No. 85-343 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

IN RE THE PPriRRIAGE OF 

SHERRY L. BENNER, 

Petitioner and Respondent, 

and 

JAMES M. BENNER, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Diane G. Barz, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Work Law Firm; Thomas J. Stusek, Billings, Montana 

Robert Heilig, Billings, Montana 

For Respondent: 

James J. Sinclair, Ril-lings, Montana 

Submitted on Briefs: Oct. 10, 1-985 

Decided: December 30, 1985 

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Clerk 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of 

the Court. 

Appeal is from the judgment of the Thirteenth Judicial 

District Court in the dissolution of the marriage between 

James and Sherry Renner. Respondent James Benner appeals the 

property distribution, child cust0d.y determination, and 

amount of child support awarded to petitioner Sherry Benner. 

The parties were married on August 25, 1979, in Red 

Lodge, Montana.. One child, Angela, was born of the marriage 

on September 21, 1982. For the past few years, Sherry has 

worked as a secretary/office manager for the Soil 

Conservation Service of the United States Department of 

Agriculture. She currently earns $16,718.00 per year, with 

monthly take home pay of $1,042.75. James is employed with 

the Federal Aviation Administration at a yearly salary of 

approximately $24,700.00 with monthly take home pay of 

$1,501.50. 

Prior to the final hearing, James and Sherry each filed 

affidavits with the court listing their necessary monthly 

expenses and itemized valuation of the marital estate. A 

child custody recommendation was prepared by the domestic 

relations worker assigned to the case and filed with the 

court. 

Both James and Sherry testified at the final hearing. 

The transcript shows there was no testimony offered as to the 

fitness of either parent to receive custody of the child. 

Sherry did testify that she recently moved to Bozeman, and 

the child frequently visits James' relatives who live nearby. 

James requested that he be awarded joint legal custody of the 

child. Neither party testified about their monthly expenses, 

and the property distribution testimony was primarily limited 

to a dispute over an IRS obligation. 
The trial judge found the marital estate to consist of 

the following: 

ASSETS 

House in Billings 

Rifles 

Yard Appliances 

IRA 

Texture Machine 

1970 Ford pickup 

1977 Ford pickup 

1971 trailer 

Miscellaneous tools 

Household furnishings 

1960 boat 

1964 Cibatria Airplane 

House in Bozeman 

Two Municipal Bonds @ $5,000.00/ea. 

TOTAL ASSETS 

LIABILITIES 

First Citizens Bank, Billings 

Laurel Credit Union 

Miles City Credit Union 

School Loan 

Medical Bills 

1Jlontagues 

Billings Gazette 

Hart Albins 

ERA 

Loan on house in Bozeman 

TOTAL LIABILITY 

NET WORTH 

Finding of Facts XVI and XVII 

We note that the trial judge erred in the amount of 

$112.62 concerning the total liabilities of the parties. 

However, since neither party raised the calculations on 

appeal, we do not disturb Finding of Fact XVII. 

Sherry was awarded the house in Bozeman, one of the 

$5,000.00 bonds, and a 1981 Ford. She also assumed 

responsibility for the mortgage on the house, the balance of 

the payment on the 1981 Ford, and a personal credit union 

loan of $2,500.00. The balance of the assets and liabilities 

was set over to James. The medical bills were to be divided 

according to which party incurred the expense, or to be split 

evenly if incurred by the child. 
Custody of the child was granted to Sherry, with James 

entitled to visitation upon reasonable notice whenever he 

elects to go to Bozeman. Additionally, James is entitled to 

one day of visitation whenever Sherry is in Billings seeing 

her family. 

Child support was set at $350.00 per month. The trial 

judge found the monthly expenses of the child to be $640.00, 

and that such sum was reasonable. The monthly support award 

was arrived at through application of the criteria listed in 

S 40-4-204, MCA, and the formula announced by this Court in 

Carlson v. Carlson (Mont. 1984), 693 P.2d 496, 41 St.Rep. 

2419. The trial judge also noted James was $2,743.30 in 

arrears for child support from a previous marriage, and 

ordered that James execute an assignment of his wage in the 

amount of $350.00 monthly to be paid directly to Sherry. 

On appeal, James raises the following issues: 

1. Whether the trial court abused its discretion in 

ordering a child support payment of $350.00 per month. 

2. Whether the trial court abused its discretion in 

ordering a property division which granted to Sherry a 

certain $5,000.00 municipal bond which had been purchased by 

James. 

3. Whether James was entitled to joint custody of the 

minor child. 

4. Whether the trial court abused its discretion under 

the facts of this case in ordering James to make an 

assignment of a part of his periodic earnings to satisfy the 

child support obligation. 

5. Whether the trial court erred in permitting Sherry 

to retain certain items of personal property "presentl-y in 

her possession" when, in fact, such items either belonged to 
James or constituted marital property which was properly 

subject to the court's review and division. 

6. Whether the trial court relied too heavily on the 

proposed findings of fact and conclusions of law submitted by 

Sherry to the exclusion of consideration of all the facts and 

exercise of its own judgment. 

James asserts the trial court abused its discretion in 

ordering a child support payment of $350.00 per month for the 

following reasons: insufficient consideration given to 

Sherry's financial resources; allowing Sherry to include car 

payments as a necessary monthly expense while his monthly 

installment obligations were not taken into consideration; 

undue and unconscionable amounts were attributed to the child 

as necessary monthly expenses. 

Looking to the financial resources of Sherry, we find 

nothing in the record to support James' contentions that 

Sherry kept her finances separate and had her own sources of 

income. Concerning the necessary monthly expenses, we note 

that there was no examination of the parties at trial on this 

issue, and that the figures adopted by the trial court in its 

findings of fact are identical to those submitted in the 

parties' affidavits and proposed findings. We find that the 

trial court gave proper consideration to the factors listed 

in § 40-4-204, MCA, in making its child support 

determination. We will not disturb the District Court's 

findings on appeal unless the record shows a clear abuse of 

discretion. In re Marriage of Brown (1978), 179 Mont. 417, 

587 P.2d 361. 

In awarding to Sherry one of the $5,000.00 bonds 

purchased by James, the trial judge reasoned that Sherry had 

worked during the marriage and contributed as a housewife, 

and that such division of the bonds was equitable. We find 
this to be a fair distribution of property under S 40-4-202, 

MCA . 

James argues he was entitled to joint custody of the 

minor child. We do not agree. The only substantial evidence 

before the Court on the issue of child custody was the report 

prepared by the domestic relations worker assigned to the 

case, and it recommended that sole custody be given to 

Sherry. James presented no evidence to refute such a 

recommendation. The trial judge looked to the best interests 

of the child, as required by S 40-4-212, MCA, and entered the 

reasons joint custody was not awarded pursuant to 5 

40-4-224 (1) , MCA. The record clearly supports the child 

custody determination. 

The next issue we address is whether the trial court was 

correct in requiring James to make an assignment of part of 

his monthly wage to meet the child support obligation. The 

trial judge ordered the assignment in this case because James 

has a history of not paying child support. Section 40-4-207, 

MCA, gives the trial court power to order a wage assignment 

for child support purposes. In view of James' arrearages 

from his previous marriage, we find no abuse of discretion by 

the trial judge in ordering the wage assignment. 

The trial court determined that Sherry should retain the 

personal property presently in her possession. James asserts 

that Sherry has several belongings of his, which she 

wrongfully removed from his house. There is no evidence in 

the record supporting this allegation and we uphold the trial 

court determination. 

Finally, we find no error in the trial court's reliance 

on the findings of fact and conclusions of law submitted by 

Sherry's counsel. The test applied by this Court in the past 

is whether the proposed findings of fact are sufficiently 
comprehensive and pertinent to the issues to provide a basis 

for decision and whether they are supported by the evidence 

presented. Jensen v. Jensen (Mont. 1981), 631 P.2d 700, 703, 

38 St.Rep. 11.09, 1113. In this case, the findings submitted 

by Sherry's counsel were conclusive and supported by the 

evi.dence in the record, while those submitted by James' 

counsel were lacking in many respects. There is no evidence 

in the record which would lead us to believe the trial court 

erred in adopting the findings of fact and conclusions of law 

prepared by Sherry's counsel. 

The judgment of the District t is affirmed. 

We concur: 

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