No. 86-239
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
IN RE THE MARRIAGE OF
J. J. C.,
Petitioner and Appellant,
and
P. a. C.
Respondent and Appellee.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
Honorable Thomas C. Honzel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Cotter & Cotter, Michael W. Cotter, Great Falls, Montana
Richard Lynn Ducote, New Orleans, ~ouisiana.
For Respondent:
Ryan & McAllister, Robert W. Heilig, ~illings, Montana
Crowley, Haughey, Hanson, Toole & Dietrich; Bruce R.
Toole, Billings, Montana
Moses Law Firm, Charles T. Moses, Billings, Montana.
Paula Jampsa, Great Falls, Montana
Submitted on Briefs: January 29, 1987
Decided: June 25, 1987
Filed: JUN 2 5 1987
*,
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
This is an appeal brought by both parties from a marital
dissolution order of the Eighth Judicial District, Cascade
County, awarding wife custody of the parties' only child,
child support and a $15,000 property settlement, while
denying her request for attorneys' fees. We affirm.
J.J.C. and P.R.C. were married in October, 1979.
However, within a very short time, problems arose and by
July, 1980, wife had moved out of the couple's house and had
returned to her home in Great Falls.
Wife was pregnant at the time of the separation and in
August, 1980, gave birth to a son named J.C. This separation
proved to be more or less final, and although the parties
made many attempts at reconciliation and stayed at each
other's houses frequently, they never resumed their marital
relationship. Husband filed for dissolution in May, 1981.
Their last cohabitation was in January, 1983.
Wife was given temporary custody of J.C. until trial on
the issues of child custody, child support and distribution
of property could be had. However, in 1984, while the case
was still pending, husband moved for temporary custody,
claiming that J.C. had been sexually molested by a boyfriend
of wife's. A hearing was held on July 9, 1984, after which
custody was transferred to husband. The District Court
granted wife visitation rights, providing that she
discontinue her relationship with the boyfriend. She did.
While the marriage was finally dissolved in the spring
of 1985, the issues of child custody, child support and
distribution of the marital property were not settled until
after a trial held in October and November, 1985. In March,
1986, the District Court issued its formal decree, granting
custody of J.C. to wife, awarding wife $275 child support per
month and $15,000 cash in lieu of the division of the marital
estate. The court refused wife ' s request for attorney's
fees. Both parties now appeal.
The first issue raised by husband is whether the
District Court erred in awarding custody of J.C. to wife.
The second issue is raised by both husband and wife. Both
claim the District Court erred in dividing the marital
property. Additionally, wife claims the District Court erred
in its determination regarding the amount of child support
awarded, erred by failing to compel husband to make full
financial disclosure, and erred by refusing to award P.R.C.
attorney's fees.
We will address the custody issue first. Husband
asserts that the District Court abused its discretion by
granting custody to wife in the face of evidence suggesting
that J.C. was sexually abused while under wife's care and may
be at risk of further abuse. He also asserts that the court
ignored evidence in making its findings of fact under 5
40-4-212, MCA.
Section 40-4-212, states:
The court shall determine custody in accordance
with the best interest of the child. The court
shall 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.
Husband concedes that the District Court made sufficient
findings on the elements contained in subsections 1, 2 and 4,
but argues that it ignored evidence in making findings
regarding subsections 3 and 5. Husband asserts that the
trial court did not consider all the available evidence when
it considered subsections 3 and 5. We disagree.
In support of his argument that the trial court ignored
evidence that weighed to his advantage regarding wife's
mental health, husband points to the negative evidence
available suggesting that she was hallucinatory and suffered
from delusions. This Court notes that the trial court
seriously considered this testimony, but that it weighed it
against expert and character witnesses attesting to wife's
overall good mental health and emotional improvement. This
is the role of the trial court. "The responsibility of
deciding custody is a delicate one which is lodged with the
district court. The judge hearing oral testimony in such a
controversy has a superior advantage in determining the same,
and his decision ought not to be disturbed except on a clear
showing of abuse of discretion." In Re Marriage of Obergfell
(Mont. 1985), 708 P.2d 561, 563, 42 St.Rep. 1414, 1417, see
also In Re the Marriage of Nalivka (Mont. 1986), 720 P.2d
683, 43 St.Rep. 1079.
In a parallel argument, husband asserts that the
District Court ignored the evidence he presented that wife
was ineffective in disciplining J.C. He maintains that this
evidence is central to the court's findings pertaining to
subsection 3, and that the District Court did not effectively
address "the interaction and interrelationship of the child
with his parent or parents . . ."
It is clear to this Court that when the District Court
weighed the evidence, it gave ample attention to the facts
argued by husband. Nonetheless, custody was awarded to wife.
The arguments presented to this Court do not suggest that the
trial court erred. There is no clear showing that the trial
court abused its discretion in concluding that custody go to
wife. None of the factors of g 40-4-212 have been overlooked
in reaching the conclusion. The trial court's findings were
sufficiently explicit and supported by substantial evidence.
We affirm its decision.
Finally, husband points to evidence suggesting that
wife's boyfriend sexually abused J.C. and argues that the
District Court failed to fully consider the implications of
awarding the custody to wife. We disagree. The ~istrict
Court found:
Although never confirmed, the alleged perpetrator
of the molestation was an acquaintance of
Respondent. Upon learning of the molestation,
Respondent immediately severed contact with the
alleged perpetrator. There is no evidence to
indicate that Respondent was in any way involved in
the sexual molestation. In this regard, Dr.
Krajacich, the child's psychologist, testified that
he did not think that Respondent knew of, was
present during, or participated in the sexual abuse
of the child.
This Court will not substitute its judgment for that of
the trier of fact. In this case, the trial court is in the
best position to observe the witnesses and acquire a feel for
their credibility and character. The evidence presented in
husband's argument to this Court is the same as that
presented to the trial court. Husband's evidence does not
outweigh the substantial credible evidence justifying the
award of custody to wife.
The second issue, raised by both husband and wife, is
whether the District Court erred in dividing the marital
property. The District Court ordered husband to pay wife
$15,000 over a two-year period. Husband had requested that
wife be given nothing, arguing that she had contributed
nothing to the marriage. Wife requested that she be given
half of the net marital estate. The District Court explained
its conclusion:
Although the parties were married only a relatively
short period of time before the Petition for
Dissolution was filed and although [wife] did not
contribute financially to the marriage, I do not
conclude that [wife] is not entitled to anything as
proposed by [husband]. The decision that [wife]
quit her job was a joint one. It allowed the
parties to be able to spend more time together and
to travel. While it is true that the parties could
have had children even if [wife] had not quit work,
the fact is that [wife] did become pregnant shortly
after the marriage, which was the intention of the
parties. Because of this, I conclude that [wife]
is entitled to something although certainly not
half as requested by her. Because the parties did
not acquire any property jointly and because of the
nature of the property and the manner in which the
issue was submitted, I conclude that the only
equitable and reasonable way in which the property
can be apportioned is for [husband! to make a cash
payment to [wife] and I determine that under the
circumstances of this case a reasonable amount
would be $15,000 which could be paid over a period
of 2 years. In addition [wife] should be entitled
to keep the various items of personal property
which were given to her during the marriage and
which she now has in her possession.
Wife contends that the trial court did not properly
assess her contribution to the estate, arguing that her
contribution as a wife and mother should be given equal
weight against husband's monetary contribution for the
purposes of dividing the marital property, even though
husband provided the bulk of the marital estate. She cites
Jacobson v. Jacobson (1979), 183 Mont. 517, 600 P.2d 1183, to
support her proposition. We note that Jacobson concerns
distribution of a family ranch after a 25 year marriage. The
investment of the wife in that case is easily distinguished
from the instant case, where the wife's nonmonetary
contributions were minimal and the marriage was short in
duration.
This Court's function ... is not to substitute
its judgment in place of the trier of facts but
rather it is "confined to determine whether there
is substantial credible evidence to support" the
findings of fact and conclusions of law.
(Citations omitted.) Although conflicts may exist
in the evidence presented, it is the duty and
function of the trial judge to resolve such
conflicts. His findings will not be disturbed on
appeal where they are based on substantial though
conflicting evidence. (Citations omitted.)
In re the Marriage of Gallinger & Weissman (Mont. 1986), 719
P.2d 777, 780-781, 43 St.Rep. 976, 981; Marriage of Wessel
(Mont. 1986), 715 P.2d 45, 50, 43 St.Rep. 405, 411-412.
Both wife and husband have failed to show that the
court's evaluation of their contributions was arbitrary,
without conscious judgment or beyond the bounds of reason.
We find substantial evidence to support the District Court's
finding that wife made no contribution toward the acquisition
or preservation of husband's estate. We also hold that the
District Court properly ordered the $15,000 payment to wife
rather than force division of property in which she had only
a brief interest. Further, we believe the District Court
correctly refused husband's argument that wife receive
nothing; for in fact wife did leave her job to care for their
child and contributed as a homemaker in their relatively
brief period of cohabitation.
As part and parcel of her argument regarding
distribution of the marital estate, wife argues that the
District Court erred by failing to compel husband to make
ful.1 financial disclosure. Wife presents insubstantial
evidence detailing the specifics of her charge. Clearly,
husband's representations and inconsistencies over the amount
of his estate were presented in full to the District Court.
As we have stated before, the District Court's judgment will
not be altered without a showing of clear abuse of
discretion. The test of discretion is whether the trial
court acted arbitrarily, without employment of conscientious
judgment, or exceeded the bounds of reason, resulting in
substantial injustice. In re the Marriage of Gallinger &
Weissman, supra. The District Court's findings were
sufficient to support its property division in this matter.
Wife further contends that the District Court acted
arbitrarily in determining that J.C. had financial needs of
approximately $450 per month, and that this justified a child
support payment to her from husband of $275 per month. Wife
argues that husband's schedule of J.C. ' s financial needs
showed $1,044 per month while her assessment suggested the
support of J.C. cost $630 per month.
The District Court found that if the marriage had not
been dissolved, the child would have enjoyed a very good
standard of living and determined his support costs to be
$450 per month. The District Court made this assessment
based on substantial evidence placed in the record by the
parties relating to J.C.'s physical, medical and emotional
needs. Again, there is nothing to suggest that the District
Court erred in reaching the support figures.
Finally, wife argues that the trial court erred in
failing to award her attorney's fees. She asserts that
husband's conduct has been vexatious, harassing and
unreasonable under the circumstances, directing this Court's
attention to matters not within the record on this appeal.
She argues that husband's activities have resulted in
needless legal proceedings, again pointing in part to matters
not within this record.
The awarding of attorney's fees is governed by §
40-4-110, MCA. The standard for reviewing a district court's
decision not to award attorney's fees under $ 40-4-110 is
whether the court abused its discretion in refusing to award
such fees. In re Marriage of Nalivka (1986), 720 P.2d at
688, 43 St.Rep. at 1085; In re Marriage of Gallinger &
Weissman (Mont. 1986), 719 P.2d 777, 43 St.Rep. 976. Wife
argues that the trial court abused its discretion because it
failed to state reasons for the denial. In the past, this
lack of specificity would have constituted remandable error.
However, this Court, in In re the Marriage of Gallinger &
Weissman, specifically overruled that requirement, adopting
instead the "abuse of discretion" standard for reviewing the
District Court's award of attorney's fees.
In this case, we hold the trial court did not abuse its
discretion in refusing to award the wife her attorney's fees.
The record indicates the court was well aware of the
financial resources of both parties, and, although the wife
was clearly not in as strong a financial position as the
husband, the record indicates she still has sufficient
financial resources to be responsible for her own attorney's
fees.
Affirmed.
We Concur:
Chief Justice