No. 80-203
IN THE SUPREME COURT OF THE STATE OF MONTANA
1981
IN RE THE MARRIAGE OF
GAIL TOMASKIE,
+
Petitioner and Appellant,
NICK TOMASKIE, JR.,
Respondent and Respondent.
Appeal from: District Court of the Fifth Judicial District,
In and for the County of Beaverhead, The Honor-
able Frank E. Blair, Judge presiding.
Counsel of Record:
For Appellant:
Burns & Dwyer, Dillon, Montana
For Respondent:
W. G. Gilbert,111, Dillon, Montana
Submitted on Briefs: November 6, 1980
Decided: March 20, 1981
Filed: MAR 2 0 1981
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
The wife appeals from that part of a marriage dissolution
proceeding judgment of the Beaverhead County District Court
granting custody of the children to the husband, ordering
the wife to pay child support and dividing the marital
assets.
On the issue of child custody, the wife contends that
the findings and conclusions fail to consider the factors
enumerated in section 40-4-212, MCA. She also contends the
trial court erred in receiving a Blaine County Welfare
report that went beyond the scope of the order requesting
the report on child support; she contends the court ordered
that she pay support without considering the factors enumerated
in section 40-4-204, MCA.
On distributio~of the assets of the marriage, the wife
contends the court erred in failing to consider the factors
enumerated in section 40-4-202, MCA. She also contends that
the court improperly ordered her to pay one-half of the out-
standing debts of the marriage.
The findings of fact are woefully inadequate on all the
issues involved. It is apparent on their face that no con-
sideration was given to the Uniform Marriage and Divorce
Act. With the exception of that portion of the judgment
dissolving the marriage, the judgment is vacated and a new
hearing is ordered on all of the issues.
The parties were married in Dillon, Montana, on April
23, 1970. They have two children, Casey, age 8 and Nick,
age 6. They lived in Harlem, Montana, until July 1979. In
July, the wife took the children and the family car and
returned to Dillon, her hometown. A month later, she filed
a petition to dissolve the marriage. Both the wife and
husband asked for custody of the children.
The wife is 27 years old. She has a high school
education and held several jobs during the marriage. At the
time of the dissolution hearing, she was employed as a clerk
at Safeway Stores in Dillon, earning $600 per month.
The husband is a college graduate and a high school
teacher in Harlem. His teaching salary was $14,290 per
year, but he supplemented this salary in the past in several
ways: coaching football and basketball, earning an additional
$1,000 per sport; teaching driver's education during the
summer, earning an additional $2,800; and by driving a bus.
The couple bought a house in Harlem in 1976 for $28,000.
The balance owed on the house at the time of trial was
approximately $25,000. Other assets included the family
furniture, a Ford Torino, and a Ford pickup truck with
over 100,000 miles on it. In addition to the $25,000 owed on
the house, it appears that they owed $10,500 on other debts.
At the conclusion of the trial, each side was tc submit
proposed findings and conclusions to the court. Eoth did
so. Rule 52(b), M.R.Civ.P., provides that a party shall
have ten days within which to object to the proposed findings
and conclusions submitted by the opposing party. The husband's
lawyer submitted proposed findings and conclusions on February
15, 1980,and the court adopted them verbatim on February 26,
1980, and entered judgment accordingly.
The trial court awarded custody of the children to the
husband and ordered that the wife pay $50 per month as child
support for each child. The court awarded the family home
in Harlem, all the furniture, an6 the Ford Torino to the
husband. The wife was awarded only the Ford pickup and her
personal possessions.
-3-
After judgment was entered, the wife's counsel moved
the trial court, pursuant to Rule 52(b), M.R.Civ.P., to
amend the findings and conclusions. This motion also
pointed out that the trial court had entered the findings
and conclusions without giving the wife the time allowed by
Rule 52(b), within which to object. The wife also contended
that the trial court had improperly relied on a Blaine
County welfare report that went beyond the scope of the
court order and that the wife had not been properly notified
Ly the court of the receipt of the report. The trial court
overruled all objections, final judgment was entered, and
the wife appeals.
As to child custody, section 40-4-212, MCA, is explicit
in setting out the factors to be considered. We have time
and time again in decisions told the trial courts they must
follow this statute. Yet this statute was again ignored.
The findings are absolutely silent on factors set out in the
statute. Clearly, the judgment as to child custody must be
vacated, and a new hearing ordered.
Although the wife's claim and error on child support is
moot because of our child support ruling, we nonetheless
state that the court's findings are similarly defective.
Section 40-4-204, MCA, is explicit in setting out the factors
to be considered and we have repeatedly told the trial
courts that they must follow this statute. Yet this statute
was again ignored. Based on the findings and conclusions
entered here, there is no way that we can tell whether the
wife is capable of paying $100 monthly child support nor can
we tell what resources the husband has to take care of the
children.
The findings are similarly deficient as to the property
distribution. Section 40-4-202, MCA, explicitly sets out
the factors to consider in a distribution of the marital
assets. We have repeatedly told the trial courts that they
must consider these factors. Yet this statute was again
ignored. We can't tell from the findings what the net
marital estate amounts to, nor can we tell why there is such
a disparity in what the parties received.
Also, the trial court ordered the wife to pay one-half
of the $10,500 debt accumulated by the parties. The findings
are silent as to how this debt was accumulated. But the
record indicates that much of this debt can be more directly
attributed to expenditures made on the house. Almost $4,600
was for loans made to make the initial down payment on the
house. Approximately one-half of the $4,600 came from the
husband's parants and grandmother--and the evidence is
conflicting as to whether it was a loan or a gift. The wife
testified that it was a gift. No findings were made as to
what it was. About one-half of this $4,600 was a loan on a
promissory note to enable the parties to make the downpayment
on the house. Further, $640 of the $10,500 debt represented
taxes, insurance and utilities for the family home--some of
which were not due yet. Finally, $185 was for a student
loan of the husband's which was still outstanding.
We have no doubt that the trial court failed to consider
the factors set out in section 40-4-202, MCA.
This judgment cannot be upheld without ignoring the
requirements of the Uniform Marriage and Divorce Azt. The
interests of justice require that it be vacated, and that a
hearing be held on all issues.
We proceed next to the procedural problems surrounding
the entry of the findings and conclusions. It is wise
practice for the trial court to prepare and file its own
findings and conclusions. Only in that fashion can the
parties know that the trial court has carefully considered
all the relevant facts and issues involved. This is not to
say, however, that the trial court shouldn't have guidance
from the lawyers on both sides. But guidance in an adversary
system is always such that the findings and conclusions may
not indicate a thorough treatment of the facts and law to be
applied. But proposed findings and conclusions give the
trial judge good insight as to just what factors and what
law the parties deem to be important. It is then up to the
trial court to translate its own judgment and conclusions
into appropriate findings and conclusions. It is becoming
increasingly apparent to this Court, however, that the trial
courts rely too heavily on the proposed findings and con-
clusions submitted by the winning party. That is wrong!
See Canon 19, Canons of Judicial Ethics, 144 Mont. at xxvi-
xxvii .
The deficient findings and conclusions are made more
painful to the wife because of the failure of the trial court
to act on the wife's motion t o amend and supplement the findings
.
of fact and conclusions of law. It appears, however, that the
wife contributed to this by not noticing the hearing on the
trial court's hearing calendar.
Notice of entry of judgment was given to the wife on
February 29, 1980. On March 10, 1980, within the ten-day
limit set by Rule 52(b), M.R.Civ,P., the wife filed a motion
ibr a new trial and also to amend and supplement the findings
of fact and conclusions of law. She did not set this motion
on the hearing docket. The husband did not respond to this
motion, but simply contented himself with letting fifteen days
pass by, at which time the failure of the trial court to act
was deered a denial of the motion under Rule 52(b).
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By Rule 5 9 ( d ) , t h e t r i a l c o u r t s h a l l e i t h e r g r a n t o r
deny t h e motion t o amend w i t h i n f i f t e e n d a y s , b u t t h e r u l e
f u r t h e r s t a t e s t h a t i f t h e t r i a l c o u r t does not a c t within
f i f t e e n d a y s , t h e motion i s deemed d e n i e d . T h e r e f o r e , when
t h e t r i a l c o u r t d i d n o t a c t , and no o n e c o u l d e x p e c t t h e
t r i a l c o u r t t o a c t i f t h e motion was n o t b r o u g h t t o i t s
a t t e n t i o n by s e t t i n g it f o r h e a r i n g , t h e motion was deemed
denied a t t h e e x p i r a t i o n of f i f t e e n days. The mother was,
t h e r e f o r e , compelled t o t a k e a n a p p e a l .
The judgment of t h e D i s t r i c t C o u r t i s v a c a t e d a s s t a t e d
i n t h i s opinion. T h i s case i s remanded t o t h e D i s t r i c t
Court f o r a f u l l hearing i n t h e m e r i t s .
W e Concur:
Chief J u s t i c e