NO. 95-192
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
IN RE THE MARRIAGE OF
DENISE DeWITT,
Petitioner and Appellant,
and
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable James E. Purcell, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Bernard J. "Ben" Everett; Knight, Dahood, McLean &
Everett, Anaconda, Montana
For Respondent:
Brad L. Belke, Attorney at Law, Butte, Montana
Submitted on Briefs: October 12, 1995
Decided: October 31, 1995
Filed:
Justice W. William Leaphart delivered the Opinion of the Court.
Denise Dewitt appeals from the December 29, 1994, Findings of
Fact and Conclusions of Law of the Second Judicial District Court,
Silver Bow County, dissolving the marriage, distributing the
marital estate and awarding child support, custody and visitation.
We affirm in part and reverse in part.
The following issues are raised on appeal:
1. Did the District Court err in awarding child custody and
visitation?
2. Did the District Court err in concluding that Respondent
did not have to pay child support?
3. Did the District Court err in distributing the marital
estate?
John J. Dewitt (John) and Denise Dewitt (Denise) were married
on October 10, 1987. Two daughters, now ages 4 and 6, were born of
the marriage. At the time their marriage was dissolved, Denise was
employed as a real estate loan officer and John was employed
seasonally as a golf pro. The District Court found that both
parties were in excellent health and that both have a good
opportunity to acquire income and assets in the future. The court
noted that Denise has no college degree, and that John has a
college degree in marketing.
Both parties requested that the children be placed in their
joint custody, and both petitioned to be the primary physical
custodian. The District Court, finding that joint custody was in
the best interests of the children, awarded joint custody to the
parties and designated Denise as the primary physical custodian.
The court noted that John's employment was seasonal and, to
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accommodate his schedule, awarded him a thirty-day "summer
visitation" period during the winter months of January, February,
or March. In its custody determination, the court also recognized
the parties' religious background and that John's extended family
lives outside the state of Montana.
The District Court adopted the parties' stipulation as to the
values of the marital assets and the amounts of the marital debts.
The court distributed marital assets to Denise in the amount of
$145,522.98, and to John in the amount of $35,099.14. The court
apportioned all of the parties' debts, in the amount of $80,177.24,
to Denise. The court ordered that the family home be maintained
for the benefit of the children, but that Denise was required to
pay John $20,000 as his share of the equity in the house when the
youngest child reaches age 18. Further, the court ordered that
Denise pay $1,200 per year as interest on this obligation.
The court stated that the parties agreed that John would not
be required to pay child support until such time as he obtains
regular monthly employment. At that time, the court stated that
child support obligations should be calculated according to the
Uniform Child Support Guidelines.
Denise appeals from the District Court's rulings on child
custody and visitation, child support, and the distribution of the
marital estate.
1. Did the District Court err in awarding child custody and
visitation?
In reviewing a district court's award of child custody, we
determine whether the district court's findings are clearly
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erroneous. In re Marriage of Dreesbach (1994), 265 Mont. 216, 220-
21, 875 P.2d 1018, 1021. The findings of fact must be based on
substantial credible evidence and the court's decision will be
upheld unless a clear abuse of discretion is shown. Marriaqe of
Dreesbach, 875 P.2d at 1021; In re Marriage of Hunt (1994), 264
Mont. 159, 164, 870 P.2d 720, 723.
In determining child custody, the district court must consider
the "best interest" criteria set forth in § 40-4-212, MCA, however,
the court is not required to make specific findings on each
individual factor. Marriage of Dreesbach, 875 P.2d at 1021; In re
Marriage of Merriman (19911, 247 Mont. 491, 493, 807 P.2d 1351,
1353. Here, the Findings of Fact and Conclusions of Law illustrate
that the District Court considered the best interest factors. In
addition, the court considered the religions traditions of the
parties, John's out-of-state relatives, and John's summer
employment. Substantial credible evidence supports the District
Court's determination of child custody. The District Court's
findings are not clearly erroneous.
2. Did the District Court err in concluding that Respondent
did not have to pay child support?
In reviewing a district court's award of child support, we
consider whether the district court abused its discretion. In re
Marriage of Craib (1994), 266 Mont. 483, 490, 880 P.2d 1379, 1384.
In its Findings of Fact and Conclusions of Law, the District Court
stated:
Because of John Dewitt's present employment status the
parties agree that he not be required to pay to Denise
Dewitt any monthly child support until such time as he
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obtains regular employment. At that time, he should
notify Denise Dewitt of his employment status and his
child support will be calculated in accordance with the
child support guidelines of the State of Montana. If
John Dewitt does not find regular employment within
twelve (12) months from the date of this Decree, he shall
present to the Court in writing, proof of his efforts to
find employment and the reasons he has not become
employed.
Although the District Court stated that "child support will be
calculated in accordance with the child support guidelines," the
court did not require either party to complete the Uniform Child
support Guidelines Affidavit. Section 40-4-204(3) (a), MCA,
requires that the guidelines must be used in all cases. See also
--
In re Marriage of Brandon (Mont. 1995), 894 P.Zd 951, 953, 52
St.Rep. 381, 382-83.
If the court deviates from the guidelines, the court must
justify its failure to follow the guidelines with "clear and
convincing" evidence. Section 40-4-204(3) (a), MCA; Marriaqe of
Brandon, 894 P.2d at 953. Further, the guidelines require that
findings which vary the amount of guideline support must include a
statement of the amount of support that would have been ordered
under the guidelines without a variance. 46.30.1507(4), ARM.
John argues that he and Denise agreed that he would not be
required to pay child support. The District Court's finding relies
upon such a stipulation. Denise argues that no such stipulation or
agreement was made by the parties. In either event, the District
Court was still required to calculate support according to the
Uniform Child Support Guidelines. The guidelines themselves
provide that:
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A court or administrative hearing officer may vary from
the guidelines based on a stipulation or agreement of the
parties only if the stipulation or agreement meets the
following criteria:
(a) it is in writing executed by the parties;
(b) the parties have signed the stipulation or agreement
free of coercion;
(c) it contains specific justification as to why
application of the guidelines is unjust or inappropriate;
and
(d) it contains a statement of the amount of support
that would have been appropriate under the guidelines
without the variance.
46.30.1507(5), ARM; Marriaqe of Brandon, 894 P.2d at 954. Even if
John and Denise had stipulated that he would not be required to pay
child support until he was regularly employed, the above criteria
must still be satisfied before the court can vary the support
obligation. Here, none of the criteria are satisfied; there is no
written agreement, there is no specific finding that application of
the guidelines would be unjust or inappropriate, nor is there a
statement of what the support obligation would have been without
the variance.
In this case, the District Court did not even have the parties
complete the financial affidavits. Since there had not been any
determination of support due under the guidelines, it would have
been impossible for the District Court to support its variance from
the guidelines with clear and convincing evidence. Without first
knowing what the guidelines require, it is impossible for the
district court (in the first instance) or this Court (on appeal) to
know whether a waiver or variance is "unjust" or "inappropriate" in
a particular case.
From the record, John's annual net income and employment
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situation is not altogether clear. However, we note that except in
cases where the parents have extremely low net income, a specific
minimum contribution toward child support should be ordered in all
cases, even though a parent does not have sufficient net income to
meet his or her own self-support reserve needs. Marriaqe of
Brandon, 894 P.2d at 954 (citing 46.30.1538, ARM).
The District Court found that John's employment opportunities
and vocational skills were excellent and that he has a good
opportunity to acquire income and assets in the future. The court
also noted that John has a college degree in marketing. Yet, the
District Court found that aside from the seasonal work as a golf
pro "[rlespondent has no other sources of income." This Court has
recognized that:
In cases where the obligor parent is not working or is
not working at full earning capacity, the reasons for
such a limitation on earnings should be examined. If the
reason is a matter of choice, the local job market should
be reviewed to determine what a person with the obligor
parent's trade skills and capabilities could earn. Those
typical earnings can then be imputed to the obligor
parent. .
In re Marriage of Wersland (1991), 249 Mont. 169, 171-72, 814 P.2d
991, 992. In determining John's income under the guidelines, the
District Court should consider imputing income to John if he
remains only seasonally employed.
The legislature has stated that the guidelines "must be used
in all cases." "Must" is mandatory and "all" means every. Neither
concept leaves room for exception. We conclude that the District
Court erred when it did not apply the Uniform Child Support
Guidelines and, therefore, we must remand this case for a
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determination of child support due based upon the guidelines.
Marriaqe of Brandon, 894 P.2d at 954. On remand, if the court
chooses to deviate from the guidelines, it must do so with
specificity and by presenting clear and convincing evidence for any
deviation.
3. Did the District Court err in distributing the marital
estate?
The standard of review of a district court's division of
marital property is whether the district court's findings of fact
are clearly erroneous. In re Marriage of Smith (Mont. 1995), 891
P.2d 522, 525, 52 St.Rep. 174, 175-76; In re Marriage of McLean
(1993), 257 Mont. 55, 61, 849 P.2d 1012, 1015. Where substantial
credible evidence supports the court's findings and judgment, this
Court will not alter the trial court's decision unless there is an
abuse of discretion. In re Marriage of Maedje (1994), 263 Mont.
262, 266, 868 P.2d 580, 583.
Denise and John stipulated as to the marital assets, their
value, and the amounts of the marital debts. The District Court
adopted that stipulation in its Findings of Fact and Conclusions of
Law. Further, the District Court's findings demonstrate that the
court addressed the parties' income, their use of the family home,
and other criteria such as the duration of the marriage and the
employability of the parties, as set forth in § 40-4-202, MCA.
This Court will not disturb an equitable apportionment of the
marital assets when it is clear that the district court was acting
within its discretion. In re Marriage of Danelson (1992), 253
Mont. 310, 319, 833 P.2d 215, 221. Here, it is clear from the
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record that the District Court was acting within its discretion and
the distribution of the marital estate was not clearly
erroneous.
Affirmed in part, reversed in part, and remanded for
proceedings consistent with this opinion.
We concur:
Justxces