No. 85-343
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985
IN RE THE PPriRRIAGE OF
SHERRY L. BENNER,
Petitioner and Respondent,
and
JAMES M. BENNER,
Respondent and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Diane G. Barz, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Work Law Firm; Thomas J. Stusek, Billings, Montana
Robert Heilig, Billings, Montana
For Respondent:
James J. Sinclair, Ril-lings,Montana
Submitted on Briefs: Oct. 10, 1-985
Decided: December 30, 1985
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Clerk
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
Appeal is from the judgment of the Thirteenth Judicial
District Court in the dissolution of the marriage between
James and Sherry Renner. Respondent James Benner appeals the
property distribution, child cust0d.y determination, and
amount of child support awarded to petitioner Sherry Benner.
The parties were married on August 25, 1979, in Red
Lodge, Montana.. One child, Angela, was born of the marriage
on September 21, 1982. For the past few years, Sherry has
worked as a secretary/office manager for the Soil
Conservation Service of the United States Department of
Agriculture. She currently earns $16,718.00 per year, with
monthly take home pay of $1,042.75. James is employed with
the Federal Aviation Administration at a yearly salary of
approximately $24,700.00 with monthly take home pay of
$1,501.50.
Prior to the final hearing, James and Sherry each filed
affidavits with the court listing their necessary monthly
expenses and itemized valuation of the marital estate. A
child custody recommendation was prepared by the domestic
relations worker assigned to the case and filed with the
court.
Both James and Sherry testified at the final hearing.
The transcript shows there was no testimony offered as to the
fitness of either parent to receive custody of the child.
Sherry did testify that she recently moved to Bozeman, and
the child frequently visits James' relatives who live nearby.
James requested that he be awarded joint legal custody of the
child. Neither party testified about their monthly expenses,
and the property distribution testimony was primarily limited
to a dispute over an IRS obligation.
The trial judge found the marital estate to consist of
the following:
ASSETS
House in Billings
Rifles
Yard Appliances
IRA
Texture Machine
1970 Ford pickup
1977 Ford pickup
1971 trailer
Miscellaneous tools
Household furnishings
1960 boat
1964 Cibatria Airplane
House in Bozeman
Two Municipal Bonds @ $5,000.00/ea.
TOTAL ASSETS
LIABILITIES
First Citizens Bank, Billings
Laurel Credit Union
Miles City Credit Union
School Loan
Medical Bills
1Jlontagues
Billings Gazette
Hart Albins
ERA
Loan on house in Bozeman
TOTAL LIABILITY
NET WORTH
Finding of Facts XVI and XVII
We note that the trial judge erred in the amount of
$112.62 concerning the total liabilities of the parties.
However, since neither party raised the calculations on
appeal, we do not disturb Finding of Fact XVII.
Sherry was awarded the house in Bozeman, one of the
$5,000.00 bonds, and a 1981 Ford. She also assumed
responsibility for the mortgage on the house, the balance of
the payment on the 1981 Ford, and a personal credit union
loan of $2,500.00. The balance of the assets and liabilities
was set over to James. The medical bills were to be divided
according to which party incurred the expense, or to be split
evenly if incurred by the child.
Custody of the child was granted to Sherry, with James
entitled to visitation upon reasonable notice whenever he
elects to go to Bozeman. Additionally, James is entitled to
one day of visitation whenever Sherry is in Billings seeing
her family.
Child support was set at $350.00 per month. The trial
judge found the monthly expenses of the child to be $640.00,
and that such sum was reasonable. The monthly support award
was arrived at through application of the criteria listed in
S 40-4-204, MCA, and the formula announced by this Court in
Carlson v. Carlson (Mont. 1984), 693 P.2d 496, 41 St.Rep.
2419. The trial judge also noted James was $2,743.30 in
arrears for child support from a previous marriage, and
ordered that James execute an assignment of his wage in the
amount of $350.00 monthly to be paid directly to Sherry.
On appeal, James raises the following issues:
1. Whether the trial court abused its discretion in
ordering a child support payment of $350.00 per month.
2. Whether the trial court abused its discretion in
ordering a property division which granted to Sherry a
certain $5,000.00 municipal bond which had been purchased by
James.
3. Whether James was entitled to joint custody of the
minor child.
4. Whether the trial court abused its discretion under
the facts of this case in ordering James to make an
assignment of a part of his periodic earnings to satisfy the
child support obligation.
5. Whether the trial court erred in permitting Sherry
to retain certain items of personal property "presentl-y in
her possession" when, in fact, such items either belonged to
James or constituted marital property which was properly
subject to the court's review and division.
6. Whether the trial court relied too heavily on the
proposed findings of fact and conclusions of law submitted by
Sherry to the exclusion of consideration of all the facts and
exercise of its own judgment.
James asserts the trial court abused its discretion in
ordering a child support payment of $350.00 per month for the
following reasons: insufficient consideration given to
Sherry's financial resources; allowing Sherry to include car
payments as a necessary monthly expense while his monthly
installment obligations were not taken into consideration;
undue and unconscionable amounts were attributed to the child
as necessary monthly expenses.
Looking to the financial resources of Sherry, we find
nothing in the record to support James' contentions that
Sherry kept her finances separate and had her own sources of
income. Concerning the necessary monthly expenses, we note
that there was no examination of the parties at trial on this
issue, and that the figures adopted by the trial court in its
findings of fact are identical to those submitted in the
parties' affidavits and proposed findings. We find that the
trial court gave proper consideration to the factors listed
in § 40-4-204, MCA, in making its child support
determination. We will not disturb the District Court's
findings on appeal unless the record shows a clear abuse of
discretion. In re Marriage of Brown (1978), 179 Mont. 417,
587 P.2d 361.
In awarding to Sherry one of the $5,000.00 bonds
purchased by James, the trial judge reasoned that Sherry had
worked during the marriage and contributed as a housewife,
and that such division of the bonds was equitable. We find
this to be a fair distribution of property under S 40-4-202,
MCA .
James argues he was entitled to joint custody of the
minor child. We do not agree. The only substantial evidence
before the Court on the issue of child custody was the report
prepared by the domestic relations worker assigned to the
case, and it recommended that sole custody be given to
Sherry. James presented no evidence to refute such a
recommendation. The trial judge looked to the best interests
of the child, as required by S 40-4-212, MCA, and entered the
reasons joint custody was not awarded pursuant to 5
40-4-224 (1) , MCA. The record clearly supports the child
custody determination.
The next issue we address is whether the trial court was
correct in requiring James to make an assignment of part of
his monthly wage to meet the child support obligation. The
trial judge ordered the assignment in this case because James
has a history of not paying child support. Section 40-4-207,
MCA, gives the trial court power to order a wage assignment
for child support purposes. In view of James' arrearages
from his previous marriage, we find no abuse of discretion by
the trial judge in ordering the wage assignment.
The trial court determined that Sherry should retain the
personal property presently in her possession. James asserts
that Sherry has several belongings of his, which she
wrongfully removed from his house. There is no evidence in
the record supporting this allegation and we uphold the trial
court determination.
Finally, we find no error in the trial court's reliance
on the findings of fact and conclusions of law submitted by
Sherry's counsel. The test applied by this Court in the past
is whether the proposed findings of fact are sufficiently
comprehensive and pertinent to the issues to provide a basis
for decision and whether they are supported by the evidence
presented. Jensen v. Jensen (Mont. 1981), 631 P.2d 700, 703,
38 St.Rep. 11.09, 1113. In this case, the findings submitted
by Sherry's counsel were conclusive and supported by the
evi.dence in the record, while those submitted by James'
counsel were lacking in many respects. There is no evidence
in the record which would lead us to believe the trial court
erred in adopting the findings of fact and conclusions of law
prepared by Sherry's counsel.
The judgment of the District t is affirmed.
I L
We concur: