No. 87-438 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

IN RE THE MARRIAGE OF 

MARY RUTH SAYLOR, 

Petitioner and Appellant, 

and 

WILLIAM PHILLIP SAYLOR, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Michael H. Keedy, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Keller & German; Brenda Nordlund, Kalispell, 

Montana 

For Respondent: 

Moore & Doran; James D. Moore, Kalispell, Montana 

Submitted on Briefs: June 2, 1988 

Decided: June 13, 1988 

Filed: UWN I 3 1988" 

Clerk i 
Mr. Justice William E. Hunt, Sr., delivered the Opinion of 

the Court. 

This is an appeal from a decree of dissolution entered 

by the District Court, Eleventh Judicial District, Flathead 

County, awarding respondent (husband) physical custody of the 

three minor children and ordering appellant (wife) to pay 

respondent support of $100 per child per month. 

We affirm on the custody issue and reverse on the issue 

of child support and remand for reconsideration. 

The issues presented to us by appellant wife are: 

1. Did the District Court err by failing to properly 

apply "the best interests of the child" standard pursuant to 

5 40-4-212, MCA? 

2. Did the District Court err in determining child 

support to be paid by the wife? 

3. Did the District Court err in denying wife's motion 

for a new trial? 

The parties were married according to common law in 

1971. This marriage was dissolved by decree dated April 7, 

1987. The couple had three children born of the marriage, 

Jessica, Nicole and Shayne. At the time of the dissolution, 

their ages were 14, 11 and 6, respectively. Currently, they 

reside with their father, a building contractor, and his 

companion, in Corona Del Mar, California. The wife is a 

teaching assistant at the University of Illinois in Champaign 

where she is pursuing a doctorate in education. 

The residential history of this couple is confusing. 

Apparently, after their marriage, they moved to Whitefish and 

then to Kalispell. Between the years 1979 and 1982, they 

lived together and separately at various times and in various 

homes in both Missoula and Kalispell. The husband also spent 
several months in Arizona. When the couple lived apart, the 

children resided with the wife. The couple's separation 

became permanent in 1982 and both resided separately in 

Kalispell until sometime in 1986, when they moved to their 

current separate residences. The wife relinquished physical 

custody of the children to their father, in July, 1983, and 

they have resided with him ever since. There seems to have 

been reasonable visitation allowed by both parties during 

their respective times as physical custodian. 

The petition for dissolution in this action was filed in 

May, 1983. There were several hearings between June, 1984, 

and September, 1985, primarily regarding custody of the 

couple's children. Proposed findings were due October 11, 

1985. The District Court entered its decree of dissolution 

on April 7, 1987, nearly four years after the petition was 

filed, granting joint custody and giving physical custody to 

the husband. The wife was ordered to pay $300 per month in 

child support retroactive to January 1, 1986. 

At the outset, this Court must comment that it is 

unsettled by the amount of time this case required before 

being brought to a resolution. Four years between petition 

and decree is an unreasonably long time for a relatively 

uncomplicated dissolution action. The victims of such a 

delay are the children. The blame for this delay, however, 

cannot be placed solely upon either parent. Some of the 

blame must also be placed upon the District Court. For 

whatever reason, the decree was not entered until 18 months 

after the case was submitted. This delay is inexcusable. If 

there is any civil matter that should be resolved as 

expediently as possible, it is a matter involving the custody 

of young children. 

Issue 1 
In a case involving custody issues, the standard used to 

review the District Court's decision is that of abuse of 

discretion. The wife must demonstrate that the findings are 

clearly erroneous and overcome the presumption that the 

District Court's judgment is correct. Rule 52 (a), 

M.R.Civ.P.; In Re Marriage of Manus (Mont. 1987), 733 P.2d 

1275, 1276, 44 St.Rep. 398, 399-400, citing Bier v. Sherrard 

(Mont. 1981), 623 P.2d 550, 551, 38 St.Rep. 158, 159. Only 

when there is clear error will the District Court's judgment 

be reversed. In Re Marriage of Rolfe (Mont. 1985) , 699 P.2d 

79, 82, 42 St.Rep. 623, 626. 

Appellant argues that the District Court failed to 

consider two of the factors requiring consideration under S 

40-4-212, MCA, which states: 

40-4-212. 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 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 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; 

(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 the part of either parent. 
From the facts of this case, it is clear that the factors 

necessary for decision are (1) through (4) . There have been 

no issues raised as to: (5) the mental or physical health 

of any of the individuals involved; (6) physical abuse or 

threat of physical abuse against either parent or child; or 

(7) drug abuse by either parent. 

The wife asserts that because no specific findings were 

made as to the interaction of the children with their parents 

and siblings and as to the children's adjustment to their 

home, school, and community, the District Court abused its 

discretion in awarding physical custody to their father. We 

disagree and affirm the custody award of the District Court. 

This Court has stated on many occasions that the making of 

specific findings is not necessary where the record shows 

substantial evidence that supports the District Court's 

judgment on the merits. In Re Marriage of Nalivka (Mont. 

1986), 720 P.2d 683, 686, 43 St.Rep. 1079, 1083; In Re 

Marriage of DiPasquale (Mont. 1986) , 716 P. 2d 223, 225, 43 

St.Rep. 557, 560; Custody of Ericka M. (Mont. 1984), 676 P.2d 

231, 233, 41 St.Rep. 267, 269; In Re Marriage of Speer 

(1982), 201 Mont. 418, 421, 654 P.2d 1001, 1003. 

The District Court made several findings regarding the 

parent's wishes, the children's wishes, and the relationship 

between the husband and wife as it affected access to the 

children by the wife and as it may affect the husband's 

access to the children if he were to lose physical custody. 

Evidence abounds in the record regarding the relationships 

between both parents and the children and the childrens' 

adjustment to their home and community. The District Court 

does not make specific findings as to these factors but does 

note the recommendations and reports of a social worker and a 

psychologist both of which pertain to the above factors. We 

hold there was no abuse of discretion. 
For efficiency's sake, we will not address specific 

findings which the wife argues are in error. We find it 

necessary, however, to discuss the interpretation of 5 

40-4-223, MCA, which the wife argues was incorrectly used by 

the District Court. The wife disputes the following finding: 

23. The Montana legislature has made it cl-ear 

that, wherever feasible, both parties ought to have 

equal access to children in dissolution 

proceedings. Thus, joint custody is preferred. 

Further, both of these parties are capable of 

rearing the children. However, Petitioner's anger 

and bitterness toward Respondent interfered with 

Respondent's access to the children before the 

transfer of custody. 

The wife contends that access to children only becomes an 

issue when legal custody is placed with one parent only and 

not when joint custody is granted. We do not agree. The 

relevant statute, 5 40-4-223, MCA, reads in pertinent 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; the court shall 

inquire whether a joint custody agreement was made 

knowingly and voluntarily; or 

(b) to either parent. In making an award to 

either parent, the court shall consider, along with 

the factors set out in 40-4-212, which parent is 

more likely to allow the child frequent and 

continuing contact with the noncustodial parent and 

may not prefer a parent as custodian because of the 

parent's sex. 

This statute appends an additional factor to be considered by 

the District Court when awarding legal custody to only one 

parent. The issue of access is not, by the statute's terms, 

a necessary consideration when joint custody is being 

granted. Legal custody, which is the determination of legal 

rights and responsibilities of the parents toward the 
children, must not be confused with physical custody, that 

is, where the children actually live. Joint custody may 

involve equal physical custody of the children by both 

parents or it may entail one parent having substantially more 

or less actual physical custody of the children than the 

other parent. We find no error with the District Court's 

finding, however, because, although the factor of access to 

one's children is not a mandatory consideration ji-n joint 

custody awards, we can find no reason why it should not be 

considered by the District Court so that it may find an 

arrangement that is in the best interest of the child - and 

facilitates the declared public policy of this state to 

"assure minor children frequent and continuing cont,act with 

both parents." See 5 40-4-222, MCA. 

Issue 2 

The wife contests the soundness of the District Court's 

order to pay the husband $100 per month per child in child 

support, retroactive to January 1, 1986. In order to reverse 

an award of child support, the wife must show that a 

substantial injustice resulted from the court' s abuse of 

discretion. In Re Marriage of Jacobson (Mont. 19871, 743 

P.2d 1025, 1027, 44 St.Rep. 1678, 1680. The factors a court 

must consider when awarding child support are set out in S 

40-4-204, MCA, as follows: 

(1) 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: 

(a) the financial resources of the child; 

(b) the financial resources of the custodial 

parent; 
(c) the standard of living the child would have 

enjoyed had the marriage not been dissolved; 

(d) the physical and emotional condition of the 

child and his educational needs; 

(el the financial resources and needs of the 

noncustodial parent; and 

(f) for the purposes of determining a minimum 

amount for support, the amount received by children 

under the AFDC program, as defined in 53-2-702. 

A guideline formula for determining child support has 

been set forth in In Re Marriage of Carlson (Mont. 1984), 693 

P.2d 496, 499-500, 41 St.Rep. 2419, 2423. As we said in a 

later case, the factors involved in this computation include 

the child's total needs, the physical custodial parent's net 

earning capacity and the visitation parent's net earning 

capacity. Hansen v. Jurgens (Mont. 1986), 722 P.2d 1151, 

1154, 43 St.Rep. 1316, 1319. 

The District Court held that it was precluded from 

applying the Carlson formula because neither party had 

offered evidence of the child's total needs. Although we 

have termed the Carlson formula a "guideline," the factors it 

involves must be considered and it was error not to do so. 

See In Re Marriage of Keel (Mont. 1986), 726 P.2d 812, 814, 

43 St.Rep. 1742, 1746. 

In addition, the District Court made no explicit 

findings regarding the wife's net monthly income. Instead, 

it ordered the wife to pay 25% of her net expendable income 

in child support according to its own District Court 

guidelines on child support and set this figure at a total of 

$300 per month. This implies that the wife's net income was 

$1,200 per month. This figure is totally without support on 

the record. We hold that the District Court abused its 
discretion in this matter and reverse and remand for a 

redetermination of the child support award. 

For guidance upon remand we refer the District Court to 

the Uniform District Court Rules, Guidelines for Determining 

Child Support, § 111, Parts 1-14. Although these guidelines 

are not binding we strongly urge that the District Court 

consider them upon remand. In the Guidelines, the child's 

needs are automatically assumed as a percentage of the 

parent's total combined income instead of being determined 

separately. 

In addition, the wife protests that the District Court 

abused its discretion by making the order 16 months 

retroactive. We hold that this is not error. There are 

several cases in which such awards have been affirmed. See, 

e.g., In Re Marriage of Revious (Mont. 1987), 735 P.2d 301, 

44 St.Rep. 674; In Re Marriage of Shirilla (Mont. 1987), 732 

P.2d 397, 44 St-Rep. 75; DiPasquale, 716 P.2d 223, 43 St.Rep. 

557. As the wife points out, however, these cases differ 

from her case in that the noncustodial parent in all the 

above cases earned a substantially greater income than the 

physical custodian. While we do not hold that it was 

reversible error to apply the wife's child support 

obligations retroactively, we strongly suggest that, upon 

remand, the District Court take the parties' income 

differences into consideration. 

Issue 3 

Since we have remanded this case for a redetermination 

of the child support award, it is unnecessary to discuss 

whether the District Court erred by not granting the wife's 

motion for a new trial. We advise the District Court, 

however, that the recent change in circumstances that has 

taken place for both parties should be considered upon remand 
as required by the Guidelines for Child Support, 8 111, Part 

14. 

Affirmed in part, reversed in part and remanded for 

reconsideration of the child support award. 

We Concur: