No. 81-395 INTHE SUPREME COURT OF THE STATE OF MONTANA 1982

INRE 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 NatAllen, 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 affirm. 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. InMarch 1967 theymoved 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 schoolyear. In the summer of 1969 the parties moved back to Lewistown where husband was employed by a private veterinarian 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 shepreviously 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 apublic 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 partiessubsequentlyremarried. On August 4, 1981, the District Court awarded permanent custody tothewife 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 sixtydays of thedateof judgment and thebalance 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 issueswhich

can be stated

### as follows: 1. Did the

### District Court err inawarding custodyof the childrentothewife? 2. Did the District Court err inmaking 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 saidmany 

### times regarding the discretion of the District Court in child custody 

### cases that: "'In reviewing orders which affect the custody of the child, thisCourt ismindful that theprimary 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 willbe made. No ruling willbe disturbed absent 

### a clear showing that the District Court's discretion

### was abused. Foss v. Leifer (1976), 170Mont. 97, 550 P.2d 1309, 1311." 635P.2dSection 40-4-212, MCA, 

### is the controlling statute here and statesasfollows: "Best interest of child. The court shall determine custody inaccordancewith the best interest of the child. The court shall consider allrelevant factors including: "(1) the wishes of the child's parent or parents astohiscustody; "(2) the wishes of the child as to his custodian; "(3)the interactionand interrelationshipof the child with his parent or parents, his siblings, and any otherperson who may significantlyaffectthechild'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 thisdetermination: "1) That neither child has reached an age where hiswishes 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 intothisdecision; "2) The testimonyestablished thatthemother 

### is, and hasbeen, theprimaryperson 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 arewell settled to the current living situation and theirprogress inschool 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 currentcustody statuswith themother." 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. Wedisagree. Montana law statesthatthefindingsdo not need to be in any particular form if there is substan

### tialcredible evidence tosupport the 

### trialjudge's judgment

on the merits. In Re Marriage of Barron (1978), 177Mont. 161, 580 P.2d 936. There is substantial evidence in the record tosupportthe court's conclusionhere. The two childrenhad livedwith the mother since the separation inSeptember 1979, and thehusband testified that thewifewas a satisfactorymotner. 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 thehusband's wishes tohave a more directinfluenceon the rearing of his children, we do not find any abuse of discretionwhich 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 noncustodialparent." 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 $600per 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 cannotmake 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 adjustedaccording to the income received each year. The husband's salary in 1978was $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 (representingthe other shareholders) argue thatthecourt's valuation of the shares 

### was improper and that the granting of a security interest was contrary to the various agreements of the shareholders. InMontana 

### we pay a great amount of deference to the judgment of theDistrict Court regardingpropertydivisions, i.e.

## , our standard of review 

### is whether the District Court acted arbitrarilywithout employment of conscientiousjudgment, or exceeded the bounds of reason in view of all the circumstances. Zell v. Zell (1977), 174Mont. 216, 570 P.2d 33. In InReMarriage of Jorgensen (1979), 180Mont. 294, 590 P.2d 606, this Court considered the valuation of stock of a closelyheld corporationwhere the sharescould onlybe sold toother shareholdersor tothecompany. A shareholder agreement set theprice of each share at $750, and we found that the District Court did not abuse its discretion invaluing the shares at $750. Here, under the provisions of thebuy and sellagreement and amendments thereto, theprice of each share shall be book value (as shown by the balance sheet atthe closeof thepreceding taxyear) or 

### a different valuation canbe establishedby 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 dividingthevalueof 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 inview of the circumstances, Zell, supra, and 

### we uphold it here. 

### We can similarlydispose 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 thisoption

### 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 failuretodistribute theproperty inkind. 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 thegiftsthehusband had received before and during themarriage. Nor do we predicate error on the District Court's granting the wife a security interest in the 720 shares ofthe husband's stock. She needs some protection to insure that the annual payments willbe made, and the prospect of foreclosure on those shares should provide a sufficient incentive for the husband tomake 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, thewife cannot unreasonably withhold consent tothe 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 hehas voting rights to510 shares. The bone of contention here iswhether thehusband has thevoting rights to the 230 shares being sold tohim by his parents, which would make him a majority shareholder. Appellant and the amicus brief argue that since the certificatesare still in theparents' names, they retain thevoting rights. Based on the record before us, 

### we cannot agree. The crucial language inthe contractwherein thehusband isbuying the stock from hisparents 

### is asfollows: 

# ".

. 

# . Purchaser shall have the right to enjoy allrightsand incidentsof ownership of the230 sharesof stock, subject only to such restrictions ashave been placedupon thePurchaser by theSellersunder the 

### terms of thisagreement." (Emphasisadded.) Nowhere inthe contractdo we find any reservation of voting rightsby theparents, and we thus conclude that thehusband has therighttovote a majority of thestock of thecorporation. The security interest granted tothewife willhelp

ensure that the husband does not use his corporate controltojeopardize 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 thewife need not be credited tothehusband in the distribution and computation of the

### marital estate, In ReMarriage of Caprice (1978), 178 Mont. 455, 585 P.2d 641, and we so findhere. Affirmed. 

# @&.,

# uxag Chief Justice