IN THE SUPREME COURT OF THE STATE OF MONTANA 

IN RE THE 

DANIEL N. 

and 

MARRIAGE OF 

McL~AN, 

Petitioner and Respondent, 

KATHLEEN M. FLEURY , 

Respondent and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Robert W. Holmstrom, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Kathleen M. Fleury, Pro Se, Helena, Montana, 

For Respondent: 

Mark D. Parker, Parker Law Firm, 

~illings, Montana 

Submitted on Briefs: September 24, 1992 

Decided: January 21, 1993 

Filed: 
Justice William E. Hunt, Sr., delivered the opinion of the Court. 

Appellant Kathleen M. Fleury, appearing pro se, appeals the 

Findings of Fact, Conclusions of Law, and Decree of Dissolution of 

the Thirteenth Judicial District Court, Yellowstone County. 

We af f irm and rremand. 

Kathleen presents six issues to this Court for consideration. 

1. Did the district Court err in awarding joint custody of 

the children to the parties? 

2. Did the District Court abuse its discretion in the award 

of child support? 

3. Was the District Court s valuation and distribution of 

the marital estate clearly erroneous? 

4. Did the District Court err in failing to award Kathleen 

maintenance? 

5. Did the District Court abuse its discretion in denying 

Kathleen attorney fees? 

6. Did the District Court Judge commit error when he failed 

to disqualify or recuse himself from the case due to his 

participation in pretrial settlement negotiations? 

The parties were married on June 16, 1979, in Missoula and 

have two children--Katharine F. McLean, born March 23, 1986, and 

James B. McLean, born July 5, 1988. James has an asthmatic 

condition which requires a considerable amount of medical 

attention. 

Kathleen and Daniel attended the University of Montana Law 

School and both obtained their Juris Doctorate from the school. 
Daniel clerked for a Federal District Court Judge for one year. He 

was then hired as an associate for a law firm located in ~illings. 

Within a few years, Daniel was promoted to partner with the firm. 

In 1990, he earned $75,000 and it was projected that he will earn 

between $90,000 to $105,000 in 1991. 

Kathleen is also an attorney and is employed as a coordinator 

for the Bureau of Indian Affairs of the State of Montana, earning 

$34,000 a year. The position is a political appointment, and 

theref ore, is not a permanent occupation. Kathleen 'Lives in Helena 

and Daniel lives in Billings. 

The parties separated on September 8, 1990. Daniel filed the 

petition for dissolution on September 26, 1990. Prior to trial, 

several hearings and meetings with the District Court were held in 

an effort to form an agreement relating to maintenance, child 

support, and custody. During the dissolution proceedings, both 

parties were represented by counsel. A bench trial was held on 

August 6, 1991. However, trial was recessed to allow Daniel to 

conduct additional discovery upon certain matters which were not 

disclosed to the court. Trial. resumed on October 2, 1991. On 

December 2, 1991, the court issued its findings of fact, 

conclusions of law, and decree of dissolution. On February 3, 

1992, the court amended its decree to reflect that an additional 

$10,000 of Keogh interest should have been listed as an asset to 

Kathleen, and to add specific provisions relating to child custody 

and support not included in the original decree. Kathleen appeals 

the findings of the District Court. Kathleen did attempt to submit 
a psychological exam on appeal. Upon Daniel's motion, this Court 

ordered that the exhibit be stricken from the briefs and not be 

considered for this appeal. 

On December 24, 1992, Kathleen filed a motion with this Court 

to clarify the amended decree of February 3, 1992, regarding the 

division of Daniel's Keogh account. The motion provides for the 

parties' social security numbers and bank account numbers, which 

were not included in the amended decree. We remand to the District 

Court for further consideration of this matter. 

I. 

Did the District Court err in awarding joint custody of the 

children to the parties? 

Our standard of review in child custody matters is whether the 

district court abused its discretion. In re Marriage of 

Reininghaus (1991), 250 Mont. 86, 817 P.2d 1159. When determining 

child custody, the district court must take into consideration the 

best interests of the children. Section 40-4-212, MCA. The court 

shall consider, but is not limited to, the factors set out in 

§ 40-4-212 (a)-(g) , MCA. The rule in Montana is that joint custody 

is preferred absent "a finding that one parent physically abused 

the other parent or the child is a sufficient basis for finding 

that joint custody is not in the best interest of the child." 

Section 40-4-224(1), MCA. 

In its amended decree, the court awarded Daniel custody of the 

children during the summer months, with Kathleen having custody of 

the children for the rest of the year. Kathleen contends that this 
is error because the court based its decision on a joint custody 

plan which provided for a temporary stipulation between the parties 

pending the outcome of a court ordered independent evaluation which 

it did not admit into evidence or consider in its final decree. 

We have recently discussed this issue in In re Marriage of 

Maxwell (1991), 248 Mont. 189, 810 P.2d 311. In that case, the 

District Court awarded joint custody, with primary custody to the 

mother. The court ordered a home study but did not address the 

home and family assessment or the social worker's recommendations. 

We held that the District Court abused its discretion when it 

ordered an investigation and report concerning custodial 

arrangements pursuant to 5 40-4-215, MCA, but failed consider the 

report in its final custody decision. Maxwell, 810 P.2d at 313. 

See also In re Marriage of Bloom-Higham (1987), 227 Mont. 217, 738 

P.2d 114. 

In this instance, the parties stipulated that they would seek 

psychological evaluations. In the stipulation, they agreed that 

they were not bound by the results of the evaluation but either 

party could submit the report into evidence if so inclined. The 

court did not order the evaluations and the report was never 

offered into evidence by either party. There was a pretrial 

conference held on the morning of the trial. After the conference, 

the following exchange took place between Kathleen's counsel and 

the District Court: 

MRS. NYE: Your Honor, Marian Martin is only available 

until 11:OO. 
THE COURT: It is my understanding that Marian Martin is 

not necessary as a witness based upon what was told to me 

in chambers, and I don't want it changed now. 

MRS. NYE: Thank you, Your Honor. We have reached an 

agreement as to what the further interlineation is. 

Thus, it appears that the court did not hear any further 

testimony regarding custody because there was an agreement between 

the parties regarding custody and the need for further testimony 

was not warranted. In addition, the record does not reflect that 

Marian Martin was offered as a witness after the above discussion. 

~uring trial, Daniel's counsel submitted a joint custody plan, 

which was stipulated to by Kathleen's attorney. Kathleen claims on 

appeal that her counsel stipulated to the plan without her 

knowledge or consent. The record shows that the joint custody plan 

was stipulated to in open court with both parties in attendance. 

Section 40-4-201(1), MCA, allows the parties to enter into 

agreements regarding support, custody, and visitation of the 

children. We have held that parties are bound by the stipulations 

made by their counsel in open court. Daniels v. Dean (Mont. 1992), 

833 P.2d 1078, 1081, 49 St. Rep. 535, 537; 37-61-401, MCA. We 

hold that the District Court did not err in awarding joint custody 

to both parties. 

11. 

Did the District Court abuse its discretion in the award of 

child support? 

Our standard of review of a district court's findings relating 

to child support is that a presumption exists in favor of the 
district court and we will overturn the court's findings only if it 

has abused its discretion. In re Marriage of Sacry (Mont. 1992), 

833 P.2d 1035, 49 St. Rep. 452. In this instance, both parties 

submitted their proposed child support based on the Social and 

Rehabilitative Services Guidelines for Child Support (SRS 

guidelines) . Daniel's work-sheet proposed that he owed 

approximately $450 in child support, while Kathleen's work-sheet 

claimed Daniel owed approximately $1600. The District Court found 

that $1000 was a reasonable level of child support. Both parties 

represented to the court that $1000 was consistent with the SRS 

guidelines. Kathleen contends that the $1000 figure was based upon 

Daniel's 1989 earnings which were $75,000. The record shows that 

Kathleen's work-sheet representedthat Daniel's income was $94,000. 

~aniel testified at trial that he earned between $90,000 to 

$105,000 and that his income will continue to increase as a partner 

in his law firm. The court considered both parties' incomes for 

the determination of child support. We hold that the District 

Court did not abuse its discretion. 

111. 

Was the District Court's valuation and distribution of the 

marital estate clearly erroneous? 

Our standard of review relating to the division of marital 

property was recently clarified as whether the district court's 

findings of fact are clearly erroneous. In re Marriage of Danelson 

(Mont. 1992), 833 P.2d 215, 49 St. Rep. 597. Kathleen submits that 

the District Court was in error when it failed to value the 
goodwill of Daniel's partnership interest in the law firm and 

ignored the testimony of her expert witness regarding the valuation 

of the partnership. She claims that as a result, the value of the 

marital estate has been substantially under-valued to her 

detriment. 

We have recognized that the goodwill of a professional 

practice may be part of a marital estate subject to property 

division in a marriage dissolution. In re Marriage of Hull (1986), 

219 Mont. 480, 488, 712 P.2d 1317, 1321. In this instance, the 

District Court refused to consider the goodwill of Daniel's law 

firm because of the partnership agreement signed by Daniel and the 

firm. The partnership agreement specifically provides that Daniel 

does not have any interest in the goodwill of the practice nor does 

he have any interest in the partnership's tangible or intangible 

assets. The partnership agreement was an arms-length transaction. 

The testimony of Kathleen's expert witness was irrelevant because 

the court ruled that the goodwill of the partnership was not a 

marital asset. The District Court did not abuse its discretion in 

finding that Daniel did not have an interest in the goodwill of the 

practice. 

Following separation until trial, Kathleen incurred a credit 

card debt of $26,000 by obtaining cash advances and charging 

certain items to her account. At trial, Kathleen testified that 

most of the debt related to attorney fees and other expenses 

related to the dissolution. She offered into evidence a break down 

of the credit card transactions which indicated she had charged a 
considerable amount of items for personal and familial use. 

Kathleen did not produce receipts of the credit card transactions 

to the court, but did provide a list of charges. Even so, it is 

apparent from her exhibit list that she also received several cash 

advances amounting to several thousand dollars. The court 

concluded that Kathleen did not fully explain the charges to the 

account. In In re Marriage of Scott (1990), 246 Mont. 10, 803 P.2d 

620, we refused to accept a district court's determination that a 

post-separation credit card debt was a marital debt, even though 

the finding was supported by testimony. After examining the 

record, we conclude that it is unclear which credit card expenses 

were incurred for the children's sake and which expenses were 

incurred by Kathleen alone. Kathleen's own testimony is 

conflicting and confusing. We hold that the District Court did not 

err in awarding Kathleen the $26,000 marital debt. 

Kathleen contends that the court erred in awarding her a 

$12,000 IRA account because these funds did not exist at the time 

of trial. Kathleen testified that she liquidated the parties' 

$12,000 IRA account because she needed money for attorney fees and 

to pay family expenses. 

We have stated that to ensure a proper distribution of the 

marital estate requires a valuation of the marital estate at or 

near the time of dissolution. In re Marriage of Halverson (1988), 

230 Mont. 226, 749 P. 2d 518. Kathleen contends that In re Marriage 

of Lippert (1981) , 192 Mont. 222, 627 P.2d 1206, controls the facts 

of this case. In Liwwert, the husband poured $96,000 into bad 
business ventures during the marriage. The court held that the 

$96,000 was part of the marital estate and awarded the wife 

$48,000. We held that the court erred when it valued the marital 

estate in 1977 when the husband became entangled in the business 

ventures before the date of dissolution in 1979. Li~~ert, 627 P.2d 

at 1209. Instead, this case is more similar to In re Marriage of 

Rogers (1987), 226 Mont. 163, 734 P.2d 677, where the husband sold 

the family's mobile home and liquidated an IDS account which the 

husband claimed was necessary to cover expenses for himself and his 

three children. We held that nothing in the record indicated that 

the husband's earnings were insufficient to meet his own and his 

children's expenses and that it was proper for the district court 

to award the wife $4500 to cover her share of the property. 

Rosers, 734 P.2d at 679. 

In this instance, Kathleen was earning approximately $36,000 

a year. In addition, she received $750 a month in child support 

which was later increased to $1000 per month. Kathleen has failed 

to demonstrate why she needed additional money to meet her and the 

children's expenses. We hold that the District Court's 

distribution of the marital estate was not clearly erroneous. 

IV. 

Did the District Court err in failing to award Kathleen 

maintenance? 

Our standard of review in maintenance award cases is whether 

the district court's findings of fact are clearly erroneous. In re 

Marriage of Eschenbacher and Crepeau (Mont. 1992), 831 P.2d 1353, 
49 St. Rep. 393. The district court may award maintenance after 

the marital property has been equitably distributed and the court 

has properly applied the criteria of 5 40-4-203, MCA. Section 

40-4-203(1), MCA, states that the district court may grant 

maintenance for either spouse only if it finds that the spouse 

requesting maintenance: 

(a) lacks sufficient property to provide for his 

reasonable needs; and 

(b) is unable to support himself through 

appropriate employment . . . . 

In its findings, the court concluded that with Kathleen's 

earnings and child support, she can provide for her needs. 

Kathleen earns $36,000 a year and is an attorney. She also 

receives $1000 a month in child support. We hold that the District 

Court did not err in denying maintenance. 

v. 

Did the District Court abuse its discretion in denying 

Kathleen attorney fees? 

Section 40-4-110, MCA, grants the district court the 

discretion to award reasonable attorney fees after considering the 

financial resources of both parties. Absent an abuse of 

discretion, this Court will not overturn the district court's 

decision denying attorney fees. In re Marriage of Manus (1987), 

225 Mont. 457, 733 P.2d 1275. This Court has stated that the 

awarding of attorney fees is clearly permissive under !j 40-4-110, 

MCA . 
In this instance, Kathleen earns $36,000 a year. In addition, 

she was awarded $8,000 from a erri ill Lynch stock account, $55,000 

from a Keogh Plan, which included the courtws consideration of 

Kathleen's tax liability if she were to liquidate the Plan. 

Kathleen claims that she has incurred approximately $40,000 in 

attorney fees and that she is unable to meet this obligation. The 

record indicates the Court was cognizant of the financial. resources 

and burdens of the parties as required under § 40-4-110, MCA. The 

court concluded that she has enough assets from the distribution of 

the marital estate and earnings to meet this obligation. We hold 

that the District Court did not abuse its discretion in failing to 

award Kathleen attorney fees. 

VI . 

Did the District Court Judge commit error when it failed to 

disqualify or recuse himself from the case due to his participation 

in pretrial settlement negotiations? 

On February 5, 1991, Kathleen, acting pro se, filed a motion 

for disqualification of the District Judge. Kathleen asserted that 

the judge was biased because her husband was an attorney of a 

prestigious law firm and that Judge Holmstrom is a former law 

partner of an attorney who had previously represented her. A 

hearing was held before a second District Judge, and the motion was 

denied. 

On appeal, Kathleen declares that Judge Holmstrom should have 

been disqualified because he conducted pretrial negotiations prior 

to litigation. In his reply brief, Daniel failed to respond to the 
allegation. Because Kathleen's basis for disqualification rests on 

different grounds than those stated at the trial level we hold that 

the District Court did not commit error in denying the motion for 

disqualification of Judge Holmstrom. 

We affirm and remand to the District Court to consider 

Kathleen's motion to clarify the amended decree. 

I 

Justice 

We concur: 

.A' 

CEief Justice 

, 
January 21, 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

Kathleen M. Fleury 

4732 N. Montana Ave. 

Hclcna, MT 59601 

Mark D. Parker 

Parker Law Firm 

P. 0. Box 7212 

Billings, MT 59103-7212 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA