No. 86-193 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

IN RE THE MARRIAGE OF 

MARY ANN MANUS, 

Petitioner and Respondent, 

and 

TEX W. MANUS, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Nat Allen, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Hash, Jellison, O'Brien & Bartlett; M. Dean Jellison, 

Kalispell, Montana 

For Respondent : 

George B. Best, Kalispell, Montana 

MAR 4 - pp7 ,,..( . 

Filed: 

Submitted on Briefs: Nov. 13, 1986 

Decided: March 4, 1987 
Mr. Chief Justice J. A. Turnage delivered the Opinion of the 

Court. 

Tex Manus appeals the findings of fact and conclusions 

of law entered by the Eleventh Judicial District Court, 

Flathead County, on December 11, 1985. The court awarded 

Mary Ann Manus sole custody of the two children, child support of $250 per month per child, maintenance of $300 per 

month for five years, property division payments of $207.46 

per month for five years, and Mary Ann's attorney fees. We 

affirm the District Court on all issues. 

Tex raises six issues for our review: 

1. Did the District Court abuse its discretion when it 

granted sole custody to Mary Ann? 

2. Did the District Court abuse its discretion when it 

awarded child support to Mary Ann? 

3. Did the District Court abuse its discretion when it 

adopted Mary Ann's valuation of the marital property? 

4. Did the District Court abuse its discretion when it 

awarded maintenance to Mary Ann? 

5. Did the trial court abuse its discretion when it 

awarded attorney fees to Mary Ann? 

6. When a retired district judge who was called into 

jurisdiction during a judicial vacancy, has rendered judgment 

and has been succeeded by a duly-appointed district judge, 

does the retired district judge retain jurisdiction to deny a 

subsequent motion for new trial? 

Tex Manus and Mary Ann Manus were married on June 20, 

1969, in Bonner's Ferry, Idaho. Two daughters were born of 

the marriage, Channin in 1970 and Nickole in 1971. During 

the marriage, Tex and Mary Ann acquired a marital estate 

worth $115,000. This included the home now occupied by Tex, 

rental property, household goods, vehicles, a balance receiv- 
able on a contract in escrow, a savings account, and Tex's 

profit sharing account. 

In August 1984, Mary Ann separated from Tex. Mary Ann 

filed a petition for dissolution on February 22, 1985. She 

and her daughters currently reside in Usk, Washington, near 

Mary Ann's parents. Tex currently resides in Whitefish, 

Montana. 

Issue 1 

Did the District Court abuse its discretion when it 

granted sole custody to Mary Ann? 

The standard of review on custody issues was outlined 

in Bier v. Sherrard (1981), 623 P.2d 550, 551, 38 St.Rep. 

158, 159: 

In order to prevail, [appellant] must 

show an abuse of discretion by the 

judge, must demonstrate that there is a 

clear preponderance of evidence against 

the findings, and must overcome the 

presumption that the judgment of the 

trial court is correct. In reviewina 

- the District Court's custody-order, thii 

Court need only --- look to the record to 

--- see if the factors set - forth in section 

40-4-212, -- MCA, were consideredTand -- then 

must determine whether the trial court 

made appropriate findings with respect 

to these criteria. [Em~hasis added. 1 

The factors set forth in S 40-4-212, MCA, place paramount importance on the best interests of the child: 

The court shall determine the custody in 

accordance with the best interests of: 

the child. The court shall consider all 

relevant 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 interaction and interrelation 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. 

In its findings of fact, the District Court recognized 

that several of the factors of S 40-4-212, MCA, weighed 

heavily in favor of granting custody to Mary Ann: 

3. That one of the children, Channin, 

is mildly retarded and, although attends 

school, is in a special education program, is unable to care for herself, and 

in all likelihood will be unable to care 

for herself for many years to come. 

4. There is a close relationship between mother and daughters. They have 

lived together continuously during the 

period of separation. Mother is required to and does take care of the 

daily needs of both children in addition 

to taking care of the special needs of 

Channin, both educational and practical. 

5. That while visiting their father, 

their paternal grandfather molested 

Channin. 

6. Prior to this molestation, Respondent herein was made aware of the father's propensities by Mrs. Manus having 

warned him that such an attempt had been 

made upon her. 

7. That as a result of the molestation 

which occurred to Channin, she will 

require continuous psychiatric care in 

addition to her special education needs. 
The record further reveals that Tex had only seen the 

children three times in the previous eighteen months, and. the 

children did not express any desire to spend time with Tex. 

In spite of this, Tex requested joint custody. He now argues 

that the District Court failed to state adequate reasons for 

denying his request, as required by 5 40-4-224(1), MCA. The 

statute provides: 

Upon application of either parent or 

both parents for joint custody, the 

court shall presume joint custody is in 

the best interests of a minor child 

unless the court finds, under -- the fat- 

-- tors set forth in 40-4-212, that joint 

custody is *----- not in the best interests of 

the minor child. If the court declines 

to enter an order awarding joint custody, the court shall state in its decision the reasons for denial of an award 

of joint custody. [Emphasis added.] 

We note that any presumption favoring joint custody in 

5 40-4-224, MCA, was overridden by the abundant evidence 

supporting the grant of sole custody to Mary Ann. The findings and reasons for granting her sole custody are identicalto the reasons for denying joint custody to Tex, and thereby 

comply with the mandates of 9 40-4-224(1), MCA. 

We have repeatedly given the District Court broad 

discretion in deciding custody disputes. "The responsibility 

of deciding custody is a delicate one which is lodged with 

the district court. The judge hearing oral testimony in such 

a controversy has a superior advantage in determining the 

same, and his decision ought not to be disturbed except upon 

a clear showing of abuse of discretion." Gilmore v. Gilmore 

(1975) , 166 Mont. 47, 51, 530 P. 2d 480, 482, citing In Re 

Adoption of Biery (1974) , 164 Mont. 353, 522 P. 2d 1377. The 

record fully supports the court's findings and conclusions. 

We hold that the District Court properly considered the 
children's best interests and did not abuse its discretion 

when it granted custody to Mary Ann. 

Issue 2 

Did the District Court abuse its discretion when it 

awarded child support to Mary Ann? 

Tex argues that the court did not make any findings 

about the financial needs of the children or the ability of 

each parent to pay. He contends that the court failed t.o 

follow the holding of In Re Marriage of Capener (1978), 177 

Mont. 437, 441, 582 P.2d 326, 328, which states: "The pertinent factors in [§ 40-4-204, MCA], with findings of fact to 

support them, should be set out in the District Court's 

decision for otherwise the appellate court has nothing upon 

which to base its review." 

Section 40-4-204, MCA, lists six factors the court 

shall consider when ordering child support: 

(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; 

(dl the physical and emotional condition 

of the child and his educational needs; 

(e) the financial resources and needs of 

the non-custodial 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. 
We have ample findings upon which to base our review. 

Judge Allen specifically noted the financial resources and 

needs of the children and parents in the following findings: 

8. That the estimated charges for 

[Channin ' s] continuing psychiatric 

treatments will be approximately $120.00 

per week. 

10. Mr. Manus is an able-bodied, employed man, having worked for the past 

ten years for Plum Creek as a chip truck 

driver. He is 42 years of age, in good 

health, a.nd his expected salary for the 

year 1985 will exceed $38,000.00. His 

income has grown steadily during the 

past ten years. His take home pay is 

approximately $2,400.00 per month after 

depositing to voluntary retirement 

programs in excess of $200.00 per month. 

As part of his employment, Mr. Manus 

receives medical health coverage, which 

coverage is available to members of his 

family . 

11. Mary Ann Manus lives in Usk, Washington with her daughters, is a person 

of 43 years of age, is presently under a 

doctor's care, taking prescription 

medication three times daily. Mary Ann 

Manus works as a part-time waitress 

earning approximately $3.50 per hour. 

She takes home approximately $400.00 per 

month. There is no other suitable 

employment available to her as a result 

of her physical and emotional conditions 

requiring medical care. 

12. The expenses for Mr. Manus and his 

girlfriend are less than $1,000.00 per 

month. 

13. The expenses of Mrs. Manus, excluding psychiatric care for Channin, exceed 

$1,584.00 per month. 

These findings are well-supported by the record. We 

will not set aside the District Court's findings of fact 
unless there is a clear abuse of discretion. Grenfell v. 

Grenfell (1979), 182 Mont. 229, 232, 596 P.2d 205, 207. We 

find no such abuse in this case. Therefore, we hold that the 

District Court properly awarded child support of $250 per 

month per child. 

Issue 3 

Did the District Court abuse its discretion when it 

adopted Mary Ann's valuation of the marital property? 

The District Court substantially adopted Mary Ann's 

valuation of the marital estate. Tex argues that the District Court failed to adequately support the decision in its 

findings. However, we note that in Finding No. 14, the 

District Court carefully itemized the property that the 

Manuses had acquired during their sixteen-year marriage. The 

real property included the family home in Whitefish and some 

rental property. The personal property included two trucks, 

several trailers, tools, and miscellaneous household goods. 

As we held in In Re Marriage of LeProwse (1982), 198 

Mont. 357, 646 P.2d 526, 529, the fact that the District 

Court substantially adopted the findings proposed by one 

party does not change the standard of review. That standard 

of review was recently outlined in In Re Marriage of Rolfe 

(Mont. 1985), 699 P.2d 79, 83, 42 St.Rep. 623, 626, where we 

held: 

In dividing property in a marriage 

dissolution the district court has far 

reaching discretion and its judgment 

will not be altered without a showing of 

clear abuse of discretion. The test of 

abuse of discretion is whether the trial 

court acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in 

substantial injustice. 
The District Court's conclusions were neither arbitrary 

nor unreasonable. By his own testimony, Texts evidence 

supports the court's findings. His estimate for the total 

value of the marital estate was $109,000. He valued Mary 

Ann's share at $55,000. Mary Ann estimated the total value 

at $115,000, with her share at $45,000. Tex and Mary Ann's 

estimates differ by 10 percent or less. These differences 

are well within an acceptable appraisal range. The District 

Court's findings are properly based on Mary Ann's estimates 

and supported by Tex's evidence. We hold that the court did 

not abuse its discretion when it ordered Tex to pay Mary Ann 

$12,448 to equalize the marital estate, in monthly payments 

of $207 for five years. 

Issue 4 

Did the District Court abuse its discretion when it 

awarded maintenance to Mary Ann? 

Tex argues that the District Court did not justify the 

maintenance awards, because it made no finding that Mary Ann 

was unable to meet her reasonable needs, and the court did. 

not distinguish her needs from those of the children. 

The factors to be considered in a maintenance award are 

outlined in 5 40-4-203 (I), MCA: 

(1) In a proceeding for dissolution of 

marriage . . . the court may grant a 

maintenance order for either spouse only 

if it finds that the spouse seeking 

maintenance: 

(a) lacks sufficient property to provide 

for his reasonable needs; and 

(b) is unable to support himself through 

appropriate employment or is the custodian of a child whose condition or 

circumstances make it appropriate that 
the custodian not be required to seek 

employment outside the home. 

The District Court addressed S 40-4-203(1) (a), MCA, in 

two findings. Finding No. 11 notes that Mary Ann's income is 

$400 per month. Finding No. 14 lists income-producing property, from which Mary Ann receives approximately $400 per 

month. Tex contends that his monthly payments of $207, to 

equalize the property division of the marital estate, should 

also be considered in Mary Ann's monthly income. 

However, we note that the property payments are merely 

the liquidation of assets that Mary Ann had acquired during 

the marriage and cannot be considered as part of her current 

income. Excluding the property payments and child support, 

the combined income from Mary Ann's property and employment 

is only $800. 

Tex's argument is also disputed by Finding No. 17, 

which addresses S 40-4-203 (1) (b) : 

Mrs. Manus will need to devote her 

attention to caring for Channin and 

Nickole through the next four years of 

school and high school, two years of 

special education, college for Channin, 

then one year of college work for herself in order to be able to enter the 

job market. 

Both Mary Ann's need for retraining and the needs of her 

children justify the District Court's award of maintenance. 

As we held in In Re Marriage of Korpela (Mont. 1985) , 

710 P.2d 1359, 1360, 42 St.Rep. 1912, 1914, the spouse seeking maintenance must show both lack of sufficient property 

and also incapability of self-support. Mary Ann has met this 

burden. Therefore, the District Court did not abuse its 

discretion when it awarded Mary Ann $300 per month in maintenance for five years. 
Issue 5 

Did the trial court abuse its discretion when it awarded attorney fees to Mary Ann? 

The court's Finding No. 18 states: "That the Petitioner 

has been forced to hire counsel and is unable to pay for 

counsel. " Tex argues that the court awarded Mary Ann 

income-producing property, yet found she was unable to pay 

her attorney fees. Tex contends that Finding No. 17 is not 

supported by the evidence and represents an abuse of discretion. Tex further argues that the court must indicate in its 

findings the reason for granting the award of attorney fees. 

We note that a discretionary award of attorney fees is 

sanctioned in 5 40-4-110, MCA: "The court from time to time 

after considering the financial resources of both parties, 

may order a party to pay a reasonable amount for the cost to 

the other party . . . for attorney fees . . ." 

Although Mary Ann's counsel fails to cite any authority 

on this issue, we note that an award of attorney fees under 

the statute is "largely discretionary with the District Court 

and we will not disturb its judgment in the absence of an 

abuse of that discretion." In Re Marriage of Johnston (Mont. 

1986), 726 P.2d 322, 326, 43 St.Rep. 1808, 1812-1813, citing 

Talmage v. Gruss (1983), 202 Mont. 410, 412, 658 P.2d 419, 

420. 

The District Court examined each party's financial 

position. During the marriage, Mary Ann worked as a homemaker and took care of the two children. Both children now live 

with her. Mary Ann requires additional vocational training 

and is currently under a physician's care. She earns $800 

per month. In contrast, Tex earns $2,400 per month and is in 

good health. The court's findings adequately support its 

conclusion. In view of the parties' relative financial 

positions and health, the award of attorney fees was not an 
abuse of discretion. Carr v. Carr (Mont. 1983), 667 ~.2d 

425, 427, 40 St.Rep. 1263, 1266. 

Issue 6 

6. When a retired district judge who was called into 

jurisdiction during a judicial vacancy, has rendered judgment 

and has been succeeded by a duly-appointed district judge, 

does the retired district judge retain jurisdiction to deny a 

subsequent motion for new trial? 

During the terminal illness of Judge Salansky, Judge of 

Department One of the District Court of Flathead County, 

various retired judges were called in to assist with his 

caseload. By order dated July 30, 1985, this Court recalled 

Judge Allen to assume all duties of that department for an 

indefinite period beginning September 1, 1985. 

The order was issued in accordance with Article VII, 

Section 6 (3), 1972 Mont. Const., which authorizes such assignments. "The chief justice may, upon request of the 

district judge, assign district judges - and other judges for 

temporary service from one district to another, and from one 

county to another." (Emphasis added.) 

On December 2, 1985, the instant case was tried before 

Judge Allen, who rendered judgment on December 11, 1985. 

Judge Leif B. Erickson was formally sworn in as Judge 

Salansky's successor on December 11, 1985, and assumed all 

judicial duties on December 12, 1985. 

Tex filed a motion for a new trial on December 17, 

1985. On Zanuary 31, 1986, Judge Erickson decided that he 

did not have jurisdiction to rule on Tex's motion. He relied 

on State ex rel. Wilcox v. District Court (Mont. 1984), 678 

P.2d 209, 41 St.Rep. 397, which defined the scope and authority of a retired district judge called into jurisdiction 

under Article VII , Section 6 (3) . The Wilcox court held that 
such judges have the complete jurisdiction of the District 

Court in all civil matters and cases at law, including final 

dispositions. Wilcox, 678 P.2d at 215, 41 St.Rep. at 403. 

Accordingly, Judge Allen retained jurisdiction and on February 27, 1986, issued an order denying Tex's motion. 

Judge Erickson's decision is consistent with our policy 

of judicial economy. By providing a bridge of continuing 

jurisdiction, such a policy ensures that a successor judge 

does not oust the authority of a retired district judge to 

efficiently dispose of the matters that have been undertaken 

by him. 

We affirm the District Court on all issues. 

4' 

We concur: ,/// 

I / 

Chief Justice