01/16/2024
DA 22-0545 Case Number: DA 22-0545
IN THE SUPREME COURT OF THE STATE OF MONTANA 2024 MT 6N
IN RE THE MARRIAGE OF:
LINDSAY B. GOUDREAU,
Petitioner, Appellee, and Cross-Appellant,
and
JEFFREY A. GOUDREAU,
Respondent, Appellant, and Cross-Appellee.
APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DR-15-2020-064 Honorable Robert B. Allison, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Penni L. Chisholm, Dean Chisholm, Chisholm & Chisholm, P.C., Columbia Falls, Montana
For Appellee:
David F. Stufft, Attorney at Law, Kalispell, Montana
Submitted on Briefs: May 24, 2023
Decided: January 16, 2024
Filed:
ir,-6m---if __________________________________________ Clerk Justice James Jeremiah Shea delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion, 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 Jeffrey A. Goudreau (“Jeff”) appeals from the Eleventh Judicial District Court’s
Findings of Fact, Conclusions of Law, and Decree of Dissolution (“Decree”) and Final
Parenting Plan. Lindsay B. Goudreau (“Lindsay”) cross-appeals.
¶3 Jeff and Lindsay married in October of 2013. They have two children together.
Lindsay has a child from a previous marriage. They have lived separately since January 10,
2020. On January 21, 2020, Lindsay filed a petition for dissolution. The District Court
held a two-day bench trial, after which it issued the June 7, 2022 Decree and Final Parenting
Plan.
¶4 Prior to their marriage, Jeff owned property on Eckleberry Drive in Columbia Falls.
In December of 2014, Jeff sold the Eckleberry Drive property and received net proceeds
of $199,291. Lindsay helped to avoid a real estate commission by assisting in the
marketing of the Eckleberry Drive property. Two weeks later, the parties jointly purchased
a parcel of land on Oakmont Lane for $118,500. Jeff and Lindsay bought the Oakmont
Lane property and built their home on it, financed from the proceeds from the sale of the
Eckleberry Drive property, $49,000 from Jeff’s savings, and a March 2016 loan of $73,190
in Jeff’s name. Jeff and Lindsay also rented out a site on the property for RV and tent
2 camping, with plans to use the property for additional income and Lindsay’s budding
photography business.
¶5 Less than two months after separating, Lindsay purchased a $350,000 home on
Second Avenue West in Columbia Falls using a $220,000 loan and most of a $169,000
payment from her grandmother. The purchase and bank loan were in Lindsay’s name
alone.
¶6 The parties reached an interim financial agreement (“Interim Agreement”) approved
by the District Court on May 5, 2020. Pursuant to the Interim Agreement, Jeff paid Lindsay
a single installment of $30,000 and $900 per month for temporary family support. The
Interim Agreement also included an interim parenting plan which provided that the parties
would share parenting time with their two children, with Lindsay receiving eight nights
and Jeff receiving six nights during every two-week period. Jeff received additional time
when Lindsay traveled to exchange her oldest child with his father and paternal
grandparents.
¶7 After trial, the District Court adopted the interim parenting plan without any
changes. The Decree allowed Jeff to choose between retaining the Oakmont Lane property
or selling the property. The District Court valued the Oakmont Lane property at
$1,075,000 and awarded Lindsay half of the net equity of the property after accounting for
Jeff’s premarital contributions and two outstanding encumbrances, which Jeff was to
assume in full if he elected to retain the Oakmont Lane property. The Decree calculated
this amount to be $406,900 should Jeff choose to retain the property. Both parties filed
3 post-judgment motions seeking amendments to, and clarifications of, the Decree. The
motions were deemed denied after the District Court did not rule on either within 60 days.
¶8 A district court’s ruling on a discovery matter is reviewed to determine whether the
district court abused its discretion. In re S.C., 2005 MT 241, ¶ 16, 328 Mont. 476, 121
P.3d 552 (citation omitted). “A district court’s valuation of a marital estate is a
discretionary ruling that we review for an abuse of discretion.” In re Marriage of Hutchins,
2018 MT 275, ¶ 8, 393 Mont. 283, 430 P.3d 502 (citation omitted). “A district court’s
apportionment of the marital estate will stand unless there was a clear abuse of discretion
as manifested by a substantially inequitable division of the marital assets resulting in
substantial injustice.” Marriage of Hutchins, ¶ 7 (citation omitted). “We review a district
court’s division of marital property to determine whether the court’s findings of fact are
clearly erroneous and whether its conclusions of law are correct.” Marriage of Hutchins,
¶ 7 (citation omitted). A district court’s award of child support will not be overturned
absent an abuse of discretion. In re Marriage of Anderson, 2014 MT 111, ¶ 11, 374 Mont.
526, 323 P.3d 895. “A district court abuses its discretion if it acts arbitrarily without
conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice.”
In re Marriage of Frank, 2022 MT 179, ¶ 32, 410 Mont. 73, 517 P.3d 188 (citation
omitted).
¶9 A district court’s findings of fact are reviewed for clear error. Marriage of Frank,
¶ 32 (citation omitted). “A finding of fact is clearly erroneous if it is not supported by
substantial evidence, if the court misapprehended the effect of the evidence or our review
4 of the record convinces us that the district court made a mistake.” Marriage of Frank,¶ 32
(citation omitted). “If the findings are not clearly erroneous, the court’s division of
property will be affirmed absent an abuse of discretion.” Marriage of Frank, ¶ 32 (citing
In re Marriage of Funk, 2012 MT 14, ¶ 6, 363 Mont. 352, 270 P.3d 39).
¶10 We address the following issues: (1) whether the District Court abused its discretion
on several discovery rulings and by declining to sanction Lindsay incident to Jeff’s motion
to compel; (2) whether the District Court’s findings regarding the valuation of the marital
estate were clearly erroneous; (3) whether the District Court abused its discretion regarding
the valuation and division of the marital estate; (4) whether the District Court abused its
discretion in adopting the Final Parenting Plan; (5) whether the District abused its
discretion in its award of child support; and (6) whether the District Court abused its
discretion in denying the parties’ post-judgment motions for clarification of and
amendments to the Decree.1 We affirm in part and remand for correction of clerical errors
in the Decree.
Discovery Rulings
¶11 Jeff argues that Lindsay’s tax returns and profit-loss reports, provided in discovery,
were not sufficient for the District Court to determine her income for purposes of its child
support calculation and therefore the District Court’s denial of Jeff’s motion to compel
1 Lindsay requested at trial, in her proposed findings, and in her post-judgment motion that the District Court restore her maiden name of Lindsay Beth Dahl. Section 40-4-108(5), MCA, states that “[u]pon request by a party whose marriage is dissolved or declared invalid, the court shall order the party’s maiden or birth name or a former name restored.” Jeff does not contest this issue on appeal. We remand for correction of this oversight.
5 additional information was an abuse of discretion that prevented Jeff from effectively
presenting his case at trial. Jeff relies on Admin. R. M. 37.62.105(2)(b) (2021), which
provides that income for a self-employed parent is calculated as “gross receipts minus
reasonable and necessary expenses.”
¶12 In response to Jeff’s discovery requests, Lindsay provided tax returns for the years
2019 and 2020. Her 2019 tax return reflected a net business income of $20,746. Her 2020
tax return reflected a net business income of $16,604. Although Lindsay did not have a
2021 tax return to provide, she provided a profit and loss report for 2021, which reflected
a substantial increase of her net income over the previous two years of $31,655.16. Admin.
R. M. 37.62.105(1) (2021) provides that the determination of income for child support
calculations must “fairly reflect[] a parent’s resources available for child support.”
“Interpreting this framework, this Court ‘has recommended consideration of at least two
years of income taxes when a district court is determining gross income.’” Marriage of
Anderson, ¶ 14 (citation omitted). Not only did Lindsay’s tax returns provide estimates of
business-related deductions, but her profit and loss statements helped to paint an even more
complete picture by listing expenses for advertising and marketing, computer and internet
expenses, third-party contractors, graphic design, home office expenses, insurance,
software, telephone, and website expenses between January 1, 2021, and December 31,
2021. Although Jeff may find Lindsay’s 2019 and 2020 tax returns and her 2021 profit
and loss report inadequate, the District Court did not abuse its discretion in denying Jeff’s
motion to compel in this regard.
6 ¶13 Jeff next asserts the District Court abused its discretion by allowing Lindsay’s
expert witness, Brian Murphy, to testify regarding his valuation of the Oakmont Lane
property. Jeff argues that he was prejudiced because Murphy did not provide a curriculum
vitae, because Murphy was allowed to testify as to the gross amount of his real estate sales
in the previous year, and because Murphy was allowed to testify that he was a developer
of a subdivision near the Oakmont Lane property.
¶14 Murphy was called to testify to his opinion that the Oakmont Lane property was
worth $1.45 million based on his comparable market analysis (“CMA”), which was
disclosed in discovery. Although Murphy did not have a curriculum vitae to provide, Jeff
does not dispute that Murphy is a realtor in the Flathead Valley who was qualified to
conduct a CMA. While Murphy’s testimony about how much real estate he sold in the
previous year and his role as a developer of a nearby subdivision may possibly bear
tangentially on the substantive aspect of his testimony—his estimated value of the
Oakmont Lane property—the District Court did not abuse its discretion by overruling Jeff’s
objections to the testimony.
¶15 Jeff next argues the District Court erred when it denied his motion to reopen
discovery and to compel Lindsay to produce information regarding her previous custody
litigation with her ex-husband, the father of her oldest child. Jeff specifically requested
information regarding the child’s mental health and medications he may be taking, and the
parenting order and final parenting plan that Lindsay and her ex-husband had entered into,
which were in a sealed court record in Missoula County. Lindsay objected to the requests
7 on the basis that the documents were privileged. In his motion to reopen discovery, Jeff
sought leave to serve a subpoena duces tecum on Lindsay’s ex-husband for the documents
and if he refused to produce them pursuant to the subpoena, Jeff requested the opportunity
to obtain the documents from the Missoula County Clerk of Court which, as Jeff noted,
“has refused to provide the documents because the file is sealed.” Jeff’s stated basis for
seeking the Missoula County documents was that he “believe[d] that statements [Lindsay]
made in that litigation will contradict statements made by [her] in this parenting litigation.”
¶16 The District Court denied Jeff’s motion, holding: “[T]he Court will disallow access
to Lindsay’s dissolution file in Missoula County given that the simple statement that she
might make contradictory claims is insufficient to allow access to such information if
sealed by the court in Missoula.” Whatever possible impeachment benefit Jeff believed he
may have gained from access to this information, liberal discovery does not include delving
into a minor’s medical history and sealed court records based on a summary assertion that
a party “believes that statements . . . made in that litigation will contradict statements”
made by the opposing party in the pending litigation. The District Court did not abuse its
discretion by denying Jeff’s access to these records.
¶17 Jeff next contends the District Court erred by failing to impose sanctions under
M. R. Civ. P. 37(a)(5)(A), which provides that a court must order the payment of
reasonable expenses by the party whose conduct necessitated the motion to compel if the
motion to compel is granted. M. R. Civ. P. 37(a)(5)(A). Jeff argues, “[a]n award of Jeff’s
attorneys’ fees and costs was mandatory because it is undisputed that Lindsay was
8 compelled to provide some supplemental responses.” The operative word in Jeff’s
argument is “some.” M. R. Civ. P. 37(a)(5)(C) provides that the court may order the
payment of reasonable expenses if the motion to compel is granted in part and denied in
part. M. R. Civ. P. 37(a)(5)(C) (emphasis added). Jeff’s motion to compel alleged Lindsay
had “failed to provide full and complete responses” to nine interrogatories, four requests
for production, and one request for admission. Jeff’s motion to compel also alleged
Lindsay had not yet supplemented her answers to five other interrogatories and six other
requests for production. The District Court granted Jeff’s motion to compel as it pertained
to five of the interrogatories and six of the requests for production. Since Jeff’s motion
was not granted in full, the District Court was not mandated to award Jeff his attorney fees
and costs.
The District Court’s valuation and division of the marital estate.
¶18 Both parties raise claims regarding the District Court’s valuation and division of the
marital estate. Jeff argues the District Court erred in valuing the Oakmont Lane property
at $1,075,000 as of the time of dissolution because: (1) the valuation relied on evidence
that should have been excluded due to discovery abuses;2 (2) the District Court’s finding
that the Interim Agreement was an ongoing “joint venture” was not supported by
substantial evidence; (3) the District Court failed to properly credit his expert’s appraisal
2 Having already rejected Jeff’s argument that the District Court did not err by excluding Brian Murphy’s CMA as to Oakmont Lane property (see Opinion, ¶¶ 13-14), we need not address the issue again as it relates to the District Court’s factual findings of the property’s valuation.
9 of the Oakmont Lane property; and (4) our holding in Marriage of Frank requires valuation
at the time of separation to achieve an equitable distribution of the estate.
¶19 Lindsay claims valuing assets other than the Oakmont Lane property as of the time
of separation results in a windfall for Jeff and we should remand with instructions to value
all assets at the time of dissolution.
¶20 Jeff contends that because the District Court found that it could not give equal
weight to Murphy’s opinion relative to the appraisal of Jeff’s expert, Gene Lard, its
valuation of the Oakmont Lane property at the midpoint between Lard’s appraisal and
Murphy’s CMA was not supported by substantial evidence. Lindsay contends that the
value of the Oakmont Lane property should have been consistent with Murphy’s CMA.
Both parties are incorrect.
¶21 “A district court may adopt any reasonable valuation of property supported by the
record.” Marriage of Hutchins, ¶ 50 (citations omitted). Although both Jeff and Lindsay
are critical of the District Court’s final valuation of the Oakmont Lane property, the District
Court’s Findings of Fact reflect that it rendered a thoughtful decision based on the facts
presented to it by both parties. The District Court noted that it was troubled by two experts
with significant backgrounds on valuing property coming to such vastly different
conclusions on the value of the property. Ultimately, the District Court recognized that the
only true measure of the property’s fair market value is determined by the free market, but
it considered the equitable value of Jeff being allowed to retain the property for his and the
children’s benefit. While both parties take issue with what they perceive as the District
10 Court simply splitting the difference between their experts’ respective opinions—both of
which find support in each expert’s testimony regarding the bases of their opinions—we
cannot say the District Court’s findings were unsupported in light of the vastly differing
estimates.
¶22 Turning to the parties’ interpretations of our decision in Marriage of Frank, there
we affirmed that district courts have “broad discretion to equitably apportion the marital
estate in a manner equitable to each party according to the circumstances of each case.”
Marriage of Frank, ¶ 35 (citing Marriage of Funk, ¶¶ 16, 19). We explained that
“[g]enerally, valuing the property near the time of dissolution results in equitable
apportionment, but unique circumstances may call for valuation at a different time.”
Marriage of Frank, ¶ 39 (citation omitted). We also explained that “[w]hen conflicting
valuation evidence is presented the district court must indicate the basis for its
determination” and that “[a]s long as the court’s valuation is reasonable in light of the
evidence submitted, we will not disturb the finding on appeal.” Marriage of Frank, ¶ 39
(citations omitted). In Marriage of Frank we upheld the district court’s decision to value
different assets at different times. Marriage of Frank, ¶¶ 67-71. That holding was
consistent with long-standing precedent. See In re Marriage of Walls, 278 Mont. 413, 417,
925 P.2d 483, 485 (1996) (recognizing that “under [some] circumstances, selection of a
single evaluation point for determining net worth of the parties could create an inequitable
disposition”); see also In re Marriage of Milesnick, 235 Mont. 88, 96, 765 P.2d 751, 756
(1988) (explaining that “[i]f a single valuation date would lead to an inequitable
11 distribution of property, the District Court may choose several different times for
valuation.”).
¶23 Considering the principles articulated in Marriage of Frank and the circumstances
presented here, Jeff’s argument that Marriage of Frank requires the District Court to value
the Oakmont Lane property at the time of separation is unavailing. The same holds true
for Lindsay’s arguments regarding other assets that were valued as of the time of
separation. The District Court reasonably explained in its detailed Findings of Fact and
Conclusions of Law that because Jeff and Lindsay were completely financially separated
by January 10, 2020, valuing the marital estate at the time of separation for all assets other
than the Oakmont Lane property was equitable.
¶24 As for the Oakmont Lane property, the District Court noted that Jeff and Lindsay
agreed to split any profits received from operating the property consistent with their
previously professed intent to derive passive income by renting sites on the property.
Based on this ongoing venture, the District Court determined that an “ongoing financial
partnership” existed which warranted excepting the Oakmont Lane property from the other
property which was valued as of the date of separation. The District Court provided a
reasoned basis for this exception that finds support in the record. The District Court did
not abuse its discretion in valuing the Oakmont Lane property at the time of dissolution
while valuing all other parts of the marital estate at the time of separation.
12 Parenting Plan
¶25 Jeff appeals the District Court’s Final Parenting Plan on the grounds that: (1) the
District Court’s findings of fact were clearly erroneous; (2) the District Court erred in
failing to enforce § 40-4-234, MCA, which requires parents to submit proposed final
parenting plans; and (3) the Final Parenting Plan here runs afoul of a parent’s
constitutionally protected right to parent under § 40-4-227, MCA.
¶26 The Final Parenting Plan provided that Jeff would receive parenting time weekly
from Thursday evening to Saturday morning, which was extended through Monday
mornings every other weekend.3 Under this schedule, Jeff received six overnights with the
children every two weeks, with Lindsay receiving the remaining eight days. The Final
Parenting Plan noted that Jeff was to receive additional time when Lindsay traveled to
exchange her oldest child with her ex-husband, and the court explained at length that the
parties were free to deviate from the plan by mutual agreement.
¶27 After reviewing the record, we are not convinced the District Court’s findings
regarding the Final Parenting Plan were clearly erroneous or that Jeff has been deprived of
his right to “regular and ongoing parental contact” with his children. Northcutt v.
McLaughlin (In re G.M.N.), 2019 MT 18, ¶ 12, 394 Mont. 112, 433 P.3d 715. Jeff’s
argument that Lindsay’s alleged failure to file a proposed final parenting plan mandated
that the District Court adopt his proposed plan similarly misses the mark. The record
clearly demonstrates the District Court fulfilled its essential mandate to consider all of the
3 This feature of the plan reflected Lindsay’s undisputed testimony that Jeff’s work schedule did not require him to work on Fridays. 13 “best interest of the child” factors enumerated under § 40-4-212(1)(a)–(m), MCA. See
Penderson v. Orvis (In re G.M.O.), 2017 MT 116, ¶ 10, 387 Mont. 390, 394 P.3d 913. That
the District Court placed emphasis on the “continuity and stability of care” factor when
adopting the parties’ interim parenting plan as the Final Parenting Plan does not provide
grounds for reversal.
Child Support
¶28 Jeff appeals the District Court’s determination of Lindsay’s income for child support
purposes and the District Court’s denial of his M. R. Civ. P. 60(b) motion based on newly
discovered evidence of additional income derived from short term rentals of her post-
marital home, which Jeff asserted in his post-judgment motion “adds up to $33,000 of
income from the end of June and all of July.” Jeff asserts the District Court’s “finding was
based on speculation and should be reversed” considering evidence at trial regarding
Lindsay’s gross income from her photography business and an unusual reference to
Lindsay’s propensity to ski.
¶29 Based on the evidence at trial, the District Court made oral findings regarding
Lindsay’s business practices, expenses, and ability to work. As discussed previously
regarding Jeff’s arguments on his discovery claims, the information provided by Lindsay
was sufficient for the District Court to calculate her income. See Marriage of
Anderson,¶ 14. The District Court also emphasized the difference between a party’s net
and gross income figures, especially in the context of a self-employed person such as
Lindsay. Lindsay provided information on her business expenses in both her tax returns
14 and profit and loss statements, which contained itemized representations of the costs
associated with the way Lindsay does business. Further, in finding Lindsay’s net income
was $32,000, the District Court implicitly rejected Jeff’s other attempts to extrapolate her
income based on his assumptions regarding her income, which included assertions that
Lindsay’s gross income should have been found to exceed $98,000. Jeff has not
demonstrated the District Court abused its discretion regarding its calculation of Lindsay’s
income for child support purposes, or its denial of Jeff’s Rule 60(b) motion based on
conclusory assertions of “newly discovered evidence.” We accordingly decline to disturb
the award of child support in the amount of $713 per month.
Clerical Errors
¶30 Both parties raise claims regarding clerical errors and oversights by the District
Court, which the District Court failed to correct pursuant to the parties’ post-judgment
motions. First, Jeff claimed in his Motion for Relief from Judgment Pursuant to Mont. R.
Civ. P. 59 and 60 that the District Court erroneously credited him with only $118,500 for
his contribution to the purchase and construction of the Oakmont Lane property, instead of
the full $199,291 he received from the sale of the Eckleberry Drive property. Jeff is correct.
¶31 The District Court concluded that “Jeff should receive credit for his financial
investment in the property with pre-marital assets that are directly traceable, specifically
the proceeds from the sale of the Eckleberry Drive property to the extent those were
contributed, and also the money from his pre-marital savings.” Jeff testified, and the
District Court found in the Decree, that Jeff received $199,291 in net proceeds from the
15 sale of the Eckleberry Drive property. The District Court also found that the Oakmont
Lane property was purchased for $118,500; that the Oakmont Lane property “was
purchased with proceeds from the sale of the Eckleberry Drive property”; and that “Jeff
used the remainder of the proceeds and over $49,000 from his savings to build a house on
the property.” (Emphasis added.) These facts were uncontroverted at trial, and the District
Court made no findings indicating an intent to give Jeff credit for less than the full proceeds
of the Eckleberry Drive property sale. Jeff’s pre-marital contributions total $248,291,
instead of $168,500. Given that the District Court ordered Jeff to assume responsibility for
the outstanding encumbrances against the Oakmont Lane property, the total deductions are
$341,709, the net theoretical equity of the home is $733,291, and Lindsay’s payment,
should Jeff choose to retain the Oakmont Lane property is $366,645.50.4 The District
Court’s denial of Jeff’s post-judgment motion for relief on this issue was an abuse of
discretion and should be corrected on remand.
¶32 Jeff also asserts the District Court should have deducted the $23,000 he paid
Lindsay pursuant to the Interim Agreement from the sum owed to her either under the
buyout provision or the sale of the Oakmont Lane property. Jeff points to the portion of
the Interim Agreement which provides:
The remaining $23,000.00 may or may not be considered an advance or offset toward any future settlement or judicial determination on the issues of property/debt division in this matter, and each party reserves their right to
4 Jeff also asserts the District Court erred in failing to set forth the disposition of funds should Jeff elect to sell the property instead of buying out Lindsay’s share. Pursuant to the Decree, Lindsay would receive half of the net proceeds of the sale, after accounting for Jeff’s contribution of pre-marital funds totaling $248,291. 16 present their position regarding the same in settlement negotiations or any future hearings or trial in this matter.
Jeff testified at trial that his property settlement payment should be reduced by $23,000.
The explicit terms of the Interim Agreement vested the District Court with discretion on
the issue and exercising that discretion in a manner disagreeable to one party does not
establish an abuse of this vested discretion.
Personal Property Items
¶33 The final contested issue before us is Lindsay’s claim on cross-appeal that Jeff
should be ordered to return specific items of personal property. On the issue of specific
items of personal property, the District Court stated in the Decree that:
The Court finds that there was significant co-mingling of personal property and that trying to separate it out is impossible based on the evidence presented. The Court is not going to assign values to any item of personal property, including the so-called business assets involving Lindsay’s photography activities. The Court believes that each party has received a fair and equitable share of the personal property owned by them, regardless of when acquired, and that those offset and neither is indebted to the other. Each shall receive and have, free from any claim of the other, the personal property currently in his or her possession with the exception of the items listed in Finding 52 above, and the excavator which will be sold and the proceeds divided.
The District Court’s determination regarding the division of Jeff and Lindsay’s property is
supported by substantial evidence. Testimony at trial established that through their time
together, Jeff and Lindsay comingled personal property. Testimony also established that
much of this property was lost or unaccounted for. That the District Court made this
finding and the accompanying practical conclusion that parsing through the parties’
17 property on an item-by-item basis was an exercise of futility does not demonstrate an abuse
of discretion.
¶34 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. In the opinion of the
Court, the case presents a question controlled by settled law or by the clear application of
applicable standards of review. We affirm in part, reverse in part, and remand for further
proceedings consistent with this Opinion.
/S/ JAMES JEREMIAH SHEA
We Concur:
/S/ LAURIE McKINNON /S/ BETH BAKER /S/ DIRK M. SANDEFUR /S/ JIM RICE