No. 85-47
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
IN RE THE MARRIAGE OF
MARGARET I. SHELTOW,
Petitioner and Respondent,
and
MICHAEL L. SHELTON,
Respondent and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
Tn a.nd for the County of Yellowstone,
The Honorable Diane G. Barz, Judge presiding.
For Appellant:
Lynaugh, Fitzgerald & EIingle; Will-ia.mP. Fitzgerald,
Billings, Montana
For Respondent:
James J. Sinclair, Billings, Montana
Submitted on Briefs: Nov. 14, 1985
Decided: January 21, 1986
Filed:
,.!Afi 2 1 7986
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Husband appeals a judgment entered in the Thirteenth
Judicial District., Yell-owstone County, on September 6, 1984,
which award.ed to the wife certain appreciated values of
husband's stock a.nd real estate that husband owned before the
marriage. Husband also appeals the denial of joint custody
and the restriction of summer visitation to two weeks.
We affirm the judgment.
Appellant raises the following issues:
1. Did the District Court err in awarding the wife the
appreciation in value of premarital stocks when the court had
evidence the appreciation was due to dividends and stock
splits and not to the wife's contributions?
2. Did the District Court err in awarding the wife an
equivalent cash value of the appreciation of real estate
brought into the marriage by the husband?
3. Did the District Court err in denying joint custody
to the husband and/or more than two weeks summer visitation?
The parties were married June 28, 1975. Three children
have been born as issue of their marriage: Karina, born
September 26, 1976; Katie, born March 27, 1979; and Kindra,
born November 23, 1981. During the marriage, wife was the
primary homemaker and during some periods also worked outside
the home. Husband was the primary breadwinner, but he also
contributed to child care and other homemaking activities.
There was long-term serious marital discord, and the wife
left the family residence in Billings in October 1983. She
and the three children went to her hometown of Great Falls,
and she petitioned for dissolution on November 2, 1983.
The court entered detailed findings and conclusions on
September 4, 1984, and the judgment based upon these on
September 6, 1984. On the issue of property disposition, the
court found that the marital estate was $130,355 before an
allowance for husband of $13,000 of premarital assets towards
acquiring the family home, $1,000 towards the purchase of
another lot, and $4,123 towards the thrift plan prior to the
marriage for a total of $18,123. The court subtracted this
net total premarital contribution from the marital estate,
based upon the figures husband brought to the hearing, and
found that the net marital estate was $112,232.
To make the property distribution as nearly equal as
possible, the court distributed the family home in Billings
valued at $51,000 plus $23,000 in their savings and addition-
al property to husband for a total of $92,855. Subtracting
his premarital contribution of $18,123 and the obl-igations he
was responsible for of $19,100, husband's share of the -
net
marital estate was $55,632.
The court awarded wife $56,600 of the net marital
estate, including $50,000 in their savings plan and. some
personal- property. The court painstakingly justified giving
her $484 more of the net marital estate as reasonable in view
of the $18,123 treated as a premarital. asset of husband. In
Finding No. XXXVIII, the court noted that husband had traced
his premarital assets, but any growth during the marriage was
due in part to inflation. Wife was entitled, the court
found, to a set-off due to her nonmonetary contribution as a
homemaker.
The court found it in the best interests of the chil-
dren, pursuant to the statutory requirements of § 40-4-212,
MCA, to remain in the custody of their mother. The distance
between the parties, husband's difficulty in getting to Great
Falls, and the impediments to communication made it an inap-
propriate situation for joint custody, the court found. The
findings detailed husband's past problems in dealing with the
divorce, the more recent course of counseling and the court's
observation of and concern as to his emotional stability.
The court also discussed in the findings its observation of
the wife ' s greater stability.
Based upon these findings, the court awarded custody of
the three girls to wife but allowed husband liberal visita-
tion, including alternate holidays, visitation at any time
with twenty-four hours notice, and, if wife were in the
Billings area, she was to give him twenty-four hours notice
so that he could see the child.ren. Finding No. XXI stated:
It is my finding that [husband] should
have a visitation schedule in order to
determine if in fact he is stable
enough, emotionally, to be with the
children, in an unsupervised arena. I
find that he should at least be given
the opportunity at the present time in
order to prove himself. Subsequent
thereto, it may be appropriate to enter
a joint custody order, but it certainly
is not appropriate at this time. Like-
wise, it may be appropriate to terminate
his visitation if he does not use the
visitation for the children's best
interests, but to strike back at the
petitioner.
In addition to the visitation schedule, the court determined
that husband could have his children for a two-week period in
the summer which must coincide with his vacation.
I
We will first consider the issues raised on division of
the marital estate. Appellant husband contends that the
court erred in not figuring the growth on the premarital
portion of stocks and the appreciation on the premarital-
portion of the real estate as accruing to him since the wife
did not contribute to this growth. Appellant contends that
the court erred in this property distribution in finding the
wife's nonmonetary contribution offset any growth not due to
her efforts, particularly where the court made no finding on
the issue of alimony.
There was no abuse of discretion in the court's de-
tailed distribution of the property. In their nine-year
marriage, respondent wife has made nonmonetary contributions
as a homemaker. The issue of alimony and the lack of finding
is irrelevant in that respondent did not petition for alimo-
ny. The court was simply asked to apportion the marital
estate.
An equitable distribution does not mean an "equal"
distribution of the marital estate. "The court is not re-
quired to distribute equally but rather to consider the
criteria set forth in S 40-4-202, MCA, to make an equitable
distribution. " In re the Marriage of Edwards (Mont. 1985) ,
699 P.2d 67, 70, 42 St.Rep. 593, 596. The court entered
detailed findings, following the statutory requirements.
The standard of review of a division of the marital
estate is whether the court acted arbitrarily, without the
use of conscfentious judgment, or whether it exceeded the
bounds of reason, given the individual circumstances. In re
the Marriage of Hill (1982), 197 Mont. 451, 643 P.2d 582,
following In re Marriage of Laster ( 1 - 3 8 2 ) , 197 Mont. 470, 643
P.2d 597. I' hold that the court exercised conscientious
ze
reasonable judgment, given the individual circumstances, in
dividing the marital estate.
Next we will address appellan.tlsappea.1 from the jud.g-
ment denying joint custody and limiting summer visitation to
two weeks each summer. Appellant sought joint custody of the
children and summer visitation of six to ten weeks.
The District Court detailed to an extraordinary d.egree
its concerns on the children's best interests. Furthermore,
it left the door open for appellant to demonstrate, in the
future, his capacity for joint custody or a longer period of
visitation.
This Court will not reverse a determination of custody
absent abuse of discretion by the District Court. Gilmore v.
Gilmore (1975), 166 Mont. 47, 530 P.2d 480. Pursuant to
S 40-4-219, MCA, the court may in its discretion modify a
prior custody decree if it finds upon. the basis of facts that
have arisen since the prior decree, or that were unknown to
the court at the time of entry of the prior decree, and that
based thereon a. modification is necessary to serve the best
interests of the child or children. Section 40-4-219(l),
MCA. Section 40-4-219, MCA, places a heavy burden on the
party seeking modification of a custody decree. Groves v.
Groves (1977), 173 Mont. 291, 298, 567 P.2d 459, 463. The
lower court here allowed for a possibility of modification if
appellant could show such a change of circumstances that
would serve the hest interest of the children.
Under Rule 52(a), M.R.Civ.P., we will not set aside
findings of fact unless clearly erroneous. In re the Mar-
riage of Concepcion (Mont. 1984), 687 P.2d 718, 720, 41
St.Rep. 1675, 1677. We will not substitute our judgment for
that of the lower court if substantial credible evidence
supports the findings and conclusions. Concepcion, supra.
The District Court did not abuse its discretion. Its
judgment is supported by substantial credible evidence. We
find no error in the court having awarded custody of the
minor children to respondent.
Affirmed.
We concur: