IN THE SUPREME COURT OF THE STATE OF MONTANA 1989

IN RE THEMARRIAGE OF MARCIA J. HOFFMASTER, petitioner andAppellant, and

RICHARD K. HOFFMASTER, : .- Respondent and Respondent.

APPEAL FROM: DistrictCourt of the Fourth ~udicial ~istrict, In and for the County of

### is sou la, TheHonorableJohnHenson,Judgepresiding.

COUNSEL OF RECORD:

ForAppellant:



### JonE. 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 DistrictCourt of the Fourth ~udicial District,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 DistrictCourt exercised proper discretion when it established custodialarrangements. 2. Whether the DistrictCourt exercised proper discretion when itestablished the amountof child support. 3. 

### Whether the ~istrict Court exercised proper discretion when it established the amountofmaintenance. Marcia and ~ichardHoffmaster 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 themarriage, ~ichard purchased land atNorth Fork, Idaho, where he built a cabin. Marcia and Richardprimarily 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 inArizona,Washington and Idaho. In 1983,the partiesmoved 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 tomake other financial investments. Among his investmentswas a $50,000 down payment on the purchase of a golf course in 

### a is sou la. ~arcia worked 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 ofhis inheritance, $1,000,000, in the fall of 1985. ~ichard used his inheritance to purchase assets and pay sums due on the golf courseproperty. In May of 1985, the parties moved into a $115,000 residence 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 dissolutionof 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, ~arcia and Alex moved to ~lgin, Illinois, and have resided there since. Dissolution proceedings were held before the District Court in July of 1988. During dissolution proceedings,

### ~ichard received $750,000as another inheritance installment. He is likely to receive another installment pending resolution 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 judgment, were resolutions to the issues of child custody,child supportand maintenance. Custody of Alex was awarded jointly to the parties with primary residential custody granted to Marcia. Richard was granted residentialcustody for twomonths 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 untilAlex starts the first grade ofprimary school. At that time, Marcia will have primary residential custody ofAlex and Richard will have residentialcustody for twomonths during the summer. The court, in its judgment,established that ~ichard is responsible for child supportas follows: a) $1,200 child supportper month until the child reaches the age of 18 or is otherwise emancipated. b) All medical, ocular, dental and orthodontic bills that are incurredby the child. c) All medical, ocular, dental and orthodontic insurance. d) All secondary and post-secondary education costs of the child to whatever schoolshe is qualified to attend and which the child, and both parents,wish him to attend. The court also established that ~ichard shallpayMarcia $1,000 per month maintenance until Alex reaches the first grade of primary school. Marcia received $34,000 cash as aproperty settlement in lieu ofmaintenance reduced by $3,000 which had been previously advanced. The first issue raised on appeal iswhether the ~istrict Court exercised proper discretion when it established the custodialarrangement. As noted, the DistrictCourt 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 ofprimary school. Marcia argues that under In re the Custody of Andre (Mont. 1988), 761 P.2d 809, 45 St.Rep. 1745, she has established de facto custody ofAlex. Andre, however, is distinguishable from thepresent case. In Andre, this Court awarded mother custody. The parties in Andre nevermarried 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, ~ichardnever 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 ~istrictCourt, 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 arrangementwas in effect prior to this action, the statute doesnot apply. Montana policy favors joint custody. See In re the ~arriage of 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 shalldetermine the custody in accordancewith the best interest of the child. The court shall consider all relevant factors, including but not limited to: (1) 

### the wishes of the child'sparent or parents as to his custody;

(2) the wishes of the child as to his custodian; (3)

### the interactionand interrelationof 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 physical 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 eitherparent. 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,andmust overcome thepresumption 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 findingswith respect to these criteria. [Citationomitted. 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 ~ichard tobe 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, therewas no abuse of discretion nor a showingby Marcia of a clear preponderance of evidence against the findings. The District Courtproperly considered the best interestsofAlex as required under 5 40-4-212,MCA.

### The next issue raised on appeal iswhether the ~istrict Court exercised proper discretion when it established the amount of child support. The ~istrict Court established that ~ichard is responsible 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 inpertinent 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 the marrlaqe not 

### -. -- been dissolved;



### (dl the physical and emotional condition of the child and his educational needs;

(e)the financial resourcesand needs of the noncustodial parent. [Emphasis ours.

### I
TheDistrict 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 ~istrictCourt 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 ~istrict Court awarded child supportpayments 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, ~arcia contends that the ~uidelines suggested

an award of $4,500per month, thus, the amount awarded grossly deviated from the ~uidelinesand was in error. ~ichard never contested the calculation of the Guideline amount. The amount arrived at by the DistrictCourt 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 standard of living thatAlex would have enjoyed had the marriage notbeen dissolved is not tobe 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 installments 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 intactbecause 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, asMarcia 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 toAlex who is entitled to share in the high standard of living achieved by his father. See, In

re the Marriage ofAnderson (Mont. 1988), 748 P.2d 469, 471, 45 St.Rep. 40, 43. The District Court will be reversed on appeal only where therehas been a "clear abuse of discretion resulting in substantial injustice." See, Inre theMarriage 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 expendituresreflected in the record. The last issue raised on appeal is whether the District Court exercised proper discretion when it established the amountofmaintenance. Here, theDistrict Court awardedMarcia $1,000per month maintenance until Alex reaches the firstgrade. Inaddition, she received $34,000 in cash to be treated as part of the property settlement in lieu of maintenance reduced by a $3,000advancement. The award ofmaintenance 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 sufficientproperty to provide forhis reasonable needs; and (b)isunable to supporthimself through appropriate employment or is the custodian 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 theparty seeking maintenance, including marital property apportioned to him, and his ability tomeet his needs independently, including the extent to which a provision for support of a child livingwith the party includes a sum for thatparty as custodian;

(b)the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;

(c)the standard of living established during themarriage;

(dl the duration of the marriage; (e)the age and the physical and emotional 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 seekingmaintenance. 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 15credit hours short of receiving her masters of arts in special education. Marcia was a full-time special education teacherprior to her marriage. The ~istrict Court noted that it provided for maintenance until Alex reaches the first grade of primary school in order to allowMarcia to continue her education for recertification and/or her masters degree while attending toAlex. 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 maintenancewas set forthby this Court inAnderson, 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 ofAanenson (1979), 183Mont. 229, 235, 598 P.2d 1120,1123. The ~istrictCourt found that ~arcia had a sufficient occupational and educational background. Granting her maintenance 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 awardedmaintenance.-?3-rpow e 103papuemax pue pasxanax pue qx-edur pauxr33y