                                                                                           April 8 2009




                                            DA 08-0320

                      IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2009 MT 117N



IN RE THE MARRIAGE OF
SUSAN K. SARTORIE, n/k/a SUSAN K. HOVE,

               Petitioner and Appellee,

         and

MICHAEL SARTORIE,

               Respondent and Appellant.



APPEAL FROM:             District Court of the Thirteenth Judicial District,
                         In and For the County of Yellowstone, Cause No. DR 2002-819
                         Honorable Gregory R. Todd, Presiding Judge


COUNSEL OF RECORD:

                 For Appellant:

                         George T. Radovich, Attorney at Law, Billings, Montana

                 For Appellee:

                         Jill Deann LaRance, LaRance & Syth, P.C., Billings, Montana



                                                     Submitted on Briefs: March 18, 2009

                                                                Decided: April 7, 2009


Filed:

                         __________________________________________
                                           Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme

Court and its case title, Supreme Court 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     Michael Sartorie (Mike) and Susan K. Hove (Susan) were divorced by a court

decree on April 23, 2003. Mike and Susan have one minor child (J.S.), who is eight years

old.   Mike now appeals from an order of the Thirteenth Judicial District Court,

Yellowstone County, adopting an Amended Final Parenting Plan between the parties.

We affirm.

¶3     After Susan and Mike were divorced, they entered into a Stipulated Final

Parenting Plan. In the spring of 2004, Mike sought an order of protection against Susan.

Prior to the hearing on the order, Mike’s previous attorney withdrew and he retained a

new one. The District Court denied Mike’s request, and told the parties to work out their

differences.   In August 2004, Mike retained another attorney and filed a petition

challenging the parenting plan. When Mike disagreed with the recommendations of a

court-appointed doctor, the matter went to trial. Following the trial, the District Court

adopted Susan’s proposed amended parenting plan.

¶4     In August 2006, Mike changed attorneys yet again. On February 12, 2007, Mike

filed a petition to modify the parenting plan. On November 30, 2007, Mike filed a


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motion for an appointment of an evaluator. The District Court appointed Dr. Bruce

Chessen (Dr. Chessen) to conduct a full parenting plan evaluation. This was the third full

evaluation in 5 years. Prior to the District Court’s ruling, both parties submitted proposed

findings of fact and conclusions of law. On June 11, 2008, the District Court adopted an

Amended Final Parenting Plan pursuant to the recommendations of Dr. Chessen. The

District Court also found Mike in contempt of court for failure to follow the previous

parenting plan, and awarded Susan costs and attorney fees associated with filing the

contempt motion against Mike in order to enforce provisions of the parenting plan.

¶5     Mike now appeals from the District Court’s order. He presents two issues. First,

he argues that the District Court committed reversible error by adopting Susan’s proposed

findings of fact and conclusions of law virtually verbatim without support in the

evidence. Second, Mike argues that the District Court violated his constitutional and

statutory parenting rights when it allegedly granted parenting rights to J.S.’s maternal

grandparents.

¶6     We review a district court’s findings relating to custody modifications under the

clearly erroneous standard. In re Custody of Arneson-Nelson, 2001 MT 242, ¶ 15, 307

Mont. 60, 36 P.3d 874. Findings are clearly erroneous if they are not supported by

substantial evidence, the court misapprehends the effect of the evidence, or a review of

the record convinces us that a mistake has been made. Arneson-Nelson, ¶ 15. We will

reverse a district court’s decision to modify custody or visitation only when an abuse of

discretion is clearly demonstrated. Arneson-Nelson, ¶ 15.




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¶7     After reviewing the record in this case and the briefs of both parties, we conclude

that Mike has failed to show that the District Court’s findings of fact in support of its

decision are clearly erroneous, or that it abused its discretion in any regard. Mike’s

argument on appeal is simply an attempt to have this Court reweigh the evidence before

the District Court and arrive at an outcome more favorable to him. We decline this

invitation to substitute our judgment on the strength of the evidence for that of the

District Court in the absence of a showing that the District Court’s findings are clearly

erroneous. See In re A.S., 2006 MT 281, ¶ 51, 334 Mont. 280, 146 P.3d 778. Because

Mike has failed to meet his burden in this regard, we affirm the District Court.

¶8     Secondly, as Susan points out, Mike’ statutory and constitutional arguments were

never raised before the District Court. Thus, we decline to address them for the first time

on appeal. See Vader v. Fleetwood Enterprises, Inc., 2009 MT 6, ¶ 37, 348 Mont. 344,

201 P.3d 139.

¶9     Finally, Susan requests that we award her attorney fees under M. R. App. P. 19(5)

for having to defend against Mike’s appeal. Susan argues that Mike’s appeal raises

non-viable issues and fails to support those issues with proper analysis and legal

authority. Accordingly, Susan argues that this appeal is frivolous and that an award of

attorney fees and costs is an appropriate sanction.

¶10    We agree. M. R. App. P. 19(5) allows this Court to grant a sanction of costs,

attorney fees, or such monetary or non-monetary penalty as this Court deems proper, for

appeals which are determined to be frivolous, vexatious, or taken without substantial

reasonable grounds. Having considered Mike’s appeal in this case and the history of


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these proceedings, we determine that Mike’s instant appeal is vexatious, and taken

without substantial reasonable grounds. In this connection, we note that Mike is on his

fourth attorney at this point in the proceedings, and had previously been admonished by

the District Court for using his “money and power” to prolong the litigation, instead of

trying to reduce the conflict between himself and Susan and focusing on the interests of

J.S. Moreover, Mike’s appellate argument is not supported with proper authority and is

simply devoid of legal merit. Accordingly, we remand this matter to the District Court to

determine a proper award of attorney fees for the work done by Susan’s attorney on

appeal. See Vader, ¶ 52.

¶11   We have determined to decide this case pursuant to Section 1, Paragraph 3(d)(v)

of our 1996 Internal Operating Rules, as amended in 2003, which provides for

memorandum opinions. It is manifest on the record before us that the District Court did

not err or otherwise abuse its discretion in adopting the Amended Final Parenting Plan.

Therefore, we affirm and remand to the District Court for a determination of reasonable

attorney fees and costs incurred by Susan’s attorney for work done on appeal.


                                                      /S/ PATRICIA COTTER

We concur:

/S/ MIKE McGRATH
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS




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