IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
IN RE THE MARRIAGE OF
MARCIA J. HOFFMASTER,
petitioner and Appellant,
and
RICHARD K. HOFFMASTER, :.-
Respondent and Respondent.
APPEAL FROM: District Court of the Fourth ~udicial~istrict,
In and for the County of is sou la,
The Honorable John Henson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jon E. Ellingson; ~llingson& Moe, is sou la, Montana
For Respondent:
Thomas J. Beers; Connell, Beers & MacDonald, is sou la,
Montana
submitted on ~riefs: July 13, 1989
Decided: September 7, 1989
Filed:
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.
Marcia J. Hoffmaster, petitioner and appellant, appeals
from the custody arrangement, child support and maintenance
award mandated in the judgment entered by the District Court
of the Fourth ~udicialDistrict, Missoula County. We affirm
in part and reverse and remand for a modification of child
support consistent with this opinion.
The following issues are raised on appeal:
1. Whether the District Court exercised proper discre-
tion when it established custodial arrangements.
2. Whether the District Court exercised proper discre-
tion when it established the amount of child support.
3. Whether the ~istrictCourt exercised proper discre-
tion when it established the amount of maintenance.
Marcia and ~ichard Hoffmaster were married on May 29,
1977. Previously, Richard received a gift of $250,000 worth
of Amstar stock from his father. Prior to the marriage,
Marcia had a bachelor of arts in elementary education and
special education and was a full-time special education
teacher. In addition, she needed only 15 credit hours to
receive her masters of arts in special education. Richard
had a degree in English.
Before the the marriage, ~ichardpurchased land at North
Fork, Idaho, where he built a cabin. Marcia and Richard
primarily resided at the Idaho cabin from the year of their
marriage until 1980. During that time, Richard's parents
made gifts of money to him which were used to pay marital
expenses and make payments on property. The parties lived
frugally during those years. From 1980 to 1983 they resided
in Arizona, Washington and Idaho. In 1983, the parties moved
to Missoula, Montana, and continued to live a frugal
lifestyle. They lived in a tri-plex rental.
In 1983, Richard began a course of diversification which
involved the sale of his Amstar stock in order to make other
financial investments. Among his investments was a $50,000
down payment on the purchase of a golf course in a is sou la.
~ a r c i aworked part-time on the golf course until August 15,
1985.
In April of 1984, Richard's father died, leaving him a
sizeable inheritance. Richard received the first installment
of his inheritance, $1,000,000, in the fall of 1985. ~ichard
used his inheritance to purchase assets and pay sums due on
the golf course property.
In May of 1985, the parties moved into a $115,000 resi-
dence on airv view Avenue. Soon after moving into the home,
Marcia went to Chicago to visit her parents. Upon her return
in August of 1985, Richard advised her that he would be
moving out.
On December 4, 1985, Marcia filed for dissolution of the
marriage. On January 4, 1986, the parties' son, Alex, was
born.
During the parties' separation, Marcia continued to live
at the airv view residence. Alex remained with ~arcia. In
November of 1987, ~ a r c i aand Alex moved to ~ l g i n ,Illinois,
and have resided there since.
Dissolution proceedings were held before the District
Court in July of 1988. During dissolution proceedings,
~ichardreceived $750,000 as another inheritance installment.
He is likely to receive another installment pending resolu-
tion of a dispute with the Internal Revenue Service. The
court entered its findings of fact, conclusions of law and
judgment on August 17, 1988. Included in the court's judg-
ment, were resolutions to the issues of child custody, child
support and maintenance.
Custody of Alex was awarded jointly to the parties with
primary residential custody granted to Marcia. Richard was
granted residential custody for two months during the summer,
one month in the spring and one month in the fall. The
parties received alternating residential custody during
Christmas and Easter. The joint custody arrangement will
remain in effect until Alex starts the first grade of primary
school. At that time, Marcia will have primary residential
custody of Alex and Richard will have residential custody for
two months during the summer.
The court, in its judgment, established that ~ichardis
responsible for child support as follows:
a) $1,200 child support per month until the child
reaches the age of 18 or is otherwise emancipated.
b) All medical, ocular, dental and orthodontic
bills that are incurred by the child.
c) All medical, ocular, dental and orthodontic
insurance.
d) All secondary and post-secondary education
costs of the child to whatever schools he is quali-
fied to attend and which the child, and both par-
ents, wish him to attend.
The court also established that ~ichardshall pay Marcia
$1,000 per month maintenance until Alex reaches the first
grade of primary school. Marcia received $34,000 cash as a
property settlement in lieu of maintenance reduced by $3,000
which had been previously advanced.
The first issue raised on appeal is whether the ~istrict
Court exercised proper discretion when it established the
custodial arrangement.
As noted, the District Court implemented a joint custody
arrangement. Marcia was given primary residential custody
while Richard was given residential custody for two months
during the summer, one month in the spring and one month in
fall. The arrangement is to remain in effect until Alex
starts the first grade of primary school.
Marcia argues that under In re the Custody of Andre
(Mont. 1988), 761 P.2d 809, 45 St.Rep. 1745, she has estab-
lished de facto custody of Alex. Andre, however, is distin-
guishable from the present case.
In Andre, this Court awarded mother custody. The
parties in Andre never married but lived together and shared
parental responsibilities for the first four years of the
child's life. When the parties separated, the child remained
in the custody of mother. While the parties never
established a judicial custody arrangement, they did agree
orally that mother would have custody. The parties also
agreed orally to a child support arrangement.
In the present case, while Marcia maintained custody of
Alex upon the parties' separation, ~ichard never conceded
custody of Alex to ~arcia. his was amplified by the fact
that Richard sought temporary joint custody of Alex during
settlement negotiations. A custody arrangement had never
been agreed upon and remained at issue pending resolution of
the action. Under these facts, de facto custody has not been
established.
Marcia attempts to argue that establishing a joint
custody arrangement violates § 40-4-219, MCA, which provides
that the ~istrict Court, in its discretion, may modify a
prior custody decree if it finds that circumstances of the
custody arrangement have changed. Because neither a decree
nor informal arrangement was in effect prior to this action,
the statute does not apply.
Montana policy favors joint custody. See In re the
~arriageof Cruikshank (1986), 222 Mont. 152, 154, 720 P.2d
1191, 1193. Section 40-4-223 (1)(a), MCA, provides in 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.
Section 40-4-212, MCA, provides:
The court shall determine the 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 interrelation 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 physi-
cal 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 part of
either parent.
Further, the standard of review for child custody issues
was established by this Court in In re the Marriage of Bier
(Mont. 1981), 623 P.2d 550, 551, 38 St.Rep. 158, 159, as
follows:
In order to prevail, [Marcia] must show
an abuse of discretion by the judge,
must demonstrate that there is a clear
preponderance of evidence against the
findings, and must overcome the presump-
tion that the judgment of the trial
court is correct. [citation omitted.]
[In reviewing the District Court's
custody order], this Court need only
look to the record to see if the factors
set forth in section 40-4-212, MCA, were
considered, and then must determine
whether the trial court made appropriate
findings with respect to these criteria.
[Citation omitted. Parenthetical inserts
supplied.I
The District Court, in its findings of fact and conclusions
of law, specifically noted that both Marcia and Richard are
capable of caring for Alex and communicate with each other
about his care; that it is in the best interests of Alex for
both Marcia and ~ichardto be involved in Alex's development;
and that it is in the best interests of Alex to give Marcia
and Richard joint custody with residential custody to be
divided between them.
We hold that in light of the District Court's findings,
there was no abuse of discretion nor a showing by Marcia of a
clear preponderance of evidence against the findings. The
District Court properly considered the best interests of Alex
as required under 5 40-4-212, MCA.
The next issue raised on appeal is whether the ~istrict
Court exercised proper discretion when it established the
amount of child support.
The ~istrict Court established that ~ichardis responsi-
ble for $1,200 child support plus medical and educational
needs. Marcia contends that the court erred in setting the
amount of child support. She requested $3,357 per month.
An award of child support is governed by $ 40-4-204,
MCA, which provides in pertinent part:
(1) In a proceeding for dissolution of
marriage, ... 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 enjoyedhad - marrlaqe not
. - the
been dissolved;
(dl the physical and emotional condition
of the child and his educational needs;
(e) the financial resources and needs of
the noncustodial parent. [Emphasis
ours. I
The District Court stated in its findings:
The child, presently age 24,. has only
experienced a standard of llving with
his mother and that standard is not
consistent with the standard of living
developed during the course of the
marriage.
The District Court maintained that while it considered the
Uniform ~istrict Court Guidelines on child Support (Mont.
1987), 44 St.Rep. 828, it did not adhere to the Guidelines
because of the lifestyles of the parties, the standard of
living of the child, and that the Guidelines:
. .
. would allow this child to be
favored with monies and personal wealth
that would not be in the best interest
of the child in his development toward
adulthood.
The ~istrictCourt awarded child support payments in the
amount of $1,200 a month instead of the $3,357 a month as
Marcia requested. While the District Court is not bound by
the ~uidelines,~ a r c i acontends that the ~uidelinessuggested
an award of $4,500 per month, thus, the amount awarded gross-
ly deviated from the ~uidelines and was in error. ~ichard
never contested the calculation of the Guideline amount.
The amount arrived at by the District Court ignores two
statutory factors under § 40-4-204, MCA--the standard of
living Alex would have enjoyed had the marriage not been
dissolved and the financial resources of Richard. The stan-
dard of living that Alex would have enjoyed had the marriage
not been dissolved is not to be confused with the standard of
living that the parties enjoyed during the marriage, nor is
it the standard of living that Alex enjoyed during the
marriage.
Richard has collected $1,750,000 in inheritance install-
ments and will likely receive another installment pending a
resolution of a dispute with the Internal Revenue Service.
Richard also owns income-producing property. Hence, the sum
awarded by the District Court does not reflect Richard's
financial resources nor the standard of living Alex would
have enjoyed had the marriage remained intact because of his
father's wealth.
Marcia requested $3,357 a month based on expenditures.
The District Court rejected both Marcia's $3,357 per month
request and the Guidelines' suggested amount of $4,500 per
month, as Marcia contends, and, instead, implemented a $1,200
per month (plus medical and educational needs) support
payment. The amount awarded is unreasonable and would result
in substantial injustice to Alex who is entitled to share in
the high standard of living achieved by his father. See, In
re the Marriage of Anderson (Mont. 1988), 748 P.2d 469, 471,
45 St.Rep. 40, 43. The District Court will be reversed on
appeal only where there has been a "clear abuse of discretion
resulting in substantial injustice." See, In re the Marriage
of Alt (1985), 218 Mont. 327, 333, 708 P.2d 258, 261. We
hold that the District Court abused its discretion in
establishing the amount of child support. We reverse on this
issue and remand to the District Court with instructions to
grant $3,357 per month for child support in light of the
expenditures reflected in the record.
The last issue raised on appeal is whether the District
Court exercised proper discretion when it established the
amount of maintenance.
Here, the District Court awarded Marcia $1,000 per month
maintenance until Alex reaches the first grade. In addition,
she received $34,000 in cash to be treated as part of the
property settlement in lieu of maintenance reduced by a
$3,000 advancement.
The award of maintenance is governed by § 40-4-203, MCA,
which provides:
(1) In a proceeding for dissolution of
marriage . .. 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 or is the custo-
dian of a child whose condition or
circumstances make it appropriate that
the custodian not be required to seek
employment outside the home.
(2) The maintenance order shall be in
such amounts and for such periods of
time as the court deems just, without
regard to marital misconduct, and after
considering all relevant facts
including:
(a) the financial resources of the party
seeking maintenance, including marital
property apportioned to him, and his
ability to meet his needs independently,
including the extent to which a provi-
sion for support of a child living with
the party includes a sum for that party
as custodian;
(b) the time necessary to acquire suffi-
cient education or training to enable
the party seeking maintenance to find
appropriate employment;
(c) the standard of living established
during the marriage;
(dl the duration of the marriage;
(e) the age and the physical and emo-
tional condition of the spouse seeking
maintenance; and
(f) the ability of the spouse from whom
maintenance is sought to meet his needs
while meeting those of the spouse seek-
ing maintenance.
In the findings of fact and conclusions of law, the
District Court noted that Marcia received a bachelor of arts
in elementary education and special education and was 15
credit hours short of receiving her masters of arts in spe-
cial education. Marcia was a full-time special education
teacher prior to her marriage. The ~istrictCourt noted that
it provided for maintenance until Alex reaches the first
grade of primary school in order to allow Marcia to continue
her education for recertification and/or her masters degree
while attending to Alex.
In the property distribution, Marcia received the cash
equivalent of the marital estate property in the amount of
$76,000 and a $34,000 cash property settlement in lieu of
maintenance ($10,000 of which to be considered as Marcia's
contribution to the golf course) reduced by a $3,000
advancement. The court further noted that the standard of
living established during the marriage was nomadic and frugal
and that the time Marcia spent at the Fairview residence did
not create a standard of living or new lifestyle.
The standard of review for awarding maintenance was set
forth by this Court in Anderson, 748 P.2d at 471, as follows:
The District Court has wide discretion
in the determination of maintenance
awards, and that discretion is not to be
disturbed unless clearly erroneous.
Citing In re the Marriage of Aanenson (1979), 183 Mont. 229,
235, 598 P.2d 1120, 1123.
The ~istrict Court found that ~ a r c i ahad a sufficient
occupational and educational background. Granting her main-
tenance until Alex reaches school age gives her the time for
recertification and further training, hence, she will be
capable of self-support when Alex reaches school age. The
court also considered the fact that Marcia will receive a
portion of the marital estate. Thus, the District Court
properly considered the factors set forth in § 40-4-203, MCA,
and did not abuse its discretion when it awarded maintenance.
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