No. 86-36
IN THE SUPR.EMECOURT OF THE STATE OF MONTANA
1987
IN RE THE MARRIAGE OF
CAROL A. SHIRILLA,
Petitioner and Respondent,
and
STEVEN J. SHIRILLA,
Respondent and Appellant.
APPEAL FROM: District Court of the Third Judicial District,
In and for the County of Powell,
The Honorable Robert Boyd, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Charles A. Graveley, Helena, Montana
For Respondent:
Johnson, Skakles & Kebe; Greg J. Skakles, Anaconda,
Montana
Submitted on Briefs: Sept. 11, 1986
Decided : January 13, 1 9 5 7
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Filed:
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Clerk
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.
This is an appeal by Steven Shirilla from the findings
of fact and conclusions of law and judqment entered by the
District Court of the Third Judicial District, Powell County,
granting dissolution of the parties' marriage and ordering
child support, a property settlement and attorney fees. We
affirm and modify the judgment.
Steven raises six issues on appeal. (1) Whether the
trial court erred when it determined the relative
contribution of the parties to the acquisition of marital
assets. (2) Whether the trial court erred when it
determined that the entire support of the minor child was
borne by Carol. (3) Whether the trial court erred when it
required Steven to pay the attorney fees incurred by Carol.
(4) Whether the trial court erred in its award of sole
custody of the minor child to Carol. (5) Whether the trial
court erred in its determination of child support to be paid
by Steven, and in making that support retroactive.
(6) Whether the trial court erred in its division of marital
property by awarding the house to Carol with Steven receiving
no benefit therefrom until the minor child reaches majority.
Steven and Carol Shirilla were married in February,
1982. At the time of the marriage, Steven was a physician at
Deer Lodge Clinic who makes approximately $56,990 per year
and Carol was a medical technologist at Powell County
Memorial Hospital who makes $21,400 per year. One child was
born during the marriage, Beth Ann, who was born July 6,
1983. In October, 1983, the parties separated and Steven
established his residence on the grounds at Galen State
Eospital. Steven's housing is provided for him on the
hospital grounds. He pays $186 a month for rent which
includes utilities.
A petition for dissolution was filed in October, 1983.
From the date of the separation, Steven paid one-half the
house payment ($330) and $200 per month in child support. In
July, 1984, the Court entered an order dissolving the
marriage and retaining jurisdiction over custody, support and
the property division. As of July, 1984, Steven stopped
making house payments and paying child support. Since Carol
only made one-half the house payment and Steven was not
making the other half, the Bank threatened to foreclose the
mortgage. Carol had to borrow over $8,000 from her relatives
to bring the payments current to prevent foreclosure.
In October, 1985, following a hearing on the issues the
District Court entered its findings of fact, and conclusions
of law. The Court granted sole custody of Beth Ann to Carol,
with reasonable visitation for Steven. The court also
granted Carol use of the family residence until the minor
child reached the age of majority, and required each party to
make one-half the house payment. Steven was directed to pay
support in the amount of $635 per month, and was ordered to
pay the attorney fees incurred by Carol. The District Court
also made a division of other assets acquired during the
marriage which is not an issue on this appeal.
At the outset, we note that ferreting out appellant's
arguments was a difficult and time consuming task because
appellant had listed issues presented for review that were
not briefed and failed to brief some issues that were raised.
Counsel are admonished to conform their briefs to Rules 23
through 27, M.R.App.Ci17.P.
The first issue on appeal is whether the court erred
when it determined the relative contribution of the parties
to the acquisition of marital assets and failed to determine
the net worth of the marital estate. While the issue i s
phrased, as above in the appellant's brief, the argument
refers to the fact that Steven brought a higher net worth
into the marriage and that he wanted the house sold and the
balance divided.
In reviewing the judgment of the court below we note the
standard of review in Marriage of Gallinger and Weissman
(Mont. 1986), 719 P.2d 777, 780, 43 St.Rep. 976, 979:
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 discretion
is whether the trial court acted arbitrarily
'
without employment of conscientious judgment or
exceeded the bounds of reason resulting in
substantial injustice.
Also see, In Re Marriage of Wessel (Mont. 1986), 715 P.2d 45,
50, 43 St.Rep. 405, 411; citing Becker v. ~ e c k e r (~ont.
While it may be true that Steven brought more assets
into the marriage, the statute requires the marital property
be "equitably apportion[ed] between the parties . . . however
and whenever acquired and whether the title thereto is in the
name of the husband or wife or both . . ." Section 40-4-202,
MCA. The court is not bound to restore the parties to their
premarital status. In Re Marriage of Keepers (~ont.1984),
Next, Steven contends that the family home should have
been sold and the profits divided. The District Court
ordered Steven to continue paying one-half the house payment-s
until the child reaches 18. At that time the house will be
sold and the first $2,000 goes to Steven, the next $1,336 to
Carol and the balance will be divided equally. This Court
has in the past approved of having both parties contribute to
maintain the family home until such time as the minor
children are grown. Marriage of Ryan (Mont. 1986) , 720 P. 2d
691, 43 St.Rep. 1163; Marriage of Hereford (Mont. 1986), 723
P.2d 960, 43 St.Rep. 1508. The District Court did not abuse
its discretion in making such an order.
The second issue on appeal is whether the court erred
when it determined the entire support of the minor child was
borne by Carol since July, 1984. The District Court found:
That since July of 1984, [Steven! has made no
payment for the support and maintenance of the
minor child, Reth Ann Shirilla, and her entire
support has been provided by [Carol] herein.
Steven alleges he has been paying $200 a month into a
trust fund for Beth Ann. This may be so, hut the fact
remains that he has made no payments to Carol so she has been
providing for all of Reth Ann's support. Steven argues the
Court erred by making child support retroactive to the date
of the last payment in July, 1984. He contends this violates
§ 40-4-208, MCA, which allows a court to modify support only
as to future payments, not retroactively. Section 40-4-208,
NCA, applies only to actions to modify existing support
payments. This Court has held that once the issue of child.
support is placed before the court by the pleadings, the
court has jurisdiction to award child support payments
retroactive to the time of the separation of the parties.
Marriage of DiPasquale and Getz (Mont. 1986), 716 P.2d 223,
43 St.Rep. 5 5 7 . The District Court. did not err in making
child support payments retroactive to the date of
dissolution.
The third issue on appeal is whether the District Court
erred when it ordered Steven to pay Carol's attorney fees.
Section 40-4-110, MCA, allows the District Court to award
attorney fees after considering the financial resources of
both parties. 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 the Marriage of Johnston (~ont. 1986),
726 P.2d 322, 326, 43 St.Rep. 1808, 1813, quoting In Re
Marriage of Mila-novich (Mont. 1985), 697 P.2d 927, 929, 42
St.Rep. 436, 439; Talmage v. Gruss (1983), 202 Mont. 430,
41.2, 658 P.2d 419, 420. The record indicates that the
financial resources of both parties were considered. The
District Court did not abuse its discretion in a.warding
attorney fees to Carol.
Next, Steven contends the District Court erred by
awarding sole custody of Eeth Ann to Carol. The District
Court made these findings of fact on custody.
14. That following the separation of the parties
herein, [Steven] voluntarily restricted his
visitation with the minor child, Beth Ann, upon the
advice of Counsel and of Dr. Timothy J. Casey,
Psychologist. That subsequently, visitation was
increased as the child became somewhat older and
was had on Tuesdays, Thursdays and Saturdays,
outside the residence of [Carol].
15. That during employment periods, [Carol] has
made adequate and substantial arrangements for
child care and the testimony indicates that the
child relates well with the present babysitting
arrangements, and, likewise, relates well during
visitation periods with [Steven]. [Steven],
likewise, agrees that [Carol] is taking excellent
care of the child, and [Carol], 3-ikewise,
acknowledges the good relationship existing between
[Steven] and his minor daughter.
10. That no application has ever been made to this
Court for a joint custody arrangement, and in view
of [Steven's] unwillingness to assume any
responsibility for payments upon the residence in
which the child has been 1.i.ving with [Carol], and
his unwillingness and failure to provide support
for the child since July of 1984, the Court deems
joint cust0d.y inappropriate at this time.
The District Court's decision is presumed correct and
will be upheld unless a clear abuse of discretion is shown.
In I . the Marriage of Rolfe (Mont. 1985), 699 P.2d 79, 42
?e
St.Rep. 623. "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
discretion 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;
Gilmore v. Gilmore (1P75), 166 Mont. 47, 51, 530 P.2d 480,
In determining custody, the court is bound to 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.
Section 40-4-212, MCA.
In this case, the District Court consid-ered the relevant
factors and decided sole custody should be with the mother.
The District Court made specific findings on why joint
custody was not granted. The District Court did not abuse
Its discretion.
Next, Steven contends the District Court erred in its
determination of child support. Carol testified at the
hearing that the needs of the child are approximately $ 8 7 5
per month.
That. includes:
$360 one-half the house payment &
utilities
100 food
45 transportation
55 clothing
40 diapers
258 child care
Steven did not introd.uce any evidence or present
testimony to refute these figures at the hearing. The
District Court applied the Carlson formula and determined the
ratio of Carol's earnings to Steven's earnings was 2 7 . 4 % to
72.6%. Therefore the District Court found Carol should
contribute $ 2 4 0 per month to the needs of the child and
Steven should contribute $ 6 3 5 per month.
We approve of the District Court's use of the Carlson
formula and apportionment of the needs of the child between
the incomes of the parents. However, the District Court made
a slight mathematical error in totaling the needs of the
child. The figure should have been $ 8 5 8 rather than $ 8 7 5 ,
Applying the same ratio, Carol should contribute $ 2 3 5 per
month for Beth's support and Steven should contribute $633
per month. Pursuant to S 3 3 - 2 - 2 0 4 , MCA, we hereby modify the
judgment of the Third Judicial District, Powell County,
entered October 1 8 , 1985 and direct that judgment be entered
ordering Steven to pay child support in the sum of $623 per
month rather than S635 per month. All other provisions of
the judgment are affirmed.
The last issue on appeal is whether the District Court
erred in its d.ivision of marital property by awarding the
house to Carol with Steven receiving no benefit therefrom
until the minor child reaches majority. We have already
addressed this issue and found no errcr.
Affirmed as modified.
We Concur:
fd:,L,x Chief Justice