NO. 91-376 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

IN RE THE MARRIAGE OF 

CINDY R. JOHNSTON, 

Petitioner, Counterrespondent, 

and Appellant, 

and 

FAUSTO G. TURRIN, 

Respondent, Counterpetitioner, 

and Respondent. 

APPEAL FROM: District Court of the Ninth Judicial District, 

In and for the County of Pondera, 

The Honorable R. D. McPhillips, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Barbara E. Bell, Bell & Marra, 

Great Falls, Montana 

For Respondent: 

Kenneth R. Olson, Attorney at Law, 

Great Falls, Montana; Fausto G. Turrin, 

Attorney at Law, Great Falls, Montana 

D Submitted on Briefs: June 11, 1992 
Justice William E. Hunt, Sr., delivered the opinion of the Court. 

Appellant Cindy R. Johnston appeals from the Findings of Fact, 

Conclusions of Law and Order, and Decree of Dissolution of the 

Ninth Judicial District Court, Pondera County. 

We affirm in part and remand. 

Appellant raises five issues for this Court to consider: 

1. Did the District Court err in its enforcement of the 

premarital agreement when dividing the marital estate? 

2. Did the District Court err in the calculation of child 

support? 

3. Did the District Court err in failing to implement its 

order for a psychological exam of respondent? 

4. Did the District Court err in failing to appoint an 

attorney to represent the children? 

5. Did the District Court err in awarding joint physical 

custody? 

6. Did the District Court err in failing to award appellant 

attorney fees? 

Respondent Fausto Turrin, a licensed attorney of this state, 

has provided this Court with 29 issues to consider. We conclude 

that with the exception of the constitutional issues raised by 

Fausto, the various issues raised in his brief are essentially the 

same as those raised by Cindy. Accordingly, we shall only address 

those issues raised in Cindy's brief and make references to 

Fausto's brief when appropriate. At the outset, we hold that 

Fausto has either failed to properly raise the constitutional 

2 
issues stated in his brief, the issues are now moot, or are without 

merit, and therefore, we will not discuss these issues. 

The parties were married on May 5, 1985, in Great Falls. Two 

days before the wedding the parties entered into a premarital 

agreement. Two minor children were born into the marriage, Fausto 

John Turrin, 111, age five, and Melissa Kay Turrin, age three. 

Cindy works as a computer programmer/supervisor for a CPA firm in 

Great Falls, and Fausto is a practicing attorney. 

On August 8, 1989, Cindy filed a petition for dissolution. 

Fausto was represented by an attorney and acted as co-counsel, 

drafting many of his own documents and appearing alone in most of 

the hearings. On September 18, 1989, the court awarded Cindy 

temporary custody of the minor children with visitation to be 

worked out by the parties. On March 6, 1990, the parties 

stipulated to visitation of the children by Fausto but the 

agreement failed to work in practice. The court ordered mediation 

in an effort to avoid litigation, but that effort also met with 

failure. Following a bench trial, the court entered its findings 

of fact, conclusions of law, and decree on May 16, 1991. On 

May 30, 1991, Cindy filed a motion to amend the court's decree. On 

July 8, 1991, a hearing was held on the motion, which the court 

orally denied, with the exception of redetermining monthly child 

support and back child support payments. On July 26, 1991, Cindy 

filed her notice of appeal. On August 12, 1991, Fausto filed his 

notice of cross-appeal. 
Unfortunately, like so many other domestic relations cases 

that come before this Court, this is rife with bitterness between 

the parties. The District Court file contains approximately 360 

documents mainly comprised of motions and countermotions. Since 

the appeal, the parties have filed 18 motions with this Court. It 

is under these conditions that we render this opinion. 

I. 

Did the District Court err in its enforcement of the 

premarital agreement when dividing the marital estate? 

The parties executed a premarital agreement on May 3, 1985, 

two days prior to their wedding. In its order, the District Court 

found that the premarital agreement was valid and enforceable. The 

court then proceeded to divide the marital estate according to the 

agreement. On appeal, Cindy does not challenge the validity of the 

agreement. Instead, she alleges that the District Court erred in 

failing to acknowledge that the terms of the agreement were not 

implemented because Fausto did not contribute to the parties' joint 

checking account which would be used to pay the bills, and 

therefore, a more equitable distribution of the marital estate is 

warranted. 

The parties executed the premarital agreement prior to the 

1987 Legislature's enactment of the Uniform Premarital Agreement 

Act. As a result, 5 40-4-202(1), MCA (1985), requires the District 

Court to consider the validity of the premarital agreement, but it 

is not required to enforce it. The premarital agreement is but a 

factor, not the exclusive consideration, among many listed in 
5 40-4-202(1), MCA (1985), for the court to consider when 

distributing the property of the marital estate. In re the 

Marriage of Keepers (1984), 213 Mont. 291, 691 P.2d 810. 

Our standard of review relating to the division of marital 

property was recently clarified as whether the district court's 

findings of fact are clearly erroneous. In re the Marriage of 

Danelson (Mont. 1992), 833 P.2d 215, 49 St. Rep. 597. In its 

findings of fact, and conclusions of law, the District Court found 

that the premarital agreement was valid and chose to enforce it. 

Cindy's share of the marital property amounted to $25,450 while 

Fausto's share amounted to $66,120 because he was given the home 

and the equity in the home. 

The parties' home had a purchase price of $111,000. With the 

various repairs made, the current fair market value of the house 

was $119,000, which is supported by the record. Fausto contributed 

$32,000 toward the down payment from his separate funds. In 

addition, he paid off a second mortgage valued at $14,000 with his 

own funds, thereby creating an original equity in the home of 

$46,000. In addition, Fausto made mortgage payments totalling 

$12,537. 

Cindy contends that she paid $23,681 in total monthly 

payments. Fausto states that she actually paid approximately $2000 

more. In addition, she sold a boat for $5000, and her own home 

which had $7000 in equity. She also contended that she paid the 

day-to-day living expenses. However, the record reflects that she 

could not recall what she had done with her $12,000, or how much of 

5 
the day-to-day living expenses she paid. The court concluded that 

it was logical that a substantial amount of Cindy's money went 

toward house payments and family living expenses. Even so, it is 

unclear from the record who made the monthly payments and the 

source of the funds for the payments. The court found that the 

parties' home had an equity of $63,000. Considering that Fausto 

contributed $46,000 of his own money toward the home, the court 

awarded Fausto the equity in the home. 

Cindy requests that she be reimbursed for the bookkeeping she 

performed for Fausto's law practice, as the terms of the premarital 

agreement stated that any money earned by either party should be 

kept separate. However, Fausto performed legal services for 

Cindy's rentals. The District Court refused to reimburse Cindy, 

concluding that the legal services provided by Fausto equalled 

Cindy's bookkeeping services. We hold that there was substantial 

evidence in the record to support the District Court's 

determination. 

Cindy also objects to the court's valuation of the 1979 Datsun 

280-ZX and the 1976 Ford pickup. She testified that the fair 

market value of the Datsun was only $1900, and the value of the 

Ford pickup was $1500. Fausto offered into evidence an independent 

fair market valuation by Taylor's Used Cars stating that the 

Datsun's fair market value was $2650, and the Ford's was $2850. 

This was the valuation the court used in dividing the property. We 

hold there was substantial evidence to support the District Court's 

valuation of the two vehicles. 

6 
Finally, Cindy requests that this Court modify the District 

Court's decree and order Fausto to return "baby books" to her and 

reimburse her for half of the living expenses paid for support of 

the family. We decline to do so. We hold that there is 

substantial evidence to support the District Court distribution of 

the marital property. 

11. 

Did the District Court err in the calculation of child 

support? 

In reviewing child support, this Court has stated that a 

presumption exists in favor of the district court's determination, 

and this Court will reverse the district court only if it has 

abused its discretion. In re the Marriage of Sacry (Mont. 1992), 

49 St. Rep. 452, 833 P.2d 1035. 

A hearing was held on August 28, 1989, pertaining to temporary 

child custody. The court awarded Cindy temporary custody until a 

final determination was made. The court held a hearing on a motion 

to amend the final judgment on July 8, 1991. In the motion to 

amend, Cindy requested that the District Court grant back child 

support payments on the basis of sole custody and not split custody 

as provided in the decree. During that hearing, the court orally 

agreed to award back child support on the basis of sole custody. 

However, there is no written order issued by the District Court to 

reflect that decision. Cindy filed her notice of appeal on 

July 25, 1991. We conclude that the District Court properly should 
have entered a written order awarding back child support covering 

the period of sole custody by Cindy. 

Another issue raised by Cindy is at what point in the 

dissolution process do the modified SRS Child Support Guidelines 

come into effect. Apparently, from the time the parties submitted 

their proposed child support calculations to the issuance of the 

decree, the Guidelines were amended and the decree does not reflect 

these changes. Cindy offers no authority, but argues that the 

Guidelines came into effect on the date of the order. Therefore, 

the District Court should use the most recent Guidelines before 

issuing its order. 

A district court is granted considerable discretion in 

calculating child support, and it may deviate from the Guidelines 

if it finds by clear and convincing evidence that the application 

of the standards and Guidelines is unjust to the child or any of 

the parties, or is inappropriate to a particular case. Section 

40-4-204(3)(a), MCA. If a court decides to apply an older version 

of the Guidelines, then it must state its reasons for finding that 

the amended SRS guidelines are not applicable. Section 

40-4-204 (3) (b) , MCA. 

At the hearing on the motion to amend the final judgment on 

July 8, 1991, the court requested that Fausto supply the new 

proposed Guidelines so that it could amend child support. On 

July 12, 1991, Fausto then filed a motion for consideration of all 

of the Guidelines, alleging that Cindy was living with another man 

who contributed substantially to the support of the children. 
Cindy denied this in her brief in opposition. The issue was never 

decided because Cindy filed an appeal on July 25, 1991, based on 

the court's May 16, 1991, decree. We remand for a redetermination 

of child support by the District Court in accordance with 

§ 40-4-204 (3) , MCA, as most recently amended. Cindy has raised 

several other specific errors relating to the calculation of child 

support. Because of our holding above, she may bring these errors 

to the attention of the District Court. 

111. 

Did the District Court err in failing to implement its order 

for a psychological exam of Fausto? 

On January 30, 1991, Cindy moved for the District Court to 

order a psychological evaluation of Fausto, due to the 

deterioration of the visitation between him and the children. The 

court considered the matter at a March 18, 1991, hearing. Dr. 

George Hossack, a licensed psychologist and Cindy's counselor, 

recommended a psychological evaluation at the hearing. The court 

orally agreed with Dr. Hossack's recommendation but did not require 

psychological evaluations in its final order. On July 29, 1991, 

four days after the notice of appeal was filed by Cindy, the court 

issued an order requiring the parents and the children to obtain 

psychological evaluations. There was a motion to quash this order 

filed by Fausto's attorney, but the record ends at this point. 

Because we do not have a record before us to decide whether further 

psychological evaluations are required, we remand this issue to the 

District Court for further consideration. 
IV. 

Did the District Court err in awarding joint custody? 

Our standard of review in child custody matters is whether the 

district court abused its discretion. In re the Marriage of 

Reininghaus (1991), 250 Mont. 86, 817 P.2d 1159. When determining 

child custody, the district court must take into consideration the 

best interests of the children. Section 40-4-212, MCA. The court 

shall consider, but is not limited to, the factors set out in 

5 40-4-212(a)-(g), MCA. Here, the court awarded Cindy and Fausto 

joint physical custody. Fausto had physical custody of the 

children during the first six months of the year and Cindy had 

custody the last six months of the year. The court stated in its 

findings that both parties were in sufficient physical and 

emotional health to care for the children. In the transcripts, the 

court explained that it was awarding joint physical custody 

primarily because Cindy would be required to work long hours during 

the tax season. The court was very cognizant of the bitterness 

between the parties and reserved the right to have the children 

examined by a proper expert to see if the children were harmed by 

the custody provisions which, from viewing the record on appeal, 

the court is now attempting to do. Therefore, we hold that the 

District Court did not err in awarding joint physical custody. 

v. 

Did the District Court err in failing to appoint an attorney 

to represent the children? 
Section 40-4-205, MCA, allows the court to appoint an attorney 

to represent the interests of the children with respect to support, 

custody, and visitation. In a recent case, we held that 

3 40-4-205, MCA, was a permissive, not a mandatory statute. In re 

the Marriage of Merriman (lggl), 247 Mont. 491, 807 P. 2d 1351. The 

decision to appoint an attorney to represent children in custody 

matters is discretionary with the court. In re the Marriage of 

Hammill (1987), 225 Mont. 263, 732 P.2d 403. We hold that the 

District Court did not abuse its discretion in refusing to appoint 

an attorney to represent the children. 

VI . 

Did the District Court err in failing to award appellant 

attorney fees? 

Both Fausto and Cindy claim that they are entitled to attorney 

fees. The premarital agreement granted attorney fees to the party 

successfully defending the agreement. Section 40-4-110, MCA, 

grants the District Court the discretion to award reasonable 

attorney fees. Absent an abuse of discretion, this Court will not 

overturn the District Court's decision denying attorney fees. In 

re the Marriage of Manus (1987), 225 Mont. 457, 733 P.2d 1275. The 

court found that the litigation of this matter was prolonged by 

both parties, however, more so by Fausto than by Cindy. The court 

concluded that the unnecessary attorney fees caused by each party 

offset each other and denied attorney fees to both parties. From 

our examination of the record, we concur with the court's 

conclusion. 
In our order dated September 24, 1991, we denied Cindy's 

request to divide the cost of the transcript on appeal between the 

parties. We stated that responsibility for the costs of the 

transcript would be determined by this Court under Rule 33, 

M.R.Civ.P. Because Fausto has filed numerous requests to have 

additional transcripts filed with this Court, as well as numerous 

requests for extensions of time in filing his responsive brief, 

thereby creating significant delay in our ability to render a 

decision, we hereby order that costs of the transcript on appeal be 

equally divided between the parties. 

Affirmed in part and remanded for further determination in 

accordance with this opinion. 

We concur: / 
December 10, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

Barbara E. Bell 

Bell & Marra 

Ste. 201 Liberty Center 

9 Third St. No. 

Great Falls, MT 59401 

Kenneth Olson 

Attorney at Law 

600 Central Plaza 

Great Falls, MT 59401 

Fausto Turrin 

600 Central Plaza 

Great Falls, MT 59401 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA 

BY: 

Deput