No. 86-193
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
IN RE THE MARRIAGE OF
MARY ANN MANUS,
Petitioner and Respondent,
and
TEX W. MANUS,
Respondent and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Nat Allen, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Hash, Jellison, O'Brien & Bartlett; M. Dean Jellison,
Kalispell, Montana
For Respondent :
George B. Best, Kalispell, Montana
Submitted on Briefs: Nov. 13, 1986
Decided: March 4 , 1 9 8 7
MAR 4 - pp7
.
,,..(
Filed:
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Tex Manus appeals the findings of fact and conclusions
of law entered by the Eleventh Judicial District Court,
Flathead County, on December 11, 1985. The court awarded
Mary Ann Manus sole custody of the two children, child sup-
port of $250 per month per child, maintenance of $300 per
month for five years, property division payments of $207.46
per month for five years, and Mary Ann's attorney fees. We
affirm the District Court on all issues.
Tex raises six issues for our review:
1. Did the District Court abuse its discretion when it
granted sole custody to Mary Ann?
2. Did the District Court abuse its discretion when it
awarded child support to Mary Ann?
3. Did the District Court abuse its discretion when it
adopted Mary Ann's valuation of the marital property?
4. Did the District Court abuse its discretion when it
awarded maintenance to Mary Ann?
5. Did the trial court abuse its discretion when it
awarded attorney fees to Mary Ann?
6. When a retired district judge who was called into
jurisdiction during a judicial vacancy, has rendered judgment
and has been succeeded by a duly-appointed district judge,
does the retired district judge retain jurisdiction to deny a
subsequent motion for new trial?
Tex Manus and Mary Ann Manus were married on June 20,
1969, in Bonner's Ferry, Idaho. Two daughters were born of
the marriage, Channin in 1970 and Nickole in 1971. During
the marriage, Tex and Mary Ann acquired a marital estate
worth $115,000. This included the home now occupied by Tex,
rental property, household goods, vehicles, a balance receiv-
able on a contract in escrow, a savings account, and Tex's
profit sharing account.
In August 1984, Mary Ann separated from Tex. Mary Ann
filed a petition for dissolution on February 22, 1985. She
and her daughters currently reside in Usk, Washington, near
Mary Ann's parents. Tex currently resides in Whitefish,
Montana.
Issue 1
Did the District Court abuse its discretion when it
granted sole custody to Mary Ann?
The standard of review on custody issues was outlined
in Bier v. Sherrard (1981), 623 P.2d 550, 551, 38 St.Rep.
158, 159:
In order to prevail, [appellant] must
show an abuse of discretion by the
judge, must demonstrate that there is a
clear preponderance of evidence against
the findings, and must overcome the
presumption that the judgment of the
trial court is correct. In reviewina
- need only look to the record to
the District Court's custody-order, thii
Court ---
- - - factors - forth in section
see if the set
40-4-212, - - consideredTand then
MCA, were --
must determine whether the trial court
made appropriate findings with respect
to these criteria. [Em~hasis added. 1
The factors set forth in S 40-4-212, MCA, place para-
mount importance on the best interests of the child:
The court shall determine the custody in
accordance with the best interests 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 interrelation 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.
In its findings of fact, the District Court recognized
that several of the factors of S 40-4-212, MCA, weighed
heavily in favor of granting custody to Mary Ann:
3. That one of the children, Channin,
is mildly retarded and, although attends
school, is in a special education pro-
gram, is unable to care for herself, and
in all likelihood will be unable to care
for herself for many years to come.
4. There is a close relationship be-
tween mother and daughters. They have
lived together continuously during the
period of separation. Mother is re-
quired to and does take care of the
daily needs of both children in addition
to taking care of the special needs of
Channin, both educational and practical.
5. That while visiting their father,
their paternal grandfather molested
Channin.
6. Prior to this molestation, Respon-
dent herein was made aware of the fa-
ther's propensities by Mrs. Manus having
warned him that such an attempt had been
made upon her.
7. That as a result of the molestation
which occurred to Channin, she will
require continuous psychiatric care in
addition to her special education needs.
The record further reveals that Tex had only seen the
children three times in the previous eighteen months, and. the
children did not express any desire to spend time with Tex.
In spite of this, Tex requested joint custody. He now argues
that the District Court failed to state adequate reasons for
denying his request, as required by 5 40-4-224(1), MCA. The
statute provides:
Upon application of either parent or
both parents for joint custody, the
court shall presume joint custody is in
the best interests of a minor child
unless the court finds, under - - the fat-
tors - forth in 40-4-212, that joint
- set
custody - is - not i n the best interests of
* - - -
the minor child. If the court declines
to enter an order awarding joint custo-
dy, the court shall state in its deci-
sion the reasons for denial of an award
of joint custody. [Emphasis added.]
We note that any presumption favoring joint custody in
5 40-4-224, MCA, was overridden by the abundant evidence
supporting the grant of sole custody to Mary Ann. The find-
ings and reasons for granting her sole custody are identical-
to the reasons for denying joint custody to Tex, and thereby
comply with the mandates of 9 40-4-224(1), MCA.
We have repeatedly given the District Court broad
discretion in deciding custody disputes. "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 upon
a clear showing of abuse of discretion." Gilmore v. Gilmore
(1975), 166 Mont. 47, 51, 530 P.2d 480, 482, citing In Re
Adoption of Biery (1974), 164 Mont. 353, 522 P. 2d 1377. The
record fully supports the court's findings and conclusions.
We hold that the District Court properly considered the
children's best interests and did not abuse its discretion
when it granted custody to Mary Ann.
Issue 2
Did the District Court abuse its discretion when it
awarded child support to Mary Ann?
Tex argues that the court did not make any findings
about the financial needs of the children or the ability of
each parent to pay. He contends that the court failed t.o
follow the holding of In Re Marriage of Capener (1978), 177
Mont. 437, 441, 582 P.2d 326, 328, which states: "The perti-
nent factors in [ § 40-4-204, MCA], with findings of fact to
support them, should be set out in the District Court's
decision for otherwise the appellate court has nothing upon
which to base its review."
Section 40-4-204, MCA, lists six factors the court
shall consider when ordering child support:
(a) the financial resources of the
child;
(b) the financial resources of the
custodial parent;
(c) the standard of living the child
would have enjoyed had the marriage not
been dissolved;
(dl the physical and emotional condition
of the child and his educational needs;
(e) the financial resources and needs of
the non-custodial parent; and
(f) for the purposes of determining a
minimum amount for support, the amount
received by children under the AFDC
program, as defined in 53-2-702.
We have ample findings upon which to base our review.
Judge Allen specifically noted the financial resources and
needs of the children and parents in the following findings:
8. That the estimated charges for
[Channin' s] continuing psychiatric
treatments will be approximately $120.00
per week.
10. Mr. Manus is an able-bodied, em-
ployed man, having worked for the past
ten years for Plum Creek as a chip truck
driver. He is 42 years of age, in good
health, a.nd his expected salary for the
year 1985 will exceed $38,000.00. His
income has grown steadily during the
past ten years. His take home pay is
approximately $2,400.00 per month after
depositing to voluntary retirement
programs in excess of $200.00 per month.
As part of his employment, Mr. Manus
receives medical health coverage, which
coverage is available to members of his
family.
11. Mary Ann Manus lives in Usk, Wash-
ington with her daughters, is a person
of 43 years of age, is presently under a
doctor's care, taking prescription
medication three times daily. Mary Ann
Manus works as a part-time waitress
earning approximately $3.50 per hour.
She takes home approximately $400.00 per
month. There is no other suitable
employment available to her as a result
of her physical and emotional conditions
requiring medical care.
12. The expenses for Mr. Manus and his
girlfriend are less than $1,000.00 per
month.
13. The expenses of Mrs. Manus, exclud-
ing psychiatric care for Channin, exceed
$1,584.00 per month.
These findings are well-supported by the record. We
will not set aside the District Court's findings of fact
unless there is a clear abuse of discretion. Grenfell v.
Grenfell (1979), 182 Mont. 229, 232, 596 P.2d 205, 207. We
find no such abuse in this case. Therefore, we hold that the
District Court properly awarded child support of $250 per
month per child.
Issue 3
Did the District Court abuse its discretion when it
adopted Mary Ann's valuation of the marital property?
The District Court substantially adopted Mary Ann's
valuation of the marital estate. Tex argues that the Dis-
trict Court failed to adequately support the decision in its
findings. However, we note that in Finding No. 14, the
District Court carefully itemized the property that the
Manuses had acquired during their sixteen-year marriage. The
real property included the family home in Whitefish and some
rental property. The personal property included two trucks,
several trailers, tools, and miscellaneous household goods.
As we held in In Re Marriage of LeProwse (1982), 198
Mont. 357, 646 P.2d 526, 529, the fact that the District
Court substantially adopted the findings proposed by one
party does not change the standard of review. That standard
of review was recently outlined in In Re Marriage of Rolfe
(Mont. 1985), 699 P.2d 79, 83, 42 St.Rep. 623, 626, where we
held:
In dividing property in a marriage
dissolution the district court has far
reaching discretion and its judgment
will not be altered without a showing of
clear abuse of discretion. The test of
abuse of discretion is whether the trial
court acted arbitrarily without employ-
ment of conscientious judgment or ex-
ceeded the bounds of reason resulting in
substantial injustice.
The District Court's conclusions were neither arbitrary
nor unreasonable. By his own testimony, Texts evidence
supports the court's findings. His estimate for the total
value of the marital estate was $109,000. He valued Mary
Ann's share at $55,000. Mary Ann estimated the total value
at $115,000, with her share at $45,000. Tex and Mary Ann's
estimates differ by 10 percent or less. These differences
are well within an acceptable appraisal range. The District
Court's findings are properly based on Mary Ann's estimates
and supported by Tex's evidence. We hold that the court did
not abuse its discretion when it ordered Tex to pay Mary Ann
$12,448 to equalize the marital estate, in monthly payments
of $207 for five years.
Issue 4
Did the District Court abuse its discretion when it
awarded maintenance to Mary Ann?
Tex argues that the District Court did not justify the
maintenance awards, because it made no finding that Mary Ann
was unable to meet her reasonable needs, and the court did.
not distinguish her needs from those of the children.
The factors to be considered in a maintenance award are
outlined in 5 40-4-203 (I), MCA:
(1) In a proceeding for dissolution of
marriage ... the court may grant a
maintenance order for either spouse only
if it finds that the spouse seeking
maintenance:
(a) lacks sufficient property to provide
for his reasonable needs; and
(b) is unable to support himself through
appropriate employment or is the custo-
dian of a child whose condition or
circumstances make it appropriate that
the custodian not be required to seek
employment outside the home.
The District Court addressed S 40-4-203(1) (a), MCA, in
two findings. Finding No. 11 notes that Mary Ann's income is
$400 per month. Finding No. 14 lists income-producing prop-
erty, from which Mary Ann receives approximately $400 per
month. Tex contends that his monthly payments of $207, to
equalize the property division of the marital estate, should
also be considered in Mary Ann's monthly income.
However, we note that the property payments are merely
the liquidation of assets that Mary Ann had acquired during
the marriage and cannot be considered as part of her current
income. Excluding the property payments and child support,
the combined income from Mary Ann's property and employment
is only $800.
Tex's argument is also disputed by Finding No. 17,
which addresses S 40-4-203 (1) (b):
Mrs. Manus will need to devote her
attention to caring for Channin and
Nickole through the next four years of
school and high school, two years of
special education, college for Channin,
then one year of college work for her-
self in order to be able to enter the
job market.
Both Mary Ann's need for retraining and the needs of her
children justify the District Court's award of maintenance.
As we held in In Re Marriage of Korpela (Mont. 1985) ,
710 P.2d 1359, 1360, 42 St.Rep. 1912, 1914, the spouse seek-
ing maintenance must show both lack of sufficient property
and also incapability of self-support. Mary Ann has met this
burden. Therefore, the District Court did not abuse its
discretion when it awarded Mary Ann $300 per month in mainte-
nance for five years.
Issue 5
Did the trial court abuse its discretion when it award-
ed attorney fees to Mary Ann?
The court's Finding No. 18 states: "That the Petitioner
has been forced to hire counsel and is unable to pay for
counsel. " Tex argues that the court awarded Mary Ann
income-producing property, yet found she was unable to pay
her attorney fees. Tex contends that Finding No. 17 is not
supported by the evidence and represents an abuse of discre-
tion. Tex further argues that the court must indicate in its
findings the reason for granting the award of attorney fees.
We note that a discretionary award of attorney fees is
sanctioned in 5 40-4-110, MCA: "The court from time to time
after considering the financial resources of both parties,
may order a party to pay a reasonable amount for the cost to
the other party ... for attorney fees . . ."
Although Mary Ann's counsel fails to cite any authority
on this issue, we note that an award of attorney fees under
the statute is "largely discretionary with the District Court
and we will not disturb its judgment in the absence of an
abuse of that discretion." In Re Marriage of Johnston (Mont.
1986), 726 P.2d 322, 326, 43 St.Rep. 1808, 1812-1813, citing
Talmage v. Gruss (1983), 202 Mont. 410, 412, 658 P.2d 419,
420.
The District Court examined each party's financial
position. During the marriage, Mary Ann worked as a homemak-
er and took care of the two children. Both children now live
with her. Mary Ann requires additional vocational training
and is currently under a physician's care. She earns $800
per month. In contrast, Tex earns $2,400 per month and is in
good health. The court's findings adequately support its
conclusion. In view of the parties' relative financial
positions and health, the award of attorney fees was not an
abuse of discretion. Carr v. Carr (Mont. 1983), 667 ~ . 2 d
425, 427, 40 St.Rep. 1263, 1266.
Issue 6
6. When a retired district judge who was called into
jurisdiction during a judicial vacancy, has rendered judgment
and has been succeeded by a duly-appointed district judge,
does the retired district judge retain jurisdiction to deny a
subsequent motion for new trial?
During the terminal illness of Judge Salansky, Judge of
Department One of the District Court of Flathead County,
various retired judges were called in to assist with his
caseload. By order dated July 30, 1985, this Court recalled
Judge Allen to assume all duties of that department for an
indefinite period beginning September 1, 1985.
The order was issued in accordance with Article VII,
Section 6 (3), 1972 Mont. Const., which authorizes such as-
signments. "The chief justice may, upon request of the
district judge, assign district judges - other judges for
and
temporary service from one district to another, and from one
county to another." (Emphasis added.)
On December 2, 1985, the instant case was tried before
Judge Allen, who rendered judgment on December 11, 1985.
Judge Leif B. Erickson was formally sworn in as Judge
Salansky's successor on December 11, 1985, and assumed all
judicial duties on December 12, 1985.
Tex filed a motion for a new trial on December 17,
1985. On Zanuary 31, 1986, Judge Erickson decided that he
did not have jurisdiction to rule on Tex's motion. He relied
on State ex rel. Wilcox v. District Court (Mont. 1984), 678
P.2d 209, 41 St.Rep. 397, which defined the scope and author-
ity of a retired district judge called into jurisdiction
.
under Article VII , Section 6 (3) The Wilcox court held that
such judges have the complete jurisdiction of the District
Court in all civil matters and cases at law, including final
dispositions. Wilcox, 678 P.2d at 215, 41 St.Rep. at 403.
Accordingly, Judge Allen retained jurisdiction and on Febru-
ary 27, 1986, issued an order denying Tex's motion.
Judge Erickson's decision is consistent with our policy
of judicial economy. By providing a bridge of continuing
jurisdiction, such a policy ensures that a successor judge
does not oust the authority of a retired district judge to
efficiently dispose of the matters that have been undertaken
by him.
We affirm the District Court on all issues.
I /
Chief Justice
We concur: ,/// 4'