NO. 93-100
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
IN RE THE MARRIAGE OF
COLLEEN MARIE STRIZIC,
Petitioner and Respondent,
and
DANIEL J. STRIZIC,
Respondent and Respondent.
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable Mark P. Sullivan, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Mark A. Vucurovich, Henningsen, Vucurovich
& Richardson, Butte, Montana
For Respondent:
Bernard J. "Bent1 Everett, Knight, Dahood,
McLean & Everett, Anaconda, Montana
Submitted on Briefs: August 26, 1993
Decided: January 20, 1994
Filed:
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Appellant, Daniel Strizic, appeals from a final decree of
dissolution of the Second Judicial District Court, Silver Bow
County, awarding Respondent, Colleen Strizic, monthly maintenance
for four years and primary custody of their two children, and
dividing the marital estate.
We affirm in part and remand in part.
We consolidate the issues as follows:
1. Did the District Court err when, during the trial, it
awarded Colleen $4200 and one-half the parties' 1991 income tax
refund as retroactive temporary maintenance?
2. Did the District Court err when it awarded the parties
joint custody of the children, designating Colleen as the primary
custodial parent?
3. Did the District Court err when it determined and
apportioned Daniel's inheritance as part of the marital estate?
4. Did the District Court err when it determined and
apportioned Daniel's premarital Montana Power Company stock
dividends as part of the marital estate?
5. Did the District Court err when it determined and
apportioned Daniel's premarital certificates of deposit as part of
the marital estate?
6. Did the District Court err in computing Daniel's monthly
income?
7. Did the District Court err in awarding Colleen
maintenance?
2
The parties were married September 24, 1983, in Butte, Silver
Bow County. At the time of dissolution, Colleen was 34 years of
age and Daniel was 35. During the marriage, the parties enjoyed an
above-average standard of living. Daniel acquired substantial
premarital property and inherited substantial property during the
marriage. He is employed by the Montana Power Company in Butte as
an analyst. Colleen is a student in the Public Health Program at
Montana Tech in Butte and has no independent source of income. Two
children were born as issue of the marriage. At the time of the
dissolution, the children resided with Colleen.
ISSUE 1
Did the District Court err when, during the trial, it awarded
Colleen $4200 and one-half the parties' 1991 income tax refund as
retroactive temporary maintenance?
A maintenance award is proper if the court finds that the
spouse seeking maintenance:
(a) lacks sufficient property to provide for his
reasonable needs; and
(b) is unable to support himself through
appropriate employment or is the custodian of a child
whose condition or circumstances make it appropriate that
the custodian not be required to seek employment outside
the home.
Section 40-4-203, MCA.
Daniel argues that the District Court acted arbitrarily and
erred when, during the trial, it ordered him to make available to
Colleen retroactive temporary maintenance in the amount of $4200,
plus one-half the parties' 1991 income tax refund. At trial, the
3
parties with Petitioner [Colleen] being designated as
primary physical custodian and Respondent [Daniel] having
reasonable rights of visitation.
The court then listed numerous considerations, pursuant to the
statute, that supported its custody determination.
In addition,, it is clear from the record that the court
considered all the custody recommendations of the parties' experts.
The court considered the court-appointed counsel's recommendation
that would have required the children to reside on an alternating
monthly basis with each parent. The court also heard from a
licensed clinical therapist, called by Colleen, who offered a
different custody recommendation, and testified as follows:
I believe that she [Colleen] is an exceptionally good
parent. I think she provides an appropriate degree of
nurturing for the children. I believe that she provides
mental stimulation and she is very cognizant of their
physical safety, all of which children need. I also
believe that she provides appropriate limits and
boundaries for those children.
. . . .
Q. Would the plan proposed by [the court-appointed
counsel], require a great deal of adjusting by the
children?
A. I just think its an impossible plan. . . . [I]t might
serve the parents in some way, it does not serve the
children.
Q. Do you have any concerns about securities that the
children or insecurities that the children might develop
as a result?
A. [I]ts my belief that children need predictability and
consistency and reliability. . . . My fear would be that
the children would be in such emotional turmoil from
month-to-month waiting for the exchange to happen, moving
to another house, moving to live with another parent that
they may just shut down their feelings altogether. And
5
that could have severe impairment on them for the rest of
their lives.
While Daniel raises the issue of custody, he does not discuss
the reasons that the court has erred, but rather discusses all of
the custody concerns set forth in the court-appointed counsel's
conclusions, which the court heard and rejected.
We hold that the District Court did not abuse its discretion
when it determined child custody and we affirm on this issue.
Because of the conflict in the testimony and record as to the
remaining issues in this case, we are unable to make a final
determination as to any of those issues, and therefore, we remand
to the District Court for further proceedings on issues 3, 4, 5, 6,
and 7 to determine the bases upon which the court made its decision
and to develop a record upon which this Court can review these five
issues.
Affirmed in part and remanded.
Justice
6
January 20, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Mark A. Vucurovich, Esq.
Henningsen, Vucurovich & Richardson
P.O. Box 399
Butte, MT 59703
Bernard J. “Ben” Everett, Esq.
Knight, Dahood, McLean, Everett & Dayton
P.O. Box 727
Anaconda, MT 59711
ED SMITH
CLERK OF THE SUPREME COURT
STATE RF MqNTANA