No. 87-438
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
IN RE THE MARRIAGE OF
MARY RUTH SAYLOR,
Petitioner and Appellant,
and
WILLIAM PHILLIP SAYLOR,
Defendant and Respondent.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Michael H. Keedy, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Keller & German; Brenda Nordlund, Kalispell,
Montana
For Respondent:
Moore & Doran; James D. Moore, Kalispell, Montana
Submitted on Briefs: June 2, 1988
Decided: June 13, 1988
Filed: UWN I 3 1988"
Clerk
i
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.
This is an appeal from a decree of dissolution entered
by the District Court, Eleventh Judicial District, Flathead
County, awarding respondent (husband) physical custody of the
three minor children and ordering appellant (wife) to pay
respondent support of $100 per child per month.
We affirm on the custody issue and reverse on the issue
of child support and remand for reconsideration.
The issues presented to us by appellant wife are:
1. Did the District Court err by failing to properly
apply "the best interests of the child" standard pursuant to
5 40-4-212, MCA?
2. Did the District Court err in determining child
support to be paid by the wife?
3. Did the District Court err in denying wife's motion
for a new trial?
The parties were married according to common law in
1971. This marriage was dissolved by decree dated April 7,
1987. The couple had three children born of the marriage,
Jessica, Nicole and Shayne. At the time of the dissolution,
their ages were 14, 11 and 6, respectively. Currently, they
reside with their father, a building contractor, and his
companion, in Corona Del Mar, California. The wife is a
teaching assistant at the University of Illinois in Champaign
where she is pursuing a doctorate in education.
The residential history of this couple is confusing.
Apparently, after their marriage, they moved to Whitefish and
then to Kalispell. Between the years 1979 and 1982, they
lived together and separately at various times and in various
homes in both Missoula and Kalispell. The husband also spent
several months in Arizona. When the couple lived apart, the
children resided with the wife. The couple's separation
became permanent in 1982 and both resided separately in
Kalispell until sometime in 1986, when they moved to their
current separate residences. The wife relinquished physical
custody of the children to their father, in July, 1983, and
they have resided with him ever since. There seems to have
been reasonable visitation allowed by both parties during
their respective times as physical custodian.
The petition for dissolution in this action was filed in
May, 1983. There were several hearings between June, 1984,
and September, 1985, primarily regarding custody of the
couple's children. Proposed findings were due October 11,
1985. The District Court entered its decree of dissolution
on April 7, 1987, nearly four years after the petition was
filed, granting joint custody and giving physical custody to
the husband. The wife was ordered to pay $300 per month in
child support retroactive to January 1, 1986.
At the outset, this Court must comment that it is
unsettled by the amount of time this case required before
being brought to a resolution. Four years between petition
and decree is an unreasonably long time for a relatively
uncomplicated dissolution action. The victims of such a
delay are the children. The blame for this delay, however,
cannot be placed solely upon either parent. Some of the
blame must also be placed upon the District Court. For
whatever reason, the decree was not entered until 18 months
after the case was submitted. This delay is inexcusable. If
there is any civil matter that should be resolved as
expediently as possible, it is a matter involving the custody
of young children.
Issue 1
In a case involving custody issues, the standard used to
review the District Court's decision is that of abuse of
discretion. The wife must demonstrate that the findings are
clearly erroneous and overcome the presumption that the
District Court's judgment is correct. Rule 52 (a),
M.R.Civ.P.; In Re Marriage of Manus (Mont. 1987), 733 P.2d
1275, 1276, 44 St.Rep. 398, 399-400, citing Bier v. Sherrard
(Mont. 1981), 623 P.2d 550, 551, 38 St.Rep. 158, 159. Only
when there is clear error will the District Court's judgment
be reversed. In Re Marriage of Rolfe (Mont. 1985) , 699 P.2d
79, 82, 42 St.Rep. 623, 626.
Appellant argues that the District Court failed to
consider two of the factors requiring consideration under S
40-4-212, MCA, which states:
40-4-212. Best interest of child. The court shall
determine custody in accordance with the best
interest of the child. The court shall consider
all relevant factors, including but not limited to:
(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 interaction 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;
( 5 ) the mental and physical health of all
individuals involved;
(6) physical abuse or threat of physical abuse by
one parent against the other parent or the child;
and
(7) chemical dependency, as defined in 53-24-103,
or chemical abuse on the part of either parent.
From the facts of this case, it is clear that the factors
necessary for decision are (1) through (4).There have been
no issues raised as to: (5) the mental or physical health
of any of the individuals involved; (6) physical abuse or
threat of physical abuse against either parent or child; or
(7) drug abuse by either parent.
The wife asserts that because no specific findings were
made as to the interaction of the children with their parents
and siblings and as to the children's adjustment to their
home, school, and community, the District Court abused its
discretion in awarding physical custody to their father. We
disagree and affirm the custody award of the District Court.
This Court has stated on many occasions that the making of
specific findings is not necessary where the record shows
substantial evidence that supports the District Court's
judgment on the merits. In Re Marriage of Nalivka (Mont.
1986), 720 P.2d 683, 686, 43 St.Rep. 1079, 1083; In Re
Marriage of DiPasquale (Mont. 1986) , 716 P. 2d 223, 225, 43
St.Rep. 557, 560; Custody of Ericka M. (Mont. 1984), 676 P.2d
231, 233, 41 St.Rep. 267, 269; In Re Marriage of Speer
(1982), 201 Mont. 418, 421, 654 P.2d 1001, 1003.
The District Court made several findings regarding the
parent's wishes, the children's wishes, and the relationship
between the husband and wife as it affected access to the
children by the wife and as it may affect the husband's
access to the children if he were to lose physical custody.
Evidence abounds in the record regarding the relationships
between both parents and the children and the childrens'
adjustment to their home and community. The District Court
does not make specific findings as to these factors but does
note the recommendations and reports of a social worker and a
psychologist both of which pertain to the above factors. We
hold there was no abuse of discretion.
For efficiency's sake, we will not address specific
findings which the wife argues are in error. We find it
necessary, however, to discuss the interpretation of 5
40-4-223, MCA, which the wife argues was incorrectly used by
the District Court. The wife disputes the following finding:
23. The Montana legislature has made it cl-ear
that, wherever feasible, both parties ought to have
equal access to children in dissolution
proceedings. Thus, joint custody is preferred.
Further, both of these parties are capable of
rearing the children. However, Petitioner's anger
and bitterness toward Respondent interfered with
Respondent's access to the children before the
transfer of custody.
The wife contends that access to children only becomes an
issue when legal custody is placed with one parent only and
not when joint custody is granted. We do not agree. The
relevant statute, 5 40-4-223, MCA, reads in pertinent part:
(1) In custody disputes involving both parents of
a minor child, the court shall award custody
according to the best interests of the child as set
out in 40-4-212:
(a) to both parents jointly; the court shall
inquire whether a joint custody agreement was made
knowingly and voluntarily; or
(b) 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
continuing contact with the noncustodial parent and
may not prefer a parent as custodian because of the
parent's sex.
This statute appends an additional factor to be considered by
the District Court when awarding legal custody to only one
parent. The issue of access is not, by the statute's terms,
a necessary consideration when joint custody is being
granted. Legal custody, which is the determination of legal
rights and responsibilities of the parents toward the
children, must not be confused with physical custody, that
is, where the children actually live. Joint custody may
involve equal physical custody of the children by both
parents or it may entail one parent having substantially more
or less actual physical custody of the children than the
other parent. We find no error with the District Court's
finding, however, because, although the factor of access to
one's children is not a mandatory consideration j- joint
in
custody awards, we can find no reason why it should not be
considered by the District Court so that it may find an
arrangement that is in the best interest of the child - and
facilitates the declared public policy of this state to
"assure minor children frequent and continuing cont,act with
both parents." See 5 40-4-222, MCA.
Issue 2
The wife contests the soundness of the District Court's
order to pay the husband $100 per month per child in child
support, retroactive to January 1, 1986. In order to reverse
an award of child support, the wife must show that a
substantial injustice resulted from the court's abuse of
discretion. In Re Marriage of Jacobson (Mont. 19871, 743
P.2d 1025, 1027, 44 St.Rep. 1678, 1680. The factors a court
must consider when awarding child support are set out in S
40-4-204, MCA, as follows:
(1) In a proceeding for dissolution of marriage,
legal separation, maintenance, or child support,
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:
(a) the financial resources of the child;
(b) the financial resources of the custodial
parent;
(c) the standard of living the child would have
enjoyed had the marriage not been dissolved;
(d) the physical and emotional condition of the
child and his educational needs;
(el the financial resources and needs of the
noncustodial parent; and
(f) 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.
A guideline formula for determining child support has
been set forth in In Re Marriage of Carlson (Mont. 1984), 693
P.2d 496, 499-500, 41 St.Rep. 2419, 2423. As we said in a
later case, the factors involved in this computation include
the child's total needs, the physical custodial parent's net
earning capacity and the visitation parent's net earning
capacity. Hansen v. Jurgens (Mont. 1986), 722 P.2d 1151,
1154, 43 St.Rep. 1316, 1319.
The District Court held that it was precluded from
applying the Carlson formula because neither party had
offered evidence of the child's total needs. Although we
have termed the Carlson formula a "guideline," the factors it
involves must be considered and it was error not to do so.
See In Re Marriage of Keel (Mont. 1986), 726 P.2d 812, 814,
43 St.Rep. 1742, 1746.
In addition, the District Court made no explicit
findings regarding the wife's net monthly income. Instead,
it ordered the wife to pay 25% of her net expendable income
in child support according to its own District Court
guidelines on child support and set this figure at a total of
$300 per month. This implies that the wife's net income was
$1,200 per month. This figure is totally without support on
the record. We hold that the District Court abused its
discretion in this matter and reverse and remand for a
redetermination of the child support award.
For guidance upon remand we refer the District Court to
the Uniform District Court Rules, Guidelines for Determining
Child Support, § 111, Parts 1-14. Although these guidelines
are not binding we strongly urge that the District Court
consider them upon remand. In the Guidelines, the child's
needs are automatically assumed as a percentage of the
parent's total combined income instead of being determined
separately.
In addition, the wife protests that the District Court
abused its discretion by making the order 16 months
retroactive. We hold that this is not error. There are
several cases in which such awards have been affirmed. See,
e.g., In Re Marriage of Revious (Mont. 1987), 735 P.2d 301,
44 St.Rep. 674; In Re Marriage of Shirilla (Mont. 1987), 732
P.2d 397, 44 St-Rep. 75; DiPasquale, 716 P.2d 223, 43 St.Rep.
557. As the wife points out, however, these cases differ
from her case in that the noncustodial parent in all the
above cases earned a substantially greater income than the
physical custodian. While we do not hold that it was
reversible error to apply the wife's child support
obligations retroactively, we strongly suggest that, upon
remand, the District Court take the parties' income
differences into consideration.
Issue 3
Since we have remanded this case for a redetermination
of the child support award, it is unnecessary to discuss
whether the District Court erred by not granting the wife's
motion for a new trial. We advise the District Court,
however, that the recent change in circumstances that has
taken place for both parties should be considered upon remand
as required by the Guidelines for Child Support, 8 111, Part
14.
Affirmed in part, reversed in part and remanded for
reconsideration of the child support award.
We Concur: