                                      No. DA 06-0178

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2007 MT 114N


                                                  ____________________________________

TERI JANE LEE,

              Plaintiff and Respondent,

         v.

CHRISTOPHER VAUGHN LEE,

              Defendant and Appellant.

                                                  ____________________________________


APPEAL FROM:         District Court of the Eleventh Judicial District,
                     In and for the County of Flathead, Cause No. DR-04-043(B),
                     The Honorable Ted O. Lympus, Presiding Judge.


COUNSEL OF RECORD:

              For Appellant:

                     Christopher Lee (pro se), Shelby, Montana

              For Respondent:

                     Michael H. Keedy, Henning & Keedy, Kalispell, Montana

                                                  ____________________________________

                                                          Submitted on Briefs: April 4, 2007

                                                                      Decided: May 8, 2007

Filed:

                   _____________________________________________
                                       Clerk
Justice Brian Morris 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     Appellant Christopher V. Lee (Christopher) appeals from the Findings of Fact,

Conclusions of Law, and Decree of Dissolution issued by the Eleventh Judicial District

Court, Flathead County, terminating his marriage to Respondent Teri J. Lee (Teri) and

distributing the parties’ marital estate. We affirm.

¶3     Teri filed a petition for dissolution on January 21, 2004. Teri was represented by

counsel throughout the proceedings.        Christopher originally proceeded pro se, but

apparently retained the services of attorney Kenneth Wesson to represent him. Attorney

Wesson filed a notice of appearance on December 9, 2005.              Attorney Wesson

immediately filed a motion for continuance on Christopher’s behalf of the trial set for

December 14, 2005. Attorney Wesson noted that he had recently been retained by

Christopher’s family and that he had not even spoken to Christopher. Christopher was

incarcerated at that time and remains incarcerated today. The District Court granted the

continuance and rescheduled the trial for January 27, 2006.

¶4     Teri appeared at trial with counsel. Christopher made no appearance. Christopher

alleges that Attorney Wesson absconded with the retainer provided by his family and that


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he has had no further contact with Attorney Wesson. The court awarded Teri primary

care of the parties’ four minor children, ranging in age from 6 to 12. The court ordered

Christopher to pay child support in the amount of $406 per month. The court also

divided the parties’ marital estate, including assets and debts. The court issued its decree

on January 27, 2006.

¶5     Christopher timely filed a notice of appeal on February 24, 2006, from “the final

judgment entered in this action on the 27th of January, 2006.” Christopher, proceeding

pro se on appeal, argues that he filed a motion pursuant to M. R. Civ. P. 60(b) to set aside

the judgment in the District Court. He claims that he appeals from the District Court’s

denial of his Rule 60(b) motion. Christopher has failed to provide a copy of the District

Court’s order denying his motion and our review of the record reveals no indication that

Christopher ever filed such a motion pursuant to Rule 60(b) or that the court ever

addressed such a motion.           It appears, therefore, that based on the language in

Christopher’s notice of appeal, and from our review of the record that Christopher, in

fact, appeals from the District Court’s order dissolving his marriage to Teri and

distributing the marital estate.

¶6     We review a district court’s division of marital property to determine whether the

findings upon which the district court relied are clearly erroneous. In re Marriage of

Clark, 2003 MT 168, ¶ 7, 316 Mont. 327, ¶ 7, 71 P.3d 1228, ¶ 7. Findings are clearly

erroneous if they are not supported by substantial evidence, the court misapprehends the

effect of the evidence, or this Court’s review of the record convinces us that a mistake

has been made. In re Marriage of Schmieding, 2003 MT 246, ¶ 14, 317 Mont. 320, ¶ 14,


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77 P.3d 216, ¶ 14. We will affirm the district court’s distribution of property absent an

abuse of discretion if the findings are not clearly erroneous. Clark, ¶ 7. The test for

abuse of discretion in a dissolution proceeding is whether the district court “acted

arbitrarily without employment of conscientious judgment,” or whether the district court

“exceeded the bounds of reason resulting in a substantial injustice.” Clark, ¶ 7.

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

our 1996 Internal Operating Rules, as amended in 2003, that provides for memorandum

opinions. It is manifest on the face of the briefs and record before us that substantial

evidence supports the District Court’s findings of fact, the legal issues are clearly

controlled by settled Montana law that the District Court correctly interpreted, and that

there was no abuse of discretion by the District Court.

¶8     We affirm the judgment of the District Court.


                                                 /S/ BRIAN MORRIS


We Concur:

/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE




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