IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

IN RE THE MARRIAGE OF 

MARCIA J. HOFFMASTER, 

petitioner and Appellant, 

and 

RICHARD K. HOFFMASTER, : .- 

Respondent and Respondent. 

APPEAL FROM: District Court of the Fourth ~udicial ~istrict, 

In and for the County of is sou la, 

The Honorable John Henson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Jon E. 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 District Court 

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 District Court exercised proper discretion when it established custodial arrangements. 

2. Whether the District Court exercised proper discretion when it established the amount of child support. 

3. Whether the ~istrict Court exercised proper discretion when it established the amount of maintenance. 

Marcia and ~ichard Hoffmaster 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 the marriage, ~ichard purchased land at North 

Fork, Idaho, where he built a cabin. Marcia and Richard 
primarily 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 

in Arizona, Washington and Idaho. In 1983, the parties moved 

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 to make other 

financial investments. Among his investments was 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 

of his inheritance, $1,000,000, in the fall of 1985. ~ichard 

used his inheritance to purchase assets and pay sums due on 

the golf course property. 

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 dissolution of 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 $750,000 as 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 

support and maintenance. 

Custody of Alex was awarded jointly to the parties with 

primary residential custody granted to Marcia. Richard was 

granted residential custody for two months 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 until Alex starts the first grade of primary 

school. At that time, Marcia will have primary residential 

custody of Alex and Richard will have residential custody for 

two months during the summer. 

The court, in its judgment, established that ~ichard is 

responsible for child support as follows: 

a) $1,200 child support per month until the child 

reaches the age of 18 or is otherwise emancipated. 

b) All medical, ocular, dental and orthodontic 

bills that are incurred by the child. 

c) All medical, ocular, dental and orthodontic 

insurance. 

d) All secondary and post-secondary education 

costs of the child to whatever schools he is qualified to attend and which the child, and both parents, wish him to attend. 

The court also established that ~ichard shall pay Marcia 

$1,000 per month maintenance until Alex reaches the first 

grade of primary school. Marcia received $34,000 cash as a 
property settlement in lieu of maintenance reduced by $3,000 

which had been previously advanced. 

The first issue raised on appeal is whether the ~istrict 

Court exercised proper discretion when it established the 

custodial arrangement. 

As noted, the District Court 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 of primary 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 of Alex. Andre, however, is distinguishable from the present case. 

In Andre, this Court awarded mother custody. The 

parties in Andre never married 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, ~ichard never 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 ~istrict Court, 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 arrangement was in effect prior to this action, 

the statute does not 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 shall determine the custody in 

accordance with the best interest of the 

child. The court shall consider all 

relevant factors, including but not 

limited to: 

(1) the wishes of the child's parent or 

parents as to his custody; 

(2) the wishes of the child as to his 

custodian; 

(3) the interaction and interrelation of 

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 

either parent. 

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, and must overcome the presumption 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 

findings with respect to these criteria. 

[Citation omitted. 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 to be 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, 

there was no abuse of discretion nor a showing by Marcia of a 

clear preponderance of evidence against the findings. The 

District Court properly considered the best interests of Alex 

as required under 5 40-4-212, MCA. 
The next issue raised on appeal is whether 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 in pertinent 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 resources and needs of 

the noncustodial parent. [Emphasis 

ours. I 

The District 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 ~istrict Court 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 support payments 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 $4,500 per month, thus, the amount awarded grossly deviated from the ~uidelines and was in error. ~ichard 

never contested the calculation of the Guideline amount. 

The amount arrived at by the District Court 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 that Alex would have enjoyed had the marriage 

not been dissolved is not to be 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 intact because 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, as Marcia 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 to Alex who is entitled to share in 

the high standard of living achieved by his father. See, In 

re the Marriage of Anderson (Mont. 1988), 748 P.2d 469, 471, 

45 St.Rep. 40, 43. The District Court will be reversed on 

appeal only where there has been a "clear abuse of discretion 

resulting in substantial injustice." See, In re the Marriage 

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 

expenditures reflected in the record. 

The last issue raised on appeal is whether the District 

Court exercised proper discretion when it established the 

amount of maintenance. 

Here, the District Court awarded Marcia $1,000 per month 

maintenance until Alex reaches the first grade. In addition, 

she received $34,000 in cash to be treated as part of the 

property settlement in lieu of maintenance reduced by a 

$3,000 advancement. 

The award of maintenance 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 sufficient property to provide 

for his reasonable needs; and 

(b) is unable to support himself 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 the party 

seeking maintenance, including marital 

property apportioned to him, and his 

ability to meet his needs independently, 

including the extent to which a provision for support of a child living with 

the party includes a sum for that party 

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 the marriage; 

(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 seeking maintenance. 

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 15 
credit hours short of receiving her masters of arts in special education. Marcia was a full-time special education 

teacher prior to her marriage. The ~istrict Court noted that 

it provided for maintenance until Alex reaches the first 

grade of primary school in order to allow Marcia to continue 

her education for recertification and/or her masters degree 

while attending to Alex. 

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 maintenance was set 

forth by this Court in Anderson, 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 of Aanenson (1979), 183 Mont. 229, 

235, 598 P.2d 1120, 1123. 

The ~istrict Court 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 awarded maintenance. 
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