No. 8 6 - 1 3 6
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
IN RE THE MARRIAGE OF
CARLA WILEY HAMMILL,
Petitioner and Appellant,
and
GARY DOUGLAS HAMMILL ,
Respondent and Repondent.
APPEAL FROM: District Court of the Eleventh Judical District,
In and for the County of Flathead,
The Honorable Nat Allen, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Oleson Law Firm; H. James Oleson, Kalispell, Montana
William Boggs, Missoula, Montana
For Respondent:
Warden, Christiansen, Johnson & Berg; Gary R. Chris-
tiansen, Kalispell, Montana
Robert B. Allison, Kalispell, Montana
Submitted on Briefs: Nov. 25, 1 9 8 6
Decided: February 4, 1 9 8 7
Filed : FEB 4 - 1987
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Carla Willey Hammill appeals the disposition of marital
property and award of joint custody ordered by the District
Court, Eleventh Judicial District, County of Flathead. The
valuation and division of marital property is affirmed; the
issue of child custody is remanded.
Carla Willey Hammill and Gary Douglas Hammill were
married June 3, 1967 in Iowa. They both attended Iowa State
University, and upon their graduation in 1969, moved to
Whitefish, Montana where Gary had a job as a veterinarian.
Carla taught art and physical education in Whitefish until
she became pregnant with her first son, Chet. Chet was born
in September, 1971. A second son, Curt, was born in May,
1974.
The family moved to Kalispell in 1971, where Gary opened
his own practice at Ashley Creek Animal Clinic. He suffered
a severe back injury in 1972 when a metal kennel gate fell on
his back. The pain caused by the injury led him to curtail
his veterinary practice. He took on a partner in 1983, and
eventually sold out his interest to the partner in January,
1985.
Carla and Gary separated in 1982, and the petition for
dissolution was filed December 2, 1982. The couple entered
into a temporary joint custody agreement on September 6,
1983, whereby the primary residency of the two boys was to be
with their mother, the father having the boys every other
weekend and six weeks during the summer. Gary also agreed to
pay $250.00 per child per month in child support.
On December 13, 1983, the District Court appointed an
attorney, Robert Allison, to represent the boys in this
proceeding. A bench trial took place before the Honorable
James M. Salansky on June 14, 1984. Attorneys for all
parties were present, and a request that the court talk with
the children in chambers was taken under advisement. The
children did not testify at this time, and when the parties
rested, the entire proceeding was taken under advisement.
Mr. Allison also submitted a report to the court on the
matter of custody arrangements, this report also being taken
under advisement.
Judge Salansky's subsequent illness and death prevented
a final disposition of the matter. The Honorable Nat Allen
was appointed to the case, and another bench trial was held
December 5, 1985, at which time the marital property division
and permanent custody arrangements were decided. For some
reason, the children's attorney was not notified of this
trial, and no evidence or testimony other than that of the
parents was presented on the children's behalf. Each boy was
briefly and separately interviewed by Judge Allen in
chambers, with a court reporter present.
At the end of the trial, Judge Allen stated he was going
to keep the boys together rather than split custody between
the parents, and that physical custody would alternate
annually between mother and father. He stated that while the
parties were free to propose findings otherwise, he was
deciding custody as indicated. Both parties submitted
findings of fact and conclusions of law as to the value of
marital assets, the division of assets and liabilities, and
child custody arrangements. The court adopted the husband's
findings verbatim, and the wife appeals the decision.
Carla Hammill sets forth the following issues on appeal:
(1) Whether the District Court erred in evaluating
the marital property as of December, 1985 (the date
of the dissolution), rather than as of October,
1982 (the date of the parties' separation)?
(2) Whether the District Court erred in dividing
the marital property on a 50-50 basis?
(3) Whether the District Court erred in adopting
the husband's findings verbatim?
(4) Whether the District Court can determine
contested custody without stating its reasons
therefor?
(5) Whether the District Court determined custody
without considering the best interests of the
children?
The younger son, Curt, also appeals the custody order
through his co-counsel, William Boggs. Mr. Boggs was
appointed co-counsel with Mr. Allison, and given leave to
file a brief by order of this Court dated August 21, 1986.
The issues raised by Curt are:
1. Whether a custody decree can stand where the
attorney appointed to represent the children was
not notified of and did not participate in the
trial which determined custody?
2. Whether the District Court considered all five
factors affecting the best interests of the
children, as required by § 40-4-212, MCA?
3. Whether joint custody is in the best interests
of the children?
Property Disposition
In reviewing the division of property made by a district
court, we will not disturb the decision absent a clear abuse
of discretion. The test of abuse of discretion is whether
the trial court acted arbitrarily without employment of
conscientious jud.gment or exceeded the bounds of reason
resulting in substantial injustice. In Re Marriage of Rolfe
(Mont. 1985), 699 P.2d 79, 83, 42 St.Rep. 623, 626.
Carla Hammill first challenges the valuation date used
by the District Court. She argues the court should have used
1982 values for the marital property - 1982 being the date of
the parties' separation - rather than 1985 values - 1985
being the date of the dissolution of the marriage.
The general rule in Montana is that "[a] proper
disposition of marital property in a dissolution proceeding
requires a finding of the net worth of the parties - - -
at or near
- - - - the dissolution." In Re Marriage of Loegering
the time of
(Mont. 1984), 689 P.2d 260, 264, 41 St.Rep. 1892, 1896.
(Emphasis added.) The policy of using the dissolution dat.e
for valuation of property is that this valuation date most
clearly reflects the status of the property at the time of
trial. In Re Marriage of Hamilton (1980), 186 Mont. 282,
283, 607 P.2d 102. In this case, Carla does not argue that
the 1985 values were inaccurate or incorrect in themselves.
Rather, she argues that the court should have adopted the
1982 values which she proposed. A trial judge is free to
select whatever value he or she wishes, so long as there is
substantial credible evidence to support the value selected.
In Re Marriage of Staudt (Mont. 1985), 700 P.2d 175, 177, 42
St.Rep. 740, 743.
There is no evidence in the record which conflicts with
the 1985 values adopted by the District Court, and we
therefore hold the court did not abuse its discretion in
adopting the 1985 valuation date.
The second issue Carla raises is whether the court erred
in dividing the marital property on a 50-50 basis. The
marital property was divided as follows:
Property To Husband To Wife
Home (1015 First Avenue $ 34,568.18 (He
East, Kalispell, MT) shall be solely
responsible for
the mortgage balance)
Property To Husband To Wife
Unimproved property % (the Easterly tract) 3 / 4 (The
(LaBrant Road tract) Westerly
Flathead County, MT) three tracts)
(The parties shall share the payment of the Contract for
Deed obligations on a pro rata basis, i.e., % Husband,
3/4 Wife and property taxes shall be shared similarly if
the taxes are not assessed separately)
International Scout $ 500.00
Van $ 3,000.00
Life Insurance Policy $ 665.00
Teacher's Retirement Unknown
Household Furnishings:
Items 1 through 3 5
on Exhibit "A" as
indicated $ 3,500.00
(Note: Items being used
by the parties' sons at this
time will be made available
to Respondent at the end of
the 1 9 8 5 - 8 6 school year.)
Items 1 through 3 5 on
Exhibit "A" as indicated,
exclusive of Item 17, which
is located in the Kalispell
home and shall be considered
a part of said home
Items 3 6 through 6 7 on
Exhibit "A" $ 2,000.00
Each party shall retain
the personal gifts noted at
the end of Exhibit "A"
Property To Husband To Wife
Contract Receivable $ 8,833.41 $ 1,166.59
(The parties will share
payments received on this
Contract receivable in the
proportion that has been
allocated)
TOTAL $75,266.59
The marital liabilities (exclusive of those noted
above) total $8,768.94 and shall be shared equally
between the parties. The farm equipment, horse and
shop equipment and the horses, which have not been
allocated to either party above, shall be sold and
the sales proceeds shall be applied to the marital
debt. Husband, because of his experience with
horses and horse owners, shall be primarily
responsible for the sale of these assets. As
assets are sold and debts are satisfied, a full and
complete accounting shall be provided by him to
Wife. Any proceeds from the sale of assets not
required to satisfy the marital debts specified in
Finding of Fact No. 13 or not required to pay the
ongoing expenses incurred in keeping the horses
from the time of this trial until their disposal
(which the Court also recognizes as marital debt)
shall be shared equally between the parties.
The District Court based this division of property on the
nature of the assets, the contributions of the parties, the
education and employment backgrounds and prospects of the
parties, the health of the parties and their needs as
parents. The court found that both parties were
employed - Carla as a school teacher earning $15,000 per year
with expectation of a tenured position; Gary as a
veterinarian who did some consulting work, who was trying to
start a new business, and who earned approximately $10,000
per year. Gary's back injury had caused him to limit and
finally sell his veterinary practice in Kalispell, thus
limiting his earning capacity. Carla had no physical
disabilities. Carla also planned to remarry after the
dissolution of the marriage, and had established a household
in Missoula three years previously. We find sufficient
evidence in the record to support the District Court's
division of marital property on a 50-50 basis.
Carla next contends the District Court's adoption of
Gary's proposed findings of fact and conclusions of law was
error. The standard of review for findings made by a
district court is the same whether the district court
prepared the findings or whether it adopted a party's
proposed findings. In Re Marriage of Goodmundson (1982), 201
Mont. 535, 538, 655 P.2d 509, 511. This Court's test for the
adequacy of findings is whether they are sufficiently
comprehensive and pertinent to the issues to provide a basis
for decision, and whether they are supported by the evidence
presented. In Re Marriage of Hurley (Mont. 1986), 721 P.2d
1279, 1285, 43 St.Rep. 1271, 1277. The findings in this case
do meet the above tests. The court heard testimony from both
parties as to the property and child custody issues, as well
as examined exhibits, memoranda, and interrogatories filed
and made part of the record below. There is ample evidence
in the record to support the District Court's adoption of
respondent's proposed findings of fact and conclusions of
law, and we find the court did not abuse its discretion in so
doing.
Child Custody
The remaining two issues raised by Carla involve the
propriety of the award of custody of the two children. She
urges us to reverse the joint custody award based on the
alleged failure of the District Court to state its reasons
for awarding joint custody, and its failure to consider the
best interests of the children as set forth under § 40-4-212,
MCA. The younger child, Curt, has also appealed the custody
order, based on the alleged failure of the court to consider
the best interests of the children, and also on the failure
to notify his attorney of the trial which determined custody.
We find that the failure to notify a child's attorney of
proceedings affecting that child's interest constitutes
reversible error, and so do not reach the issue of adequacy
of the court's findings as to the best interests of the
children.
Robert Allison was appointed by Judge Salansky as the
children's attorney on December 13, 1983. Mr. Allison
received notice of and attended conferences and a non-jury
trial before Judge Salansky in 1984. The non-jury trial did
not address the custody issue. On August 30, 1984, Mr.
Allison submitted a report to the court detailing his
interviews with the various parties and other witnesses, and
suggesting a joint custody arrangement with physical custody
being awarded to the mother until the children reached ninth
grade, and thereafter physical custody being with the father
for the remainder of the boys' time in high school.
Due to Judge Salansky's illness and death, the case was
not decided in 1984. In 1985, Judge Allen was appointed to
the case. For some reason, all notices thereafter concerning
conferences and the trial were sent to counsel for Carla and
Gary, but not to the children's attorney, Mr. Allison. While
the appointment of an attorney to represent children in
custody matters is discretionary with the court under §
40-4-205, MCA, once the attorney has been appointed, it is
required that he or she is served with all orders, pleadings,
notices, motions and other papers pertinent to the action.
Rule 5 (a), M.R.Civ.P. ; S 25-3-402, MCA.
Further, the purpose of $ 40-4-205, MCA, is to provide
$
children with an advocate who will represent their interests
and not the parents' interests. In Re Marriage of Kramer
(1978), 177 Mont. 61, 72, 580 P.2d 439, 445. This means the
attorney must actively represent the children and and he
given an opportunity to present to the court all the evidence
he or she can marshal concerning the best interests of the
children. - Id. Obviously, the attorney cannot perform this
role unless notified of conferences and hearings.
We therefore set aside the custody award as it applies
to Curt Hammill. As we found in our order of August 21,
1986, the okler brother, Chet, is apparently satisfied. with the
time-sharing custody arrangement and the custody award as to
Chet is not at issue in this appeal. The District Court's
disposition of the marital property is affirmed.
C L a,
,& Justice
/
We Concur: L,