No. 8 8 - 2 3 3
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
IN RE THE MARRIAGE OF
LINDA KATHLEEN SYLJUBERGET,
Petitioner and Respondent,
and
GARY WARREN SYLJUBERGET,
Respondent and Appellant.
APPEAL FROM: District Court of the Fifteenth Judicial District,
In and for the County of Sheridan,
The Honorable M. James Sorte, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
K. Dale Schwanke; Jardine, Stephenson, Rlewett & Weaver,
Great Falls, Montana
David Cybulski, Plentywood, Montana
Ken Hoversland, Scobey, Montana
For Respondent :
Loren J. O'Toole, Plentywood, Montana
Submitted on Briefs: Aug. 26, 1 3 8 8
~ecided: September 27, 1 9 8 8
Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
This is an appeal brought by the appellant, Gary Warren
Syljuberget, from a marital dissolution order of the
Fifteenth Judicial District, Sheridan County, awarding Wife
custody of the parties' only child, child support of $200 per
month, maintenance of $200 per month for one year, one-half
the sale proceeds of the marital home, and one-half her
attorney's fees. We affirm the District Court on all issues.
Husband raises five issues for our review:
1. Whether the District Court erred in awarding sole
custody to Wife.
2. Whether the District Court erred in awarding F7ife
$200 per month child support.
3. Whether the District Court erred in distributing
the marital estate.
4. Whether the District Court erred in awarding Wife
maintenance.
5. Whether the District Court erred in awarding Wife
one-half her attorney's fees.
Linda Kathleen Syljuberget and Gary Warren Syljuberget
were married June 10, 1983. On July 21, 1983, the parties
only child, Amanda Valeta Syljuberget, was born. The
parties' resided in the family home located at 421 East 1st
Avenue, Plentywood, Montana. Husband owned the property
prior to their marriage.
The parties separated on August 8, 1985. Wife was
given temporary custody of Amanda until trial. On September
16, 1985, the parties stipulated to $175 per month as a
reasonable amount of child support. Wife remained in the
family residence in Plentywood pending dissolution. Husband
now lives in Livingston, Montana.
On January 23, 1987, Wife moved to hold Husband in
contempt for failing to pay child support; Husband was in
arrears approximately $2,525. On March 2, 1987, the District
Court ordered Husband to pay $200 per month child support.
In addition, the court enjoined Husband from entering the
family residence until completion of the action.
Husband and Wife were involved in a number of business
ventures, beginning in 1976 and continuing until their
separation. At various times during this period, the parties
jointly operated stores in Billings, Montana, Crosby, North
Dakota and Plentywood, Montana. Wife managed the day-to-day
operations of the business, while Husband oversaw the
financial matters. Each party financially invested in the
stores. Husband had significant resources and extensive
financial experience and Wife contributed cash savings and
amounts received from the sale of two trailer homes. In
addition, the parties obtained a number of business loans,
including one secured by a mineral interest inherited by Wife
which was satisfied prior to dissolution.
Neither party drew a regular salary from their work.
Instead, money was occasionally withdrawn from profits to
reinvest or make loan payments and improvements to the family
home.
As the stores gradually became unprofitable, the
parties were forced to liquidate other assets, including
taking additional mortgages on the family home. Finally, the
Plentywood store was sold at a loss.
After separation Husband moved to Livingston, Montana,
where he acquired two Town Pump Covenience Stores. In
addition to his two stores, Husband owns a one-third interest
in BOS Enterprises, certificates of deposit worth $2,225,
various recreational vehicles and boats, and a note
receivable worth $10,000. Husband nets approximately $8,000
per year through his part-time accounting practice. At
trial, financial statements were introduced evidencing
Husband's net worth to be between $105,000 and $211,000.
Wife works as an advertising salesperson for a local
radio station. She earns a net salary of $694 per month,
plus commissions of $150 per month.
On February 22, 1988, the District Court issued its
final decree awarding sole custody of Amanda to Wife, plus
$200 per month child support, $200 per month maintenance for
one year, one-half the proceeds from the sale of the family
residence and one-half Wife's attorney's fees.
The first issue raised by Husband is whether the court
was correct in awarding sole custody to Wife. Husband argues
the District Court failed to property state in its decision
the reasons considered in making the custody award, in
accordance with S 40-4-212, MCA. Instead, Husband argues the
evidence supported an award of joint custody.
The standard of review on custody issues was discussed
in Bier v. Sherrad (Mont. 1981), 623 P.2d 550, 551, 38
St.Rep. 158, 159:
In order to prevail, [the 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 reviewing the
District Court's custody order, this
Court need only look to the record to see
if the factors set forth in section
40-4-212, MCA, were considered, and then
must determine whether the trial court
made appropriate findings with respect to
these criteria. (Citations omitted.)
In all cases, the primary importance is placed on
determining the best interest of the child. Section
40-4-212, MCA (1985). 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 correctly asserts the District Court must
presume joint custody is in the best interest of the child.
However, the District Court may, under the factors set forth
above, decline to order joint custody. Section 40-4-224(1),
MCA (1985). In such cases, the jud.ge must enter in his
decision the reasons for a denial. While we recognize the
District Court's findings were not exemplary, we nonetheless
find no error.
This Court will not substitute its judgment for that of
the trier of fact. "The responsibility for deciding custody
is a delicate one which is lodged with the district court."
In re Marriage of Manus (Mont. 1987), 733 P.2d 1275, 1277, 44
St.Rep. 398, 401, quoting Gilmore v. Gilmore (1975), 166
Mont. 47, 51, 530 P.2d 480, 482. "[Tlhe trial court is in
the best position to observe the witnesses and acquire a feel
for their credibility and character." In re Marriage of
J.J.C. (Mont. 1987), 739 P.2d 465, 467, 44 St.Rep. 1068,
1071. The record indicates that Amanda was well adjusted to
her home in Plentywood, where she had many friends and
relatives. Amanda has spent the great majority of her life
with her mother, and they enjoy a good and continuous
relationship. On the other hand, Mr. Syljuberget was often
separated from his daughter, having moved to Livingston.
During sporadic visits to Plentywood, Mr. Syljuberget
admitted to taking Amanda into bars, for lack of any other
place to visit. Testimony also alluded to possible alcohol
related problems. The District Court found sole custody to
be in Amanda's best interest.
Additionally, parental cooperation is a key factor in
an award of joint custody. In re Marriage of Jacobson (Mont.
1987), 743 P.2d 1025, 1027, 44 St-Rep. 1678, 1680. The
District Court saw no such cooperation. Indeed, the record
reveals numerous instances of hostility, meddling and
harassment, culminating in the temporary relief order of
March, 1987. Viewing the record as a whole, strong evidence
exists to support the District Court's award of sole custody
to the wife. On this basis, we find no abuse of discretion.
The second issue raised by Husband is the award of
child support. Neither party disputes the appropriateness of
child support. Husband's only complaint surrounds the amount
awarded by the District Court.
In reviewing child support issues, our
standard is that the "award made by the
District Court will not be disturbed on
appeal unless there has been a clear
abuse of discretion resulting in
substantial injustice."
In re Marriage of Tonne (Mont. 1987), 733 P.2d 1280, 1284, 4 4
St.Rep. 411, 416, quoting Grenfell v. Grenfell (1979), 182
Mont. 229, 232, 596 P.2d 205, 207.
The District Court was well aware of the parties'
original stipulation of $175 per month child support.
However, evidence on the record nonetheless supports the
trial judge's award of $200 per month. Most illustrative is
the temporary relief order, entered March 2, 1987, ordering
Husband to pay an additional $25 per month for past due child
support amounts. Additionally, Husband is financially able
to pay the amount awarded. No abuse of discretion appears in
the District Court's award of child support.
111.
Third, Husband argues the District Court improperly
distributed the marital estate. Again, this Court recognizes
the District Court has far-reaching discretion in resolving
property divisions in dissolution proceedings and its
judgment will not be altered unless a clear abuse of
discretion is shown. In re Marriage of Watson (Mont. 1987) ,
739 P.2d 951, 954, 44 St.Rep. 1167, 1170.
Section 40-4-202, MCA (1985), governed the division of
property in a marital dissolution. The trial court need not
articulate each factor separately as long as the findings are
sufficient to allow non-speculative review by this Court. In
re Marriage of Reid (Mont. 1987), 733 P.2d 1302, 1304, 44
St.Rep. 500, 503. These factors give the lower court ample
latitude to equitably divide the property.
Husband disputes two aspects in the property division:
the inclusion of the home in the marital estate, and the
exclusion of Wife's mineral interest.
First, Husband disputes the award of one-half the
proceeds from the sale of the marital home. Because Husband
owned the home prior to the marriage, he asserts it should
not have been included in the marital estate. While the
source of marital property is a factor to be considered by
the District Court, Watson, 739 P.2d at 954, it is not
absolutely determinative. The court is not bound to restore
the parties to their premarital status. In re Marriage of
Keepers (Mont. 1984), 691 P.2d 810, 813, 41 St-Rep. 2163,
2167. Section 40-4-202(1), MCA (1985), provided in pertinent
part:
[IJn dividing property acquired prior to
the marriage ... the court shall
consider those contributions of the other
spouse to the marriage, including: (a)
the non-monetary contribution of a
homemaker; (b) the extent to which such
contributions have facilitated the
maintenance of this property; and (c)
whether or not the property division
serves as an alternative to maintenance
arrangements.
Under this standard, prior acquired property may properly be
included as part of the marital assets where contributors of
the other spouse have, for example, facilitated maintenance
of the property. In re Marriage of Snyder (Mont. 1986) , 714
P.2d 556, 557, 43 St.Rep. 346, 348; In re Marriage of
Jorgensen (1978), 180 Mont. 294, 299, 590 P.2d 606, 610. In
the present case, the house in Plentywood was undisputably
the property of the Husband prior to the marriage. In
evaluating the facts, we note the District Court found the
parties had accumulated several debts during their marriage,
including debts on the family home. The record further
indicates these debts to be directly related to the parties'
joint business operations. Indeed, Husband admits money was
borrowed against the home for the express purpose of
investing in the businesses. Certainly, a division of the
equity in the home, upon sale, is a fair means to compensate
Wife for her contributions. We cannot say the District Court
abused its discretion in including the home as part of the
marital property.
Second, Husband disputes the lower court's exclusion of
Wife's mineral interest as a marital asset. Husband alleges
the mineral interest was fraudulently placed outside of the
marital estate through a "sham" transfer. We find these
allegations to be without basis. The record illustrates Wife
transferred the mineral interest to her aunt and uncle in
return for payment of various bills and expenses totalling
over $1,500. A mineral deed transferring ownership was also
presented to the court. No evidence, apart from Husband's
own testimony, shows the transaction to be in bad faith.
Accordingly, no abuse of discretion is evident.
IV.
Husband's fourth allegation of error focuses on the
award of maintenance. The District Court awarded Wife $200
per month for one year. Husband argues under $ 40-4-203, MCA
(1985), the court may only grant maintenance if two
conditions are present: (1) the spouse seeking maintenance
lacks sufficient property to provide for her needs; and
(2) the spouse is unable to support herself through
appropriate employment. Husband contends Wife's mineral
interest would provide her with sufficient funds. Yet as we
have already discussed, the District Court found the mineral
interests to be outside the marital estate.
In determining whether maintenance should be awarded
$ 40-4-203 (2), MCA (1985), requires the District Court look
to a number of factors, including financial resources,
marital standard of living, duration of marriage, and the
ability of the spouse from whom maintenance is sought to meet
his needs while meeting those of the spouse seeking
maintenance.
This Court will not substitute its judgment for that of
the District Court. Instead, we must determine whether there
is substantial evidence to support the findings and
conclusions of the District Court. In re Marriage of Schenck
(Mont. 1984), 692 P.2d 6, 8, 41 St.Rep. 2137, 2139. We find
several factors in the record which support the District
Court's award. Affidavits indicated Mrs. Syljuberget was
spending virtually every penny to support herself and her
child. These expenses do not include rent, an inevitable
expense once the marital home is sold. Equity in the home is
minimal. Further, Wife was not awarded significant property,
only her personal property. Mr. Syljuberget, on the other
hand, was awarded - income-producing property. Given the
all
facts as they are presented on the record, we ourselves may
find the maintenance award slight. However, under the
statutory factors discussed above, the award is just. We
find no abuse of discretion.
v.
Finally, Husband contests the District Court's award of
one-half her attorney's fees. Husband claims he is without
resources, even to pay his own attorneys.
Our standard of review on the payment of attorney's
fees is whether the court abused its discretion. In re
Marriage of Gallinger (Mont. 1986), 719 P.2d 777, 783, 43
St.Rep. 976, 984. Under S; 40-4-110, MCA (1985), the trial
court may order a party to pay the other party's fees after
considering their respective financial resources. As
discussed above, and encompassed in the court's findings,
Wife is without funds to pay her attorney. Yet, the District
Court found Husband to have sufficient resources.
Most supportive of the award is not the Husband's
financial resources as is his conduct throughout the
dissolution proceedings. The record is replete with evidence
indicating a majority of fees were due solely to Husband's
lack of cooperation. Indications include demands for
discovery, contempt proceedings for failure to pay child
support, and an injunction from entering the family home.
The lower court's discretion will not be disturbed if
substantial evidence is found in the record to support the
award. In re Marriage of Carr (19831, 205 Mont. 269, 667
P.2d 425. We find more than substantial evidence.
Affirmed on all issues.