No. 86-568
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
IN RE THE MARRIAGE OF
MICHELLE JEAN ENSIGN,
Petitioner and Appellant,
and
GEORGE DOUGLAS ENSIGN,
Respondent and Respondent.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Charles Luedke, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Davidson & Poppler; Doris M. Poppler, Billings,
Montana
For Respondent:
Jock B. West, Billings, Montana
Submitted on Briefs: April 16, 1987
Decided: July 2, 1987
Filed: JUL 2 - 1987
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Clerk
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Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Michelle Jean Ensign appeals the judgment of the
District Court, Thirteenth Judicial District, County of
Yellowstone. We remand the case for determination of a joint
custody plan and a determination of maintenance.
Michelle and George Ensign were married November 20,
1971 in Billings, Montana. They had two children, Sam, born
November 17, 1972 and Matt, born December 20, 1974. George
is employed as a tenured teacher by School District No. 2 in
Billings, and holds an M.A. in Education plus 45 credits.
Michelle has a high school education, and has had no further
schooling or training. She married George at age 18 and was
a fulltime mother and homemaker for 14 years. At the time of
trial, Michelle was working two minimum wages jobs, six days
a week, in Red Lodge, Montana. George's net salary is
$1,781.12 per month. Michelle's net salary is approximately
$784.00 per month.
Michelle filed a petition for dissolution of marriage on
February 13, 1985 and an amended petition February 28, 1985.
On August 13, 1985, Michelle obtained a final decree of
dissolution by default. George made a motion to set aside
the default judgment, such motion being granted August 21,
1985. The matter came before the District Court, sitting
without a jury, on June 30, 1986. The District Court issued
findings of fact, conclusions of law and a decree of
dissolution September 6, 1986.
Michelle appeals the District Court's findings of fact,
conclusions of law and judgment on the following issues:
1. Did the trial judge err by failing to make final
decisions as to the sale of the family home, a
maintenance award to the wife and a joint custody plan,
prior to his retirement from the bench?
2. Does a newly appointed judge have jurisdiction to
make findings in a case which he or she did not hear?
3. Did the District Court err in failing to use the
Carlson formula in determining child support for the
minor children of the parties?
Under issue no. 1, Michelle argues that the final decree
was not final since the decree reserved the question of the
entitlement to and the amount of a maintenance award and also
reserved the formulation of a final joint custody plan until
the sale of the family home was resolved. However, under S
40-4-108(l), MCA, a decree of dissolution of marriage is
final when entered, subject to the right of appeal. Under §
40-4-104, MCA, a district court is required to enter a decree
of dissolution if:
(a) the court finds that one of the parties, at
the time the action was commenced, was domiciled in
this state or was stationed in this state while a
member of the armed services and that the domicile
or military presence has been maintained for 90
days next preceding the making of the findings;
(b) the court finds that the marriage is
irretrievably broken, which findings shall be
supported by evidence:
(i) that the parties have lived separate and apart
for a period of more than 180 days next preceding
the commencement of this proceeding; or
(ii) that there is serious marital discord which
adversely affects the attitude of one or both of
the parties towards the marriage;
(c) the court finds that the conciliation
provisions of the Montana Conciliation Law and of
40-4-107 either do not apply or have been met; and.
(d) to the extent it has jurisdiction to do so,
the court has considered, approved, or made
provision for child custody, the support of any
child entitled to support, the maintenance of
either spouse, and the disposition of property.
We note in particular S 40-4-104(1) (d), which has been
amended by the 1985 legislature. That subsection formerly
read that the court could provide "for a separate, later
hearing to complete [the] matters" of child custody, child
support, maintenance and property division. The provision
for the bifurcated process of granting a dissolution of
marriage and later determining the specific terms of property
settlement and child custody was deleted by the Montana
legislature in an attempt to prevent the situation at bar;
namely the prolonged fight over custody, child support and
maintenance.
We therefore hold it was error for the District Court to
fail to establish a final joint custody plan for the minor
children and maintenance award for Michelle Ensign. While
the District Court made extensive findings and perceptively
outlined the parties' dispute over finances and the sale of
the family home, its resolution of those disputes was
somewhat ambiguous. In findings nos. 21 through 23, the
court stated:
21. The fact of the matter is that respondent's
own figures demonstrate that in his present
circumstance, his expenses exceed his income by at
least $200.00 per month, even without paying
anything to petitioner for any purpose. Therefore,
keeping the home, which is the anchor to such
losing situation, is of questionable advisibility
unless it is assumed that doing so will preserve
the real potential value of the home for later
realization when market conditions improve, and
that in the interim, having it for the children
represents a significant benefit to them. But, for
the reasons already discussed, the only way
retention of the home can be accomplished with
fairness to petitioner is for the respondent to buy
her interest out. The evidence does not expressly
demonstrate that this is within the capabilities of
respondent to arrange, however, neither does it
eliminate such a possibility. Therefore, it should
be retained as an available option.
22. In such circumstances, the respondent should
be given the right to purchase, in 30 days from the
date hereof, petitioner's one-half interest in the
family home, calculated on the basis of a market
value of $85,000.00. In calculating the equity of
the parties, a deduction of one-half of the usual
real estate commission of 7% should be allowed. In
addition, there is a loan outstanding to the
Teacher's Credit Union in the amount of $4,211.92
at the time of trial. It was incurred in
connection with the financing of the family home.
There is no evidence that it comprises a lien
against the property, but it is not disputed that
it is a home-related indebtedness, currently being
paid by a deduction from respondent's monthly
paycheck. It is appropriate that the petitioner
should bear one-half of the balance at the time of
sale, to be implemented as a deduction from her
share of the home sale proceeds, whether the sale
is to respondent or another.
23. If respondent either rejects such opportunity
to buy petitioner's interest, or does not do so
within the 30 days allowed, the family home should
be placed upon the market and sold, with the net
proceeds divided equally.
On one hand, the court stated that the sale of the home
"should be retained as an available option," on the other
hand, the court, recognizing the inherent unfairness of
allowing the husband to live in the family home without
reimbursing the wife for her interest, set forth the terms of
a 30 day buy-out or sale period. Further, the resolution of
the joint custody plan and the maintenance award hinged on
the sale of the home. It is therefore essential that the
District Court implement its findings and establish a final
custody plan and maintenance schedule through an appropriate
order.
The second issue raised by Michelle is whether a newly
appointed judge may make findings in a case which he or she
did not hear. Under the Montana Uniform Marriage and Divorce
Act, a court has continuing jurisdiction in matters of
maintenance, support, property disposition and child custody.
Sections 40-4-208, -211 and -219, MCA. While the new judge
may need to hear new evidence in order to formulate the joint
custody plan and to determine a maintenance schedule, the
judge is also entitled to rely on the record established in
the case. On remand both parties will have the opportunity
to produce further evidence in support of a joint custody
plan and maintenance.
The final issue is whether the District Court was
required to use the child support formula set forth in In Re
Marriage of Carlson (Mont. 1984), 693 P.2d 496, 41 St.Rep.
2419. As we have previously stated, the Carlson formula is a
suggested guideline. In Re Marriage of DiPasquale (Mont.
1986), 716 P.2d 223, 226, 43 St.Rep. 557, 561. The District
Court's decision will be upheld absent a clear showing of
abuse of discretion. In Re Marriage of Ryan (Mont. 1986),
720 P.2d 691, 693, 43 St.Rep. 1163, 1165; In Re Marriage of
Rolfe (Mont. 1985), 699 P.2d 79, 82, 42 St.Rep. 623, 626. We
find no evidence to indicate the District Court abused its
discretion in determining child support payments in this
case. However, on remand the District Court may need to
reconsider the factors listed in S 40-4-204(1), MCA, if the
financial resources of the parties have changed since the
decree was issued. It should be noted that on January 13,
1987, we also adopted suggested guidelines for courts to
determine child support, now found in 44 St.Rep. 828.
We remand this case to the District Court for a
determination of a joint custody plan, a maintenance award
and a settlement of the
We Concur:
C