Judge moves forward with trespass, mischief charges
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POLSON — A motion to dismiss a felony criminal mischief charge and two counts of criminal trespass was denied last week in District Court in the case of Big Arm resident Kevin Brent Funk.
Funk, 54, is charged in relation to a property dispute for lakefront property in the 73700 block of Highway 93.
On Nov. 23, Jim Moerkerke testified that he originally leased from Funk the 2.5-acre parcel in question, an easement that runs from Highway 93 to Flathead Lake, along with an adjacent parcel in 2013.
Later that year, however, Moerkerke said he purchased the disputed property – which was put into receivership in September 2013 as part of Funk’s divorce – from Steve Stahlberg for $250,000. The property was originally listed for sale at $370,000, Moerkerke said.
Moerkerke filed some eight to 10 trespassing complaints against Funk. Eleven such complaints ended up being dismissed from Justice Court “in the interest of justice” because of the felony charges that were filed in District Court.
Public defender Ben Darrow said that half of the Funks’ marital estate was assigned to his ex-wife and that she sold the lakefront property.
Darrow asked Moerkerke if he gave notice to Funk of the sale. Moerkerke said he didn’t because he wasn’t purchasing it from him.
County Attorney Steve Eschenbacher said District Court Judge Deborah Kim Christopher approved the sale, but Darrow said it went through without due process because Funk was in jail and wasn’t served. Moerkerke said Christopher approved the sale on Feb. 25, 2015.
Stahlberg, a certified public accountant, said that Funk was served notice of the sale but that it was sent to “general delivery” at the Big Arm post office. Darrow asked him if he had ever seen that done before in regard to real estate, and Stahlberg said no.
Stahlberg said he was appointed receiver of the property in question by Christopher and that Funk was directly responsible for the property selling for less than it was worth in part because he posted a sign on the property and his other actions.
Funk testified that the property in question is a part of the Charles Funk Irrevocable Trust. Eschenbacher asked him if Christopher had ordered him to transfer some of his wealth to his ex-wife. Funk said that she had as an individual, but not as trustee of the aforementioned trust.
Funk said he appealed Christopher’s actions twice to the Montana Supreme Court.
According to online documents, in the first appeal the state Supreme Court affirmed part of Judge Christopher’s ruling in the divorce of Funk and Bernita June Funk and remanded part back to the District Court. In the second appeal, the Supreme Court ruled that Christopher had complied with its instructions. Christopher gave half of the couple’s 2.5-acre lakefront property to Bernita June Funk. Christopher also gave her one-third of their 113 acres of non-lakefront property. (Kevin Funk had inherited both in 1996 when his father died.) The award was made in lieu of long-term spousal maintenance. Other assets, such as vehicles, tractors, trailers, jet skis and a sailboat, were also divided. The couple was married 17 years.
In a more recent order dated Aug. 10, Judge Christopher awarded the entire 113-acre non-lakefront “farm” property to Funk’s ex-wife, because Funk failed to meet his obligations to her under the divorce decree.
In its initial ruling, the Supreme Court overruled 25 other cases and said, “We agree that our jurisprudence in this area (re: distribution of assets) has indeed been confusing and inconsistent.”
“I’m at a loss because I haven’t seen any of this, and I wasn’t the judge of jurisdiction,” Manley said last week.
Manley said that, to a certain extent, Funk was acting on a misunderstanding of the law. He denied the motion to dismiss the charges.
Darrow said that he was having difficulty obtaining the necessary documents from the civil case, and added that there is a motion to destroy the exhibits in that case.
“Mr. Funk’s property was seized not pursuant to a search warrant,” Darrow said, but rather as part of a civil case.
On Monday, county recorder Paula Holle said Funk does not currently own any property in Lake County. Darrow made several other motions, but Manley said he would rule on most of them at trial on Dec. 19.
Funk faces a separate charge of criminal mischief related to a June 27 incident where he allegedly plowed the “entire lot” of the property in question and made it very difficult, if not impossible, to mow or maintain, according to deputy county attorney Molly Owen.
Darrow asked for that charge to be dismissed because Funk was never arraigned for it. Manley told Darrow to file the necessary paperwork for him to consider.
A charge of intimidation against Funk related to May 23 and June 18 incidents with a contractor hired by Moerkerke to work at the disputed property was dismissed by the county attorney's office on Aug. 15
