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 JudicialDistrict,GallatinCounty,awardedthemother solecustody 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 issuespresented on appeal are: 1. Did the District Court err in not following the oral stipulationsbetween theparties 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 theparties? Thepartiesweremarried on December 10, 1971. Neither party contributedanyreal orpersonal property of value tothemarriage. 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 bankruptcywith a total debt of $105,000. TheDistrict Court found they had a total of $83,000in property.In 1985, the parties separated. Mr. Mager (appellant) left the family, leaving respondent to operate the business and care forthechildren. Afterhe left,appellant rarely sawhis children and provided no support for the children, respondent or the business. Without the aid of appellant, respondent completed the Chapter 11bankruptcy and all of the $105,000 debtwas eitherpaid in full or discharged in bankruptcy. However, the ~istrict Court determined that $24,778.64 inmarital 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 stipulationsbetween the parties regarding child custody? At the beginning of the hearing before the District Court, theparties stipulated to the granting of joint custody. However, in its conclusion, the District Court awarded sole custody of the children to respondent. Appellant contendsthat 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 addresseddirectly 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 significantlyaffect 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 abuseby oneparent 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 ofNeiss (1987), 228Mont. 479, 743 P.2d 1022, "it isthechildren, 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 stipulationsbetween the parties regarding child custody. I1 Did the District Court err in awarding the proceeds of the sale of themarital assets to respondent forback child support? Appellant maintains it was error for the District Court to award all themarital assets to the wife asback child supportand that thecourtwaswithout jurisdictionto do so. Healso contends that after the sale of the property, therewas an excess over and above the marital debt that should have been divided between the parties. Respondent contends that the divorce decree specifically stated thatupon becoming employed, appellant would be responsible for child support, and that whenhe 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 accountinghad not yet been filed, itwould have been impossibleto 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 towhichhehad not objected. InreMarriage 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 theDistrictCourt did not err in awarding theproceeds of the sale of themarital 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 contendsthatrespondenthad a car, jewelryand 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 thehusband'spersonal property before dividing themarital property. In Dirnberser,appellant alleged before the trial court that the items ofpersonal property were of substantial value. The case before us is distinguishable,as respondenturges. Appellant did not allege the car, jewelry and furniture were of substantial value,nor didhe raise this issuebefore theDistrictCourt. This Court will not address on appeal an issue not presented to the District Court. Sperry 

### v. Montana State Univ. (Mont. 1989)

## , 778P.2d 895, 46 St.Rep. 1482. Furthermore, respondent's testimony reflects that thepersonal property in questionwas either sold off

or refinanced after the divorce. We hold the District Court did not err in its determination of the net worth of theparties. Affirmed

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Justice 

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We concur: H

Justices /