June 10 2014
DA 13-0708
IN THE SUPREME COURT OF THE STATE OF MONTANA
2014 MT 159N
IN RE THE MARRIAGE OF:
JESSICA CONRAD,
Petitioner and Appellee,
and
SHAWN CONRAD,
Respondent and Appellant.
APPEAL FROM: District Court of the Nineteenth Judicial District, In and For the County of Lincoln, Cause No. DR-13-11 Honorable James B. Wheelis, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
George B. Best, Kira I. Evans, Best & Westover Law Offices, Kalispell, Montana
For Appellee:
Heather McDougall, Attorney at Law, Troy, Montana
Submitted on Briefs: May 21, 2014 Decided: June 10, 2014
Filed:
__________________________________________ Clerk Justice Michael E Wheat delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not serve
as precedent. Its case title, cause number, and disposition shall be included in this Court’s
quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 Shawn Conrad (Shawn) appeals from the findings of fact, conclusions of law, and
decree of the Montana Nineteenth Judicial District Court, Lincoln County, dissolving his
marriage to Jessica Conrad (Jessica), setting in place a parenting plan, and distributing the
marital estate. We affirm.
¶3 Shawn and Jessica were married on July 7, 2001, and separated in January of 2013.
They have two children, T.C., age seven, and C.C., age five. After their separation, Shawn
and Jessica continued to cohabitate until Jessica moved for, and the District Court granted,
an order requiring Shawn to vacate the marital residence. After Shawn moved out, the
parties agreed on visitation. On June 13, 2013, Jessica filed an expedited motion to dissolve
marriage; Shawn had previously filed motions for contempt, an interim parenting plan, and
temporary maintenance and return of personal property. The court held a hearing on these
motions on June 19, 2013. Following the hearing, the court approved Jessica’s proposed
interim parenting plan, which granted Shawn visitation every second and fourth weekend of
the month during the school year, every other holiday, and every other week during the
summer. It denied the parties’ motions and determined that the property division, final
parenting plan and dissolution would be addressed at a hearing scheduled for August 27,
2013. It also directed Shawn to pay child support of $141.00 a month beginning on July 1,
2 2013. Following the August 27, 2013, hearing, on October 1, 2013, the court entered
findings of fact, conclusions of law and a decree. The court’s decree dissolved the parties’
marriage, adopted Jessica’s proposed final parenting plan, ordered Shawn to continue paying
child support in the amount of $141.00 a month, and distributed the marital estate.
¶4 We review a district court’s factual findings regarding a parenting plan and the
division of marital assets to determine if they are clearly erroneous. In re Parenting of C.W.,
2012 MT 212, ¶ 10, 366 Mont. 278, 291 P.3d 1092. A finding is clearly erroneous if it is not
supported by substantial evidence, the district court misapprehended the effect of the
evidence, or our review convinces us that the district court made a mistake. In re Parenting
of C.W., ¶ 10. We will affirm the district court when the findings of fact are not clearly
erroneous unless the court abused its discretion. In re Parenting of C.W., ¶ 10. A district
court abuses its discretion in a dissolution proceeding if it acts arbitrarily without
employment of conscientious judgment or it exceeds the bounds of reason resulting in a
substantial injustice. In re Parenting of C.W., ¶ 10.
¶5 On appeal, Shawn argues that the District Court erred by failing to consider the
children’s best interests in adopting Jessica’s proposed final parenting plan; abused its
discretion in allocating the marital estate; abused its discretion in awarding Jessica attorney’s
fees on Shawn’s motion for contempt; and erred in excluding Shawn’s witnesses. We affirm
the District Court.
¶6 Section 40-4-212, MCA, provides that the court must determine a parenting plan in
accordance with the best interests of the children and sets forth a non-exhaustive list of
factors which may be relevant to that determination. Although Shawn alleges that the
3 District Court failed to consider these in adopting Jessica’s proposed parenting plan, the
court’s order reveals that it did weigh the statutory factors in determining the parenting plan.
The court based its determination on the facts that Jessica has been the primary caregiver for
the children throughout the marriage, preparing meals, transporting them to and from school
and daycare, and arranging social engagements. This finding effectively addresses
continuity and stability of care, a factor listed in § 40-4-212(1)(h), MCA. The court also
noted that Jessica’s parents have provided care for the children three days a week. This
finding speaks to § 40-4-212(1)(c), MCA, the interaction and interrelationship of the child
with individuals significantly affecting the child’s best interests. While a district court must
consider the factors enumerated in § 40-4-212(1), MCA, it need not make specific findings
relating to each. C.T.E.-H. v. T.M.E., 2004 MT 307, ¶ 34, 323 Mont. 498, 101 P.3d 254.
The court, in its findings and conclusions, specifically found Jessica’s proposed final
parenting plan to be in the children’s best interests. We conclude that the court adequately
considered the children’s best interests in adopting Jessica’s proposed parenting plan.
¶7 Shawn also argues that the District Court abused its discretion because the final
parenting plan was “substantially different” from the interim parenting plan. We can see no
evidence that this is the case—and in fact, it appears that the final parenting plan is identical
to the interim parenting plan. This contention is without merit.
¶8 Shawn next contends that the District Court abused its discretion in distributing the
marital estate because it awarded Jessica Shawn’s retirement plan, proceeds from the sale of
the family home, proceeds from selling various marital property and some guns in his
possession that were registered in her name. He also claims the court erred by considering
4 his inheritance—but not Jessica’s—as part of the marital estate, and by failing to address the
tax consequences of requiring him to file his taxes separately.
¶9 We have previously explained that § 40-4-202, MCA, vests the district court with
broad discretion to equitably divide the marital estate under the circumstances. In re
Parenting of C.W., ¶ 18. An equitable division does not require that every marital asset or
liability be split evenly, or even that the entire estate be split evenly. In re Parenting of
C.W., ¶ 18. We have also previously held that “[u]nder § 40-4-202, MCA, the District Court
is tasked with the overarching obligation to equitably apportion all property belonging to
either or both parties however and whenever acquired, without regard to title, and without
regard to marital misconduct.” In re Funk, 2012 MT 14, ¶ 34, 363 Mont. 352, 270 P.3d 39.
The District Court, in this case, assigned assets and liabilities in such a way that Jessica’s
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June 10 2014
DA 13-0708
IN THE SUPREME COURT OF THE STATE OF MONTANA
2014 MT 159N
IN RE THE MARRIAGE OF:
JESSICA CONRAD,
Petitioner and Appellee,
and
SHAWN CONRAD,
Respondent and Appellant.
APPEAL FROM: District Court of the Nineteenth Judicial District, In and For the County of Lincoln, Cause No. DR-13-11 Honorable James B. Wheelis, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
George B. Best, Kira I. Evans, Best & Westover Law Offices, Kalispell, Montana
For Appellee:
Heather McDougall, Attorney at Law, Troy, Montana
Submitted on Briefs: May 21, 2014 Decided: June 10, 2014
Filed:
__________________________________________ Clerk Justice Michael E Wheat delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not serve
as precedent. Its case title, cause number, and disposition shall be included in this Court’s
quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 Shawn Conrad (Shawn) appeals from the findings of fact, conclusions of law, and
decree of the Montana Nineteenth Judicial District Court, Lincoln County, dissolving his
marriage to Jessica Conrad (Jessica), setting in place a parenting plan, and distributing the
marital estate. We affirm.
¶3 Shawn and Jessica were married on July 7, 2001, and separated in January of 2013.
They have two children, T.C., age seven, and C.C., age five. After their separation, Shawn
and Jessica continued to cohabitate until Jessica moved for, and the District Court granted,
an order requiring Shawn to vacate the marital residence. After Shawn moved out, the
parties agreed on visitation. On June 13, 2013, Jessica filed an expedited motion to dissolve
marriage; Shawn had previously filed motions for contempt, an interim parenting plan, and
temporary maintenance and return of personal property. The court held a hearing on these
motions on June 19, 2013. Following the hearing, the court approved Jessica’s proposed
interim parenting plan, which granted Shawn visitation every second and fourth weekend of
the month during the school year, every other holiday, and every other week during the
summer. It denied the parties’ motions and determined that the property division, final
parenting plan and dissolution would be addressed at a hearing scheduled for August 27,
2013. It also directed Shawn to pay child support of $141.00 a month beginning on July 1,
2 2013. Following the August 27, 2013, hearing, on October 1, 2013, the court entered
findings of fact, conclusions of law and a decree. The court’s decree dissolved the parties’
marriage, adopted Jessica’s proposed final parenting plan, ordered Shawn to continue paying
child support in the amount of $141.00 a month, and distributed the marital estate.
¶4 We review a district court’s factual findings regarding a parenting plan and the
division of marital assets to determine if they are clearly erroneous. In re Parenting of C.W.,
2012 MT 212, ¶ 10, 366 Mont. 278, 291 P.3d 1092. A finding is clearly erroneous if it is not
supported by substantial evidence, the district court misapprehended the effect of the
evidence, or our review convinces us that the district court made a mistake. In re Parenting
of C.W., ¶ 10. We will affirm the district court when the findings of fact are not clearly
erroneous unless the court abused its discretion. In re Parenting of C.W., ¶ 10. A district
court abuses its discretion in a dissolution proceeding if it acts arbitrarily without
employment of conscientious judgment or it exceeds the bounds of reason resulting in a
substantial injustice. In re Parenting of C.W., ¶ 10.
¶5 On appeal, Shawn argues that the District Court erred by failing to consider the
children’s best interests in adopting Jessica’s proposed final parenting plan; abused its
discretion in allocating the marital estate; abused its discretion in awarding Jessica attorney’s
fees on Shawn’s motion for contempt; and erred in excluding Shawn’s witnesses. We affirm
the District Court.
¶6 Section 40-4-212, MCA, provides that the court must determine a parenting plan in
accordance with the best interests of the children and sets forth a non-exhaustive list of
factors which may be relevant to that determination. Although Shawn alleges that the
3 District Court failed to consider these in adopting Jessica’s proposed parenting plan, the
court’s order reveals that it did weigh the statutory factors in determining the parenting plan.
The court based its determination on the facts that Jessica has been the primary caregiver for
the children throughout the marriage, preparing meals, transporting them to and from school
and daycare, and arranging social engagements. This finding effectively addresses
continuity and stability of care, a factor listed in § 40-4-212(1)(h), MCA. The court also
noted that Jessica’s parents have provided care for the children three days a week. This
finding speaks to § 40-4-212(1)(c), MCA, the interaction and interrelationship of the child
with individuals significantly affecting the child’s best interests. While a district court must
consider the factors enumerated in § 40-4-212(1), MCA, it need not make specific findings
relating to each. C.T.E.-H. v. T.M.E., 2004 MT 307, ¶ 34, 323 Mont. 498, 101 P.3d 254.
The court, in its findings and conclusions, specifically found Jessica’s proposed final
parenting plan to be in the children’s best interests. We conclude that the court adequately
considered the children’s best interests in adopting Jessica’s proposed parenting plan.
¶7 Shawn also argues that the District Court abused its discretion because the final
parenting plan was “substantially different” from the interim parenting plan. We can see no
evidence that this is the case—and in fact, it appears that the final parenting plan is identical
to the interim parenting plan. This contention is without merit.
¶8 Shawn next contends that the District Court abused its discretion in distributing the
marital estate because it awarded Jessica Shawn’s retirement plan, proceeds from the sale of
the family home, proceeds from selling various marital property and some guns in his
possession that were registered in her name. He also claims the court erred by considering
4 his inheritance—but not Jessica’s—as part of the marital estate, and by failing to address the
tax consequences of requiring him to file his taxes separately.
¶9 We have previously explained that § 40-4-202, MCA, vests the district court with
broad discretion to equitably divide the marital estate under the circumstances. In re
Parenting of C.W., ¶ 18. An equitable division does not require that every marital asset or
liability be split evenly, or even that the entire estate be split evenly. In re Parenting of
C.W., ¶ 18. We have also previously held that “[u]nder § 40-4-202, MCA, the District Court
is tasked with the overarching obligation to equitably apportion all property belonging to
either or both parties however and whenever acquired, without regard to title, and without
regard to marital misconduct.” In re Funk, 2012 MT 14, ¶ 34, 363 Mont. 352, 270 P.3d 39.
The District Court, in this case, assigned assets and liabilities in such a way that Jessica’s
share of the marital estate was slightly larger than Shawn’s—however, the court also
assigned Jessica most of the responsibility associated with managing debt and caring for the
children. None of the items Shawn challenges regarding the distribution of the marital estate
rise to the level of an abuse of discretion. For instance, although he complains the court
considered his inheritance, but not Jessica’s, as part of the marital estate, he never identified
the items he claims he inherited in the District Court proceeding. Nor did the court err by
failing to enter specific factual findings addressing the factors Shawn asserts it should have
addressed. The court specifically considered tax liability; its order directed the parties to file
separately and directed Jessica to claim the children as exemptions for 2012, as well as claim
mortgage interest and property taxes. The court’s decision demonstrates it fulfilled its
obligation to equitably apportion the marital estate.
5 ¶10 Shawn next contends that the District Court abused its discretion when it denied his
motion to hold Jessica in contempt and awarded her attorney’s fees. A District Court is not
required to hold a party in contempt at the request of another party. The District Court did
not see fit to hold Jessica in contempt and Shawn fails to persuade us that this amounts to an
abuse of discretion. Similarly, an award of attorney’s fees is discretionary and will not be
disturbed absent an abuse of discretion. In re Marriage of Sullivan, 258 Mont. 531, 540, 853
P.2d 1194, 1200 (1993). The District Court concluded, based on the hearing, that Shawn’s
motions were frivolous and accordingly, exercised its discretion pursuant to § 40-4-110,
MCA, to award Jessica attorney’s fees incurred in responding to those motions. The District
Court did not abuse its discretion in awarding Jessica attorney’s fees.
¶11 Finally, Shawn argues that the District Court erred by excluding his rebuttal witness.
“A determination of whether proposed testimony is admissible as rebuttal testimony in any
given case lies within the sound discretion of a district court, and we will not reverse a
district court’s ruling unless it abused its discretion.” In re Marriage of Howard, 2008 MT
351, ¶ 32, 346 Mont. 312, 195 P.3d 812. The District Court determined that Shawn’s
proposed rebuttal testimony did not pertain to “new matters” and did not abuse its discretion
by excluding that testimony.
¶12 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our
Internal Operating Rules, which provides for noncitable memorandum opinions. The issues
in this case are ones of judicial discretion and there clearly was not an abuse of discretion.
¶13 Affirmed.
6 /S/ MICHAEL E WHEAT
We Concur:
/S/ MIKE McGRATH /S/ BETH BAKER /S/ LAURIE McKINNON /S/ JIM RICE