NO. 95-036 IN THESUPREMECOURTOFTHESTATE OFMONTANA 1995

IN REMARRIAGE OF ROBIN N. JEPPPESEN,

Petitioner andAppellant, and KARLGRANTJEPPESEN,

Respondent and Respondent.

APPEAL FROM: District Court of the Eighth Judicial District,

In and for the County of Cascade, The Honorable Joel G. Roth, Judge presiding.

COUNSELOFRECORD:

For Appellant: Barbara E. Bell, Bell &Marra, Great Falls, Montana For Respondent: Joan E. Cook and M. GeneAllison, Attorneys at Law, Great Falls, Montana

Filed: Submitted on Briefs: October 12, 1995 Decided: November 21, 1995

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

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1995 Internal Operating Rules, the following decision shall not be cited asprecedent andshall bepublished by its filing asapublic document with the Clerk of the Supreme Court and byareport of its result to State Reporter Publishing Company and West Publishing Company. Robin Jeppesen filed apetition in the District Court for the Eighth Judicial District in Cascade County for dissolution of her marriage to Karl Grant Jeppesen (Grant). Following athree-day hearing, the court entered its decree of dissolution. In its decree, the court divided the couple's personal and real property, provided for joint custody of the couple's minor child, awarded primary physical custody to Robin, and awarded reasonable unsupervised visitation to Grant. Thecourt also found that Robin had frustrated visitation when she violated the temporary visitation order, and ordered that she pay Grant's mileage and attorney fees. Robin appeals from the District Court's decree. We affirm the District Court. There are six issues onappeal: 1. Did the District Court err when it adopted Grant's proposed findings of fact and conclusions of law verbatim? 2. Did the District Court abuse its discretion when it quashed the subpoena issued for Grant's employment records? 3. Did the District Court improperly limit Robin's rebuttal time? 24. Did the District Court abuse its discretion when it

granted Robin and Grant joint custody of their minor child and allowed unsupervised visitation by Grant? 5. Did the District Court abuse its discretion when it divided the couple's real and personal property? 6. Did the District Court err when it found that Robin frustrated Grant's visitation andawarded attorney fees andmileage to Grant? FACTUAL BACKGROUND Robin and Grant dated and lived together for several years prior to their marriage in 1982. During November 1986, Robin gave birth to their daughter, Karlene. At that time, Grant wasemployed

as a deputy sheriff in Toole County. They lived in Sunburst, Montana, in ahouse they purchased in 1983 for $18,500. In 1991, Robin purchased ahome in Cascade with funds she had received from a personal injury settlement in 1988. She paid $25,000 toward the purchase price. Sheagreed to pay the $30,000 balance periodically. She moved into the Cascade home in June 1993, and filed apetition for dissolution of her marriage to Grant

onAugust 13, 1993. OnSeptember 25, 1993, Robin's twenty-one-year old daughter from aprevious relationship, Casey, filed asexual abuse complaint against Grant. Casey alleged that Grant had sexually abused her over a nine-year period, until she was seventeen years old. Casey had made similar allegations in 1980, when she was eight years old. Those charges were eventually dismissed with prejudice. 3

### Asaresult of Casey's allegations in 1993, the Toole County

Sheriff's office terminated Grant's employment. However, no criminal charges werefiled, andGrant later agreed to arelease of andsettlement with Toole County which, inpart, characterized his termination of employment as retirement. In addition, the agreement provided that the County would expunge all records related to the charges from Grant's personnel file andthat Grant would release all claims against the County. OnJuly 11, 1994, the investigation wasclosed "with finality andwith prejudice." Theissues raised bythe parties weretried during three days in November andDecember 1994. Both parties submitted separate homestudies related to the issue of custody. In addition, Casey renewed her allegations that Grant hadsexually abused her over a period of nine years, andRobin's sister, Dawn,testified that she hadbeensexually assaulted byGrant in 1977. TheDistrict Court found that "credibility problems exist with [DawnandCasey]," anddetermined that "both [Robin andGrant] are fit and proper persons to be granted custody and control of [Karlene] .'I Basedonthose findings, the court decreed that Robin andGrant should havejoint custody of Karlene, that Robin would be Karlene's primary caretaker, andthat Grant would have reasonable unsupervised visitation. TheDistrict Court also divided the couple's real andpersonal property, andordered Robin to pay$1077.50 for attorney fees and costs that Grant incurred asaresult of Robin's frustration of his visitation. 4ISSUE 1

Did the District Court err when it adopted Grant's proposed findings of fact and conclusions of law verbatim? At the conclusion of the trial in this case, the District Court ordered each party to prepare andsubmit proposed findings of fact, conclusions of law, and an order. Robin asserts that the District Court erred when it adopted Grant's twenty-three page findings of fact andconclusions of law verbatim. Shespecifically asserts that "the trial court has adopted findings which are overly comprehensive of much unimportant and irrelevant detail, while at the same time failing to address the main issues in the case." Adoption of a party's proposed findings and conclusions is specifically authorized by Rule 52(a), M.R.Civ.P., so long as the findings are supported bysubstantial evidence and the conclusions

are correct. In InreMarriageofNikolaisen (1993), 257 Mont. 1, 5, 847 P.2d 207, 289, weset forth our standard of review: When reviewing the adequacy of the findings of fact and conclusions of law, we examine whether they are sufficiently comprehensive and pertinent to provide a basis for adecision, and whether they are supported by substantial evidence. While we acknowledge that the District Court's findings in this case were in some instances over-inclusive and irrelevant, we hold that the court did comprehensively address the allegations of sexual abuse, the child custody considerations, andthe division of the couple's real and personal property. Although the court adopted Grant's findings and conclusions verbatim, we hold that those findings and conclusions were sufficiently comprehensive and

5pertinent to provide a basis for the court's decision and that

those findings which were essential to the court's decision were supported by substantial evidence and were not clearly erroneous. Wetherefore hold that the court did not err when it adopted Grant's proposed findings, conclusions, and order. ISSUE 2 Did the District Court abuse its discretion when it quashed the subpoena issued for Grant's employment records? At trial, John Seidlitz testified that he had represented Grant in negotiations with Toole County after Grant wasterminated from his employment in 1993. The release and settlement agreement which resulted from those negotiations provided, in part, for nondisclosure of facts related to Grant's termination. The agreement provided: The only information the County will provide to anyone inquiring about [Grant's] present or past work status is [Grant's] period of employment, his work classification, his beginning of subsequent rates of pay, his rank, his description of duties and that [Grant] retired from his employment effective November 23, 1993. Seidlitz's testimony did not exceed the parameters of this confidentiality agreement. After Seidlitz testified, however, Robin subpoenaed Grant's employment records. The District Court granted Grant's motion to quash onthe grounds that revealing the records would violate the confidentiality agreement between Grant and Toole County. On appeal, Robin asserts that the court's decision to quash the subpoena was erroneous and prejudicial because she was denied the

6

### opportunity to effectively rebut Grant's testimony regarding

conduct which led to his termination. However, areview of the record suggests otherwise. Criminal investigation records which fully disclosed the extent of anyevidence in support of Casey's charge were available for Robin's use. However, shechose not to use themduring her cross-examination of Seidlitz or Grant. We, therefore, hold that in light of the confidentiality agreement between Grant and Toole County, and because there was another available source ofthe information that Robinsought, the District Court did not abuse its discretion whenit granted Grant's motion to quash Robin's subpoena. ISSUE3 Didthe District Court improperly limit Robin's rebuttal time? TheJeppesen's dissolution trial wasscheduled for athree-day period during the final weeksofthe District Court Judge's term of office. Atthe endofthe seconddayof testimony, the Judgeasked if two to three hours would besufficient time within which to complete presentation of the evidence. Neither Grant nor Robin objected. Onthe final afternoon of the trial, the Judge noted that the testimony would havetobefinished by5p.m., orthe case would betried over again byhis replacement after the first ofthe year. After Grant's direct andcross-examination were complete, five minutes 

### remained for rebuttal evidence. Robin nowasserts that "because the court did not take the time tohear rebuttal, the court hasmadeerroneous findings andfailed to address the issue of whether [Grant] poses athreat to his daughter."Weconclude that the District Court did not deprive Robin of

time for rebuttal testimony. Robin failed to object to the court's decision to allow three hours for testimony on the last day of trial. Furthermore, the judge did not decline to hear Robin's rebuttal, but merely remarked that he would not be the sitting judge if the trial wascontinued. If Robin did need more time, she had the option of requesting the court to continue the trial to a future date. ISSUE 4 Did the District Court abuse its discretion when it granted Robin and Grant joint custody of their minor child and awarded unsupervised visitation to Grant? We review a district court's findings of fact in child custody cases to determine whether those findings are clearly

erroneous. InreMarriageofDreesbach (19941, 265 Mont. 216, 220-21, 875 P.2d 1018, 1021. Wewill not reverse the final custody and visitation determinations which are based onthose findings unless

anabuse of discretion is clearly demonstrated. Dreesbach,875 P.2d at 1021-22. Robin maintains that the District Court erred when it awarded Grant joint custody andunsupervised visitation. Shecontends that she should have been awarded sole custody of Karlene pending determination of Grant's fitness, and that the court should have continued to limit Grant to supervised visitation until he completed asex offender evaluation. Robin specifically asserts

8that the court's findings are not supported bythe record, that the

court failed to take her home study into account when it made its determination, and that the court erroneously declined to require Grant to undergo asex offender evaluation. The record demonstrates, however, that the District Court did have the benefit of adequate testimony and evidence on which to base its custody and visitation decision. The court heard testimony from several unbiased observers who had personally observed Grant's close relationship with Karlene. The court interviewed Karlene in chambers without either parent present. The court reviewed a home study submitted by each party. Finally, although the court heard testimony from Robin's sister, Dawn, and her daughter, Casey, about Grant's alleged sexual abuse of them, it determined that neither witness was credible. The court further noted that there was no evidence of any inappropriate behavior between Grant and Karlene. The record is also clear that the District Court did, in fact, review both parties' home studies before it reached its final determination. Thecourt acknowledged both reports in its findings of fact and stated: "The Court has reviewed the home studies and finds that both parties have an adequate physical environment in which to raise Karlene. [Robin] can provide astable and suitable homeenvironment for Karlene." Where two separate reports with two different recommendations are submitted, the district court is in the best position to review andevaluate the information. Although

we require the district court to consider submitted reports, it 9

### does not follow that the court must adopt areport's recommendations regardless of other evidence. See,e.g.,Maxwell v.Maxwell (1991) , 

### 248Mont. 189, 192-93, 810P.2d 311, 313. Finally, wehold that the District Court did not err whenit chose not to require that Grant participate in asex offender evaluation. Thedecision about whether to order such anexamination is discretionary andwill not beoverturned absent ashowing that the court abused its discretion. InreMarriage ofNjos (1995), 270 

### Mont. 54, 60, 889 

### P.2d 1192, 1196. Mere allegations of sexual abuse, without more, are insufficient totrigger the requirement of

asexoffender evaluation. Inthis case, the District Court wasin the best position to determine whether the allegations hadsome merit, andwhether there wasanypotential for injury to Karlene. Wehold that the court did not abuse its discretion when it determined that asexoffender evaluation wasunnecessary. For these reasons, we affirm the District Court's child custody andvisitation decision. ISSUE5 Did the District Court abuse its discretion whenit divided the couple's real andpersonal property? Adistrict court's division ofmarital property is reviewed to determine whether the findings of fact onwhich the division is basedare clearly erroneous, andif not, whether the division based

on those facts was an abuse of discretion. In reMarriage of Smith 

### (1995), 270Mont. 263, 267-68, 891P.2d 522, 525.

10The factors to be considered in the division of the marital

estate are set forth in §40-4-202, MCA. The statute vests broad discretion in the district court to equitably apportion marital property. hzreMarriageofCollett (1981), 190 Mont. 500, 504, 621 P.2d 1093, 1095. Acourt need not articulate each factor separately as long asthe findings are sufficient to allow nonspeculative review bythis Court. InreMarriageofSyljuberget (1988), 234Mont. 178, 185, 763 P.2d 323, 326. Robin contends that the Court erred when it divided the personal property based onthe list presented for the first time in Grant's proposed findings because Grant failed to present property exhibits at trial, notestimony waspresented concerning many items

on the list, and some of Grant's testimony directly contradicted her testimony. A review of the record reveals that either Robin or Grant testified concerning nearly every item of personal property. Moreover, those items not discussed at trial, but which were awarded to Grant, were awarded consistent with Robin's proposed distribution. We,therefore, conclude that the District Court did not abuse its discretion when it divided the couple's personal property. Robin also challenges the District Court's division of the real property located in Cascade andSunburst. First, she alleges that Grant was not entitled to any portion of the Cascade property because she made the $25,000 down payment and has made all of the

11payments from her personal injury settlement money. Second, Robin

contends that the court erred when it assigned a$90,000 value to the Cascade property anddivided it without any testimony regarding its present value. Robin cites our decision in InreMarriageofBradshaw (1995), 270 Mont. 222, 891 P.2d 506, to support her assertion that Grant was not entitled to any of the Cascade property. In Bradshaw, westated that the source of the property wasamajor factor to beconsidered by the court when it divided the property pursuant to §40-4-202, MCA, and held that the wife wasnot entitled to any share of equity in the house purchased by husband prior to the marriage. Bradshaw , 891 P.2d at 511. Bradshaw is distinguishable from this case. In Bradshaw, the property at issue was bought prior to the marriage and paid for entirely out of the husband's personal injury compensation. The couple in Bradshaw was separated within five months of the marriage and filed for divorce during the first year of marriage. That court found that the wife madenocontributions to the maintenance and value of the property. Bradshaw , 891 P.2d at 511. In this case, testimony reveals that the property Was purchased during Grant andRobin's eleven-year marriage asafamily vacation home. Furthermore, while testimony did establish that Robin madethe down payment, shewasgiven credit for that payment before the equity in the property was divided and there was no evidence that the remaining payments were made from her settlementmoney. 

### Finally, evidence in the record supports the court's

finding that Grant contributed tothe homebymaking repairs to it. In fact, Grant testified that in the summerof 1993 he spent thirty-nine days in Cascadeworking ontheir residence andmaking necessary repairs. Specifically, Grant testified that hehooked the underground pumping system upto the pumpinthe river, helped drill the newwell, helped "pin" the well, put in water heaters, fixed the showers, fixed the bathroom sinks, andrewired the water heater from gastoelectric. Becausethe property inthis casewas purchased during the marriage, andbecause Grant contributed tothe property, wehold that the District Court did not err when it awarded aportion of the property to Grant. Robin also contends that the court erred whenit assigned a $90,000 value to the Cascade property anddivided it without any testimony concerning the present value of the equity. Robin testified that shepurchased the Cascadeproperty for $55,000, that she hadmadeadownpayment in the amount of $25,000, andthat approximately $30,000 wasstill duefor the property. Based on that testimony, 

### the court awardedeachparty one-half ofthe equity in the property which it valued at approximately $90,000. The equity wastobecalculated after deducting Robin's initial $25,000 payment. Therefore, with or without testimony regarding the property's present value, we conclude that Robin's share was equitably determined.

13For these reasons, we hold that the District Court did not

abuse its discretion when it awarded each party one-half of the equity in the Cascade property. Similarly, Robin alleges that the District Court erred by failing to evaluate and assign repayment of the debt owed for the Sunburst property. The parties agreed that the value of the Sunburst property was $20,000 and the court found that each party should begiven one-half of the equity in the property. The court dealt with the debt in Finding of Fact No. 108which specifies that both parties will be responsible for the joint debt on the real property but that the judgment lien on the Sunburst property, resulting from a premarital dispute, will be Grant's sole obligation. Therefore, the judgment lien will not be included in the determination of the equity in the Sunburst property, and Robin's contention that the court erred by not specifying howthe allocation of debt affects the award of equity is misplaced. Moreover, the amount of the debt is not relevant because the equity, which is determined by subtracting the debts, is to be equally divided. Based on the record, we conclude that the District Court's findings of fact were not clearly erroneous and that the court did not abuse its discretion when it divided the couple's marital property. ISSUE 6 Did the District Court err when it found that Robin frustrated Grant's visitation and awarded attorney fees andmileage to Grant? 14

### Section 3-l-523, MCA,provides that contempt orders from the

district courts are final and not normally reviewable by this Court; however, wemakeanexception in family law cases. InYe MarriageofDreesbach 

### (1994), 265Mont. 216, 223-24, 875P.2d 1018, 1022. Our review of contempt orders is limited to whether the district court acted within its jurisdiction and whether the evidence supports the order. InYEMarriage ofSullivan (19931, 258 

### Mont. 531, 539-40, 853P.2d 1194, 1200. Grant movedthat the District Court hold Robin in contempt for frustrating visitation whenshe failed to comply with the court order pertaining to Grant's temporary rights to supervised visitation. TheDistrict Court set adate for acontempt hearing but, after stipulation by the parties, combined the contempt proceedings with the final trial onthe merits. At trial, Grant testified that hewasdenied visitation on sixteen occasions. Additionally, hetestified that hewasdenied visitation onall birthdays andholidays, including Father's day andEaster Sunday. Furthermore, hetestified that hewasforced to drive 110miles onewayfor eachunsuccessful visitation. Robin asserted at trial that shewasnot under anobligation to let Karlene gowith Grant because hedid not always usethose supervisors who had been approved by the court. However, an approved supervisor for Grant and Karlene's visitation rebutted Robin's testimony whenshe testified that Robin's attorney was informed about substitute supervisors and although he indicated

15

### that hemight needto talk with them, never did. Thesupervisor

also testified that she and Grant encountered much difficulty getting Robin to allow Grant tohavehis supervised visitation, and that onat least five to ten occasions, sheandGrant went to pick up Karlene only to find that Robin had failed to deliver the child.Despite the court-ordered supervised visitation, Robin attempted to keep Grant from seeing Karlene. Robin had no authority to limit orplace anyrestrictions onGrant's visitation. TheDistrict Court's contempt order was, therefore, supported by the evidence that Robin consistently frustrated the court's visitation order. Wenext consider whether the District Court's punishment for contempt was appropriate. Section 3-1-519, MCA, provides in pertinent part that "Eilf it beadjudged that heis guilty of the contempt, afine may 

### beimposedonhimnot exceeding $500or hemay beimprisoned not exceeding 5days, or both." Robin challenges the contempt punishment because it exceeds the $500maximum. Specifically, the District Court awarded Grant attorney fees and mileage 

### in the amount of $1,077.50. However, this Court hasheld that adistrict court hasequitable powers to punish aparty for contempt beyond the terms of 53-l-519, MCA. Dreesbach , 875 

### P.2d. at 1023. In Dreesbach, 

### weaffirmed a contempt order which required the petitioner toseekprofessional counseling andwhich resolved aconflict concerning child support arrearages anddaycare obligations against thepetitioner. Dreesbach, 875 

### P.2d 16at 1023. Similarly, we have upheld contempt punishments which

imposed athirty-day jail term and reasonable attorney fees. Inre MarriageofBoharski (1993), 257 Mont. 71, 77, 847 P.2d 709, 713; Inre MarriageofRedfern (1984), 214 Mont. 169, 173, 692 P.2d 468, 470. Weconclude, after areview of the record, that the District Court was warranted in awarding attorney fees and costs to Grant. Although the award exceeds the $500 provided for in §3-l-519, MCA,

wehold that the evidence supports the finding of contempt andthat the court acted within its jurisdiction and equitable powers when it imposed the punishment. For the reasons stated above, we affirm the decree of the District Court.

/ Jus ic'e

Weconcur:

rA%Y -/7