No. 32-262
I N THE SUPREME COURT OF THE STATE O F MONTANA
1982
BEVERLY J . HAi~E\EKEN,
P e t i t i o n e r and A p p e l l a n t ,
-vs-
BOB E . H&WII.'IEREN,
R e s p o n d e n t and R e s p o n d e n t .
Appeal from: D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f Y e l l o w s t o n e , The H o n o r a b l e
W i l l i a m J. S p e a r e , Judge p r e s i d i n g .
C o u n s e l o f Record:
For Apsellant:
R o b e r t P. Morin; B e r g e r Law Firm, B i l l i n g s , Montana
For Respondent:
George T. R a d o v i c h , B i l l i n g s , Montana
--
S u b m i t t e d on B r i e f s : October 2 6 , 1982
Decided: December 1 5 , 1982
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Both parties appeal a decree of dissolution issued by
the District Court of the Thirteenth Judicial District,
Yellowstone County, dissolving the marriage of the parties,
awarding custody of the children to the husband, dividing
the marital property and providing maintenance to the wife.
We affirm in part and remand in part.
The parties were married on July 7, 1965. There were
three children born of the marriage.
At the time of trial the husband was employed by the
United States Postal Service and the Billings Gazette. His
monthly income is approximately $2,000.
The wife, primarily a mother and homemaker, had several
minimum wage jobs during the marriage. She has had little
income producing job training or experience.
The major asset of the marriage is the family home
located in ~illings,Montana. The parties also own several
vehicles, household furnishings and other personal property.
The husband testified that he has a mineral interest in
property located in North Dakota.
The District Court awarded the husband the family home,
the household furnishings, two vehicles, other personal
property, and custody of the children.
The court ordered the husband to pay the wife $15,050,
in monthly installments of $200 at 6 1/2 percent interest.
This sum represents the wife's equitable share of the marital
estate. Upon the sale of the home the husband is ordered to
apply the proceeds to the balance owing the wife.
The court awarded the wife one vehicle and ordered the
husband to pay the wife monthly maintenance of $300 payable
beginning April 1, 1982, reduced to $250 cer month beginning
October 1, 1982, until either party dies or she remarries.
The District Court also ordered the parties to pay their own
attorney's fees and costs.
The issues are:
1. Whether the District Court abused its discretion in
awarding custody of the children to the husband.
2. Whether the District Court abused its discretion in
ordering the husband to pay monthly maintenance to the wife.
3. Whether the District Court abused its discretion in
declining to order the wife to pay child support.
4. Whether the District Court abused its discretion in
failing to consider all marital assets when it apportioned
the marital estate.
5. Whether the District Court properly substantiated
its refusal to allow the wife's requested attorney's fees.
There was evidence presented at trial to substantiate
the District Court's custody award. The District Court
included in its findings the necessary factors outlined in
section 40-4-212, MCA. Unless there is a clear abuse of
discretion by the District Court the custody determination
made by that court will not be overturned on appeal. Malcolm
v. Malcolm (1982), - Mont . -, 640 P.2d 450, 451, 39
St.Rep. 262, 263. We find no clear abuse of discretion by
the District Court in this instance.
The second issue presented is whether the District
Court abused its discretion in ordering the husband to pay
monthly maintenance to the wife. The District Court applied
the factors set forth in section 40-4-203, MCA, and referred
to them in its findings of fact. The standard of review for
maintenance awards is whether the District Court abused its
discretion in determining the award. In re the Marriage of
Knudson (1982), - Mont. -
- I 622 P.2d 1025, 1027, 37
St.Rep. 147, 152. The District Court did not abuse its
discretion in making the maintenance award.
The third issue is whether the District Court abused
its discretion in declining to order the wife to pay child
support. The District Court found that the wife was without
the means to pay child support to the husband. This Court
must decide whether the District Court abused its discretion
in determining whether or not the noncustodial parent is
required to pay child support. In re the Marriage of Jensen
(19811, - Mont. -- , 631 P.2d 700, 703, 38 St.Rep. 1109,
1112. There is ample evidence to support this finding. We
therefore affirm the ~istrictCourt's order regarding child
support.
The fourth issue is whether the District Court took
into consideration all marital assets in apportioning the
marital estate. The husband testified that he had mineral
rights to property in North Dakota. his property was not
included in the findings of fact, and this exclusion was not
explained by the District Court. If contested evidence is
presented regarding the existence of a marital asset
and no findings are made regarding that asset or no explanation
provided as to why the District Court did not include or
explain the exclusion of such property, the District Court
has abused its discretion. Larson v. Larson (1982), -
Mont . 1 - P.2d - 39 St.Rep. 1628, 1631. Here, the District
Court did not properly consider all of the husband's assets
in apportioning the marital estate.
The fifth issue is whether the District Court properly
substantiated its refusal to allow the wife's requested
attorney's fees. The wife's request was supported by evidence
presented at trial. Where the District Court refuses to
award attorney's fees it must indicate in the findings of
fact why such fees were not awarded. Bowman v. Rowman
(1981), - Mont . -, 633 P.2d 1198, 1202, 38 St.Rep. 1515,
1520. Having failed to follow this procedure the wife's
request for attorney's fees shall be considered on remand,
and if denied, the denial must be substantiated.
The District Court decree is affirmed except that the
cause is remanded for the purpose of a determination by the
District Court of the value of the unconsidered mineral
interests owned by husband, and whether the wife is entitled to
a portion of the same or the value thereof; and for reconsideration
and statement of reasons as to the grant or denial of wife's
attorney fees. The remainder of the decree of the District
Court is affirmed, and remand is ordered for proceedings in
accordance with this opinion. Costs to the wife.
i Justice
We Concur: i Y
Justices