NO. 93-100

IN THE SUPREME COURT OF THE STATE OF MONTANA

1994

IN RE THE MARRIAGE OF

COLLEEN MARIE STRIZIC,

Petitioner and Respondent,

and

DANIEL J. STRIZIC,

Respondent and Respondent.

APPEAL FROM: District Court of the Second Judicial District,

In and for the County of Silver Bow,

The Honorable Mark P. Sullivan, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Mark A. Vucurovich, Henningsen, Vucurovich

& Richardson, Butte, Montana

For Respondent:

Bernard J. "Bent1 Everett, Knight, Dahood,

McLean & Everett, Anaconda, Montana

Filed:

Submitted on Briefs: August 26, 1993

Decided: January 20, 1994
Justice William E. Hunt, Sr., delivered the opinion of the Court.

Appellant, Daniel Strizic, appeals from a final decree of

dissolution of the Second Judicial District Court, Silver Bow

County, awarding Respondent, Colleen Strizic, monthly maintenance

for four years and primary custody of their two children, and

dividing the marital estate.

We affirm in part and remand in part.

We consolidate the issues as follows:

1 . Did the District Court err when, during the trial, it

awarded Colleen $4200 and one-half the parties' 1991 income tax

refund as retroactive temporary maintenance?

2. Did the District Court err when it awarded the parties

joint custody of the children, designating Colleen as the primary

custodial parent?

3 . Did the District Court err when it determined and

apportioned Daniel's inheritance as part of the marital estate?

4 . Did the District Court err when it determined and

apportioned Daniel's premarital Montana Power Company stock

dividends as part of the marital estate?

5 . Did the District Court err when it determined and

apportioned Daniel's premarital certificates of deposit as part of

the marital estate?

6 . Did the District Court err in computing Daniel's monthly

income?

7 . Did the District Court err in awarding Colleen

maintenance?

2
The parties were married September 24, 1983, in Butte, Silver

Bow County. At the time of dissolution, Colleen was 34 years of

age and Daniel was 35. During the marriage, the parties enjoyed an

above-average standard of living. Daniel acquired substantial

premarital property and inherited substantial property during the

marriage. He is employed by the Montana Power Company in Butte as

an analyst. Colleen is a student in the Public Health Program at

Montana Tech in Butte and has no independent source of income. Two

children were born as issue of the marriage. At the time of the

dissolution, the children resided with Colleen.

ISSUE 1

Did the District Court err when, during the trial, it awarded

Colleen $4200 and one-half the parties' 1991 income tax refund as

retroactive temporary maintenance?

A maintenance award is proper if the court 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.

Section 40-4-203, MCA.

Daniel argues that the District Court acted arbitrarily and

erred when, during the trial, it ordered him to make available to

Colleen retroactive temporary maintenance in the amount of $4200,

plus one-half the parties' 1991 income tax refund. At trial, the

3
parties with Petitioner [Colleen] being designated as

primary physical custodian and Respondent [Daniel] having

reasonable rights of visitation.

The court then listed numerous considerations, pursuant to the

statute, that supported its custody determination.

In addition,, it is clear from the record that the court

considered all the custody recommendations of the parties' experts.

The court considered the court-appointed counsel's recommendation

that would have required the children to reside on an alternating

monthly basis with each parent. The court also heard from a

licensed clinical therapist, called by Colleen, who offered a

different custody recommendation, and testified as follows:

I believe that she [Colleen] is an exceptionally good

parent. I think she provides an appropriate degree of

nurturing for the children. I believe that she provides

mental stimulation and she is very cognizant of their

physical safety, all of which children need. I also

believe that she provides appropriate limits and

boundaries for those children.

. . . .

Q. Would the plan proposed by [the court-appointed

counsel], require a great deal of adjusting by the

children?

A. I just think its an impossible plan. . . . [I]t might

serve the parents in some way, it does not serve the

children.

Q. Do you have any concerns about securities that the

children or insecurities that the children might develop

as a result?

A. [I]ts my belief that children need predictability and

consistency and reliability. . . . My fear would be that

the children would be in such emotional turmoil from

month-to-month waiting for the exchange to happen, moving

to another house, moving to live with another parent that

they may just shut down their feelings altogether. And

5
that could have severe impairment on them for the rest of

their lives.

While Daniel raises the issue of custody, he does not discuss

the reasons that the court has erred, but rather discusses all of

the custody concerns set forth in the court-appointed counsel's

conclusions, which the court heard and rejected.

We hold that the District Court did not abuse its discretion

when it determined child custody and we affirm on this issue.

Because of the conflict in the testimony and record as to the

remaining issues in this case, we are unable to make a final

determination as to any of those issues, and therefore, we remand

to the District Court for further proceedings on issues 3, 4, 5, 6,

and 7 to determine the bases upon which the court made its decision

and to develop a record upon which this Court can review these five

issues.

Affirmed in part and remanded.

Justice

6
January 20, 1994

CERTIFICATE OF SERVICE

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

named:

Mark A. Vucurovich, Esq.

Henningsen, Vucurovich & Richardson

P.O. Box 399

Butte, MT 59703

Bernard J. “Ben” Everett, Esq.

Knight, Dahood, McLean, Everett & Dayton

P.O. Box 727

Anaconda, MT 59711

ED SMITH

CLERK OF THE SUPREME COURT

STATE RF MqNTANA