No. 89-057 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

IN RE THE MARRIAGE OF - 

MARSHA LYNN MAGER, 

Petitioner and. Respondent, 

and 

JAY FRANKLIN IWGER, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Eiqhteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Joseph £3. Gary, Judge presidinq. 

COTJNSEL OF RECORD: 

For Appellant: 

McKinley Anderson, Rozeman, Montana 

For Respondent: 

Michael Lilly; Berg, Lilly, Stokes, Andriolo, Tollefsen, 

& Schraudner, Rozeman, Montana 

Submitted on Briefs: Nov. 21, 1989 

Decided: January 11, 1990 

Filed: 
Justice Fred J. Weber delivered the opinion of the Court. 

After a hearing, the District Court for the Eighteenth 

Judicial District, Gallatin County, awarded the mother sole custody 

of the minor children of the marriage and ordered the marital 

property remaining in wife's possession sold to pay marital debts 

with any excess to go to her for back child support. The husband 

appeals. We affirm. 

The issues presented on appeal are: 

1. Did the District Court err in not following the oral 

stipulations between the parties regarding child custody? 

2. Did the District Court err in awarding the proceeds of 

the sale of the marital assets to respondent for back child 

support? 

3. Did the District Court err in its determination of net 

worth of the parties? 

The parties were married on December 10, 1971. Neither party 

contributed any real or personal property of value to the marriage. 

They had two children. During the marriage, Mrs. Mager 

(respondent) worked as a full-time housewife and mother and also 

held various jobs. 

In 1983, the couple operated a business known as ''Airline 

Cablew. In June, 1983, they were required to file Chapter 11 

bankruptcy with a total debt of $105,000. The District Court found 

they had a total of $83,000 in property. 
In 1985, the parties separated. Mr. Mager (appellant) left 

the family, leaving respondent to operate the business and care 

for the children. After he left, appellant rarely saw his children 

and provided no support for the children, respondent or the 

business. Without the aid of appellant, respondent completed the 

Chapter 11 bankruptcy and all of the $105,000 debt was either paid 

in full or discharged in bankruptcy. However, the ~istrict Court 

determined that $24,778.64 in marital debt remained and $56,915 in 

property remained that respondent had not yet liquidated. 

At the time of the proceedings in the District Court, 

appellant was employed as a machine operator in Vancouver, 

Washington with an annual taxable income between $18,000 and 

$25,000. He was unmarried and his work required him to spend long 

days away from home. Respondent remarried and her husband has a 

good relationship with her children. Respondent submitted monthly 

expenses of $1,136. 

I 

Did the District Court err in not following the oral 

stipulations between the parties regarding child custody? 

At the beginning of the hearing before the District Court, 

the parties stipulated to the granting of joint custody. However, 

in its conclusion, the District Court awarded sole custody of the 

children to respondent. Appellant contends that oral stipulations 

regarding custody are binding, thus it was error for the ~istrict 

Court to disregard the agreement. We disagree. 

As respondent correctly notes, this issue is addressed 
directly by statute. It is mandatory that the district court 

determine custody according to the best interests of the child. 

In its determination, the district court must consider at least 

the following factors: 

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 553-24-103, or 

chemical abuse on the part of either parent. See 540-4-212, MCA. 

Section 40-4-201(2), MCA, provides that separation agreements 

providing for support, custody and visitation of children are not 

binding. Although the case before us deals with an in-court 

stipulation rather than a separation agreement, the difference is 

meaningless. Parties cannot make binding agreements, oral or 

written, as to support, custody or visitation of children. The 

best interests of the children are paramount. As we said in 

Marriage of Neiss (1987), 228 Mont. 479, 743 P.2d 1022, "it is the 
children, not the parents, who are beneficiaries of child support 

decreesw, and "the custody and support of children are never left 

to contract between the parties.'' The record reveals that the 

District Court properly considered the children's best interests. 

We hold the District Court did not err in refusing to follow the 

oral stipulations between the parties regarding child custody. 

I1 

Did the District Court err in awarding the proceeds of the 

sale of the marital assets to respondent for back child support? 

Appellant maintains it was error for the District Court to 

award all the marital assets to the wife as back child support and 

that the court was without jurisdiction to do so. He also contends 

that after the sale of the property, there was an excess over and 

above the marital debt that should have been divided between the 

parties. 

Respondent contends that the divorce decree specifically 

stated that upon becoming employed, appellant would be responsible 

for child support, and that when he did become employed he did not 

pay such support. She urges that there is no evidence of excess 

over marital debt and that because a final accounting had not yet 

been filed, it would have been impossible to arrive at the figures 

appellant relies on. We agree. We also note that at the hearing 

on this matter, appellant specifically stated that he had no 

objection to allowing any excess equity to be used as past due 

child support. A district court will not be held in error for a 

procedure in which the appellant acquiesced at trial and to which 
he had not objected. In re Marriage of West (Mont. 1988), 758 P.2d 

282, 285, 45 St.Rep. 1281, 1283. Furthermore, the record before 

us on appeal reveals that the District Court properly considered 

540-4-204, MCA, in its award of past due child support. We hold 

the District Court did not err in awarding the proceeds of the sale 

of the marital assets to respondent for back child support. 

I11 

Did the District Court err in its determination of net worth 

of the parties? 

Appellant maintains that because the District Court made no 

findings as to the value of respondent's personal property, its 

determination of the net worth of the parties was in error. He 

contends that respondent had a car, jewelry and furniture which the 

court failed to include in its determination of net worth. 

Appellant relies on Marriage of Dirnberger (Mont. 1989), 773 P.2d 

330, 46 St.Rep. 898, in which we held that the trial court was 

required to make findings of fact on liabilities of the parties 

and on the husband's personal property before dividing the marital 

property. 

In Dirnberser, appellant alleged before the trial court that 

the items of personal property were of substantial value. The case 

before us is distinguishable, as respondent urges. Appellant did 

not allege the car, jewelry and furniture were of substantial 

value, nor did he raise this issue before the District Court. This 

Court will not address on appeal an issue not presented to the 

District Court. Sperry v. Montana State Univ. (Mont. 1989) , 778 
P.2d 895, 46 St.Rep. 1482. Furthermore, respondent's testimony 

reflects that the personal property in question was either sold off 

or refinanced after the divorce. We hold the District Court did 

not err in its determination of the net worth of the parties. 

Affirmed . 

fp Justice 

We concur: H 

Justices 

/