No. 86-29 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

IN RE THE MARRIAGE OF 

EDWARD WILLIAM RYAN, 

Petitioner and Respondent, 

and 

T. JOANN RYAN, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Charles Luedke, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Parker, Sweeney & Healow; Kevin T. Sweeney, Billings, 

Montana 

For Respondent: 

Noel K. Larrivee, Missoula, Montana 

--- - 

Submitted on Briefs: April 4, 1986 

Decided: June 20, 1986 

Filed: JUN 2 0 1986 
Mr. Justice William E. Hunt, Sr., delivered the Opinion of 

the Court. 

The appellant Teresa " JoAnn" Ryan appeals the judgment 

of the Yellowstone County District Court awarding joint 

custody of the children born of her marriage to the 

respondent Edward William Ryan, and providing for the 

division of the marital property. 

Affirmed. 

Two issues are presented for our determination. These 

are : 

1. Whether the District Court exceeded its jurisdiction 

and abused its discretion in granting joint custody of 

alternate weeks and providing that if either parent changed 

his or her residence from Billings the remaining parent would 

get sole custody during the school year while the departing 

parent would have custody reduced to the summer months when 

school was out; and 

2. Whether the District Court abused its discretion by 

failing to immediately evaluate and divide the equity in the 

Billings home between the parties rather than waiting until 

the youngest child became eighteen or the mother moved from 

the house before that child's eighteenth birthday. 

The parties married in June, 1974. Two children were 

born, now aged three and five. Edward and JoAnn separated in 

July, 1983, and their marriage was dissolved by order of the 

District Court on June 4, 1985. In August, 1985, the parties 

litigated the remaining issues of child custody and the 

appropriate division of the equity in their Billings 

residence. The District Court awarded both parents joint 

legal custody, as well as joint physical custody of the minor 
children. The physical custody plan calls for the children 

to spend alternating weeks in each parent's home. The plan, 

however, provides that should one parent leave Billings, the 

parent continuing to reside in the Billings area would gain 

physical custody of the children during the school year with 

the other parent having physical custody of the children 

during the summer months. 

The court considered the stipulations between the 

parties including an agreement that both were fit parents, 

the recommendations of the Christian Conciliation Service of 

Montana, and recommendations of Dr. Ned N. Tranel about the 

appropriateness of joint physical custody. The court also 

considered JoAnn's wishes to move from Billings to Anaconda, 

where she was raised, as well as the father's request to have 

the support payments reduced while the children were with 

him. The judge refused both requests saying that, "[ulnder 

the law, it is the best interest of the children which 

controls as to their custody, so that any maneuvering of 

parents to serve their own desires does not resolve the 

issue. " 

Judicial determination of custody is based on the best 

interests of the children as expressed in 40-4-212, MCA. 

That section provides: 

The court shall determine custody in accordance 

with the best interest of the child. The court 

shall consider all relevent 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 intereaction 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. 

Malcolm v. Malcolm (Mont. 1982), 640 P.2d 450, 451, 39 

The district judge considered custody proposals from 

each parent. The court took into account the provisions of 

the statute, the recommendations of the counseling services 

which the parties had consulted, and the testimony of Dr. 

Tranel of the Billings Child Study Center, all of whom 

recommended joint custody in some form. The court determined 

that the best interests of the children would be served by 

adopting the father's proposal that he would have physical 

custody for one-half of each month, with the children living 

in his household every other week commencing on alternate 

Mondays and ending on the following Sunday. The mother would 

then have the children reside with her on the alternating 

weeks. If either parent leaves Billings, the remaining parent 

will have physical custody of the children. 

The court said that the plan was structured to encourage 

the mother to remain in Billings in order for the children to 

have benefit of her participation in joint custody. The 

mother is to have the family home and the father is pay $400 

a month child support to assist the mother to make the house 

payments. The father proposed that the support payments be 

reduced while the children are in his household, but the 

court found from the evidence that the family home cannot be 

maintained and kept by the mother under reduced payments of 

child support. The court acknowledged that the proposal 

might not prove practical "but the best interest of the 

children require that the plan be given a try." The District 
Court's "decision will be presumed correct and will be upheld 

unless clear abuse of discretion is shown." In re Marriage 

of Rolfe (Mont. 1985), 699 P.2d 79, 82, 42 St.Rep. 623, 626. 

We can find no abuse of discretion in the court's finding of 

what constituted the children's best interests. 

Secondly, JoAnn contends the District Court erred in 

failing to evaluate and divide the equity in the family home. 

The District Court found that because of the amount of child 

support contributions ordered to be made by the father, which 

allows the mother to keep and live in the home, he should 

share equally in the net proceeds of the sale of the home. 

The net proceeds are to be determined at the time of the sale 

rather than the date of dissolution of the marriage. The 

District Court has wide discretion in determining an 

equitable division of property pursuant to § 40-4-202, MCA. 

The test is whether the court abused its discretion in making 

its order setting aside the family home for the mother. In 

re Marriage of Rolfe (Mont. 1985), 699 P.2d 79, 42 St. Rep. 

623. We hold that the court did not abuse its discretion. 

The judgment of the District Court is affirmed. 

We Concur: