No. 90-020
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
IN RE THE MARRIAGE OF GRETCHEN B. OTTO,
Petitioner and Appellant,
ARTHUR E. OTTO,
Respondent and Respondent.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable R. D. McPhillips, Judge presiding.
COUNSEL OF RECORD:
:
;
C
J. ; For Appellant:
., C>
-
3-
r-l
---.
.
.
'
L
...I
I"
*
L a
-2
'
James C. Bartlett, Hash,
Kalispell, Montana
OIBrien & Bartlett,
n C
L!
-
__,
Ccl
- For Respondent:
LL. 5 <:
- -- Stephen C. Berg, Warden, Christiansen, Johnson
7
c-, .J
i
- >i
I-- Berg, Kalispell, Montana
&
Z
0 C,
* x
Submitted: August 23, 1990
Decided: November 8, 1990
Filed:
I
' Clerk
Justice William E. Hunt, Sr., delivered the Opinion of the Court.
In November of 1989, the Flathead County District Court
entered a decree of dissolution of the marriage of Arthur E. Otto
and Gretchen B. Otto. Appellant appeals from the property
settlement and child custody award. We affirm.
The issues for review are:
1. Whether the District Court erred in designating respondent
the residential parent.
2. Whether the District Court erred in evaluating
respondent's veterinary practice.
Appellant filed a petition for dissolution on April 12, 1989.
Respondent filed a response on April 17, 1989. The trial on all
contested issues was heard by the District Court on August 2 and
3, 1989. The District Court entered its findings of fact,
conclusions of law and decree of dissolution on November 2, 1989.
On November 13, 1989, appellant filed a motion for amendment of
findings of fact, conclusions of law and motion to alter or amend
decree of dissolution. On November 17, 1989, respondent filed his
memorandum opposing petitioner's motions to amend or alter. A
hearing was held on appellant's motion in Cut Bank, Montana, on
December 20, 1989. On December 28, 1989, the District Court
entered its supplementary findings of fact, conclusions of law and
decree. On January 5, 1990, appellant filed her notice of appeal.
Respondent and appellant met at Northfield, Minnesota, while
attending classes at St. Olaf College. Following a six-month
courtship, they graduated from St. Olaf and married in June of
2
1967. Respondent received his undergraduate degree in biology and
appellant received her undergraduate degree in psychology.
Respondent then entered officer's candidate school with the U.S.
Navy at Newport, Rhode Island. Respondent was released from active
duty in January of 1970. During the time respondent was in the
Navy, appellant worked as a social worker and as a substitute
teacher.
~ollowing respondent's release from the Navy, the couple
managed a ranch near ~ilford,
Montana, for approximately six months
until respondent was accepted to veterinary school at Colorado
State University. While in veterinary school, appellant taught at
a Montessori school, worked as a retailer with a Denver department
store, served as a cocktail waitress, and continued as a social
worker. During this time, her work was interrupted by two
pregnancies. One child died a month after birth, the other child,
Josh, their oldest, was born in 1972.
Upon respondent's graduation from veterinary school in 1975,
the couple sold their trailer house and went on a trip, spending
the money from the sale. Virtually penniless, the couple then
moved to New Jersey where respondent embarked on his new veterinary
career with a one-year internship. During this period, appellant
took care of Josh and completed a course at an interior design
school.
In August, 1976, the parties moved to Kalispell, Montana,
where respondent started his own veterinary practice, which he has
continued to the present date. The middle child, Gabe, was born
on October 15, 1976. Upon moving to Kalispell, respondent
practiced out of a remodeled house on the same site where the
veterinary clinic was later built in 1981. The upstairs of the
house also served as the family's temporary residence until they
bought a home on Seventh Avenue East. The family lived on Seventh
Avenue East during the birth of their youngest son, Paul, on August
26, 1978. In 1983, they moved into their present home on Second
Avenue East in Kalispell. Following the birth of Gabe in 1976,
appellant began a part-time interior design business which she
operated for about ten years. In addition to working as an
interior designer, appellant served as a reporter for the local
television station, and, approximately one and one-half years
before the trial, had begun work at Glacier View Hospital as a
psychiatric counselor, primarily involved with adolescents.
The testimony heard at trial was extensive and conflicting.
Each party testified as to his or her superior parental skills and
ability and introduced character witnesses to foster their claims.
Each party also called its own expert witness who testified as to
the value of the veterinary clinic. After hearing the testimony,
the District Court entered its findings of fact, conclusions of law
and decree.
In its decree, the District Court valued the veterinary clinic
at $83,227. The District Court ordered an equal distribution of
marital assets and awarded joint custody, care and maintenance of
the children, with respondent designated primary residential
custodian. The District Court awarded appellant liberal visitation
including alternating weekends, and major holidays plus six weeks
each summer. From this decree appellant appeals.
The first issue raised on appeal is whether the District Court
erred in designating respondent as the primary residential parent.
Appellant argues that the District Court's findings of fact,
conclusions of law and order are not supported by substantial
evidence.
The District Court is to determine custody in accordance with
the best interests of the child, considering all relevant factors,
pursuant to 5 40-4-212, MCA. The court found that it was in the
children's best interest for the parties to share joint legal
custody, with respondent designated as primary residential
custodian.
As this Court has said many times, the trial judge in a
divorce proceeding is in a better position than this Court to
resolve child custody. Lee v. Gebhardt, 173 Mont. 305, 567 P.2d
466 (1977). The District Court's decision is presumed correct and
will be upheld unless clear abuse of discretion is shown. The
appealing party must show, by clear error (Rule 52 (a), M.R. Civ.P. )
that the record does not support the judgment of the District
Court. Lee, 173 Mont. at 309, 567 P.2d at 468. Despite
conflicting testimony of the parties in this case, substantial
evidence supports the District Court's conclusion. Further, the
findings show the court considered all factors listed in 5 40-4-
212, MCA.
Those criteria are as follows:
a) The wishes of the child's parents as to his custody: The
Court privately conferred with the children. The Court notes that
both respondent and appellant requested to be designated as primary
residential custodian.
b) The wishes of the child as to his custodian: The Court
privately conferred with the children. The Court noted that the
children unanimously wanted to remain together and live with their
father.
c) 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: Much of the
testimony which the Court heard pertained to this criterion. The
Court considered this evidence as reflected in finding of fact
VIII.
d) The child's adjustment to his home, school and community:
The evidence shows that the boys are all well-adjusted,
intelligent, active individuals. The Court noted this in finding
of fact VIII: "They [the children] appear to understand the
importance of education and the need to become involved in
community activities, which at this point of their lives means
athletics and school-related affair^.^
e The mental and physical health of all individuals
involved: This was not an issue in the case as the parties and
their children are well-adjusted and healthy. The remaining two
criteria are also not applicable since the record did not show
physical abuse or chemical dependency existed within this family.
The Court's finding VIII specifically outlined its reasons in
determining that it would be in the children's best interest that
respondent be designated primary residential custodian. First, the
court found a "close long-term and deep" relationship between the
children and respondent. The court found that this relationship
focused on athletics, music and recreational activities. The court
also found that this relationship focused on problem solving to
which they looked to their father, respondent, for guidance.
Second, the court noted the importance of the activities which the
relationship focused on and found that "continued and uninterrupted
involvement in these areas is more likely withttrespondent than
with appellant. Third, the court found that respondent's
occupation has allowed him freedom in the past to "actively and
consistently participate with the children" in all their
activities.
The trier of fact was present at trial to hear all the
testimony of the parties involved, including the children whose
custody is disputed.
At the time of trial the three children, Paul, Gabe and Josh
were ages 10, 12 and 17, respectively. The District Court
conferred with the children privately in chambers. The children
expressed a shared desire to reside with their father but made it
explicit that they wanted to visit their mother as much as, and
whenever, they so desired. The children expressed that they did
not want the court to set a schedule which dictated when they must
and must not visit their mother. All the parties, including the
children, agreed that the children should live in the same
household.
Both parties presented credible evidence supporting their
respective custody claims. The District Court found respondentvs
testimony more substantial and credible. It is the District
Courtvs determination of the children's best interest that
controls. The factors set forth in 5 40-4-212, MCA, were
considered, appropriate findings were made, and sufficient evidence
supported those findings.
Appellant also argues that by definition, in joint custody,
the children will live in both parentsv households with time
divided as equally as possible. This description is incomplete.
We have recently held that "in joint custody, allotment of time for
physical custody and residence of the children must be as equal as
possible between the parents, but each case is to be determined
according to its own practicalities, with the best interests of the
child as the primary considerati~n.~~
(Emphasis added.) In re the
Marriage of Lorenz (Mont. 1990), 788 P.2d 328, 331, 47 St.Rep. 546,
549. Therefore, the fact that the District Court awarded joint
custody absent an equal time share of the children does not, per
se, amount to an abuse of discretion. The District Court decided
that the boys would reside with respondent during the school year
and awarded appellant vlliberalvisitation to include, but not
limited to, alternating weekend visitations, maximum communication
with the children, alternating major holidays and six (6) weeks
visitation each summer.v1In making this custody decree, the
District Court determined that it would not be in the best
interests of the children to shuffle them back and forth between
both parents and we find that the District Court did not abuse its
discretion by so doing.
In light of the evidence found in the record, we find that the
District Court's findings, conclusions and decree regarding custody
is supported by substantial credible evidence. There was no abuse
of discretion. The custody award is affirmed.
The next issue is whether the court failed to properly valuate
the veterinary practice.
Appellant argues that the District Court's valuation of the
veterinary practice was not supported by sufficient evidence.
Specifically, appellant argues that the veterinary practice was
undervalued by the District Court at $83,227.
The District Court's findings of fact must be viewed as a
whole. In re the Marriage of Hockaday, 237 Mont. 413, 773 P.2d
1217 (1989). The standard of review in a distribution case is
that, absent a clear abuse of discretion, the District Court will
not be overturned where the District Court based its distribution
of marital assets on substantial credible evidence. In re the
Marriage of Stewart, 232 Mont. 40, 42, 757 P.2d 765, 767 (1988).
We will not reverse the District Court on a property distribution
determination without such a showing. Moreover, the District Court
has far reaching discretionary powers when valuing property for
distribution. The valuation need only be reasonable in the light
of the evidence presented. In re Marriage of Milesnick (1988), 235
Mont. 88, 95, 765 P.2d 751, 755.
Both parties employed qualified appraisers to give expert
opinions as to the present value of the subject veterinary
practice. The court considered the deposition testimony of
appellant's expert together with the oral testimony of respondent's
expert. Appellant's appraiser valued the veterinary practice at
$185,000 while respondent's appraiser valued it at $83,227. The
District Court accepted the $83,227 appraisal and explained in its
findings that this more conservative value was more realistic
considering the facts that: 1) the veterinary practice was and
always had been a solo practice; and, 2) the market in Flathead
County has became more competitive which was evidenced by the fact
that the ratio of people to veterinarians is currently on the
increase.
In the present case, the District Court predicated its $83,227
valuation on the expert testimony of an appraiser. We held in
Milesnick, at 94, 765 P.2d at 755, that expert testimony is a
reasonable premise for which the District Court may base a
valuation. Appellant, however, argues that she too presented
expert testimony that the veterinary practice had a value of
$185,000 and that there was no rationale given by the court for its
$83,227 valuation and, likewise, no rationale for its rejection of
the $185,000 valuation. However, in Milesnick, at 95, 765 P.2d at
755, we stated:
When confronted with conflicting evidence, the court must
use its fact-finding powers to determine which evidence
is more credible . . . Unless there is a clear
preponderance of the evidence against the District
Court's valuation, its findings, where based on
substantial though conflicting evidence, will not be
disturbed on appeal.
The District Court's $83,227 valuation of the veterinary
practice was reasonable in light of the testimony presented and the
rationale set forth in the District Court's findings. There was
no abuse of discretion.
Affirmed.
Justice
We Concur: