No. 8 5 - 4 5 0
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
IN RE THE MARFIAGE OF
TERI DiPASQUALE,
Petitioner and Respondent,
and
HENRY GETZ,
Respondent and Appell-ant.
APPEAL FROM: District Court of the Fourth Judicial- District,
In and for the County of Missoula,
The Honorable H.L. McChesney, Judge pro tem.
COUbTSEL OF RECORD:
For Appellant:
J. Robert Riley, Missoula, Montana
Christopher Daly, Missoula, Montana
For Respondent:
Nancy LaFlamme, Montana Legal Services, Halispell,
Montana
Measure, Ogle & Ellingson; Darrell S. Worm, Kalispell,
Montana
Submitted on Briefs: Jan. 23, 1 9 8 6
Decided: A p r i l 4, 1 9 8 6
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Appellant, Henry Getz, appeals from the order of the
District Court, Fourth Judicial District, County of Missoula,
dated June 6, 1985, granting custody of the parties' two
minor children, namely, Jeremy Albert Getz and Amy Louise
Getz to respondent, Teri Di Pasquale, and ordering Getz to
pay monthly child support of $155.00 per month per child
until each child attains the age of majority or is otherwise
emancipated. With regard to the child support, the District
Court further ordered that Getz make retroactive payment for
the months August, 1982, through April, 1985, with future
payments beginning on May 1, 1985. We affirm.
The parties to this action began cohabitation in March,
1977. They lived in the same household, except for brief
separations, until August, 1982. During this cohabitation
there was born as issue the two minor children named above.
At no time during the period of cohabitation was there
any holding out to the public that the parties considered
themselves to be husband and wife and the District Court
concluded that the parties were not and had never been
married.
In awarding custody of the children to Di Pasquale, the
District Court found that the minor children had been in the
custody of Di Pasquale since the parties' separation, that Di
Pasquale was a fit and proper parent to have custody of the
children and that the children were well-behaved and
emotionally well adjusted to their home environment.
The District Court also found, after considering that
Getzls earning capacity was $25,000.00 per annum after
deductions of Federal and State income tax and social-
security taxes, that Di Pasquale was entitled to monthly
child support payments in the sum of $155.00 per month per
child.
Getz raises two issues on appeal:
1. Does the District Court have issue jurisdiction to
award retroactive child support which is neither alleged or
prayed for in the pleadings nor supported by evidence heard
at the time of trial?
2. Is the award of custody to Di Pasquale in the best
interest of the children?
Di Pasquale raises one issue on cross-appeal:
1. Did the District Court commit reversible error in
determining Getzls child support obligation?
With regard to the first issue raised by Getz, we hold
that the District Court properly awarded Di Pasquale
retroactive child support from August, 1982, through April,
1985. In reviewing an award of child support, this Court's
task is to examine the final child support award to determine
whether an abuse of discretion by the District Court has
occurred. Brown v. Brown (1978), 179 Mont. 417, 587 P.2d
361. If there is no clear abuse of discretion resulting in
substantial injustice, the award made by the District Court
will not be disturbed. Grenfell v. Grenfell (1979), 182
Mont. 229, 596 P.2d 205.
Getz contends that the District Court had no issue
jurisdiction to award retroactive child support because Di
Pasquale did not pray for it in her original petition or her
amended petition. Getz further contends that no evidence was
introduced at trial which showed a desire on the part of Di
Pasquale for retroactive child support.
The record indicates that in Di Pasquale's original
petition, she prayed for child support of $200.00 per month
per child and in her amended petition she prayed for $250.00
per month per child. Getz answered by means of a denial and
a request for joint custody of the children.
With regard to issue jurisdiction, this Court has stated
that a "judgment is conclusive only so far as it determines
matters which by the pleadings are put in issue." Sloan v.
Ryers (1908), 37 Mont. 503, 511., 97 P. 855, 857. Here, we
hold that the pleadings properly placed the issue of child
support before the District Court. Further, once the issue
of child support is properly before the District Court
pursuant to the parties' pleadings, or amend.ments thereto,
the District Court has issue jurisdiction to award
retroactive child support from the time of separation of the
parties and is never limited to the child support pra-yed for
or agreed to by the parties. In Re the Marriage of Crabtree
(19821, 200 Mont. 178, 651 P.2d 29; Hill v. Hil.1 (1982), 197
Mont. 451, 643 P.2d 582. Our holding here is further
buttressed by Rule 54 (c), M. R. Civ. P. which provides in part:
"Except as to a party against whom a judgment is entered by
default, every final judgment shall grant the relief to which
the party in whose favor it is rendered is entitled, even if
the party has not demanded such relief in his pleadings."
The District Court did not abuse its discretion.
Getz next raises the issue of whether the award of
custody to Di Pasquale was in the best interest of the
children. Getz contends that the District Court erred by
failing to make specific findings as to each factor listed in
S 40-4-212, MCA. Getz further contends that the District
Court reached its result by applying the "tender years"
doctrine.
Section 40-4-212, MCA, provides:
Best interest of child. The court shall determine
custody in accordance with the best interest of the
child. The court shall consider all relevant
factors including:
( I ) the wishes of the child's parent or parents as
to his custody;
(2) the wishes of the child as to his custodian;
(3f the interaction and interrehtionship 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 hi.s home, school,
and community; and
(5) the mental and physical health of all
in.dividuals involved.
This Court has stated that in awarding custody, the
District Court must consider the guidelines set forth in S
40-4-212, MCA, although the Court need not make specific
findings on each of the elements. In Re Custody of Ericka M.
(Mont. 1984), 676 P.2d 231, 41 St.Rep. 267; Speer v. Speer
(1982), 201 Mont. 418, 654 P.2d 1001. In the instant case,
the District Court addressed the issue of custody in its
amended finding of fact no. 4, which provides:
4. The children are now in the custody of the
Petitioner, Teri Di Pasquale, and have been ever
since the parties' separation. The Petitioner is a
fit and proper parent to have the custody of the
children. The children are wel-1-behaved and
emotionally well adjusted to their home environment
with the Petitioner.
A review of the entire record in this case demonstrates that
the District Court heard sufficient testimony on each of the
relevant factors to support its findings. We will not
disturb the findings of the District Court, absent a clear
abuse of discretion. Speer, 201 Mont. at 420, 654 P.2d at
1003. We hold the District Court did not abuse its
discretion in awarding custody of the minor children to Di
Pasqua1.e.
We also find Getz's contention that the District Court
hased its custody award on the "tender years" doctrine which
this Court expressly rejected in Markegard v. Markegard
(Mont. 1980), 616 P.2d 323, 325, 37 St.Rep. 1539, 1541, is
based wholly on conjecture. We therefore decline to address
the issue further.
Finally, Di Pasquale, on cross-appeal, challenges the
sufficiency of the District Court's grant of child support.
In amended finding of fact no. 10, the District Court
addressed child support. The finding provides:
Based upon his income, Respondent is able to pay to
Petitioner child support pa.yments in the amount of
One Hundred Fifty Five Dollars ($155.00) per month,
per child.. ..
As stated previously in this opinion, Di Pasquale must
demonstrate a clear a.buse of discretion, resulting in
substantial injustice before we will disturb the award mad-e
by the District Court.
Di Pasquale contends that the District Court abused its
discret.ion in two respects: first, she claims the District
Court made a mistake in determining her income, and second,
she claims that the decreed support is so disproportionate to
Getzts income as to be arbitrary.
In amended finding of fact no. 9, the District Court
found that Di Pasquale's income was $11,250.00 per year after
taxes. The record, however, does indicate that Di Pasqualets
annual income, after taxes was approximately $9,000.00.
Section 40-4-204, MCA, lists as one of the factors the
District Court must consider before ordering payment of child
support: "the financial resources of the custodial parent."
The intent of 5 40-4-212, MCA, is merely to indicate the
factors which the District Court should consider in setting
the amount of support to be paid. by either the mother or
father or both. In this case we find that the District Court
did not abuse its discretion even though it was mistaken as
to Di Pasqualels income because after considering all of the
relevant factors set forth in 5 40-4-212, MCA, the District
Court awarded Di Pasquale $155.00 per month, per child for
support "[biased upon his income" and not hers.
Di Pasquale next contends that the District Court abused
its discretion because the award of child support is
disproportionate to his income. In support of her
contention, Di Pasquale relies on Carlson v. Carlson (Mont.
1984), 693 P.2d 496, 41 St.Rep. 2419, wherein this Court
suggested an algebraic formula to assist District Courts in
the computation of a child support award. We find no abuse
of discretion here because the Carlson formula is just what
we said it was in Carlson, a suggested guideline and nothing
more.
Getz urges this Court to remand this case on the issue
of sufficiency of the amount of child support for further
hearing based on change of circumstances. We can only assume
that Getz believes there has been a change of circumstances
that would somehow entitle him to reduction in child support.
The proper procedure for such action, however, is a motion
for modification of support pursuant to 9 40-4-208, MCA.
We affirm the District Court.
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We Concur: