No. 86-29 IN THE SUPREME COURT OF THE STATEOF MONTANA 1986

INRE THEMARRIAGE OF EDWARD WILLIAM RYAN, Petitionerand Respondent, and T. JOANN RYAN, Respondent and Appellant.

APPEAL FROM: District Court of the Thirteenth JudicialDistrict, In and for the County ofYellowstone, TheHonorable Charles Luedke,Judgepresiding.

COUNSEL OF RECORD:

ForAppellant: 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: 

## JUN20

### 1986Mr. 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 themaritalproperty. Affirmed. Two issues are presented for our determination. These

are: 1. Whether the DistrictCourt exceeded its jurisdiction and abused its discretion in granting joint custody of alternate weeks and providing that if either parent changed his orher residence fromBillings the remainingparentwould get sole custody during the school year while the departing parent would have custody reduced to the summer months when schoolwas out; and 2. Whether the DistrictCourt abused itsdiscretionby 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 thehouse 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 theirmarriage was dissolved by order of the DistrictCourt on June 4,1985. InAugust, 1985, theparties 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 jointphysical custody of the minorchildren. The physical custody plan calls for the children to spend alternating weeks in each parent's home. Theplan, 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 yearwith the other parent having physical custody of the children during the summermonths. 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 toAnaconda, where shewas raised,aswell as the father's request tohave 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 sectionprovides: 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 intereactionand interrelationshipof the childwith his parent orparents,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 courtdetermined 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 leavesBillings, the remaining parent will havephysical custody of the children. The court said that theplan was structured to encourage themother 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 ispay $400

a month child support to assist the mother tomake 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 familyhome 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 DistrictCourt's "decisionwillbe presumed correct andwill 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'sbest interests. Secondly, JoAnn contends the District Court erred in failing to evaluate and divide the equity in the familyhome. 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 netproceeds are tobe 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 iswhether the court abused its discretion inmaking 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 judgmentof the DistrictCourt is affirmed.

We Concur: