NO. 92-553
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
IN RE THE MARRIAGE OF
CANDIS K. FESOLOWITZ
njleja C-ANDIS DECHAINE,
Petitioner and Appellant,
and
VICTOR M. FESOLOWITZ,
Respondent and Respondent.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Larry W. Moran, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Rienne H. McElyea; Berg, Lilly, Andriolo
& Tollefsen, Bozeman, Montana
For Respondent:
Edmund P. Sedivy, Jr.; Morrow, Sedivy
& Bennett, Bozeman, Montana
Submitted on Briefs: April 16, 1993
Decided: May 18, 1993
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.
Candis DeChaine, formerly Candis Fesolowitz (Candy), appeals
from an order modifying child custody, visitation, and support
entered by the Eighteenth Judicial District Court, Gallatin County,
the Honorable Larry W. Moran presiding. We affirm.
Candy and her former husband, Victor Fesolowitz (Victor) were
married in 1976 in Sioux City, Iowa. They had two children, both
girls, born on July 8, 1979, and October 1, 1984. Candy petitioned
for dissolution of the marriage in February 1986. She was then,
and still is, a flight attendant for Northwest Airlines, living in
Bozeman, Montana but flying out of Minneapolis, Minnesota. Victor
was and still is a pilot for Northwest Airlines, living in Bozeman
and Big Sky, Montana, but flying out of Detroit, Michigan.
The Auqust 1988 Order
A decree of dissolution was entered by Judge Gary on October
30, 1987, "reserving until later all other issues which have to be
considered in this matter." The findings of fact, conclusions of
law and order that accompanied the decree followed a five-day
hearing which in turn concluded eighteen months of litigation over
property, child support, child custody and visitation. Conflict
over these issues continued until Judge Gary issued a second order
on August 9, 1988, granting the parties joint custody with primary
physical custody to Candy for ten months of each year, and to
Victor for July and August of each year, until the younger child
reached the age of seven. Visitation was ordered as follows:
[Dluring these nine months of the school year, Victor is
granted visitation of no less than ten days during each
month. The ten days shall be agreed upon between the
parties by the 25th of the preceding month and adjusted
to both parties' schedules. If the parties cannot
peaceably agree upon a schedule, the aggrieved party may
seek an absolute order dictating times by the court, and
the party causing a return to court shall he responsible
for both attorney fees incurred. . .
.
[Dluring the two months that Victor is the primary
custodian the reverse procedures for Candy shall apply.
[Wlhile Candy is remarried and has a number of relatives
in the western United States, Victor has no relatives in
the United States except these two children, and the
court deems it important . . . that Victor has as much
visitation and custody as possible. Victor shall have
the right to have custody of the children any day the
children are in town and Candy is out of town, and will
not count against Victor's ten days.
Judge Gary's August 1988 order also divided the parties'
extensive real estate holdings, investments, and personal property
and required Victor to pay Candy $800 a month as child support
during the months when the children lived with her, and $400 a
month in July and August, retroactive to January 15, 1988. Child
support was to increase at a rate equivalent to the annual increase
in Victor's salary.
Candy moved to amend the order, pointing out that no provision
had been made for custody after the younger child reached the age
of seven. Victor responded, asserting that *it is apparent from
the Court's order" that the parties would have "equal time with the
two children," after the younger child reached the age of seven.
Neither party contested the court's finding that Victor's annual
salary was $98,000 and Candy's, $22,000, or its finding that the
cost of caring for the two children was $1,000 per month.
In September 1988, the parties signed a "settlement agreement1'
amending the court's division of the marital estate. This
agreement did not address child support, child custody, or
visitation. On October 4, 1988, Judge Gary entered an amended
order incorporating the settlement agreement.
The Auqust 1992 Order
Judge Gary's August 1988 order, as amended in October 1988,
did not explicitly provide for custody and visitation after the
younger child's seventh birthday. In Jane 1991, four months before
that birthday, Candy filed a motion to review custody and child
support. Victor filed a cross-motion requesting that child support
be reviewed under the Child Support Guidelines that had been
implemented after Judge Gary's last order. A hearing was held
before Judge Moran on January 31, 1992. By then, Victor was paying
$1,054 a month as child support for the ten months each year that
Candy had physical custody of the children.
After testimony on the parties' experience with the physical
custody and visitation arrangements ordered by Judge Gary in August
1988, the court recessed while Candy and Victor met with their
lawyers. On returning three hours later, Victor's lawyer told the
court that the parties had "come to an agreement with the exception
of two pointsw on the subject of custody and visitation, and that
the parties had agreed to submit their agreement to the court in
writing, with position papers on the two unresolved issues. Child
support issues were to be resolved through further negotiation or
at a later hearing.
In March 1992, Candy asked the court to make the position
papers confidential. In her motion she said that she and Victor
4
had not been able to agree on "several primary issues." She asked
that the position papers be confidential so that Victor would not
keep challenging her position in "numerous and lengthy counter-
position papers." The court granted this motion, and both parties
filed confidential position papers in May 1992.
Victor filed an objection three days later, saying that Candy
had refused to sign a stipulation based on their agreement at the
January 31 hearing. A letter from Candy's lawyer was attached,
listing seven "contested" issues. Chief among these were the
months during which each party controlled the scheduling of
visitation for the following month; the number of visitation days
for Victor (ten or eleven, during the ten months Candy had physical
custody); and the number of months during the school year during
which Victor would have visitation for two weekends rather than
one. The parties did not contest Candy's ten months of physical
custody or her control of scheduling for seven months of the year.
Judge Moran held a two-day hearing on child support
modification in late May, and on August 14, 1992, he entered
judgment awarding child support to Candy at $588.97 a month and
specifying the following physical custody and visitation
arrangements:
Father shall have the children two complete weekends each
month of the year, a weekend being defined as Saturday
and Sunday.
Father shall have the children a minimum of 12 days per
month, except July and August when Mother shall have the
children a minimum of twelve days per month.
Father shall be the primary custodial parent six months
of the year, being January, February, March, July,
August, and September.
During the six months that Father is the custodial
parent, he will notify Mother by the 14th of each month
regarding which days he will have the children for the
following month. It will be his obligation to get those
days off and it will be Mother's obligation to bid her
job responsibilities around Father's days with the
children.
Parallel provisions followed, covering the six months that Mother
is the custodial parent.
As for child support, the court found that the parties had
combined net annual resources of $96,985, of which Victor's share
was 72.85 per cent, and that under the child support guidelines for
two children ages seven and twelve, an "appropriate percentage" for
child support was 23.6 per cent, or $22,664. Victor's share was
$16,511 annually, or $1,375.92 per month. The order reduced
Victor's share to $588.97 per month based on the court's
expectation that the children would live with him 150 days, or
approximately five months, each year.
Candy appealed from this judgment, raising the following
issues:
1. Whether the District Court erred in modifying a
stipulation without notifying the parties;
2. Whether the District Court failed to provide for the
best interests of the children in its custody decree; and
3. Whether the District Court erred in modifying child
support.
L
Did the District Court err in modifying a stipulation without
notifying the parties?
In her motion for a new trial, filed in September 1992, Candy
6
stated that she and Victor had agreed, in an oral stipulation at
the January 31, 1992 hearing, that she would have physical custody
for ten months; that Victor's visitation would include one weekend
per month; and that she would schedule the visitation for seven
months each year. Victoris law~ertold the court:
We've agreed that we would submit in writing to the court
the agreed portion of our stipulation, and that we will
submit . ..position papers on the two additional points
yet to be resolved. Based upon receipt of the position
papers from both parties and review of the agreed
stipulation, the court will then be requested to make a
decision on the two renaining points and approve the
agreed-to stipulation.
No written stipulation was submitted to the court, however, and it
appears that more than two points remained unresolved at the time
of the hearing on child support in May 1992. Having before it
statements from Candy and her lawyer to the effect that several
issues were unresolved, and having no evidence that the parties had
reached an agreement on those issues, the court decided all the
outstanding custody and visitation issues based on the position
papers, as it had agreed to do at the January 31, 1992 hearing.
We have held that in matters relating to children, the best
interests of the children control; therefore, child custody,
visitation and support cannot be left to contract between the
parties. In re Marriage of Carlson (19841, 214 Mont. 209, 693 P.2d
496; In re Marriage of Neiss (1987), 228 Mont. 479, 743 P.2d 1022.
Whether the stipulation is written or oral is unimportant, and even
if both parties stipulate to custody, the court is not bound by
that stipulation but may instead order a different custody
arrangement in accord with the best interests of the children. In
re Marriage of Mager (1990), 241 Mont. 78, 785 P.2d 198; In re
Marriage of Converse (1992), 252 Mont. 67, 826 P.2d 937.
Here, the parties' stipulation as to custody and visitation
would not have been binding on the District Court even if it had
been in writing. Therefore, the court was under no obligation to
notify the parties that it intended to depart from their alleged
oral agreement.
II
Did the District Court fail to provide for the besc interests
of the children in its custody decree?
Judge Moran's order of August 1992 actually included both a
"custody decreew and a modification of the visitation arrangements
in Judge Gary's joint custody award of August 1988.
The 1992 order departed from the 1988 order primarily in
specifying the months in which each parent could designate the
other's visitation days during the following month. It also gave
Victor more weekend time with the children during the months that
Candy was the physical custodian.
Lacking clarification in the 1992 order itself, we infer that
the provision that "Father shall be the primary custodial parent
six months of the year1'merely refers to control over scheduling of
visitation and does not mean that Father is to have physical
custody. We base this inference on Judge Moranis findings of fact,
in which he stated that the parties have shared custody for the
past two years "so that Mother has the children for approximately
215 days per year and Father has the children approximately 150
days per year." He found that "the children have adapted
8
successfully to this amount of shared custody and have prospered by
being with each parent a substantial amount of time each month,"
These findings indicate that Judge Moran found the previous
custodial arrangement to be in the best interests of the children,
and that he intended to preserve that arrangement while altering
visitation so that Victor had more weekend visitation and more
control over the scheduling of visitation. In short, we infer that
in the order of August 1992, the phrase "custodial parentw refers
merely to control over scheduling of visitation and not to physical
custody.
The court's child support order also indicates that it
intended its custody order to preserve the ten-month/two-month
division of physical custody, as it is based explicitly on the
court's expectation that the children would live with Victor five
months, not six, each year.
Our standard of review in this case is whether substantial
credible evidence supports the court's determination. In re
Marriage of Clingingsmith (1992), 254 Mont. 399, 404-405, 8 3 8 P.2d
417, 420-421; In re Marriage of Nash (1992), 254 Mont. 231, 234,
836 P.2d 598, 600. Joint custody is presumed to be in the best
interests of the child and is awarded to assure the child frequent
and continuing contact with both parents. Section 40-4-224, MCA.
Physical custody should be arranged as equally as possible between
the parents to comply with the express purpose of a joint custody
award, with the child's best interest as the primary consideration.
In re Marriage of Ulland (1991), 251 Mont. 160, 823 ~ . 2 d
864.
The District Court must consider the factors set forth in
9
40-4-212, MCA, in determining whether modification of physical
custody is in the child's best interest. Ulland, 823 P.2d at 869;
Clinsinqsmith, 838 P.2d at 421. Candy argues that the court erred
in failing to address these factors in its findings of fact and
conclusions of law. We disagree. All the statute requires is that
the court consider the factors listed. It is not required to make
specific findings concerning each element, though it must express
"the essential and determining facts upon which its conclusions
rest." Ulland, 823 P.2d at 869: Zlinqinclsmith, 838 P.2d at 421.
Here, the essential and determining fact was the court's
finding that the Fesolowitz children "have successfully adaptedw to
shared custody and "have prospered by being with each parent a
substantial amount of time each month." The court therefore did
not materially alter the amount of time the children would live
with each parent--both parents testified that the children had been
living with Victor an average of twelve days a month--but instead
specified that their time with Victor would include two weekends
each month, rather than one.
Candy did not object to the court's findings with regard to
the children's successful adaptation, or to the number of days
allotted to each parent's visitation or physical custody. Instead,
she appears to object primarily to the court's designation of the
party who was to control the scheduling of visitation,
unfortunately termed the "primary custodial parent" in Judge
Moran's order. In her confidential position paper, she requested
that she have control over scheduling for seven months, rather than
six, and that Victor's visitation include two weekends only in
10
September, October and January.,
The court evidently was persuaded by Victor's argument, in his
position paper, listing numerous activities that he could not share
with his children because they were not with him on most weekends.
It found that Candy had used the job-bidding process at Nortinwest
Airlines to confine Victor to one weekend with the children each
month, and that this arrangement is "contrary to the best interests
of the children, because of their age and good relationship with
their father." The court amended t n parties'
ie visitation
arrangements accordingly.
Section 40-4-224(2), MCA, states that in a joint custody
situation, "[tlhe allotment of time between the parents must be as
equal as possible; however . . . each case shall be determined
according to its own practicalities, with the best interest of the
child as the primary consideration. . . .* See In re Marriage of
Ward (1986), 223 Mont. 401, 725 P.2d 1211 (district court's
visitation order, giving the father in a joint custody situation
only 75 days of visitation out of a total of approximately 170 non-
school days available, was affirmed as a practical method of
providing for the child's best interests).
Here, the court produced an order, based on its perception of
the Fesolowitz children's best interests, that was adapted to the
exigencies of the parents' airline work schedules. We conclude
that substantial credible evidence supports the District Court's
allocation of visitation time and control over visitation days.
111
Did the District Court err in modifying child support?
Both parents requested in 1991 that the court review Judge
Gary's 1988 child support order, applying the guidelines. After
extensive testimony by the parties and their accountants, the court
found that under the guidelines, 23.6 percent of the parents' total
combined net resources was to be allocated o r chiid support.
Finding that the parents' total combined resources, less reasonable
deductions, were $96,036 annually, it arrived at a figure of
$22,664 per year for child support.
Candy objects to the court i s assessment of Victor's net
resources. In particular, she objects to the court's deduction of
$27,205 from Victor's income and assets, reflecting losses Victor
incurred on his Big Sky condominium and an apartment house in
Madison, Wisconsin, and his $7,171 disability insurance premium.
In reviewing an award of child support, we presume that the
judgment of the district court is correct, and we will reverse the
district court only if it has abused its discretion. In re
Marriage of Sacry (1992), 253 Mont. 378, 833 P.2d 1035: In re
Marriage of Smith (1990), 242 Mont. 495, 791 P.2d 1373. Here, the
District Court heard exhaustive testimony about Victor's rental
property and concluded that he had in fact sustained a net loss on
that property. Losses of this kind are legitimate business
deductions, allowed by the guidelines. m, 791 P.2d at 1377.
Disability insurance premiums are not specified as a deduction
under the guidelines. In Smith, however, we concluded that the
obligor in that case "should be encouraged, as a matter of public
policy, to carry disability insurance. . . . Consequently, the
Court concludes that the disability insurance premium is a
12
legitimate expense deduction under the guidelines, and is at least
partially for the benefit of the minor child." 791 P.2d at 1377.
Candy urges us to distinguish Smith on the grounds that the
obligor was a self-employed doctor, while Victor has an employer
and "would be covered under Workmen's I,,- :
[, - Compensation provisions
in the event he was injured on the job." We are not persuaded by
this argument. Workerst Compensation benefits would be available
only if Victor were injured on the job, while his disability
insurance covers injuries he might sustain while commuting,
driving, skiing, and so on. We conclude that disability insurance
benefits the children and that the District Court did not err in
allowing Victor to deduct his disability insurance premiums.
Candy argues that in reducing Victor's monthly child support
obligation by over $500 a month the court ignored the standard of
living the children would have enjoyed had the marriage not been
dissolved. This is one of the factors the District Court must
consider in awarding child support, under 5 40-4-204(2), MCA. See
In re Marriage of Anderson (1988), 230 Mont. 89, 748 P.2d 469 (pre-
guidelines child support award remanded because it was not
commensurate with the father's financial resources and the
children's pre-dissolution standard of living).
Here, the total child support award in the 1988 order,
adjusted for increases in Victor's salary, was $16,200 per year at
the beginning of 1992. In the 1992 order this was increased to
$22,664 per year, taking into account increases in Candy's salary
as well as Victor's. Victor's monthly payment was reduced partly
because Candy's obligation was increased, pursuant to the
13
guidelines, and partly because Victor is, as he testified,
providing a fully-equipped home for the children five months out of
every twelve.
The District Court found that the total child support award of
$22,664 per year was "ample to maintain the children in a lifestyle
to which they have become accustomed." We hold that substantial
credible evidence supports this conclusion, and that the District
Court did not abuse its discretion in determining Victor's child
support payments.
Af finned.
May 18, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Rienne H. McElyea
Berg, Lilly, Andriolo & Tollefsen
910 Technology Blvd., Suite A
Bozeman, MT 59715
Edmund P. Sedivy, Jr.
Morrow, Sedivy & Bennett
P. 0.Box 1168
Bozeman, MT 59771
ED SMITH
CLlERK OF THE SUPREME COURT