette 

obtained Revats birth certificate on her own and it was amended to 

state that Alan was Revats father. 

We conclude that this matter is not properly before this Court 

on appeal and that an alternative procedure for a change of name, 

pursuant to $5 27-31-101 et seq. MCA, is available to Antionette 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 in Morgan's life until a final custody determination 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: