NO. 86-448
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
IN RE THE MARRIAGE OF
TERESA JOHNSON,
Petitioner and Respondent,
and
LEO JOHNSON,
Respondent and ~ppellant.
APPEAL FROM: District Court of the Twelfth Judicial District,
In and for the County of Hill,
The Honorable Chan Ettien, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Law Offices of Frank Altman; Dan Boucher, Havre,
Montana
For Respondent:
Kathleen Richardson, Havre, Montana
Submitted on Briefs: Dec. 31, 1986
Decided: February 24, 1987
Filed:
FEB 2 4 1987
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
Leo Johnson appeals from an order of the District Court
of the Twelfth Judicial District in and for Hill County,
Montana, ordering him to pay certain obligations in addition
to child support, and from division of the parties' property.
We affirm in part and reverse in part and remand.
Leo and Teresa Johnson were married for approximately
ten years when they separated. At the time of the separation
both parties were in their mid-thirties. Both are healthy.
They are the parents of two girls, ages seven and ten. The
husband is employed in the construction business. The wife
is a high school graduate with two years of college and
further training as a legal secretary, although she never has
worked as a legal secretary. She has experience as a
keypunch operator and bookkeeper, and recently has done
babysitting in the couple's home.
The home, purchased during the marriage, is the
parties' major asset. Improvements have been made by the
husband and the parties landscaped the property. The
estimated value of the home is between $67,000 and $70,000
with a remaining debt of $40,000. The parties owe nearly
$10,000 in miscellaneous debts.
Following a bench trial, the parties were awarded joint
legal custody of the two minor children, with the wife
retaining physical custody. The wife and children will
continue to live in the family home until the younger child
reaches age eighteen, at which time the home is to be sold,
with the equity to be divided equally between the parties.
The husband was ordered to pay the monthly mortgage payments
on the home. He also was ordered to pay child support and to
maintain health insurance benefits for his minor children, to
pay all outstanding debts of both parties, and the wife's
attorney's fees.
The parties personal property was valued at
approximately $12,000. The husband retained only the
property in his possession at the time of the divorce,
including a car. The property he retained has a value of
approximately $2,000. He appeals.
In essence the husband argues the District Court abused
its discretion in making the awards. In reviewing the
District Court's determination this Court generally gives
deference to the lower court's discretion. "This Court will
reverse the District Court ... only if the District Court's
findings are clearly erroneous in light of the evidence in
the record." Hughes v. Hughes (Mont. 1983), 666 P.2d 739,
741, 40 St.Rep. 1102, 1105. A presumption exists in favor of
the District Court judgment. To bring about a reversal of
the District Court the appellant must demonstrate that there
was a clear abuse of discretion or an error in the District
Court's findings. In Re the Marriage of Carlson (Mont.
1984), 693 P.2d 496, 499, 41 St.Rep. 2419, 2422. The
standard of review in determining whether the District Court
abused its discretion is whether it acted arbitrarily without
conscientious judgment or exceeded the bounds of reason
resulting in substantial injustice. In Re the Marriage of
Laster (1982), 197 Mont. 470, 476, 643 P.2d 597, 601.
Certain of the court's findings and conclusions clearly
are erroneous and an abuse of discretion. The record shows
that in determining the amount of child support payments the
husband owed, the children's monthly expenses were calculated
by including two-thirds of the total monthly mortgage
payments due. In addition the husband was ordered to make
the mortgage payments on the family home. Thus the husband
pays part of the mortgage twice. This arrangement results in
a windfall to the wife at the time the home is sold. Such a
windfall cannot be sustained. Tefft v. Tefft (Mont. 1981),
628 P.2d 1094, 1098, 38 St.Rep. 837, 842. Moreover, such an
arrangement does not reserve to the husband financial
resources sufficient to meet his needs, pursuant to
5 40-4-204 (e), MCA.
The parties stipulated the husband's gross income is
$1,635 per month. The court found the wife's income is $417
per month. Applying the Carlson formula, supra, at 500, 41
St.Rep. at 2423, the District Court ordered the husband to
pay $600 per month child support. He also was ordered to
maintain health insurance for the benefit of the minor
children, for which he presently pays $50 per month, and
mortgage payments of $465 per month. The husband testified
he made monthly payments of $111 per month to First Bank on a
$2,500 home improvement loan. The parties have at least
$7,000 additional debt which the husband must pay. The
record does not show the amount paid on this debt. The
husband has $100 a month support obligation for a child of a
previous marriage.
We do not find application of the Carlson formula per
se to be in error. We find, however, it was error for the
District Court to include a pro rata share of the mortgage
payments when determining each child's needs for purposes of
application of the Carlson formula, and in addition to order
the husband to make mortgage payments. This arrangement is
not sustainable according to Tefft, supra. Further, the
husband is then without money necessary to meet his needs.
He has no other financial resources, the assets he received
are non income producing, and he must replace the household
furnishings which were awarded to the wife. He has the prior
child support obligation. These circumstances require a
remand to the District Court for further findings because
they are clearly erroneous and result in substantial
injustice to the husband. His financial obligations very
nearly exceed his financial resources. In Re the Marriage of
Keel (Mont. 1986), 726 P.2d 812, 814, 43 St.Rep. 1742, 1746.
The husband also contends the court abused its
discretion in apportioning the marital estate. Our function
when considering the findings and conclusions of the trial
court is not to substitute our judgment for that of the trier
of fact, but to determine whether there is substantial
credible evidence to support the findings of fact and
conclusions of law. In Re the Marriage of Thompson (Mont.
1984), 676 P.2d 223, 226, 41 St.Rep. 237, 241. While
reasonable minds might differ as to an equitable division of
the marital assets, there is substantial credible evidence to
support the District Court's division. The husband argues
the court adopted wholesale the wife's estimates on the value
of personal property. There is nothing in the record,
however, that the husband offered his own estimates. Had the
court arrived at a different valuation for the husband's
vehicle, any change in the outcome would be insignificant.
We find no abuse in the court's division of the marital
assets.
We remand this case to the District Court for a
redetermination of the amount of child support the husband
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