No. 83-103
I N THE SUPREME COURT O F TIIE S T A T E O F MONTAFJA
1984
I N RE THE MARRIAGE O F
JOHN WAYNE KEATING,
P e t i t i o n e r and R e s p o n d e n t ,
and
T E R R I S. KEATING,
R e s p o n d e n t and A p p e l l a n t .
APPEAL FROM: D i s t r i c t C o u r t 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 C o u n t y of Y e l l o w s t o n e ,
T h e I - I o n o r a b l e D i a n e G. B a r z , J u d g e p r e s i d i n g .
CCUNSEL O F RECORD:
For A p p e l l a n t :
Stephens & Cole; R o b e r t L. Stephens, B i l l i n g s ,
Montana
For R e s p o n d e n t :
B e r g e r Law F i r m ; C h r i s J. N e l s o n , B i l l i n g s , M o n t a n a
O l s e n , C h r i s t e n s e n & G a n n e t t ; Damon L. G a n n e t t ,
G u a r d i a n Ad L i t e m , B i l l i n g s , M o n t a n a
S u b m i t t e d on B r i e f s : July 1 0 , 1984
Decided: O c t o b e r 11, 1 9 8 4
QU;I i l k :Y84
Filed:
- -
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Terri S. Keating (wife) appeals from the order of the
District Court of Yellowstone County, awarding custody of the
two minor children to John Wayne Keating (husband) and
dividing the parties' marital estate. We affirm in part and
reverse in part the order of the District Court.
The following issues are presented on appeal:
1. Whether the District Court abused its discretion in
its division of debts and distribution of marital assets?
2. Whether the District Court abused its discretion in
awarding the custody of the minor children to the husband?
John and Terri Keating were married August 7, 1972 and
separated in July, 1981. Two children were born of the
marriage. The District Court appointed a guardian ad litem
to represent the children and conducted four hearings between
August, 1981 and December, 1982. The children resided
primarily with the mother during this time. Extensive
evidence was submitted, including reports, evaluations and
recommendations by Dr. Marian Martin, a clinical psychologist
who examined John, Terri, the two children and Michael
Miller, Terri's present husband. Numerous other witnesses,
including the children's teachers, also testified. The
District Court entered 64 separate findings of fact in
support of its conclusions of law.
I
Did the District Court abuse its discretion in dividing
the marital debts and distributing the marital assets?
The primary argument on the part of the wife is that the
District Court failed to include an evaluation of the Keating
Ranch in the marital assets. The husband owned a 30%
interest in a family partnership known as the Keating Ranch.
In its findings of fact, the District Court included a
substantial history of the farm operations, a review of
machinery values and the basis for appraisal, and a
determination that the purchase price value of the ranch at
the time of the hearing was $800,000.
The District Court further found that in November, 1981
the current assets of the partnership amounted to
$942,322.80, while the liabilities amounted to $976,613.45.
The District Court also found that in December, 1982 the
assets of the corporation totaled $872,997.80 and the
liabilities totaled $887,365.85. As a result, the court
concluded that the Keating Ranch was a negative asset and was
not to be included in the marital estate.
The wife argues that the court should have considered
the possibility for an increase in future value of the ranch
assets and that, in failing to do so, the court abused its
discretion.
This Court's standard of review of a disposition of
marital property was defined in In re the Marriage of Krum v.
Krum (Mont. 1980), 614 P.2d 525, 527, 37 St.Rep. 1291, 1295:
"The disposition of a marital estate is governed by
section 40-4-202, MCA, and is largely within the
discretion of the District Court. This Court will
not disturb the decision of the trial court absent
a clear abuse of discretion. . . .
The test for
abuse of discretion is whether the trial court
acted arbitrarily without the employment of
conscious judgment or exceeded the bounds of
reason. "
The wife has failed to show that the court's evaluation
of the ranch as a negative asset was arbitrary, without
conscious judgment or beyond the bounds of reason. In
arguing that the court abused its discretion by failing to
include the husband's ranch interest in the marital estate,
the wife has disregarded the state of the record. If in fact
a percentage of the partnership interest were awarded to the
wife, it logically would subject her to an assumption of
Liabilities. Instead of a benefit to the wife, such an award
would appear to be a detriment.
We find substantial evidence to support the District
Court's findings that the liabilities of the ranch exceeded
the assets in both 1981 and 1982; that the wife made no
contribution toward the acquisition or preservation of the
ranch; and that the wife should be held harmless from any
ranch liabilities. We find no abuse of discretion in the
District Court's conclusion that the husband's partnership
interest in the Keating Ranch was a negative asset to be set
aside to him alone.
We affirm the division of debts and distribution of
marital assets by the District Court.
Did the District Court abuse its discretion in awarding
custody of the two minor children to the husband?
An award of custody shall be determined in accordance
with the best interest of the child. In determining custody
in accordance with the best interest of the child, the
District Court is statutorily required to consider all
relevant factors including:
" (1) the wishes of the child's parent or parents
as to his custody;
(2) the wishes of the child as to his custodian;
(3) the interaction and interrelationship of the
child with his parent or parents, his
siblings, and any other person who may
significantly affect the child's best
interest;
(4) the child's adjustment to his home, school,
and community; and
( 5 ) the mental and physical health of all
individuals involved." Section 40-4-212,
MCA .
The wife argues that the District Court failed to make
specific findings regarding the interaction and
interrela.tionship of the two minor children with the parents,
and their younger stepsister, as required by section
40-4-212 ( 3 ) , MCA. In addition, the wife contends that the
District Court should not have found that joint custody was
inappropriate because of the parties' difficulty in
communicating with each other. She argues that the court's
decision to award custody of the children to their father is
contradicted by evidence of the parties' willingness to
participate in counseling and the father's testimony that
joint custody was a viable alternative.
The five factors which the court is required to consider
in determining custody are set forth in section 40-4-212,
MCA. Without detailing each of the District Court's 34
findings of fact pertaining to custody here, we note that
there are no findings regarding the wishes of the children as
to their custody (40-4-212(2), MCA) , the wishes of the
parents (40-4-212(1), MCA) , or the interaction and
interrelationship of the children with each parent, their
siblings, and their stepfather