No. 81-395 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

IN RE THE MARRIAGE OF 

MARTHA H. BURLEIGH, 

Petitioner and Respondent, 

-vsC. WARD BURLEIGH, 

Respondent and Appellant. 

Appeal from: District Court of the Tenth Judicial District, 

In and for the County of Fergus, The Honorable 

Nat Allen, Judge presiding. 

Counsel of Record: 

For Appellant: 

Robert L. Johnson, Lewistown, Montana 

For Respondent : 

Anderson, Edwards & blolloy, Billings, Montana 

Amicus Curiae : 

Jardine, Stephenson, Blewett & Weaver, Great Falls, 

Montana 

Submitted on Briefs: July 9, 1982 

Decided: Adgust 19, 1982 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

Husband appeals from a judgment entered by the 

District Court of the Tenth Judicial District, Fergus 

County, which awarded the wife child support and custody of 

the children and required the husband to make a lump sum 

payment plus twenty annual payments of $11,116 to the wife. 

We aff irm. 

Husband and wife were married on January 8, 1966, in 

Fort Collins, Colorado. Husband was completing his studies 

for a Doctor of Veterinary Medicine degree, and wife was in 

her senior year of undergraduate school studying history. 

The couple then made several moves for the husband's employment, first to Utah where the husband was employed at a 

private veterinary clinic and the wife worked part-time as a 

receptionist. The parties then moved to Lewistown and, 

during the first months of 1967, lived with the husband's 

parents on Burleigh Angus Ranch and shared ranch and household duties. 

In March 1967 they moved to Miles City, where husband 

was employed as a deputy state veterinarian and wife 

attended school, received her bachelor's degree and did some 

substitute teaching. In September of 1968, husband accepted 

employment with a private veterinarian in Sidney, and wife 

taught school from October to the end of the school year. 

In the summer of 1969 the parties moved back to 

Lewistown where husband was employed by a private veter inarian and wife taught school. Both parties helped on the 

ranch part-time. In 1970 and 1971, wife experienced childbearing problems requiring out-of-state chemotherapy which 

prevented her from contributing to the home and marriage as 
much as she previously had. In 1972 the husband gave up his 

veterinary practice, and the parties moved into the main 

ranch house on Burleigh Angus Ranch. Part of the wife's 

duties included keeping records on the Angus cattle and 

operating a public dumpyard acquired by the ranch. 

In September 1973, the parties adopted a three-monthold son, Theran. Husband's parents gifted thirty shares of 

stock to the husband during this year. On February 10, 

1975, all shareholders entered a buy and sell agreement 

which contained provisions which disallowed any encumbering 

or disposing of the stock without the consent of the remaining shareholders and statements to the effect that a stockholder may not dispose of any shares without first offering 

them to the corporation. This agreement has been twice 

amended. In July 1975 the parties had a child of their own, 

Sarah. During 1975 husband's parents gave him twenty more 

shares of stock in the corporation and gave wife twenty 

shares also. 

On April 1, 1978, husband contracted to buy 274 

treasury shares of the corporation and also contracted to 

buy 230 shares from his parents. He had been gifted fortysix shares prior to marriage. After the parties moved to 

Lewistown, the wife was active in working with horses, in 

raising and selling dogs and in continuing to take educational courses. 

In September 1979 the parties separated, and on 

October 29, 1979, wife filed a complaint seeking dissolution 

of the marriage. On January 10, 1980, on oral stipulation 

of the parties, the District Court dissolved the marriage, 

awarding temporary custody of the children to the wife. 
Both parties subsequently remarried. 

On August 4, 1981, the District Court awarded permanent custody to the wife with rights of visitation to the 

husband and gave the wife $400 per month in child support. 

The District Court also found that the wife's share of the 

marital estate was $247,320.26, with $25,000 to be paid 

within sixty days of the date of judgment and the balance to 

be paid in twenty annual installments of approximately 

$11,116 each. The court granted the wife a security interest in the husband's stock until full payment was made at 

which time the wife would convey her twenty shares to the 

husband. Husband appeals and presents several issues which 

can be stated as follows: 

1. Did the District Court err in awarding custody of 

the children to the wife? 

2. Did the District Court err in making its award of 

child support? 

3. Did the District Court err in distributing the 

marital estate? 

Both parties cite Corbett v. Corbett (1981), - 

Mont. - , 635 P.2d 1319, 38 St.Rep. 1852, as setting our 

standard of review on the first issue. In Corbett we 

stated: 

"This Court has said many times regarding the 

discretion of the District Court in child 

custody cases that: 

"'In reviewing orders which affect the custody of the child, this Court is mindful that 

the primary duty of deciding the proper custody of children is a task of the District 

Court. Thus, all reasonable presumptions as 

to correctness of that determination will be 

made. No ruling will be disturbed absent a 

clear showing that the District Court's discretion was abused. Foss v. Leifer (1976), 

170 Mont. 97, 550 P.2d 1309, 1311." 635 P.2d 
Section 40-4-212, MCA, is the controlling statute here and 

states as follows: 

"Best interest of child. The court shall 

determine custody in accordance with the best 

interest of the child. The court shall consider all relevant factors including: 

"(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 interrelationship 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; and 

"(5) the mental and physical health of all 

individuals involved. I' 

The District Court's finding in this regard stated 

thus: 

"The Court finds that both parties are fit 

and proper parents, and further finds that 

the best interests of the minor children 

require that they be placed in the care, 

custody and control of their mother. The 

Court considers the following relevant in 

making this determination: 

"1) That neither child has reached an age 

where his wishes are relevant in this determination, further, both parents expressed a 

strong desire to acquire custody; accordingly, the desires of the parties and the 

children do not enter into this decision; 

"2) The testimony established that the mother 

is, and has been, the primary person involved 

in the care, education and rearing of the 

children since their birth. The mother Is 

present living situation is such that it 

facilitates the kind of care and attention 

required by children of this age. The evidence established that the children are well 

settled to the current living situation and 

their progress in school is satisfactory; 

"3) The mental and physical health of all 

individuals is satisfactory; 
"4) In summary, the Court finds no evidence 

of positive values to be gained by changing 

their custody from the current status, 

wherein their primary custody and care rests 

with their mother. To the contrary, the 

Court finds that the best interests of the 

children require the continuation of the 

current custody status with the mother." 

Appellant charges that the court's findings do not 

properly address the children's interaction with other 

people in the mother's home including respondent's new 

husband. Appellant also contends that the husband should 

have been awarded custody because he fulfilled all the 

criteria of section 40-4-212, MCA, based largely on his 

testimony and that of a social worker who visited the 

husband's home. 

We disagree. Montana law states that the findings do 

not need to be in any particular form if there is substantial credible evidence to support the trial judge's judgment 

on the merits. In Re Marriage of Barron (1978), 177 Mont. 

161, 580 P.2d 936. There is substantial evidence in the 

record to support the court's conclusion here. 

The two children had lived with the mother since the 

separation in September 1979, and the husband testified that 

the wife was a satisfactory motner. Furthermore, the social 

worker had only visited the husband's home, and not the 

wife's, so could not testify that the wife's home was not a 

suitable home for the children. While we may sympathize 

with the husband's wishes to have a more direct influence on 

the rearing of his children, we do not find any abuse of 

discretion which would warrant a reversal. Corbett, supra. 

With regard to the second issue, appellant argues 

that there is no finding to suggest that the court 

considered the statutory criteria set forth in section 
40-4-204, MCA, in awarding the wife child support payments 

of $200 a month per child. Husband further argues that the 

requirements of the District Court's judgment obligate him 

to pay out far more each year than he has ever received in 

income. 

Section 40-4-204, MCA, provides: 

"Child support. In a proceeding for dissolution of marriage, legal separation, maintenance, 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: 

"(1) the financial resources of the child; 

"(2) the financial resources of the custodial 

parent; 

"(3) the standard of living the child would 

have enjoyed had the marriage not been dissolved ; 

" (4) the physical and emotional condition of 

the child and his educational needs; and 

"(5) the financial resources and needs of the 

noncustodial parent." 

Here the District Court judge had before him the 

wife's testimony regarding the financial needs of her 

children, which included housing, groceries and transportation. The wife testified that she needed $600 per month for 

two children, and, in our view, an award of $400 per month 

is not excessive in any way. 

Nor are we persuaded that the District Court's judgment will so strap the husband that he cannot make the payments. Both the husband and the ranch accountant testified 

that the corporation pays and provides nearly all the husband's living expenses, including his house, food, utilities 

and transportation. The corporate salaries are adjusted 
according to the income received each year. The husband's 

salary in 1978 was $22,850 and in 1979 was $27,866. There 

is ample evidence to support an award of $400 per month in 

child support. 

Appellant's third issue relates to the District 

Court's distribution of the marital estate. Appellant 

argues that the findings should not have included in the 

marital estate the 120 shares gifted to the husband after 

the marriage. Appellant also contends that the husband 

should have been credited for the nearly $25,000 that he 

paid to the wife after their separation and prior to her 

remarriage. 

Both appellant's brief and the amicus brief 

(representing the other shareholders) argue that the court's 

valuation of the shares was improper and that the granting 

of a security interest was contrary to the various agreements of the shareholders. 

In Montana we pay a great amount of deference to the 

judgment of the District Court regarding property divisions, 

i.e. , our standard of review is whether the District Court 

acted arbitrarily without employment of conscientious judgment, or exceeded the bounds of reason in view of all the 

circumstances. Zell v. Zell (1977), 174 Mont. 216, 570 P.2d 

33. 

In In Re Marriage of Jorgensen (1979), 180 Mont. 294, 

590 P.2d 606, this Court considered the valuation of stock 

of a closely held corporation where the shares could only be 

sold to other shareholders or to the company. A shareholder 

agreement set the price of each share at $750, and we found 

that the District Court did not abuse its discretion in 
valuing the shares at $750. Here, under the provisions of 

the buy and sell agreement and amendments thereto, the price 

of each share shall be book value (as shown by the balance 

sheet at the close of the preceding tax year) or a different 

valuation can be established by an independent appraiser. 

Under the book value method, each share of Burleigh 

Angus Ranch would be worth $158.37 which, in view of the 

evidence, is unrealistically low. Husband estimated that 

each share was worth about $500. The District Court valued 

each at $1,009.72, a figure reached by dividing the value of 

total assets less liabilities by the number of outstanding 

and issued shares. We cannot say that the District Court 

acted arbitrarily or that the method employed exceeded the 

bounds of reason in view of the circumstances, Zell, supra, 

and we uphold it here. 

We can similarly dispose of the husband's contention 

that the District Court should have made a distribution of 

the stock in kind, i.e., that the wife should have been 

given some of the shares instead of the right to annual 

payments. Simply because this option was open to the court 

is no reason that the district judge had to select it. 

Under the circumscribed standard of review established by 

Zell and numerous other cases, there was no error in the 

District Court's failure to distribute the property in kind. 

Furthermore, we note that the District Court did not award 

the wife 50 percent of the net marital estate, but only 38 

percent because of the gifts the husband had received before 

and during the marriage. 

Nor do we predicate error on the District Court's 

granting the wife a security interest in the 720 shares of 
the husband's stock. She needs some protection to insure 

that the annual payments will be made, and the prospect of 

foreclosure on those shares should provide a sufficient 

incentive for the husband to make the installment payments. 

We have previously approved the granting of a security 

interest for the wife's protection in other cases, In Re 

Marriage of Brown (1978), 179 Mont. 417, 587 P.2d 361. We 

also note that, under the terms of the District Court 

decree, the wife cannot unreasonably withhold consent to the 

husband's encumbering his stock or selling corporate land. 

The parties here disagree on whether the husband has 

the voting rights to a majority of the stock in the 

corporation. There are 1,479 outstanding shares, and it is 

uncontested he has voting rights to 510 shares. The bone of 

contention here is whether the husband has the voting rights 

to the 230 shares being sold to him by his parents, which 

would make him a majority shareholder. Appellant and the 

amicus brief argue that since the certificates are still in 

the parents' names, they retain the voting rights. Based on 

the record before us, we cannot agree. The crucial language 

in the contract wherein the husband is buying the stock from 

his parents is as follows: 

". . . Purchaser shall have the right to 

enjoy all rights and incidents of ownership 

of the 230 shares of stock, subject only to 

such restrictions as have been placed upon 

the Purchaser by the Sellers under the terms 

of this agreement." (Emphasis added.) 

Nowhere in the contract do we find any reservation of voting 

rights by the parents, and we thus conclude that the husband 

has the right to vote a majority of the stock of the corporation. The security interest granted to the wife will help 

ensure that the husband does not use his corporate control 
to jeopardize her interest. 

Finally, husband argues he should have been given 

credit for the approximately $25,000 that he paid to the 

wife after their separation and before her remarriage. We 

disagree. We have previously held that living expenses of 

the wife need not be credited to the husband in the distribution and computation of the marital estate, In Re Marriage 

of Caprice (1978), 178 Mont. 455, 585 P.2d 641, and we so 

find here. 

Affirmed. 

@&., uxag Chief Justice