Marriage of Anderson , 2002 MT 314N ( 2002 )

No. 01-382
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 314N
IN RE THE MARRIAGE OF
CONNIE LUCILLE ANDERSON,
n/k/a ANDERSEN,
Petitioner and Respondent,
and
JEROME RYON ANDERSON,
Respondent and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Thomas M. McKittrick, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jerome Ryon Anderson (pro se), Great Falls, Montana
For Respondent:
Connie Lucille Andersen (pro se), Great Falls, Montana
Submitted on Briefs: June 27, 2002
Decided: December 17, 2002
Filed:
__________________________________________
Clerk
Justice Jim Regnier delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1996 Internal Operating Rules, the following decision shall not be
cited as precedent but shall be filed as a public document with the
Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number, and result to the State Reporter
Publishing Company and to West Group in the quarterly table of
noncitable cases issued by this Court.
¶2 In 1996, the Eighth Judicial District Court, Cascade County,
dissolved the marriage between the Appellant, Jerome Anderson, and
the Respondent, Connie Andersen. Further, the District Court
ordered joint custody over the parties’ minor child, designated
Connie as the primary physical custodian, and established a
visitation schedule for Jerome. Jerome subsequently filed several
motions to enforce and modify the court-ordered visitation. The
District Court denied Jerome’s motions and Jerome, appearing pro
se, appeals. We affirm.
¶3 We address the following issues on appeal:
¶4 1. Did the District Court err when it modified the original
court-ordered visitation schedule to require supervised visitation?
¶5 2. Did the District Court err when it ordered each party to
bear their respective attorney fees incurred in the action?
BACKGROUND
¶6 Jerome and Connie were married on January 18, 1991. One child
was born of the marriage. On July 19, 1994, Connie filed a
petition with the District Court to dissolve the marriage. On
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February 27, 1996, the District Court entered its Findings of Fact,
Conclusions of Law, and Order. Therein, the District Court ordered
the marriage dissolved. Further, the court determined that joint
custody was in the minor child’s best interests and designated
Connie as the primary physical custodian. As for visitation, the
District Court ordered that the child spend every other weekend and
holiday with Jerome, during the school year, and six continuous
weeks with Jerome in the summer.
¶7 Over approximately the next eighteen months, Jerome
sporadically exercised his visitation rights. On October 27, 1997,
Jerome filed a petition to modify the custodial arrangement with
the District Court. Jerome maintained that Connie “willfully and
consistently refus[ed] to allow visitation . . . and has attempted
to frustrate and deny contact with [Jerome].” Before the District
Court ruled on the petition to modify, Jerome filed a motion to
enforce the 1996 parenting plan on August 20, 1999. The District
Court, on several occasions, set and reset hearing dates to
entertain Jerome’s motions at the parties’ requests. Before the
District Court could hold a hearing on the matter, Jerome filed
another motion with the District Court on August 24, 2000. This
motion requested that the District Court establish a visitation
schedule for the parties to follow until the court could rule on
the pending motions.
¶8 On September 7, 2000, Jerome moved the District Court to order
a psychological evaluation of Connie, appoint a psychologist for
the minor child, and order the parties to participate in
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counseling. Finally, on September 28, 2000, Jerome filed a Motion
for Summary Ruling which asked the District Court to grant all of
the relief requested by Jerome since October 1997. The parties
subsequently entered into a court-approved stipulation which
acquiesced to psychological evaluations and supervised visits
involving Jerome and the child.
¶9 Following hearings contemplating all of the parenting and
visitation motions filed by Jerome, the District Court entered its
Findings of Fact, Conclusions of Law, and Order on May 4, 2001.
The District Court concluded that based on the evidence presented
“Jerome . . . is not mentally ready for unsupervised visitation.”
As such, the District Court ordered that supervised visitation
occur on a weekly basis in a controlled environment until Jerome
evinced the wherewithal to comply with the visitation schedule in
the decree of dissolution. Therefore, the District Court denied
all of Jerome’s pending motions. Further, the District Court
ordered each party to bear their own attorney fees and costs
associated with the proceedings. On June 1, 2001, Jerome filed a
notice of appeal from the District Court’s order. Jerome
challenges the court’s order regarding the supervised visitation
and attorney fees.
STANDARD OF REVIEW
¶10 We review visitation orders to determine whether substantial
credible evidence supports the district court’s judgment. Stoneman
v. Drollinger, 2000 MT 274, ¶ 53, 302 Mont. 107, ¶ 53, 14 P.3d 12,
¶ 53. We will overturn a visitation order only when the court’s
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findings and conclusions clearly demonstrate an abuse of
discretion. Stoneman, ¶ 53. Likewise, a district court’s grant or
denial of attorney fees is a discretionary ruling which we review
for an abuse of discretion. Braach v. Graybeal, 1999 MT 234, ¶ 6,
296 Mont. 138, ¶ 6, 988 P.2d 761, ¶ 6.
DISCUSSION
ISSUE ONE
¶11 Did the District Court err when it modified the original
court-ordered visitation schedule to require supervised visitation?
¶12 As indicated above, the District Court initially ordered that
the child was to spend every other weekend and holiday with Jerome,
during the school year, and six weeks with Jerome in the summer.
In its May 4, 2001, order, the District Court modified the original
visitation schedule to weekly supervised visitation “with the
future goal of Jerome resuming the unsupervised visitation schedule
outlined in the 1996 divorce decree.” The District Court entered
the modification based upon the testimony presented at the
hearings. The court cited the following reasons for the
modification: the child’s close relationship with Connie’s family,
the child’s ambivalence toward any relationship with Jerome, the
deterioration of the child’s physical and mental health while in
Jerome’s presence, and the experts’ consensus that contemporary
visitation remain supervised.
¶13 Jerome requests that we reverse the District Court’s order and
command the court to revert back to the original visitation
schedule. However, Jerome offers no concrete assignments of error.
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Rule 23(a)(4), M.R.App.P., requires that an appellant present a
concise, cohesive argument which “contain[s] the contentions of the
appellant with respect to the issues presented, and the reasons
therefor, with citations to the authorities, statutes and pages of
the record relied on.” Jerome has not presented any citations to
the record or supporting legal authority in his opening brief, and
he has not filed a reply brief. This Court has repeatedly held
that we will not consider unsupported issues or arguments. In re
Custody of Krause, 2001 MT 37, ¶ 32, 304 Mont. 202, ¶ 32, 19 P.3d
811, ¶ 32. Similarly, this Court is under no obligation to locate
authorities or formulate arguments for a party in support of
positions taken on appeal. In re B.P., 2001 MT 219, ¶ 41, 306
Mont. 430, ¶ 41, 35 P.3d 291, ¶ 41.
¶14 Further, Jerome appears to challenge the District Court’s
findings but has not provided this Court with transcripts from the
relevant proceedings. Jerome contends that he is unable to pay for
the transcripts on appeal and requests that we order the county to
assume the costs. Section 3-5-604(5), MCA, provides:
If it appears to the judge that a defendant in a
criminal case or a parent or guardian in a proceeding
brought pursuant to Title 41, chapter 3, part 4 or 6, is
unable to pay for a transcript, it must be furnished to
the party and paid for by the state as provided in 3-5-
901.
This case clearly does not fall within the parameters contemplated
by § 3-5-604(5), MCA. Therefore, Jerome is responsible for bearing
the costs of transcripts on appeal.
¶15 In the past, we have demonstrated a willingness to accommodate
pro se parties by relaxing those technical requirements which do
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not impact fundamental bases for appeal. However, a district
court’s decision is presumed correct and it is the appellant who
bears the burden of establishing error by that court. Matter of
M.J.W., 1998 MT 142, ¶ 18, 289 Mont. 232, ¶ 18, 961 P.2d 105, ¶ 18.
In short, Jerome simply has not met his burden. Therefore, we
hold that the District Court did not err when it subsequently
modified the original order of visitation.
ISSUE TWO
¶16 Did the District Court err when it ordered each party to bear
their respective attorney fees incurred in the action?
¶17 Montana has long recognized the principle that a court will
not award attorney fees absent contractual or statutory authority.
Braach, ¶ 8. However, absent such authority, a court may invoke
its equitable powers to award attorney fees to make an injured
party whole. Braach, ¶ 9.
¶18 On appeal, Jerome simply asserts that he “need[s] relief for
attorney fees.” Again, Jerome has not asserted any contractual or
statutory authority to support an award of attorney fees. Nor has
Jerome argued for the application of an equitable exception to the
general bar. Here, the District Court ordered that “[e]ach party
shall be responsible for his or her own attorneys fees and costs
associated with this proceeding.” Absent any authority to the
contrary, we hold that the District Court did not abuse its
discretion in holding each party liable for their respective
attorney fees.
¶19 Affirmed.
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/S/ JIM REGNIER
We Concur:
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON
/S/ JIM RICE
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