NO. 85-70
IN THE SUPREME COIJRT OF THE STATE OF MONTANA
1985
IN RE THE MARRIAGE OF
CARLIN RUSSELL ALT,
Petitioner and Appellant,
and
JUANITA SUSAN ALT
Respondent and Respondent.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Thomas McKittrick, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John R. Cobb, Augusta, Montana
For Respondent:
Graybill, Ostrem, Warner & Crotty; Gregory H. Warner,
Great Falls, Montana
Submitted on briefs: Aug. 22, 1985
Decided: October 31, 1985
fi?,& X
Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
The husband appeals from two decrees of the District
Court of the Eighth Judicial District, Cascade County, award-
ing custody, support, and visitation and dividing the proper-
ty of the parties.
Because the District Court has considered the factors
delineated by 5 s 40-4-110, -202, -203, -204, -212, and -223,
MCA, and because the District Court's findings are generally
supported by the record, we cannot say that the District
Court abused its discretion on most of the issues. The
decrees are generally affirmed, hut we remand on the creation
of the trust out of appellant's inherited property.
Appellant raises the following issues for the Court's
consideration:
1. Whether the District Court abused its discretion in
adopting respondent's findings of fact and conclusions of law
as to custody, child support and visitation.
2. Whether the District Court abused its discretion in
not allowing joint custody of the child between respondent
and appellant.
3. Whether the District Court allowed liberal visita-
tion of the child to appellant.
4. Whether the District Court abused its discretion in
awarding the amount of child support.
5. Whether the District Court failed to exercise
independent judgment in distribution of the marital assets
and erred in adopting respondent's findings of fact and
conclusions of law as to the property settlement.
6. Whether the District Court erred in adopting the
respondent's method of creating a trust for the child.
7. Whether the District Court abused its discretion in
awarding temporary maintenance to respondent.
8. Whether the District Court abused its discretion in
awarding costs and attorney fees to respondent.
Appellant (petitioner below) and respondent married on
March 28, 1975. Their only child was born January 6 , 1980.
The parties separated in early February 1983. Appe1 lant
works full time as a mechanic, earning about $25,000 per
year. Respondent was a homemaker during most of the marriage
but attended an airline vocational school after the parties
separated in 1983 and current]-y works in a travel agency in
Great Falls earning about $9,000 per year.
The District Court awarded custody of the minor child
to the respondent. Appellant's visitation includes every
other weekend from Friday evening to Sunday evening and one
evening per week in addition to alternate major holidays and
two weeks during the summer months. The court also ordered
appellant to pay $300 per month in child support. That child
support is to be made through an assignment of his earnings.
Appellant was required to make an assignment of his earnings
because of his past history in failing to meet his child
support obligations.
The District Court found that both parties had contrib-
uted equally to the property acquired during the marriage
through their respective efforts. This property was valued
at about $10,000, including the equity of $3,200 in their
residence, three vehicles and a portable sawmill. In dis-
tributing the property, the court also considered property
valued at about $90,000 that appellant inherited from his
father subsequent to the parties' separation. The parties
had outstanding bills totalling about $6,600. The bulk of
these debts are associated with the costs of respondent's
vocational schooling.
The District Court awarded all the marital. estate
except the residence to appellant. The former residence was
to be sold with the proceeds applied to the outstanding
bills. Appellant is solely responsible for the remaining
outstanding bills as part of the temporary maintenance to
respondent. In order to give respondent an approximately
one-half share of the property accumulated during the mar-
riage, the court ordered appellant to pay respondent $5,000.
The court also awarded all of the inherited property to
appellant subject to the following provision:
To protect and promote the best inter-
ests of the minor child, in the event
any of said real property is sold prior
to the minor child's eighteenth
birthday--one-third, (1/3) of the pro-
ceeds of su.ch sa-le after deductions of
legitimate costs of sale shall be set
aside and placed in trust, for the
benefit of [minor child], with said
funds to be applied to the expense of
higher education, vocational training
and general welfare, said trust to
terminate and be distributed to said
minor child on his eighteenth birthday
or when he otherwise attains majority.
Appellant claims that the District Court abused its
discretion by adopting respondent's proposed findings and
conclusions as to custody, child support and visitation which
were clearly erroneous. We will apply the rule we adopted
for a simil-ar claim in Kowis v. Kowis (1981), 658 P.2d 1084,
Where, as here, findings and conclusions
are sufficiently comprehensive and
pertinent to the issue to provide a
basis for decision, and are supported by
the evidence, they will not be
overturned simply because the court
relied upon proposed findings and con-
clusions submitted by counsel.
Appellant disputes specific findings of fact which the
District Court adopted from respond.ent's proposed findings.
We have reviewed the transcript, and while there is conflict-
ing testimony, there is substantial credible evidence to
support the findings and conclusions of the District Court.
As such, we have no reason to overrule those findings and
conclusions.
The next issue we will consider is whether the District
Court abused its discretion in not permitting joint custody
of the child between respondent and appellant. To develop
this issue, appellant claims that the District Court did not
consider all of the factors required by S 40-4-212 and
5 40-4-223, MCA, in awarding custody of the minor child to
respondent. We disagree.
The applicable sections of the Montana Code Annotated
are as follows:
40-4-21.2. Best interest of child. The
court shall determine custody in accor-
dance with the best interest of the
child. The court shall consider all
relevant factors including:
(1) the wishes of the child's parent or
parents a.s to his custody;
(2) the wishes of the child as to his
custodian;
(3) the interaction and interrelation-
ship of the child with his parent or
parents, his siblings, and any other
person who may significantly affect the
child's best interest;
(4) the child's adjustment to his home,
school, and community; and
(5) the ment.al and physical health of
all individuals involved.
and
40-4-223. Award of joint or separate
custody. In custo3 dispute~involving
both parents of a minor child, custody
shall be awarded to the following ac-
cording to the best interests of the
child. as set out in 40-4-212:
(1) to both parents jointly pursuant to
40-4-224; the court, in its discretion,
may require the submission to the court
of a plan for the implementation of the
joint custody order; or
(2) to either parent. In making an
award to either parent, the court shall
consider, along with the factors set out
in 40-4-212, which parent is more likely
to allow the child frequent and continu-
ing contact with the noncustodial pa-rent
and may not prefer a parent as custodian
because of the parent's sex. The court,
in its discretion, may require the
submission to the court of a plan for
the implementation of the custody order.
The District Court made a number of specific findings
of fact in its decree relevant to these criteria and then
sums the matter up in its Findings XI1 and XIII:
The court has considered the prospect of
joint custody; based upon the findings
herein, the present custody arrange-
ments, and the living and working re-
quirements of the parties, the court
finds the best interest of the child
will be served with custody remaining
with Respondent JUANITA ALT.
Based upon the criteria set forth in
40-4-212, as well as 40-4-222 through
40-4-225, MCA pertaining to joint and
separate custody, including the wishes
of the parties herein, the
inter-reaction and inter-rela.tionship of
the child with his parents, and any
other person who may significantly
affect the child's best interests, the
child's adjustment to his home, communi-
ty and environment, and the mental and
physical health of all individuals
involved, and: the custodial parent
allowing frequent and continuing contact
with the non-custodial parent, the Court
finds that the best interests of the
child will be served awarding custody to
Respondent JUANITA SUSAN (ALT) MATTHEWS
with reasonable and liberal rights of
visitation to the Petitioner RUSSELL
ALT, as hereinafter set forth.
As stated earlier, these findings are supported by the
record. In view of these findings by the District Court,
appellant's claim that the required criteria in awarding
custody were not considered borders on frivolous.
111
The District Court found tha.t appellant is entitled to
"reasonable and liberal rights of visitation." Appellant
claims the court then abused its discretion by contradicting
itself and not awarding "liberal" visitation. Appellant's
visita.tion includes every other Friday evening to Sunday
evening and one evening per week in addition to alternate
major holidays and two weeks during summer months. We will
not quibble with the District Court's definition of liberal.
The visitation award is reasonable if not liberal and we
affirm.
Appellant also challenges the District Cour-t's child
support award by claiming the statutory criteria were not
considered. The applicable statute is:
40-4-204. Child support. In a proceed-
ing for dissolution of marriage, legal
separation, maintenance, or child sup-
port, the court may order either or both
parents owing a duty of support to a
child to pay an amount reasonable or
necessary for his support, without
regard to marital misconduct, after
considering all relevant factors
including:
(1) the financial resources of the
child;
(2) the financial resources of the
custodial parent;
(3) the standard of living the child
would have enjoyed had the marriage not
been dissolved;
(4) the physical and emotional condition
of the child and his educational needs;
( 5 ) the financial resources and needs of
the noncustodial parent; and
(6) for the purposes of determining a
minimum amount for support, the amount
received by children under the AFDC
program, as defined in 53-2-702.
Appellamt cl-aims that the court onl-y considered his financial
resources. The d.ecree of the District Court and the testimo-
ny, however, indicates that all the statutory criteria were
considered. Child support awards made by the District Court
will not be disturbed on appeal unless there has been a clear
abuse of discretion resulting in substantial injustice. In
re Marriage of Brown (1978), 179 Mont. 417, 426, 587 ~ . 2 d
361, 367. We cannot say that the District Court erred in
awarding $300 per month for the support of the minor child.
The fifth issue raised by appellant is similar to the
first issue considered. Appellant argues that the District
Court erred by failing to exercise independent judgment by
adopting responderit's proposed findinss of fact as to the
property settlement. Again, however, as with the findings
regarding custody, the District Court's findings are support-
ed by the record, and we affirm.
The standard for review of findings made by a District
Court is the same whether the District Court prepared the
findings or adopted a party's proposed findings. In re
Marriage of Goodmundson (Mont. 1982), 655 P.2d 509, 511, 39
St.Rep. 2295, 2297. Error occurs when the proposed findings
are relied upon to the exclusion of the proper consideration
of the facts and the exercise of independent judgment. In re
the Marriage of Hunter (Mont. 1982), 639 P.2d 489, 495, 39
St.Rep. 59, 67. Here, the record reflects conscientious
concern and participation by the District Court.
There is one specific finding that appellant objected
to under this issue on which we will comment. Appellant
argues that the property he inherited from his father subse-
quent to the separation should not have been considered in
the property division.
Under S 40-4-202, MCA, the District Court must consider
future acquisition of assets in proceedings to divide proper-
ty following dissolution of marriage. In Goodmundson, 655
P.2d at 512, we determined that S 40-4-202, MCA, made the
husband's expectation of a sizeable inheritance a valid
consideration in the equitable distribution of the marital
property. If an expectation of inheritance is a valid con-
sideration in the distribution of marital property, so also
is an actual inheritance a valid consideration in such pro-
ceedings even if not actually classified as marital property.
The District Court did not err in considering appellant's
inheritance. On the contrary, the court may have erred had
it not made such a consideration.
Appell-ant claims the District Court abused its discre-
tion by adopting respondent's method of creating a trust for
the child. We have already applied the law in this opinion
that the District Court does not abuse its discretion simply
by adopting a party's proposals. However, there is an abuse
of discretion where the court adopts a proposed trust that is
beyond the authority of the court to order. Here, the trust
adopted by the District Court goes beyond the authority
granted in 5 40-4-202(2), MCA.
Section 40-4-202(2), MCA, provides:
(2) In a proceeding, the court may
protect and promote the best interests
of the children by setting aside a
portion of the jointly and separately
held estates of the parties in a sepa-
rate fund or trust for the support,
maintenance, education, and general
welfare of any minor, dependent, or
incompetent children of the parties.
Such trusts, then, by the language of the statute, are to be
established only for support and maintenance of minor, depen-
dent incompetent children. The trusts are com-
pliance with Montana law that a parent's obligation to
support a. child ends upon the child becoming eighteen years
old, Chrestenson v. Chrestenson (1959), 180 Mont. 96, 97, 589
P.2d 148, 150, unless the child is retarded or otherwise
unable to care for itself. In re Marriage of Wolfe (Mont.
of Maberry (1979), 1.83 Mont. 210, 221, 598 P.2d 1115, 1116.
The trust created the District Court's property
settlement decree would be distributed to the child on his
eighteenth birthday. The child is not retarded, incompetent
or disabled. The trust would therefore go to support the
child after the parent's obligation of support had end.ed. As
such the trust is contrary to S 40-4-202(2), MCA, and Montana
law and cannot be upheld.
VII
There is no need to deal with appellant's final two
issues in any detail. Much of what we could say would repeat
our earlier conclusions in this opinion.
We have read the applicable statutes, the testimony and
the District Court's findings and conclusions and can find no
abuse of discretion.
The District Court judgment is affirmed on seven of the
eight issues raised by appellant. We remand to the District
Court only on the sixth issue for additional findings of fact
pertinent to the need for a trust. If the District Court
finds that a trust is needed in addition to child support to
provide for the minor child, the District Court may then
establish one. The trust must go for the support, mainte-
nance, education, and general welfare of the child only prior
to his eighteenth birthday.
Costs to respondent.
We concur: