No. 84-336 

IN THE SUPFtEI4E COURT OF THE STATE OF MONTANA 

1985 

IN RE THE MARRIAGE OF 

P-LA SUE KING, 

Petitioner and Respondent, 

and 

JACK DEAN KING, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Douglas Harkin, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

William Law Firm; Richard Ranney, Missoula, Montana 

For Respondent : 

Goldman & Goldman; Joseph M. Goldman, Missoula, Montana 

For Children: 

Milodragovich, Dale & Dye; Karl Boehm, Missoula, Montana 

Submitted on Briefs: March 7, 1985 

Decided: M~Y 13, 1985 

Clerk 
?Ire Justice William E. Eunt, Sr. , delivered the Opinion of 

the Court. 

Jack King appeals an order and an amended order of the 

Missoula County District Court which divided his and Pamela 

King's marital property, and established custody and 

visitation rights, and the support obligations of the parties 

to their two minor children. Two issues are presented for 

review: first, whether substantial evidence supports the 

District Court's award of nearly al.1 the marital estate to 

the wife; and second, whether the District Court erred in 

awarding the parties' real property to the wife in lieu of 

requiring the husband to make child support payments. We 

affirm the District Court. 

Jack and Pamela King married in March 1971, in Mexico. 

Thereafter, they resided in California, where their two 

children were born, in 1971 and 1973. In 1977, they moved to 

Montana. They separated in June 1980, and the District Court 

dissolved their marriage in June 1981, reserving the issues 

of division of marital property, custody, visitation rights 

and child support until a later time. Maintenance was 

neither sought nor awarded, and custody and visitation rights 

are not in issue on this appeal. 

On February 29, 1984, the District Court entered 

findings of fact, conclusions of law and its order deciding 

those reserved issues. All parties filed certain objections 

to the order, and thereafter, on April 16, 1984, the court 

entered its amended findings, conclusions and order. That 

amended order awarded each party the personal property then 

in their possession, and awarded the family residence to 

Pamela. 
Jack asserts several of the court's findings of fact are 

unsupported by substantial evidence. We will address them in 

order. In its finding no. 2, the court noted: 

"The distribution of the proceeds of the sale of 

the family home if it is ordered sold makes 

inadequate provision for the support of the minor 

children of the parties. " 

Find.ing no. 3 : 

"A substantial hardship would be imposed upon the 

children of the parties if they would be required 

to vacate the family home if it is ordered sold." 

Finding no. 4: 

"The expenses of sale, including realtors ' 

commissions, attorneys ' fees and potential capital 

gain tax liability would take a disproportionate 

amount of marital assets needed for child support." 

And no. 5: 

"It would be in the best interests of the minor 

children of the parties to continue to reside in 

the family home." 

Jack contends the division of property should be 

separate from and not contingent upon child support. 

However, a fair reading of S 40-4-202, MCA, shows that the 

District Court, in a proceeding for dissolution of marriage, 

may take into account support considerations, and may protect 

and promote the best interests of the children by setting 

aside a portion of the jointly and separately held estate of 

the parties for the support of their children. In reaching 

such a result, the court shall equitably apportion between 

the parties, the property or assets belonging to either or 

both. The court is neither required to divide each asset 

50-50, nor to sell all the parties' property and d.ivide the 

proceeds 50-50. Equitable apportionment. is the guideline 

under any or all of the many factors which apply. To order 

the sale of the family residence would subject the marital 

estate to realty fees, would lose a favorable interest rate, 
and would uproot the children from their home and possibly 

from their neighborhood. These findings are well supported 

in the record. 

Finding no. 7 provided that if Pamela were awarded the 

residence, she would be able to devote sufficient monies from 

her earnings to support the children. Jack contends the 

finding is not supported by substantial evidence because she 

probably would be able to support the children without the 

award of the residence. His contention, even if correct, 

neither per se invalidates the finding, nor begs the 

conclusion that she would not be able to support them without 

the home. Rather, it is reasonable to view the finding in 

1-ight of the court's order relieving Jack of a financial 

support obligation. Viewing the record in its entirety, as 

we must, we cannot say the finding was erroneous. 

Jack also attacks finding no. 8, wherein the court noted 

he had not presented satisfactory evidence of his past or 

present income, nor satisfactory means of verifying his 

present or future income, given the nature of his occupation 

as a professional gambler. He did testify without objection 

that he earned approximately $1,000.00 per month in 

California from gambling winnings, and approximately $500.00 

per month therefrom after the parties moved to Montana. Yet, 

when questioned further about his income, Jack was very 

evasive, and eventually conceded that there was no way of 

verifying his income. That makes it difficult to ascertain 

whether he would be able to make support payments. It is 

reasonable to conclude the court meant he did not have a 

regular paycheck as such. It is also reasonable to infer the 

court meant he had not presented sufficient income evidence 

to justify a different property division. In light of those 
considerations, we feel the finding is supported by record 

evidence. 

Jack next contends finding no. 9, that he would not pay 

any portion of the childrens' attorney fees, was based on the 

court's "suspicions and distaste for Jack's method of earning 

a living." The Supreme Court, in reviewing evidence on 

appeal, is not concerned with the motives of the trial court. 

Nor may we express our opinion as to the wisdom of its 

decisions. Rather, we look to determine whether the result 

comports with the law. The District Court was in the best 

position to examine the demeanor of the parties, the 

witnesses and the evidence, and the District Court has broad 

discretion in arriving at its decisions. We will not 

substitute our judgment for the District Court absent a clear 

abuse of that discretion. We fail to see how the court's 

finding that Jack would not pay the childrens' attorney fees 

abused its discretion. 

Finally, Jack assails finding no. 10: 

"Awarding the Petitioner the Respondent's share of 

the equity in the family home is the only 

reasonable means to insure that the Respondent will 

contribute to the care and support of the minor 

children of the parties." 

Again, the District Court was in the best position to view 

the parties, the witnesses and the evidence, and to render a 

decision based on its view. Our role is not to examine other 

possible means of ensuring Jack will contribute to the care 

and support of his and Pamela's children, but to determine 

whether the means chosen has a lawful basis of support in the 

record. The income earned from Jack's chosen occupation as a 

professional gambler, is by its very nature, inadequate to 

ensure he will always or regularly or even predictably have 

that income. To accede to such speculation is a gamble that 
neither party nor the District Court is advised to undertake. 

We find substantial evidence supports the findings of the 

District Court. 

The second issue Jack presents is whether the District 

Court erred in awarding the custodial spouse the family 

residence "in lieu of any child support obligation on the 

part of the [non-custodial spouse.!" He contends the award 

was erroneous because the issues of property and support are 

totally irrelevant to each other. Pamela, on the other hand, 

claims the award was proper because the issues of property, 

support, custody and visitation rights are "inextricably 

interwoven." The record does not support a conclusion 

favoring either of those extremes. Rather, the District 

Court considered all the factors, and made a decision based 

on the extent to which they were interrelated. Custody and 

visitation rights are not issues raised on appeal. The 

property division and support findings, however, do call for 

a discussion. 

We held in Perkins v. Perkins (1975), 168 Mont. 78, 540 

P.2d 957, that where the husband was financially unable to 

contribute to the support of the minor children, it was not 

error to grant the wife a proportionally larger share of the 

marital property to offset her increased obligation. 

Similarly, in Bailey v. Bailey (19791, 184 Mont. 418, 603 

P.2d 259, the trial court awarded the family residence to the 

wife, plus other property, for a total award of approximately 

67% of the marital estate. After noting the District Court 

weighed all the applicable factors of S 40-4-202, MCA, we 

held a division of the marital estate which favors one party 

over the other may be acceptable if there is reason for it. 

Here, the District Court stated its reasons--the best 
j-nterests of the children are served by allowing them to 

remain in the family home; forced sale of the family home 

would divert and dissipate assets needed for support; and the 

only reasonable means to protect and promote the best 

interests of the children is to award the home to Pamela. 

That award was made in lieu of a support obligation. 

No reasonable purpose would be served by ordering the 

residence sold. Jack would not reside there in any event, 

the children would be uprooted, and the marital estate would 

be lessened because of realty fees attendant to the sale. 

The District Court's findings and conclusions are 

embodied in a ten-page summary attached to its order, 

delineating all the statutory criteria. 

We believe the District Court did a thorough job of 

divid-ing the marital assets and resolving the respective 

support obligations of the parties. We hold there was no 

abuse of discretion. 

Affirmed. 

We Concur: