NO. 95-338
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
Respondent and Respondent
APPEAL FROM: District Court of the Eighth Judicial District,
1n and for the County of Cascade,
The Honorable Thomas M. McKittrick, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Don A. LaBar, Church, Harris, Johnson
& Williams, Great Falls, Montana
David F. Stufft, Attorney at Law,
Cut Bank, Montana
For Respondent:
C. W. Leaphart, Jr., The Leaphart Law Firm,
Helena, Montana
Submitted on Briefs: March 28, 1996
Decided: May 14, 1996
Filed:
Justice Charles E. Erdmann delivered the opinion of the Court.
This is an appeal from a decision of the Eighth Judicial
District Court, Cascade County, in its award of child support and
maintenance in favor of Mayla Stufft and its division of the
marital estate. We affirm in part, reverse in part, and remand for
further findings consistent with this opinion.
We restate the issues as follows:
1. Did the District Court err in adopting the proposed
findings of fact and conclusions of law of one party practically
verbatim?
2. Did the District Court err in its award of child support?
3. Did the District Court err in its distribution of the
marital estate?
4. Did the District Court err in awarding maintenance to
Mayla?
FACTS
David and Mayla Stufft were married in 1971. Three children
were born of the marriage and at the time of the appeal they were
21, 15, and 13 years of age. In I977 David graduated from law
school and the family moved to Cut Bank. David has a law practice
and up until the time of the divorce worked as a part-time manager
on his family farm (Stufft Farm). Mayla worked as a teacher in the
Cut Bank school system from 1978 to 1993 except for six years when
she took time off to be with the children.
2
Mayla and the two minor children moved to Fresno, California,
in August 1993. She is seeking employment in the Fresno school
system. David remains in Cut Bank. David and Mayla agreed to
share custody of the minor children with Mayla having primary
physical custody and David having reasonable rights of visitation.
The District Court valued the assets and distributed them in
such a manner that both parties received approximately $185,000
with Mayla receiving the family home. David was assigned a large
portion of the debt, although the $70,000 mortgage was ordered to
be paid from the sale of the family home. The court awarded $739
per month per child as child support for the two minor children.
The court also awarded $2,000 per month as maintenance to Mayla for
a period of two years or until she becomes employed by the school
system, whichever occurs first. From the court's value and
division of marital property and its award of child support and
maintenance, David appeals.
ISSUE 1
Did the District Court err in adopting the proposed findings
of fact and conclusions of law of one party practically verbatim?
David contends that it was inappropriate for the court to have
adopted Mayla's proposed findings and conclusions verbatim. We
have held that adoption of a party's proposed findings and
conclusions is not in itself grounds for reversal. In re Marriage
of Purdy (1988), 234 Mont. 502, 764 P.2d 857.
[Ilt is not error for a court to adopt a party's proposed
findings and conclusions if they are sufficiently
3
comprehensive and pertinent to the issues to provide a
basis for the decision and are supported by the evidence.
Purdv, 764 P.2d at 858 (citing In re Marriage of Jacobson (1987),
228 Mont. 458, 743 P.2d 1025).
Proposed findings of fact and conclusions of law adopted by
the district court are the court's own findings and conclusions and
shall be reviewed the same--for clear error of fact and correctness
of law. See Daines v. Knight (1995), 269 Mont. 320, 324, 888 P.2d
904, 906; and Kreger v. Francis (1995), 271 Mont. 444, 447, 898
P.2d 672, 674. In this case, the court's findings and conclusions
were sufficiently comprehensive and pertinent to the issues and we
will not reverse the court's decision on that basis so long as the
evidence and the law supports those findings and conclusions.
ISSUE 2
Did the District Court err in its award of child support?
The District Court ordered David to pay Mayla the sum of $739
per month per child for the care, support, and maintenance of the
parties' minor children. We review a district court's award of
child support to determine whether the district court abused its
discretion. In re Marriage of Craib (1994), 266 Mont. 483, 490,
880 P.2d 1379, 1384. We have said, "a district court must apply
its discretion in a realistic manner, taking into account the
actual situation of the parties." In re Marriage of Noel (1994),
265 Mont. 249, 252, 875 P.2d 358, 359.
In calculating child support payments, 5 40-4-204(3) (a), MCA,
provides that:
4
Whenever a court issues or modifies an order
concerning child support, the court shall determine the
child support obligation by applying the standards in
this section and the uniform child support guidelines
. . The guidelines must be used in all cases . .
The amount determined under the guidelines is presumed to
be an adequate and reasonable support award, unless the
court finds by clear and convincing evidence that the
application of the standards and guidelines is unjust to
the child or to any of the parties or is inappropriate in
that particular case.
Both parties submitted financial affidavits purporting their
incomes, assets, and expenses. David also submitted a child
support determination worksheet by which he calculated what he
considered to be appropriate child support figures. According to
his calculations, David's support obligation was a negative amount
(-$276 per child) while Mayla was obligated to contribute $221 per
child. Mayla did not submit a child support determination
worksheet but asserts that in utilizing the child support
guidelines David is obligated to pay support in the amount of $739
per child.
In the District Court's findings and conclusions, it stated
that it considered and complied with the Social and Rehabilitative
Services Guidelines in arriving at its child support award of $739
per child per month. A district court, however, is required to
make specific findings in writing as to how it calculated its award
of child support under the guidelines and any deviation therefrom.
In re Marriage of Brandon (19951, 271 Mont. 149, 152, 894 P.2d 951,
953. In this instance, the court did not identify the specifics of
its calculation but merely alluded to the use of the guidelines.
5
In fact, the record is unclear as to how the District Court either
complied with or deviated from the child support guidelines.
Working backwards on the child support determination
worksheet, David argues he would have to earn $126,000 per year to
be obligated for support payments of $739 per child per month. In
any event, there is insufficient evidence to support the court's
award of child support given that the court has provided no means
to evaluate and compare its calculations with those required under
the guidelines. We therefore conclude the District Court abused
its discretion in its award of child support and we remand this
issue to the District Court for its calculation of child support
pursuant to the Montana Child Support Guidelines.
ISSUE 3
Did the District Court err in its distribution of the marital
estate?
We review the findings underlying a district court's division
of marital property to determine if the findings are clearly
erroneous. In re Marriage of Rock (1993), 257 Mont. 476, 479-80,
850 P.2d 296, 298. We determine a finding is clearly erroneous by
using the three-part test set forth in Interstate Production Credit
Association v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285,
1287. The DeSave test requires a review of the record to determine
whether the findings are supported by substantial evidence; to
determine whether the district court misapprehended the evidence;
and finally, to determine whether a review of the record leaves
6
this Court with a firm conviction that a mistake has been made.
The court's distribution of marital property is a discretionary
judgment which is "presumed to be correct and will not be disturbed
on appeal absent an abuse of discretion." Marriaqe of Rock, 850
P.2d at 298.
Section 40-4-202(l), MCA, provides in part that:
IT1 he court . . . shall . . finally equitably apportion
between the parties the property and assets belonging to
either or both . . . . The court shall also consider the
contribution or dissipation of value of the respective
estates and the contribution of a spouse as a homemaker
or to the family unit.
The District Court distributed $184,000 in assets to David and
$185,000 in assets to Mayla. As part of this distribution, David
received the assets of the Stufft Law Firm which the court valued
at $75,000, and 20 shares of Stufft Farm stock valued at $20,000.
Mayla received the family home with a value of $128,200. The court
assigned $5,467 in debt to Mayla and $182,000 in debt to David.
David contends that the assets he received were overvalued and
as a result the court's distribution was inequitable. David claims
the market value of his law firm was actually $6,500, the value of
the equipment given the fact that accounts receivable equaled
accounts payable. Mayla asserts that the law business had value,
not only by virtue of the purchase price, but also from the
testimony of Mayla's expert witness relative to the good will of
the law firm and its average annual reported revenue. However, the
purchase price to which Mayla refers is the amount David and a
former partner, Moore, borrowed to purchase a third partner's
7
(Frisbee) interest in the law firm of Frisbee and Moore. In 1991
David left that practice and received $12,000 in cash for the
equity in the building, some of the equipment, and the law library.
Both he and Moore retained their individual accounts.
As a result of this sequence of events, the price paid for
Frisbee's interest does not necessarily represent the market value
of the Stufft Law Firm. Neither is there evidence to support the
court's finding that David's average net taxable income from the
law business is $35,000. Mayla's own exhibits provide that David's
net law income for the last three, five, and seven years averaged
less than $35,000. Thus, while the value of the law firm may be
over and above the value of its office equipment, there is no
evidence in the record to support the $75,000 assessment by the
court. We therefore conclude that the court erred in valuing the
Stufft Law Firm and we remand this issue to the District Court for
further findings in support of a determined market value for the
Stufft Law Firm.
As for the Stufft Farm stock, David claims the value of the
stock is actually $64 per share and the value of his total shares
is $1,280. Mayla concedes that the value of the Stufft Farm stock
is in question. Accordingly, we remand this issue back to the
District Court for further findings to support a valuation of the
Stufft Farm stock.
Finally, David contends that the court's assignment of debt
was inequitable. David maintains that the court unfairly
8
distributed the house to Mayla while assigning the mortgage on the
house to him. The court, however, ordered that David "continue
paying the debt on the family home until such time as it is sold.
The remaining original debt for the home shall be paid out of the
sale of the home at the time of closing." Assuming the house is up
for sale in light of the fact that Mayla has moved from Montana,
the court's distribution to Mayla was actually the value of the
home minus the first mortgage and David was not unduly burdened
with that debt.
Nevertheless, David contends he was still assigned a majority
of the debt and the District court I s assignment remains
inequitable. "As with the division of property, the District Court
is given wide discretion in the division of debts." In re Marriage
of Staudt (19851, 216 Mont. 196, 201, 700 P.2d 175, 178. We have
reviewed the court's assignment of debt and note that the debt
assigned to David is either personal to him or to his business.
David took out a second mortgage on the family home and incurred
further debt to purchase a practice and office building from which
he alleges he received $12,000 that he then invested in his current
practice. David's current practice, Stufft Law Firm, is an asset
of David and we have said that the debts of a business are the
responsibility of whomever has the interest in that business. See
In re Marriage of Childers (19851, 216 Mont. 125, 127, 700 P.2d
594, 595. Accordingly, there is sufficient evidence to support the
court's distribution of debt and that evidence has not been
9
misapprehended nor do we have any conviction that a mistake has
been made. We therefore conclude the District Court did not abuse
its discretion in assigning the majority of the debt to David.
However, we direct the District Court to reconsider its equitable
distribution of the assets and debts of the marital estate given
that we have remanded to the court its determination of value for
the Stufft Law Firm and the Stufft Farm stock.
ISSUE 4
Did the District Court err in awarding maintenance to Mayla?
The District Court ordered David to pay maintenance of $2,000
per month to Mayla "for twenty-four months or until she becomes
employed by the school system whichever occurs first." We review
a district court's award of maintenance to determine if the
findings of fact are clearly erroneous. In re Marriage of
Eschenbacher (19921, 253 Mont. 139, 142, 831 P.2d 1353, 1355. As
stated in Issue 3, we use the three-part test set forth in DeSave,
820 P.2d at 1287, to determine if the court's findings are clearly
erroneous.
Maintenance is provided for in § 40-4-203, MCA, whereby
the court may grant a maintenance order for either spouse
only if it 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 . . . .
(2) The maintenance order shall be in such amounts
and for such periods of time as the court deems just,
without regard to m a r i t a l misconduct, and after
considering all relevant facts including:
(a) the financial resources of the party seeking
maintenance, including marital property apportioned to
10
him, and his ability to meet his needs independently,
including the extent to which a provision for support of
a child living with the party includes a sum for that
party as custodian;
. . .
(f) the ability of the spouse from whom maintenance
is sought to meet his needs while meeting those of the
spouse seeking maintenance.
David claims his monthly expenses exceed his monthly revenue
and therefore he is not capable of paying $2,000 per month in
maintenance. Mayla disputes David's purported income and debt
while the court concluded that he received $50,000 as farm manager
and $35,000 in his law practice. As stated in Issue 3, there is no
evidence to support the court's finding of income relating to
David's legal practice and as a result the value of David's law
practice is in question. Furthermore, David claims that he
resigned from his position as farm manager, thus depleting his past
income. If a past employment position remains available, we have
said that a court may impute that income to a party in a divorce
proceeding. In re Marriage of Chiovaro (1991), 247 Mont. 185, 189,
805 P.2d 575, 577. Nonetheless, there is no evidence in the record
as to whether the farm manager position was available to David at
the time of the dissolution.
While Mayla presented evidence of need until such time as she
becomes employed, the court's award of maintenance is not
consistent with evidence of David's financial resources. In
addition, the court's award for child support which has been
remanded should be considered in an award of maintenance. Section
40-4-203(2) (a), MCA. We therefore remand the issue of maintenance
11
to the District Court for reconsideration with regard to its
findings for child support and David's available income.
We affirm in part, reverse in part, and remand to the District
Court for further findings consistent with this opinion.
Justice
We concur:
Ju t?ces
/+?zzzz
District C
Court
sitting for Jus
fo
e Ted L. Mizner
Karla M. Gray
.ock