No. 8 6 - 2 9
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
IN RE THE MARRIAGE OF
EDWARD WILLIAM RYAN,
Petitioner and Respondent,
and
T. JOANN RYAN,
Respondent and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Charles Luedke, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Parker, Sweeney & Healow; Kevin T. Sweeney, Billings,
Montana
For Respondent:
Noel K. Larrivee, Missoula, Montana
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Submitted on Briefs: April 4, 1 9 8 6
Decided: June 20, 1986
Filed: J N 2 0 1986
U
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.
The appellant Teresa " JoAnn" Ryan appeals the judgment
of the Yellowstone County District Court awarding joint
custody of the children born of her marriage to the
respondent Edward William Ryan, and providing for the
division of the marital property.
Affirmed.
Two issues are presented for our determination. These
are :
1. Whether the District Court exceeded its jurisdiction
and abused its discretion in granting joint custody of
alternate weeks and providing that if either parent changed
his or her residence from Billings the remaining parent would
get sole custody during the school year while the departing
parent would have custody reduced to the summer months when
school was out; and
2. Whether the District Court abused its discretion by
failing to immediately evaluate and divide the equity in the
Billings home between the parties rather than waiting until
the youngest child became eighteen or the mother moved from
the house before that child's eighteenth birthday.
The parties married in June, 1974. Two children were
born, now aged three and five. Edward and JoAnn separated in
July, 1983, and their marriage was dissolved by order of the
District Court on June 4, 1985. In August, 1985, the parties
litigated the remaining issues of child custody and the
appropriate division of the equity in their Billings
residence. The District Court awarded both parents joint
legal custody, as well as joint physical custody of the minor
children. The physical custody plan calls for the children
to spend alternating weeks in each parent's home. The plan,
however, provides that should one parent leave Billings, the
parent continuing to reside in the Billings area would gain
physical custody of the children during the school year with
the other parent having physical custody of the children
during the summer months.
The court considered the stipulations between the
parties including an agreement that both were fit parents,
the recommendations of the Christian Conciliation Service of
Montana, and recommendations of Dr. Ned N. Tranel about the
appropriateness of joint physical custody. The court also
considered JoAnn's wishes to move from Billings to Anaconda,
where she was raised, as well as the father's request to have
the support payments reduced while the children were with
him. The judge refused both requests saying that, "[ulnder
the law, it is the best interest of the children which
controls as to their custody, so that any maneuvering of
parents to serve their own desires does not resolve the
issue. "
Judicial determination of custody is based on the best
interests of the children as expressed in 40-4-212, MCA.
That section provides:
The court shall determine custody in accordance
with the best interest of the child. The court
shall consider all relevent factors including:
(1) the wishes of the child's parent or
parents as to his custody;
(2 the wishes of the child as to his
custodian;
(3) the intereaction and interrelationship 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 mental and physical health of all
individuals involved.
Malcolm v. Malcolm (Mont. 1982), 640 P.2d 450, 451, 39
The district judge considered custody proposals from
each parent. The court took into account the provisions of
the statute, the recommendations of the counseling services
which the parties had consulted, and the testimony of Dr.
Tranel of the Billings Child Study Center, all of whom
recommended joint custody in some form. The court determined
that the best interests of the children would be served by
adopting the father's proposal that he would have physical
custody for one-half of each month, with the children living
in his household every other week commencing on alternate
Mondays and ending on the following Sunday. The mother would
then have the children reside with her on the alternating
weeks. If either parent leaves Billings, the remaining parent
will have physical custody of the children.
The court said that the plan was structured to encourage
the mother to remain in Billings in order for the children to
have benefit of her participation in joint custody. The
mother is to have the family home and the father is pay $400
a month child support to assist the mother to make the house
payments. The father proposed that the support payments be
reduced while the children are in his household, but the
court found from the evidence that the family home cannot be
maintained and kept by the mother under reduced payments of
child support. The court acknowledged that the proposal
might not prove practical "but the best interest of the
children require that the plan be given a try." The District
Court's "decision will be presumed correct and will be upheld
unless clear abuse of discretion is shown." In re Marriage
of Rolfe (Mont. 1985), 699 P.2d 79, 82, 42 St.Rep. 623, 626.
We can find no abuse of discretion in the court's finding of
what constituted the children's best interests.
Secondly, JoAnn contends the District Court erred in
failing to evaluate and divide the equity in the family home.
The District Court found that because of the amount of child
support contributions ordered to be made by the father, which
allows the mother to keep and live in the home, he should
share equally in the net proceeds of the sale of the home.
The net proceeds are to be determined at the time of the sale
rather than the date of dissolution of the marriage. The
District Court has wide discretion in determining an
equitable division of property pursuant to § 40-4-202, MCA.
The test is whether the court abused its discretion in making
its order setting aside the family home for the mother. In
re Marriage of Rolfe (Mont. 1985), 699 P.2d 79, 42 St. Rep.
623. We hold that the court did not abuse its discretion.
The judgment of the District Court is affirmed.
We Concur: