No. 92-368
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
IN RE THE MARRIAGE OF
JENA W. BOLT,
Petitioner and Respondent,
and
JAMES W. BOLT,
Respondent and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the Countv of Cascade,
The Honorable Thomas il. ~c~ittrick,
Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Kenneth R. Olson, Attorney at Law,
Great Falls, Montana
For Respondent:
Floyd D. Corder, Corder and Allen,
Great Falls, Montana
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fix.~ij Submitted on Briefs: March 11, 1993
,$ xi ;! :z7x"42:*xd! j Decided: June 10, 1993
P
~iled:JgN 1993
Justice ~illiam Hunt, Sr., delivered the opinion of the Court.
E.
This is an appeal from the District Court of the Eighth
Judicial District, Cascade County. Appellant James Bolt appeals
from the District Court's Findings of Fact, Conclusions of Law, and
Order entered on April 3, 1992.
We affirm.
The following issues are presented for our review:
1. Did the District Court err in adopting findings of fact
that are nearly verbatim to those proposed by respondent?
2. Did the District Court err in its application of
5 40-4-212, MCA, in the determination of primary physical custody
of the partiest three children?
3. Did the District Court err in its application of
5 40-4-202, MCA, in the determination of the division of property?
4. Did the District Court err in denying appellant's request
to retroactively modify his pretrial child support obligation?
5. Did the District Court err in its decision not to
disqualify respondentts trial counsel based on the grounds of
"conflict of interestw?
Jena and James were married on December 29, 1979, in
Huntsville, Alabama. Jena has a daughter from a prior marriage who
is now in the custody of Jena's former husband. James has never
been married before. James and Jena have three children--Jeremy,
ten, Josh, seven, and Jessica, five.
Both Jena and James are high school graduates. James attended
college for about two years, and is currently pursuing a marketing
degree. Jena has had informal training in the computer field, and
is presently pursuing a degree in computer science education. Both
parties are in good health and employable. James was formerly
employed in the insurance industry as a sales agent and Jena has
worked as a secretary in the same f i e l d .
Although the parties are employable, they have had their share
of financial difficulties. In 1987, while residing in Chattanooga,
Tennessee, they filed a Chapter 13 bankruptcy. Their vehicle was
repossessed and their home was foreclosed upon. After resettling
in Great Falls, they experienced similar financial difficulties.
They were unable to make the payments under the bankruptcy plan and
were, therefore, never discharged in bankruptcy.
On July 3, 1990, Jena filed a petition for legal separation
requesting that the court divide the marital property and debts,
and that she be awarded primary physical custody of the parties1
three children. Jena also filed a motion for temporary restraining
order, temporary maintenance for support ofthe minor children, and
for temporary custody of the children.
James filed an answer to Jenalspetition for legal separation
on July 6, 1990, requesting dissolution of the marriage and legal
custody of the children. On July 10, 1990, the court granted the
temporary restraining order, and in addition, ordered James to pay
temporary child support and granted temporary custody of the
children to Jena. This order was entered ex parte. There were
additional motions filed concerning the issue of child support.
Both parties were arrested for domestic abuse, and a youth in need
of care proceeding was initiated. On May 28, 1991, James filed a
motion to retroactively modify child support, submitting that the
award was inconsistent with the Child Support Guidelines. Jena
filed an answer on June 13, 1991. She later filed an additional
motion requesting termination of James' temporary visitation
rights. James filed a motion requesting the disqualification of
Jena's attorney due to an alleged conflict of interest. After a
bench trial, each party submitted proposed findings of fact and
conclusions of law. On April 3, 1992, the Court entered its
findings of fact, conclusions of law, and order. Notice of entry
of judgment was filed on April 14, 1992.
I.
Did the District Court err in adopting findings of fact that
are nearly verbatim to those proposed by respondent?
James claims that the District Court's findings of fact were,
in essence, a "verbatimg' adoption of Jena's proposed findings.
Even though the District Court set out findings of fact similar or
verbatim to those proposed by Jena, there is no problem in doing so
if substantial credible evidence exists to support such findings.
In re Marriage of Hurley (l986), 222 Mont. 287, 296, 721 P.2d 1279,
1285. We hold that the District Court's findings of fact meet the
test set out in Hurley.
11.
Did the District Court err in its application of !
j 40-4-212,
MCA, in the determination of primary physical custody of the
parties' three children?
Because the trier of fact is able to observe the witnesses and
presentation of evidence firsthand, we will not overturn the
District Court in custody matters unless we find a clear lvabuseof
discretion. Iv In re Marriage of Maxwell (1991), 248 Mont. 189, 193,
810 P.2d 311, 313.
James claims that the District Court did not lvaddressv@
the
criteria set out in 5 40-4-212,. MCA, in determining primary
physical custody. This Court has consistently held that the
district court need not specifically address each of the criteria,
but rather set forth "essential and determiningmv
facts upon which
it based its decision. In re Marriage of Cameron (1982), 197 Mont.
226, 231, 641 P.2d 1057, 1060.
The District Court, in the case at bar, as evidenced by the
findings of fact, considered each of the criteria of 5 40-4-212,
MCA, before reaching its custody determination based on the "best
interests of the child."
It was obvious from Jenavspetition for legal separation, and
James' answer to the petition, that both parties wished to
participate in the upbringing of the minor children. The District
Court considered the requests of the parents before determining
primary physical custody. Section 40-4-212(a), MCA.
As to the wishes and feelings experienced by the children, the
District Court found that James has a history of violence when
using alcohol and the children are afraid of him when he is
drinking. The wishes of the children were considered by the court
through counselling by a family counselor from Golden Triangle
In In re Marriage of Miller (1989), 238 Mont. 197, 203, 777
P.2d 319, 323, we stated the standard of review for property
division in a marital dissolution decree:
The apportionment made by the District Court will not be
disturbed on review unless there has been a clear abuse
of discretion as manifested by a substantially
inequitable division of the marital assets resulting in
substantial injustice.
James complains about the distribution of the property. The
District Court considered the station, occupation, sources of
income, and vocational skills of Jena and James as required in
5 40-4-202, MCA. The Court made a determination as to the division
of the accumulated property, and awardedthe marital property under
that criteria. Section 40-4-202, MCA. The calculations were a
result of the District Court's adherence to 5 40-4-202(1), MCA, in
which it is required to "finally equitably apportion between the
parties the property and assets belonging to either or both.ll We
conclude that no injustice resulted to James. We hold that the
District Court did not abuse its discretion in its final
determination of the property division.
IV.
Did the District Court err in denying appellant's request to
retroactively modify his pretrial child support obligation?
Modification of child support is granted only if circumstances
arise that are "so substantial and continuing as to make the terms
[of the temporary order] uncon~cionable.~* Section 40-4-208(2)
(b)(i), MCA.
James filed a motion for retroactive child support on May 28,
1991. Even if the terms of the child support agreement were found
to be unconscionable, they could only be modified back to May 28,
1991, when James gave actual notice of the motion for modification.
Section 40-4-208(1), MCA. The District Court found that the child
support was not unconscionable, and we agree.
The Court has wide discretion in weighing various factors
under 5 40-4-204, MCA, to determine appropriate support obligation.
In re Marriage of Sacry (1992), 253 Mont. 378, 833 P.2d 1035.
James claims that the District Court did not give enough weight to
the fact that he is currently unemployed when the court made the
support obligation determination. We disagree.
Although James is currently unemployed, he is healthy,
educated, and as evidenced from his past employment in the
insurance field, capable of earning a substantial income.
Contrary to James' allegations, the District Court did
consider current data when, on November 25, 1991, it reduced his
pretrial support obligation to $300 per month from the previous
$640 a month ordered on December 28, 1990.
We hold that the District Court did not abuse its discretion
in denying Jamesr request to retroactively modify his pretrial
child support obligation.
v.
Did the District Court err in its decision not to disqualify
respondent's new trial counsel based on the grounds of "conflict of
interest"?
James claims that Jena's new trial counsel, who replaced her
original counsel appointed in July 1990, possessed confidential
information about his case, constituting a "conflict of interest."
The alleged confidential information was disclosed during an
initial consultation between James and this particular counsel when
James had considered retaining her.
James failed to raise this "conflict of interest" issue at the
October 17, 1990, hearing, at the date of the order on July 3,
1990, or on the first day of trial. Even though James failed to
raise the issue until November 26, 1991, the second day of trial,
the District Court considered James' motion to disqualify Jena's
counsel. The motion was denied, but with the stipulation that
James could renew the motion upon discovery during trial of any
breach of confidential information. James failed to renew the
motion because there was no articulable breach of confidentiality.
Therefore, we conclude that the District Court did not err in its
decision not to disqualify Jena's trial counsel.
We affirm.
We concur: