NO. 91-610
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
IN RE THE MARRIAGE OF
MONICA LYN NASH,
Petitioner and Respondent,
and
APPEAL FROM: District Court of the Fifteenth Judicial District,
In and for the County of Sheridan,
The Honorable James Sorte, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Donna M. Trotter, Winkjer, McKennett, Stenehjem,
Trotter & Reierson, Williston, North Dakota
For Respondent:
Mary L. Zemyan, Attorney at Law,
Wolf Point, Montana
Submitted on Briefs: May 7, 1992
Decided: August 20, 1992
Filed: I
&
Justice Terry N. Trieweiler delivered the opinion of the Court.
On July 3 , 1990, Monica Lyn Nash petitioned the Fifteenth
Judicial District Court, Sheridan County, to dissolve her marriage
to respondent Steve Orvill Nash. On November 20, 1991, the
District Court dissolved the couple's marriage, divided the marital
estate between them, awarded sole custody of their only child to
Monica, and awarded child support retroactive to the date of the
parties' separation in March 1990. From that judgment, Steve
appeals. We affirm.
The issues are:
1. Did the District Court err when it awarded Monica sole
custody and granted visitation to Steve?
2. Did the District Court err when it awarded child support
based on the parties' 1990 tax returns?
3. Did the District Court err when it awarded child support
retroactive to the date of separation?
Steve and Monica Nash were married on September 3 , 1981.
Their marriage was dissolved on November 20, 1991. They have one
child, born September 7, 1988. At the time of the hearing on
October 17, 1991, Monica was 3 3 years old, and Steve was 3 5 . Steve
is a high school graduate. Monica is not, but plans to get her GED
and attend post-secondary classes. Monica lives in Redstone,
Montana and works for the Nash family farming corporation. Steve
left Redstone in March 1989 when the child was six months old to
work in Alaska. Steve works in Cordova, Alaska as a fabricator,
building and designing boats with aluminum and steel.
In its findings of fact and conclusions of law, the District
Court rejected Steve ' s request for split joint custody which would
have given each parent physical custody for six months. Experts
performing home studies found both parents fit, but disagreed over
the effects of split physical custody on a preschool-aged child.
The Court found that it was in the best interests of the child to
grant sole custody to Monica. Steve was granted liberal visitation
in Redstone, and week-long blocks at other times and locations.
The Court awarded Monica $482.27 per month as child support
under the Child Support Guidelines, based on the parties1 1990 tax
returns. Monica received gross income in 1990 of $3400, while
Steve earned $45,328.18 from his Alaska employment, and $24,165
from his farming interests. However, he claimed a capital loss of
$35,276 when he sold his farm real estate and machinery. In
calculating child support, the Court disregarded the partiest
farming income and loss since it was eliminated in 1990. Thus, the
calculation was based on Steve's 1990 Alaska income of $45,328.18,
and Monica's income of $3400.
The Court found that Steve failed to establish good cause to
deviate from the Guidelines and to excuse him from providing health
insurance coverage for his son. The Court ordered Steve to provide
health insurance for the child despite the child's eligibility for
Indian Health Care, because that facility is a 90-mile-round-trip
from Redstone, while alternative health care is only a
35-mile-round-trip.
The Court divided the parties' real and personal property as
agreed before trial. Steve received 4.32 acres of Alaska property,
and Monica received 1.24 acres of Montana property.
Steve was also required to pay child support retroactive to
the date of separation totalling $7716.32.
Did the District Court err when it awarded custody and
visitation?
The standard of review for custody and visitation is whether
substantial credible evidence supports the court's judgment. Inre
theMam'ageofCole (1986), 224 Mont. 207, 211, 729 P.2d 1276, 1279.
Section 40-4-212, MCA, requires a court to determine custody
in accordance with the best interests of the child. The court must
consider all relevant factors, including those set forth in the
statute.
(1) 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 :
(a) the wishes of the child's parent or parents as
to his custody;
(b) the wishes of the child as to his custodian;
(c) 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;
(d) the child's adjustment to his home, school, and
community;
(e) the mental and physical health of all
individuals involved;
(f) physical abuse or threat of physical abuse by
one parent against the other parent or the child; and
(g) chemical dependency, as defined in 53-24-103,
or chemical abuse on the part of either parent.
The District Court properly considered all relevant factors
when it awarded sole custody to Monica. The Court found that it
was in the best interests of the child to grant sole custody to
Monica based on findings that she is the child's psychological
parent and has provided for the child's physical needs,
environmental stimuli, emotional needs, and moral development, as
well as interaction with Steve's family and home community. The
record confirms that the District Court heard sufficient testimony
on each of the factors to support its finding. Experts performing
home studies found both parents fit, but disagreed over the effects
of split physical custody on a pre-school child. It is within the
court's discretion to believe one expert over another. The
District Court did not abuse its discretion when it awarded sole
custody to Monica.
Section 40-4-217, MCA, provides that the parent not granted
custody is entitled to reasonable visitation rights. Here, the
court granted Steve visitation as summarized:
(1) Liberal visitation when he is in Redstone so long as
school is not interrupted;
(2) Week-long blocks every three or four months at the
father's home or other appropriate location, provided the child is
accompanied by an adult family member when traveling;
(3) Fourteen day visitation blocks when the child is in
elementary school under the above conditions; and
(4) Increased visitation which he and the child will jointly
decide after the child enters junior high.
We hold that the custody and visitation award is supported by
substantial credible evidence and the court did not abuse its
discretion. Therefore, we affirm on this issue.
Did the District Court err when it awarded child support based
on the parties' 1990 tax returns?
Abuse of discretion is the standard for reviewing child
support awards. In re Marriage of Saylor (l988), 232 Mont. 294, 756 P.2d
1149. Section 40-4-204, MCA, sets forth the factors a court must
consider in setting support orders and guidelines for determining
support obligations and states in pertinent part:
(3) (a) Whenever a court issues or modifies an
order concerning child support, the court shall determine
the child support obligation by applying the standards in
this section and the uniform child support guidelines
adopted by the department of social and rehabilitation
services pursuant to 40-5-209, unless the court finds by
clear and convincins evidence that the application of the
standards and guidelines is unjust to the child or to any
of the parties or is inappropriate in that particular
case. [Emphasis added.]
Steve cites Fronk v W?.!son (lggl), 250 Mont. 291, 819 P.2d 1275,
.
for the proposition that the Court abused its discretion by not
considering the 70 percent higher cost of living in Alaska when
calculating child support under the Guidelines. However, in Fronk
the American Chamber of Commerce Researchers Association Cost of
Living Index was introduced into evidence and the Court relied on
it when it arrived at a cost of living adjustment for Alaska equal
to 26 percent. Also, in Fronk the respondent gave several examples
of how he was personally affected by the high cost of living in
Alaska. Fronk, 819 P.2d at 1278-79. Here, Steve introduced no
statistical data to support his claim that the cost of living
adjustment in Alaska is 70 percent higher than in Montana. Nor did
he cite specific examples of increased costs, other than
transportation. The District Court was free to disregard his
unsubstantiated estimate.
Steve also contends that the child support award does not
reserve the financial resources sufficient to meet his needs
pursuant to fi 40-4-204 (2)(e), MCA. For support, he cites in re
ManiageofJohmon (1987), 225 Mont. 404, 732 P.2d 1345. However, in
Johnson we held that the courtfs inclusion of two-thirds of the
mortgage payments in the computation of the children's monthly
expenses, in addition to requiring the husband to pay the mortgage,
left him without sufficient resources to meet his own needs. We do
not find appellant's situation comparable.
After reviewing the entire record, we find that the District
Court's calculation under the Guidelines of $482.27 per month child
support based on the partiesf 1990 tax return is reasonable and
supported by substantial credible evidence. We hold that the
District Court did not abuse its discretion in calculating child
support based on the 1990 returns.
111.
Did the District Court err when it awarded child support
retroactive to the date of separation?
In determining child support retroactivity, we will not
disturb the award made by the District Court unless a clear abuse
of discretion resulting in substantial prejudice is shown. In re
Marriage of DiPasquale (l986), 220 Mont. 497, 499, 716 P.2d 223, 224.
Steve contends that the award of retroactive child support is
prejudicial because the Court did not consider: (1) the high cost
of living in Alaska; (2) his inability to meet his financial needs;
(3) the disparity in the property settlement; and (4) that he must
also pay health insurance, visitation costs, and child support.
After reviewing the entire record, we find that substantial
evidence supports the District Court's award of retroactive child
support.
Af firmed.
We concur:
August 20, 1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Donna M. Trotter
WINKJER, McKENNETT STENEHJEM, TROTTER & REIERSON, P.C.
P.O. Box 1366
Williston, ND 58801
MARY L. ZEMYAN
Attorney at Law
P.O. Box 1094
Wolf Point, MT 59201
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA
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BY: b/J 1
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