NO. 91-376
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
IN RE THE MARRIAGE OF
CINDY R. JOHNSTON,
Petitioner, Counterrespondent,
and Appellant,
and
FAUSTO G. TURRIN,
Respondent, Counterpetitioner,
and Respondent.
APPEAL FROM: District Court of the Ninth Judicial District,
In and for the County of Pondera,
The Honorable R. D. McPhillips, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Barbara E. Bell, Bell & Marra,
Great Falls, Montana
For Respondent:
Kenneth R. Olson, Attorney at Law,
Great Falls, Montana; Fausto G. Turrin,
Attorney at Law, Great Falls, Montana
D Submitted on Briefs: June 11, 1992
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Appellant Cindy R. Johnston appeals from the Findings of Fact,
Conclusions of Law and Order, and Decree of Dissolution of the
Ninth Judicial District Court, Pondera County.
We affirm in part and remand.
Appellant raises five issues for this Court to consider:
1. Did the District Court err in its enforcement of the
premarital agreement when dividing the marital estate?
2. Did the District Court err in the calculation of child
support?
3. Did the District Court err in failing to implement its
order for a psychological exam of respondent?
4. Did the District Court err in failing to appoint an
attorney to represent the children?
5. Did the District Court err in awarding joint physical
custody?
6. Did the District Court err in failing to award appellant
attorney fees?
Respondent Fausto Turrin, a licensed attorney of this state,
has provided this Court with 29 issues to consider. We conclude
that with the exception of the constitutional issues raised by
Fausto, the various issues raised in his brief are essentially the
same as those raised by Cindy. Accordingly, we shall only address
those issues raised in Cindy's brief and make references to
Fausto's brief when appropriate. At the outset, we hold that
Fausto has either failed to properly raise the constitutional
2
issues stated in his brief, the issues are now moot, or are without
merit, and therefore, we will not discuss these issues.
The parties were married on May 5, 1985, in Great Falls. Two
days before the wedding the parties entered into a premarital
agreement. Two minor children were born into the marriage, Fausto
John Turrin, 111, age five, and Melissa Kay Turrin, age three.
Cindy works as a computer programmer/supervisor for a CPA firm in
Great Falls, and Fausto is a practicing attorney.
On August 8, 1989, Cindy filed a petition for dissolution.
Fausto was represented by an attorney and acted as co-counsel,
drafting many of his own documents and appearing alone in most of
the hearings. On September 18, 1989, the court awarded Cindy
temporary custody of the minor children with visitation to be
worked out by the parties. On March 6, 1990, the parties
stipulated to visitation of the children by Fausto but the
agreement failed to work in practice. The court ordered mediation
in an effort to avoid litigation, but that effort also met with
failure. Following a bench trial, the court entered its findings
of fact, conclusions of law, and decree on May 16, 1991. On
May 30, 1991, Cindy filed a motion to amend the court's decree. On
July 8, 1991, a hearing was held on the motion, which the court
orally denied, with the exception of redetermining monthly child
support and back child support payments. On July 26, 1991, Cindy
filed her notice of appeal. On August 12, 1991, Fausto filed his
notice of cross-appeal.
Unfortunately, like so many other domestic relations cases
that come before this Court, this is rife with bitterness between
the parties. The District Court file contains approximately 360
documents mainly comprised of motions and countermotions. Since
the appeal, the parties have filed 18 motions with this Court. It
is under these conditions that we render this opinion.
I.
Did the District Court err in its enforcement of the
premarital agreement when dividing the marital estate?
The parties executed a premarital agreement on May 3, 1985,
two days prior to their wedding. In its order, the District Court
found that the premarital agreement was valid and enforceable. The
court then proceeded to divide the marital estate according to the
agreement. On appeal, Cindy does not challenge the validity of the
agreement. Instead, she alleges that the District Court erred in
failing to acknowledge that the terms of the agreement were not
implemented because Fausto did not contribute to the parties' joint
checking account which would be used to pay the bills, and
therefore, a more equitable distribution of the marital estate is
warranted.
The parties executed the premarital agreement prior to the
1987 Legislature's enactment of the Uniform Premarital Agreement
Act. As a result, 5 40-4-202(1), MCA (1985), requires the District
Court to consider the validity of the premarital agreement, but it
is not required to enforce it. The premarital agreement is but a
factor, not the exclusive consideration, among many listed in
5 40-4-202(1), MCA (1985), for the court to consider when
distributing the property of the marital estate. In re the
Marriage of Keepers (1984), 213 Mont. 291, 691 P.2d 810.
Our standard of review relating to the division of marital
property was recently clarified as whether the district court's
findings of fact are clearly erroneous. In re the Marriage of
Danelson (Mont. 1992), 833 P.2d 215, 49 St. Rep. 597. In its
findings of fact, and conclusions of law, the District Court found
that the premarital agreement was valid and chose to enforce it.
Cindy's share of the marital property amounted to $25,450 while
Fausto's share amounted to $66,120 because he was given the home
and the equity in the home.
The parties' home had a purchase price of $111,000. With the
various repairs made, the current fair market value of the house
was $119,000, which is supported by the record. Fausto contributed
$32,000 toward the down payment from his separate funds. In
addition, he paid off a second mortgage valued at $14,000 with his
own funds, thereby creating an original equity in the home of
$46,000. In addition, Fausto made mortgage payments totalling
$12,537.
Cindy contends that she paid $23,681 in total monthly
payments. Fausto states that she actually paid approximately $2000
more. In addition, she sold a boat for $5000, and her own home
which had $7000 in equity. She also contended that she paid the
day-to-day living expenses. However, the record reflects that she
could not recall what she had done with her $12,000, or how much of
5
the day-to-day living expenses she paid. The court concluded that
it was logical that a substantial amount of Cindy's money went
toward house payments and family living expenses. Even so, it is
unclear from the record who made the monthly payments and the
source of the funds for the payments. The court found that the
parties' home had an equity of $63,000. Considering that Fausto
contributed $46,000 of his own money toward the home, the court
awarded Fausto the equity in the home.
Cindy requests that she be reimbursed for the bookkeeping she
performed for Fausto's law practice, as the terms of the premarital
agreement stated that any money earned by either party should be
kept separate. However, Fausto performed legal services for
Cindy's rentals. The District Court refused to reimburse Cindy,
concluding that the legal services provided by Fausto equalled
Cindy's bookkeeping services. We hold that there was substantial
evidence in the record to support the District Court's
determination.
Cindy also objects to the court's valuation of the 1979 Datsun
280-ZX and the 1976 Ford pickup. She testified that the fair
market value of the Datsun was only $1900, and the value of the
Ford pickup was $1500. Fausto offered into evidence an independent
fair market valuation by Taylor's Used Cars stating that the
Datsun's fair market value was $2650, and the Ford's was $2850.
This was the valuation the court used in dividing the property. We
hold there was substantial evidence to support the District Court's
valuation of the two vehicles.
6
Finally, Cindy requests that this Court modify the District
Court's decree and order Fausto to return "baby books" to her and
reimburse her for half of the living expenses paid for support of
the family. We decline to do so. We hold that there is
substantial evidence to support the District Court distribution of
the marital property.
11.
Did the District Court err in the calculation of child
support?
In reviewing child support, this Court has stated that a
presumption exists in favor of the district court's determination,
and this Court will reverse the district court only if it has
abused its discretion. In re the Marriage of Sacry (Mont. 1992),
49 St. Rep. 452, 833 P.2d 1035.
A hearing was held on August 28, 1989, pertaining to temporary
child custody. The court awarded Cindy temporary custody until a
final determination was made. The court held a hearing on a motion
to amend the final judgment on July 8, 1991. In the motion to
amend, Cindy requested that the District Court grant back child
support payments on the basis of sole custody and not split custody
as provided in the decree. During that hearing, the court orally
agreed to award back child support on the basis of sole custody.
However, there is no written order issued by the District Court to
reflect that decision. Cindy filed her notice of appeal on
July 25, 1991. We conclude that the District Court properly should
have entered a written order awarding back child support covering
the period of sole custody by Cindy.
Another issue raised by Cindy is at what point in the
dissolution process do the modified SRS Child Support Guidelines
come into effect. Apparently, from the time the parties submitted
their proposed child support calculations to the issuance of the
decree, the Guidelines were amended and the decree does not reflect
these changes. Cindy offers no authority, but argues that the
Guidelines came into effect on the date of the order. Therefore,
the District Court should use the most recent Guidelines before
issuing its order.
A district court is granted considerable discretion in
calculating child support, and it may deviate from the Guidelines
if it finds by clear and convincing evidence that the application
of the standards and Guidelines is unjust to the child or any of
the parties, or is inappropriate to a particular case. Section
40-4-204(3)(a), MCA. If a court decides to apply an older version
of the Guidelines, then it must state its reasons for finding that
the amended SRS guidelines are not applicable. Section
40-4-204 (3) (b), MCA.
At the hearing on the motion to amend the final judgment on
July 8, 1991, the court requested that Fausto supply the new
proposed Guidelines so that it could amend child support. On
July 12, 1991, Fausto then filed a motion for consideration of all
of the Guidelines, alleging that Cindy was living with another man
who contributed substantially to the support of the children.
Cindy denied this in her brief in opposition. The issue was never
decided because Cindy filed an appeal on July 25, 1991, based on
the court's May 16, 1991, decree. We remand for a redetermination
of child support by the District Court in accordance with
§ 40-4-204 (3), MCA, as most recently amended. Cindy has raised
several other specific errors relating to the calculation of child
support. Because of our holding above, she may bring these errors
to the attention of the District Court.
111.
Did the District Court err in failing to implement its order
for a psychological exam of Fausto?
On January 30, 1991, Cindy moved for the District Court to
order a psychological evaluation of Fausto, due to the
deterioration of the visitation between him and the children. The
court considered the matter at a March 18, 1991, hearing. Dr.
George Hossack, a licensed psychologist and Cindy's counselor,
recommended a psychological evaluation at the hearing. The court
orally agreed with Dr. Hossack's recommendation but did not require
psychological evaluations in its final order. On July 29, 1991,
four days after the notice of appeal was filed by Cindy, the court
issued an order requiring the parents and the children to obtain
psychological evaluations. There was a motion to quash this order
filed by Fausto's attorney, but the record ends at this point.
Because we do not have a record before us to decide whether further
psychological evaluations are required, we remand this issue to the
District Court for further consideration.
IV.
Did the District Court err in awarding joint custody?
Our standard of review in child custody matters is whether the
district court abused its discretion. In re the Marriage of
Reininghaus (1991), 250 Mont. 86, 817 P.2d 1159. When determining
child custody, the district court must take into consideration the
best interests of the children. Section 40-4-212, MCA. The court
shall consider, but is not limited to, the factors set out in
5 40-4-212(a)-(g), MCA. Here, the court awarded Cindy and Fausto
joint physical custody. Fausto had physical custody of the
children during the first six months of the year and Cindy had
custody the last six months of the year. The court stated in its
findings that both parties were in sufficient physical and
emotional health to care for the children. In the transcripts, the
court explained that it was awarding joint physical custody
primarily because Cindy would be required to work long hours during
the tax season. The court was very cognizant of the bitterness
between the parties and reserved the right to have the children
examined by a proper expert to see if the children were harmed by
the custody provisions which, from viewing the record on appeal,
the court is now attempting to do. Therefore, we hold that the
District Court did not err in awarding joint physical custody.
v.
Did the District Court err in failing to appoint an attorney
to represent the children?
Section 40-4-205, MCA, allows the court to appoint an attorney
to represent the interests of the children with respect to support,
custody, and visitation. In a recent case, we held that
3 40-4-205, MCA, was a permissive, not a mandatory statute. In re
the Marriage of Merriman (lggl), 247 Mont. 491, 807 P.2d 1351. The
decision to appoint an attorney to represent children in custody
matters is discretionary with the court. In re the Marriage of
Hammill (1987), 225 Mont. 263, 732 P.2d 403. We hold that the
District Court did not abuse its discretion in refusing to appoint
an attorney to represent the children.
VI .
Did the District Court err in failing to award appellant
attorney fees?
Both Fausto and Cindy claim that they are entitled to attorney
fees. The premarital agreement granted attorney fees to the party
successfully defending the agreement. Section 40-4-110, MCA,
grants the District Court the discretion to award reasonable
attorney fees. Absent an abuse of discretion, this Court will not
overturn the District Court's decision denying attorney fees. In
re the Marriage of Manus (1987), 225 Mont. 457, 733 P.2d 1275. The
court found that the litigation of this matter was prolonged by
both parties, however, more so by Fausto than by Cindy. The court
concluded that the unnecessary attorney fees caused by each party
offset each other and denied attorney fees to both parties. From
our examination of the record, we concur with the court's
conclusion.
In our order dated September 24, 1991, we denied Cindy's
request to divide the cost of the transcript on appeal between the
parties. We stated that responsibility for the costs of the
transcript would be determined by this Court under Rule 33,
M.R.Civ.P. Because Fausto has filed numerous requests to have
additional transcripts filed with this Court, as well as numerous
requests for extensions of time in filing his responsive brief,
thereby creating significant delay in our ability to render a
decision, we hereby order that costs of the transcript on appeal be
equally divided between the parties.
Affirmed in part and remanded for further determination in
accordance with this opinion.
We concur: /
December 10, 1992
CERTIFICATE O F SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Barbara E. Bell
Bell & Marra
Ste. 201 Liberty Center
9 Third St. No.
Great Falls, MT 59401
Kenneth Olson
Attorney at Law
600 Central Plaza
Great Falls, MT 59401
Fausto Turrin
600 Central Plaza
Great Falls, MT 59401
ED SMITH
CLERK O F THE SUPREME COURT
STATE O F MONTANA
BY:
Deput