In Re the Marriage of King

No. 84-336
IN THE SUPFtEI4E COURT OF THE STATE OF MONTANA
1985

IN RE THE MARRIAGE OF
PL
-A SUE KING,
Petitioner and Respondent,
and
JACK DEAN KING,
Respondent and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Douglas Harkin, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

William Law Firm; Richard Ranney, Missoula, Montana

For Respondent :
Goldman & Goldman; Joseph M. Goldman, Missoula, Montana
For Children:
Milodragovich, Dale & Dye; Karl Boehm, Missoula, Montana

Submitted on Briefs: March 7, 1985
Decided: M ~ Y
13, 1985

Clerk
?IreJustice William E. Eunt, Sr. , delivered the Opinion of
the Court.

Jack King appeals an order and an amended order of the
Missoula County District Court which divided his and Pamela
King's marital property, and established custody and
visitation rights, and the support obligations of the parties
to their two minor children. Two issues are presented for
review: first, whether substantial evidence supports the
District Court's award of nearly al.1 the marital estate to
the wife; and second, whether the District Court erred in
awarding the parties' real property to the wife in lieu of
requiring the husband to make child support payments. We
affirm the District Court.
Jack and Pamela King married in March 1971, in Mexico.
Thereafter, they resided in California, where their two
children were born, in 1971 and 1973. In 1977, they moved to
Montana. They separated in June 1980, and the District Court
dissolved their marriage in June 1981, reserving the issues
of division of marital property, custody, visitation rights
and child support until a later time. Maintenance was
neither sought nor awarded, and custody and visitation rights
are not in issue on this appeal.
On February 29, 1984, the District Court entered
findings of fact, conclusions of law and its order deciding
those reserved issues. All parties filed certain objections
to the order, and thereafter, on April 16, 1984, the court
entered its amended findings, conclusions and order. That
amended order awarded each party the personal property then
in their possession, and awarded the family residence to
Pamela.
 Jack asserts several of the court's findings of fact are
unsupported by substantial evidence. We will address them in
order. In its finding no. 2, the court noted:
"The distribution of the proceeds of the sale of
the family home if it is ordered sold makes
inadequate provision for the support of the minor
children of the parties. "
Find.ingno. 3 :
"A substantial hardship would be imposed upon the
children of the parties if they would be required
to vacate the family home if it is ordered sold."
Finding no. 4:
"The expenses of sale, including realtors '
commissions, attorneys ' fees and potential capital
gain tax liability would take a disproportionate
amount of marital assets needed for child support."
And no. 5:
"It would be in the best interests of the minor
children of the parties to continue to reside in
the family home."
Jack contends the division of property should be
separate from and not contingent upon child support.
However, a fair reading of S 40-4-202, MCA, shows that the
District Court, in a proceeding for dissolution of marriage,
may take into account support considerations, and may protect
and promote the best interests of the children by setting
aside a portion of the jointly and separately held estate of
the parties for the support of their children. In reaching
such a result, the court shall equitably apportion between
the parties, the property or assets belonging to either or
both. The court is neither required to divide each asset
50-50, nor to sell all the parties' property and d.ivide the
proceeds 50-50. Equitable apportionment. is the guideline
under any or all of the many factors which apply. To order
the sale of the family residence would subject the marital
estate to realty fees, would lose a favorable interest rate,
and would uproot the children from their home and possibly
from their neighborhood. These findings are well supported
in the record.
Finding no. 7 provided that if Pamela were awarded the
residence, she would be able to devote sufficient monies from
her earnings to support the children. Jack contends the
finding is not supported by substantial evidence because she
probably would be able to support the children without the
award of the residence. His contention, even if correct,
neither per se invalidates the finding, nor begs the
conclusion that she would not be able to support them without
the home. Rather, it is reasonable to view the finding in
1-ight of the court's order relieving Jack of a financial
support obligation. Viewing the record in its entirety, as
we must, we cannot say the finding was erroneous.
Jack also attacks finding no. 8, wherein the court noted
he had not presented satisfactory evidence of his past or
present income, nor satisfactory means of verifying his
present or future income, given the nature of his occupation
as a professional gambler. He did testify without objection
that he earned approximately $1,000.00 per month in
California from gambling winnings, and approximately $500.00
per month therefrom after the parties moved to Montana. Yet,
when questioned further about his income, Jack was very
evasive, and eventually conceded that there was no way of
verifying his income. That makes it difficult to ascertain
whether he would be able to make support payments. It is
reasonable to conclude the court meant he did not have a
regular paycheck as such. It is also reasonable to infer the
court meant he had not presented sufficient income evidence
to justify a different property division. In light of those
considerations, we feel the finding is supported by record
evidence.
Jack next contends finding no. 9, that he would not pay
any portion of the childrens' attorney fees, was based on the
court's "suspicions and distaste for Jack's method of earning
a living." The Supreme Court, in reviewing evidence on
appeal, is not concerned with the motives of the trial court.
Nor may we express our opinion as to the wisdom of its
decisions. Rather, we look to determine whether the result
comports with the law. The District Court was in the best
position to examine the demeanor of the parties, the
witnesses and the evidence, and the District Court has broad
discretion in arriving at its decisions. We will not
substitute our judgment for the District Court absent a clear
abuse of that discretion. We fail to see how the court's
finding that Jack would not pay the childrens' attorney fees
abused its discretion.
Finally, Jack assails finding no. 10:
"Awarding the Petitioner the Respondent's share of
the equity in the family home is the only
reasonable means to insure that the Respondent will
contribute to the care and support of the minor
children of the parties."
Again, the District Court was in the best position to view
the parties, the witnesses and the evidence, and to render a
decision based on its view. Our role is not to examine other
possible means of ensuring Jack will contribute to the care
and support of his and Pamela's children, but to determine
whether the means chosen has a lawful basis of support in the
record. The income earned from Jack's chosen occupation as a
professional gambler, is by its very nature, inadequate to
ensure he will always or regularly or even predictably have
that income. To accede to such speculation is a gamble that
neither party nor the District Court is advised to undertake.
We find substantial evidence supports the findings of the
District Court.
The second issue Jack presents is whether the District
Court erred in awarding the custodial spouse the family
residence "in lieu of any child support obligation on the
part of the [non-custodial spouse.!" He contends the award
was erroneous because the issues of property and support are
totally irrelevant to each other. Pamela, on the other hand,
claims the award was proper because the issues of property,
support, custody and visitation rights are "inextricably
interwoven." The record does not support a conclusion
favoring either of those extremes. Rather, the District
Court considered all the factors, and made a decision based
on the extent to which they were interrelated. Custody and
visitation rights are not issues raised on appeal. The
property division and support findings, however, do call for
a discussion.
We held in Perkins v. Perkins (1975), 168 Mont. 78, 540
P.2d 957, that where the husband was financially unable to
contribute to the support of the minor children, it was not
error to grant the wife a proportionally larger share of the
marital property to offset her increased obligation.
Similarly, in Bailey v. Bailey (19791, 184 Mont. 418, 603
P.2d 259, the trial court awarded the family residence to the
wife, plus other property, for a total award of approximately
67% of the marital estate. After noting the District Court
weighed all the applicable factors of S 40-4-202, MCA, we
held a division of the marital estate which favors one party
over the other may be acceptable if there is reason for it.
Here, the District Court stated its reasons--the best
j-nterests of the children are served by allowing them to
remain in the family home; forced sale of the family home
would divert and dissipate assets needed for support; and the
only reasonable means to protect and promote the best
interests of the children is to award the home to Pamela.
That award was made in lieu of a support obligation.
No reasonable purpose would be served by ordering the
residence sold. Jack would not reside there in any event,
the children would be uprooted, and the marital estate would
be lessened because of realty fees attendant to the sale.
The District Court's findings and conclusions are
embodied in a ten-page summary attached to its order,
delineating all the statutory criteria.
We believe the District Court did a thorough job of
divid-ing the marital assets and resolving the respective
support obligations of the parties. We hold there was no
abuse of discretion.
Affirmed.

We Concur: