In Re Marriage of Bukacek

NO. 95-162
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995

IN RE MARRIAGE OF
ANN MARIE BUKACEK,
Petitioner and Respondent,
and
EDWARD PAUL JANES,
Respondent and Appellant.

APPEAL FROM: District Court of the Nineteenth Judicial District,
In and for the County of Lincoln,
The Honorable Robert S. Keller, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Peter F. Carroll, Attorney at Law,
Kalispell, Montana
For Respondent:
L. Charles Evans, Attorney at Law,
Libby, Montana

Decided: November 21, 1995
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.

Petitioner Ann Marie Bukacek filed a petition for dissolution

of her marriage to Edward Paul Janes, in the District Court for the

Twentieth Judicial District in Lincoln County. Following numerous

hearings, the District Court entered its decree in which it awarded

the parties joint custody of their four minor children and

designated Ann the primary custodian. The court also divided the

couple's marital estate, provided for child support, and ordered

Ann to pay maintenance to Ed for one year. Ed appeals from the

District Court's decree. We affirm the District Court.

There are five issues presented on appeal:

1. Did the District Court have continued jurisdiction after

stating at the initial proceeding that the dissolution was granted?

2. Did the District Court abuse its discretion when it

enforced that part of the couple's settlement agreement which

related to property division, but refused to enforce provisions

related to child custody, child support, and maintenance?

3. Did the District Court adequately consider the children's

preferences when it made its child custody determination?

4. Did the District Court abuse its discretion when it

determined that Ann should have primary residential custody of the

children?

5. Did the District Court demonstrate bias which prevented

it from impartially deciding the issues presented?

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 FACTUAL BACKGROUND
Ann and Ed were married in Lane County, Oregon, on April 26,
1978. Soon afterward, Ann expressed a desire to continue her
education. With Ed's support, she earned her undergraduate degree
and enrolled in medical school. In 1989, Ann completed a three-
year medical residency.
Ann and Ed had four children while Ann was pursuing her
medical education. During that time, Ed was not employed and
served as the homemaker and primary caretaker for the children.
Although Ann devoted a great deal of her energy to her studies and
her residency, she shared as much as possible in child care and
housekeeping responsibilities.
In 1989, Ann and Ed and their four children moved to Redmond,
Oregon, where Ann worked as a physician with a local hospital and
established a private practice. Ed remained the children's primary

caretaker during this time.
The parties and their children moved to Libby, Montana, in
December 1991. Ann and Ed separated immediately, and Ann filed a
petition for dissolution with the District Court. Pursuant to a
written settlement agreement, Ann appeared before the court for
entry of a decree by default on February 24, 1992. The District
Court expressed concern about support provisions in the agreement,
and recommended that tax consequences be considered, and that
further advice be considered. The court did, at that time,

indicate that the dissolution would be granted.

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 After the first hearing, the parties were unable to reach an
agreement on the issues of child custody and support. Although Ann

first agreed that Ed should have primary residential custody of the

children, she later became concerned about his emotional stability

and hostility. By the time of trial in September 1993, each party

sought primary residential custody of the children.

On December 20, 1994, the District Court entered a decree of

dissolution. The court awarded joint custody of the four children

to both parties, and designated Ann the primary residential parent.

The court also approved the distribution of marital property set

forth in the parties' original February 1992 property settlement

agreement, relieved Ed of child support payments for one year, and

ordered Ann to pay maintenance to Ed for one year.

ISSUE 1

Did the District Court have continued jurisdiction after

stating at the initial proceeding that the dissolution was granted?

A decree of dissolution is final when entered subject to the

right of appeal. Section 40-4-108(l), MCA. Ed contends that the

District Court's oral statement during the initial hearing to the

effect that the dissolution was granted had the effect of a final

decree and divested the court of further authority to act.

The term "decree" includes the term "judgment." Section

40-4-103(4), MCA. The Montana Rules of Civil Procedure define

"judgment" as "the final determination of the rights of the parties

in an action or proceeding . . . and includes a decree . . . ."

Rule 54(a), M.R.Civ.P. (emphasis added). Although the District

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Court in this case purported to orally grant the parties'
dissolution at the initial hearing, that statement was by no means
a "final determination" of the couple's rights. AS the court
stated at that time, the issues of child custody, support, and
maintenance had yet to be decided. Furthermore, the court later
acknowledged that it had no jurisdiction to grant a dissolution
without resolving those related issues. In a written memorandum,
the court stated:
During the course of the hearing which was held on
February 22, 1993, the Court advised that it would
prepare and enter a decree of dissolution. However, the
Court has subsequently determined that it is without
jurisdiction to enter the decree of dissolution at this
time. See 40-4-104 (d) MCA and In reMarriageofSkinner, [240
Mont. 2991, 783 P.2d 1350 (Mont. 1989).
We therefore conclude that the court's statement at the
initial hearing to the effect that the parties' marriage was
dissolved did not divest it of jurisdiction to act further in this
case.
ISSUE 2
Did the District Court abuse its discretion when it enforced
that part of the couple's settlement agreement which related to
property division, but refused to enforce provisions related to
child custody, child support, and maintenance?
When a district court determines the conscionability of a
marital and property settlement agreement it

engage[sl in discretionary action which cannot be
accurately categorized as either a finding of fact or a
conclusion of law. These discretionary judgments made by
the trial court are presumed to be correct and will not

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 be disturbed by this Court absent an abuse of discretion
by the lower court.
InreMarriageofCaras (1994), 263 Mont. 377, 380-81, 868 P.2d 615, 617

(quoting InreMarriageofHamilton (1992), 254 Mont. 31, 36, 835 P.2d 702,

704-05) (alteration in original).
Ed contends that the District Court abused its discretion when
it found that the terms of the parties' settlement agreement which
pertained to child custody, support, and maintenance were
unconscionable. He further contends that if the agreement was
unconscionable, the court should not have approved the division of
property included in the agreement.
Section 40-4-201(2), MCA, provides:
In a proceeding for dissolution of marriage or for
legal separation, the terms of the separation agreement,
except those providing for the support, custody, and
visitation of children, are binding upon the court unless
it finds, after considering the economic circumstances of
the parties and any other relevant evidence produced by
the parties, on their own motion or on request of the
court, that the separation agreement is unconscionable.
In InreMarriageofSimms (1994), 264 Mont. 317, 325-26, 871 P.2d

899, 904, we clarified the district court's obligations:
In short, in a marriage dissolution case . . . [tlhe
district court . . is not bound by the parties' oral or
written agreements or stipulations in matters of custody,
support and visitation (the applicable statutory criteria
always being paramount), and is bound on the matters of
property division and maintenance only to the extent that
the parties' agreement is reduced to writing and is
found, after review, to be not unconscionable.
In this case, the parties' written agreement settled the
distribution of the couple's real and personal property; designated
Ed as the children's primary residential custodian for so long as

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he lived in the same city as Ann; required Ann to pay Ed's
residential expenses of up to $1000 per month; and provided that Ed
would receive one-half of Ann's disposable income for ten years.
As provided in Simms, the District Court was not bound by the

agreement's provisions related to child custody and support, and
was bound by the provisions regarding property division and
maintenance only to the extent that the court found them to be
conscionable.
We conclude that the District Court did not abuse its
discretion when it held that the maintenance award was
unconscionable. The court alerted the parties to its concerns
about the maintenance provision at the first hearing. At that
time, the court indicated that it would not sign the agreement
until it Was modified and reviewed by a certified public
accountant. The court's concerns were well-founded. The
settlement agreement did not indicate whether the monthly payments
to Ed were child support or maintenance, and did not set forth how
the monthly figure for Ann's disposable income would be determined.
Furthermore, the court's request that the agreement be re-written
was authorized pursuant to § 40-4-201(3), MCA, which provides that:
If the court finds the separation agreement
unconscionable, it may request the parties to submit a
revised separation agreement or may make orders for the
disposition of property, maintenance, and support.
The parties did not submit a revised agreement which addressed the
court's concerns about the maintenance provision. Therefore, since
the court held that the original agreement was unconscionable, it
was free to make its own order with regard to the issue of
maintenance.
We further hold that the District Court did not abuse its
discretion when it held that the written property settlement was
conscionable. As the court noted, both parties testified at trial
that their agreed-upon distribution of the marital estate was fair
and equitable. In addition, Ed stated in his consent to entry of
default that "[he did1 not have any complaint about the Property
Settlement . . . .I) As the District Court noted, the agreement
results in a net distribution to Ed of approximately $40,000 and to
Ann of approximately $35,000. In addition, the agreement requires
Ann to assume all remaining marital obligations, which total over
$175,000. In light of these circumstances, the court clearly did
not abuse its discretion when it upheld the property distribution
provisions in the agreement.
For these reasons, we affirm the District Court's treatment of
the parties' settlement agreement.
ISSUE 3
Did the District Court adequately consider the children's
preferences when it made its child custody determination?
Because the district court is in a superior position to weigh
evidence, we will not overturn the court in child custody matters
unless we determine that there has been a clear abuse of
discretion. In reMarriageofBolt (19931, 259 Mont. 54, 58, 854 P.2d

322, 324.
 Ed claims that the District Court abused its discretion
because it did not question the children directly regarding their
custodial preferences. He maintains that the psychological custody
evaluation ordered by the court did not discuss the children's
preferences, and that the District Court record is devoid of any
indication that the court considered the children's preferences as
a factor in its custody determination.
Children's preferences for custody are a factor which should
be considered by the district court. Section 40-4-212(b), MCA.
However, the court need not interview the children to discern their
preferences. InreMarriageofSusen (1990), 242 Mont. 10, 12, 788 P.2d

332, 334. It may rely on the evaluation of a professional
counselor. Bolt, 854 P.2d at 325. If the court does not interview

the children, it is not required to make specific factual findings
regarding the children's preferences. In re Marriage of Hi&y ( 19 8 4 ) ,

213 Mont. 38, 42, 689 P.2d 1222, 1224.
In this case, the children's wishes were adequately addressed
by Dr. John Santa, who was appointed by the court to perform a
custody evaluation. Although Dr. Santa did not directly ask the
children where they wanted to live, he did interview each child
regarding "their views of their situation," and made specific
reference to the children's views of their parents and their
lifestyles with each parent. From this report, the court could
have accurately discerned the children's preferences. In fact, as
evidenced by the court's many references to that report, it is

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clear that the court read and considered Dr. Santa's
recommendations as a basis for its final determination.

Therefore, because the District Court appointed a professional

counselor who set forth his opinions about the children's
preferences in a custody evaluation report, and because the court

considered that report in its decree, we hold that the court did

not abuse its discretion because it did adequately consider the

children's preferences.
ISSUE 4

Did the District Court abuse its discretion when it determined

that Ann should have primary residential custody of the children?

We review a district court's underlying findings of fact in

a child custody case to determine whether those findings are

clearly erroneous. In re Marriage of Dreesbach (1994 ) , 265 Mont. 2 16,

220-21, 875 P.2d 1018, 1021. This Court will overturn the district
court's final custody award which is based on those findings only

when an abuse of discretion is clearly demonstrated. Dreesbach , 87 5

P.2d at 1021.

Section 40-4-212, MCA, lists the relevant factors that a

district court must consider when it makes a child custody

determination. The factors include the preferences of the parties,

the preferences of the children, the interaction and interrelation-

ship between the children and their family, and the children's

adjustment to home, school, and community. The court is not

required to make specific findings which address each factor, but

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it must set forth the "essential and determining" factors on which
its determination is based. In re Marriage ofMerriman ( 19 9 1) , 24 7 Mont .

491, 493, 807 P.2d 1351, 1353.
In its decree, the District Court concluded that:
[Ulpon consideration of all relevant factors, including
those set forth in § 40-4-212, MCA (1991), it is in the
best interests of the parties' minor children for them to
be in the joint custody of the parties, with [Ann]
designated the primary residential parent.
On appeal, Ed contends that the court's determination does not
fairly represent the record. Ed contends that the District Court
accepted Ann's concerns without an independent review of the facts;
that the court failed to fairly review Ed's record as the primary
provider for his children; and that the court either ignored or
misconstrued facts concerning the children's welfare.
We have thoroughly reviewed the record, however, and find that
the District Court did consider such factors as the wishes of Ann
and Ed, the children's preferences, the interrelationships between
the parties and their children, the children's adjustment to Libby,
and the mental health of both Ann and Ed when it made its custody
determination. Specifically, the court set forth the following
facts in its decree: The court addressed Ann's concerns about Ed's
emotional instability and his attempts to alienate the children
from Ann; the court set forth Dr. Santa's findings that Ann was an
"emotionally stable" parent who "obviously loves, and cares for her
children," and who is "supportive of the children and their school
work and activities"; and the court noted that Ed's plan to move to
Kalispell with the children would not serve the children's best

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interests because they would lose Ann's "considerable warmth, and
nurturing" and because Ed had failed to create an identity of his
own unrelated to the children. In addition, the court addressed
the issue of Ed's continued bitterness toward Ann throughout the
dissolution proceedings, stating:
[Ed] has made it clear, at each hearing that has
been conducted, that he considers [Ann] immoral, unsuited
to have the custody of the children, and that he has made
this clear to the children; notwithstanding the Court has
remonstrated with [Ed] about this attitude, it has not
changed.
Finally, in a written memorandum attached to the December 1993
decree, the court stated:
This has been one of the most difficult dissolutions
that I have had. There is no question of the closeness
between the father and the children; by the same token,
the children are equally fond of their mother. The
father has been so distraught about the dissolution that
becoming the residential custodian has been an obsession.
His remarks concerning the children's mother in the
presence of the children are sufficient to terminate any
visitation; and but for the love that the children have
for their father, visitation would be terminated.
Nevertheless, that cannot continue.
We conclude that the District Court's findings of fact are not
clearly erroneous, and that the court did not abuse its discretion
when it awarded Ann primary physical custody of the children.
ISSUE 5
Did the District Court demonstrate bias which prevented it
from impartially deciding the issues presented?
Ed contends that the District Court was biased against shared
custody and did not award shared custody because of this bias. He
further asserts that the court failed to seriously consider his

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request for maintenance because of his gender. He contends that
because he is a male the court imputed income to him that would not
have been imputed had he been a woman. We find no merit to these
allegations.
The record is clear that neither Ann nor Ed wanted to continue
a shared custody arrangement, and that the court considered all the
necessary factors when it made its child custody determination. As
the court stated in its findings, ('[bloth parties testified that
they do not believe it is in the best interests of their children
to continue this shared parenting situation." Furthermore,
although Dr. Santa recommended shared parenting in his evaluation,
the court pointed out Dr. Santa's concerns that the animosity of
the parties toward each other and that the different parenting
styles might make joint parenting unworkable. Finally, although
the court did state that it was "prejudiced" against shared
visitation, its statement was made against the backdrop of a
two-year custody battle in which the parties' children had been
shuttled back and forth daily between Ann's and Ed's homes. As the
court stated:
I feel some of the problems that you are having have been
testified to and when you have children back and forth
like a yoyo, you are going to get behavioral problems
that you really can't blame on anybody.
Ed's claim of gender bias is also unsupported. The court
awarded maintenance in the sum of $500 per month for one year, even
though it expressed concerns that Ed had failed to take advantage
of educational opportunities throughout his marriage and that Ed's

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unemployment at the time of the trial was not wholly unintentional.
In addition, the record is clear that the court imputed income to

Ed not on the basis of his gender but because Ed was capable of

employment but had chosen to forsake several opportunities to be

available full-time for his children. It is clear that gender was
not the basis for the court's maintenance decision.

For these reasons, we conclude that Ed's claim of bias is

without merit.
We affirm the decree of the District Court.

We concur:

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