NO. 92-553 IN THE SUPREME COURT OF THE STATE OF MONTANA 1993

IN RE THE MARRIAGE OF CANDIS K. FESOLOWITZ njleja C-ANDISDECHAINE, Petitioner and Appellant, and VICTOR M. FESOLOWITZ, Respondent and Respondent.

APPEAL FROM: District Court of the Eighteenth JudicialDistrict, In and for the County of Gallatin, The Honorable Larry W. Moran, Judge presiding.

COUNSEL OF RECORD: For Appellant: Rienne H. McElyea; Berg, Lilly, Andriolo & Tollefsen, Bozeman, Montana For Respondent: Edmund P. Sedivy, Jr.; Morrow, Sedivy & Bennett, Bozeman, Montana

Filed: Submitted on Briefs: April 16, 1993 Decided: May 18, 1993Justice John Conway Harrison delivered the Opinion of the Court. Candis DeChaine, formerly Candis Fesolowitz (Candy), appeals from an order modifying child custody, visitation, and support enteredby the Eighteenth Judicial DistrictCourt,Gallatin County, the Honorable Larry W. Moran presiding. We affirm. Candy and her former husband, Victor Fesolowitz (Victor)were married in 1976 in Sioux City, Iowa. They had two children,both girls,born onJuly 8, 1979, and October 1, 1984. Candy petitioned for dissolution of the marriage in February 1986. She was then, and still is, a flight attendant for Northwest Airlines, living in Bozeman, Montana but flying out of Minneapolis,Minnesota. Victor

was and still is a pilot forNorthwest Airlines, living in Bozeman and Big Sky, Montana, but flying out of Detroit,Michigan. The Auqust 1988 Order A decree of dissolutionwas entered by Judge Gary on October 30, 1987, "reservinguntil later all other issues which have to be considered in this matter." The findings of fact, conclusions of law and order that accompanied the decree followed a five-day hearing which in turn concluded eighteen months of litigation over property, child support, child custody and visitation. Conflict

over these issues continued until Judge Gary issued a second order

onAugust 9, 1988, granting theparties joint custodywith primary physical custody to Candy for ten months of each year, and to Victor for July and August of each year, until the younger child reached the age of seven. Visitation was ordered as follows: [Dluringthese ninemonths of the schoolyear,Victor is granted visitation of no less than ten days during eachmonth. The ten days shall be agreed upon between the parties by the 25th of the preceding month and adjusted to both parties' schedules. If the parties cannot peaceably agree upon a schedule,the aggrieved party may seek an absolute order dictating timesby the court, and theparty causing a return to court shall he responsible for both attorney fees incurred. 

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# . [Dluring the two months that Victor is the primary custodian the reverseprocedures for Candy shall apply. [WlhileCandy is remarried and has a number of relatives in thewestern United States,Victor has no relatives in the United States except these two children, and the court deems it important 

# . . . that Victor has as much visitation and custody as possible. Victor shall have the right to have custody of the children any day the children are in town and Candy is out of town, and will not count against Victor's ten days. Judge Gary's August 1988 order also divided the parties' extensive real estate holdings, investments,and personal property and required Victor to pay Candy $800 a month as child support during the months when the children lived with her, and $400 a month in July and August, retroactive to January 15, 1988. Child supportwas to increaseat a rate equivalent to the annual increase in Victor's salary. Candymoved to amend the order,pointing out that no provision had been made for custody after the younger child reached the age of seven. Victor responded, asserting that *it is apparent from the Court'sorder" that theparties would have "equal time with the two children," after the younger child reached the age of seven. Neither party contested the court's finding that Victor's annual salary was $98,000and Candy's, $22,000,or its finding that the cost of caring for the two children was $1,000per month. InSeptember 1988,theparties signed a "settlement agreement1'amending the court's division of the marital estate. This agreement did not address child support, child custody, or visitation. On October 4, 1988, Judge Gary entered an amended order incorporating the settlement agreement. The Auqust 1992 Order Judge Gary's August 1988 order, as amended in October 1988, did not explicitly provide for custody and visitation after the youngerchild's seventhbirthday. InJane 1991, four monthsbefore that birthday, Candy filed a motion to review custody and child support. Victor filed a cross-motion requesting that child support be reviewed under the Child Support Guidelines that had been implemented after Judge Gary's last order. A hearing was held before JudgeMoran onJanuary 31, 1992. By then,Victor was paying $1,054 a month as child support for the ten months each year that Candy had physical custody of the children. After testimony on the parties' experience with the physical custodyand visitation arrangementsorderedby JudgeGary inAugust 1988, the court recessed while Candy and Victor met with their lawyers. On returning threehours later,Victor's lawyer told the court that the partieshad "come to an agreement with the exception of two pointsw on the subject of custody and visitation, and that the parties had agreed to submit their agreement to the court in writing,with position papers on the two unresolved issues. Child support issues were to be resolved through further negotiation or at a later hearing. In March 1992, Candy asked the court to make the position papers confidential. In her motion she said that she and Victor 4had not been able to agree on "several primary issues." She asked that the position papers be confidential so that Victor would not keep challenging her position in "numerous and lengthy counterposition papers." The court granted this motion, and both parties filed confidential position papers in May 1992. Victor filed an objection three days later, saying that Candy had refused to sign a stipulationbased on their agreement at the January 31 hearing. A letter from Candy's lawyer was attached, listing seven "contested" issues. Chief among these were the months during which each party controlled the scheduling of visitation for the following month; the number of visitation days forVictor (tenor eleven, during the tenmonths Candy had physical custody); and the number of months during the school year during which Victor would have visitation for two weekends rather than

one. The parties did 

### not contest Candy's ten months of physical custody or her control of scheduling for seven months of the year. Judge Moran held a two-day hearing on child support modification in late May, and on August 14, 1992, he entered judgment awarding child support to Candy at $588.97 a month and specifying the following physical custody and visitation arrangements: Father shall have thechildrentwo complete weekends each month of the year, a weekend being defined as Saturday and Sunday. Father shall have the children a minimum of 12 days per month, except July and August when Mother shall have the children a minimum of twelve days per month. Father shall be the primary custodial parent six months of the year, being January, February, March, July, August, and September.During the six months that Father is the custodial parent,he will notify Mother by the 14th of each month regarding which days he will have the children for the followingmonth. Itwill be his obligation to get those days off and it will be Mother's obligation to bid her job responsibilities around Father's days with the children. Parallel provisions followed, covering the six months that Mother is the custodial parent. As for child support, the court found that the parties had combined net annual resources of $96,985, of which Victor's share

was 72.85 per cent, and thatunder the child supportguidelines for two childrenages sevenand twelve, an "appropriate percentage" for child support was 23.6 per cent, or $22,664. Victor's share was $16,511 annually, or $1,375.92 per month. The order reduced Victor's share to $588.97 per month based on the court's expectation that the children would live with him 150 days, or approximately five months, each year. Candy appealed from this judgment, raising the following issues: 1. Whether the District Court erred in modifying 

### a stipulation without notifying the parties; 2. Whether theDistrict Court failedtoprovide forthe best interestsof the children in its custodydecree;and

3. Whether the District Court erred inmodifying child support.

L Did the District Court err inmodifying a stipulation without notifying the parties? Inher motion for a new trial, filed in September 1992,Candy 6stated that she and Victor had agreed, in an oral stipulation at theJanuary 31, 1992 hearing,that shewould have physical custody for tenmonths; that Victor's visitation would include one weekend per month; and that she would schedule the visitation for seven months each year. Victorislaw~er told the court: We've agreed thatwewould submit inwriting to the court the agreed portion of our stipulation, and that we will submit 

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# . .position papers on the two additional points yet to be resolved. Based upon receipt of the position papers from both parties and review of the agreed stipulation, the court will then be requested to make a decision on the two renaining points and approve the agreed-to stipulation. No written stipulation was submitted to the court, however, and it appears that more than two points remained unresolved at the time of the hearing on child support in May 1992. Having before it statements from Candy and her lawyer to the effect that several issueswere unresolved,and having no evidence thatthepartieshad reached an agreement on those issues, the court decided all the outstanding custody and visitation issues based on the position papers, as it had agreed to do at the January 31, 1992 hearing. We have held that in matters relating to children, the best interests of the children control; therefore, child custody, visitation and support cannot be left to contract between the parties. In reMarriage of Carlson (19841,214 Mont. 209,693 P.2d 496; In reMarriage of Neiss (1987), 228 Mont. 479, 743 P.2d 1022. Whether the stipulation is written or oral isunimportant,and even if both parties stipulate to custody, the court is not bound by that stipulation but may instead order a different custody arrangement in accord with thebest interests of the children. Inre Marriage of Mager (1990), 241 Mont. 78, 785 P.2d 198; In re Marriage of Converse (1992), 252 Mont. 67, 826 P.2d 937. Here, the parties' stipulation as to custody and visitation would not have been binding on the District Court even if it had been in writing. Therefore, the court was under no obligation to notify the parties that it intended to depart from their alleged oral agreement. II Did the District Court fail to provide for the besc interests of the children in its custody decree? Judge Moran's order of August 1992 actually included both a "custody decreewand amodification of thevisitation arrangements in Judge Gary's joint custody award of August 1988. The 1992 order departed from the 1988 order primarily in specifying the months in which each parent could designate the other'svisitation days during the following month. It also gave Victor more weekend time with the children during the months that Candy was the physical custodian. Lacking clarification in the 1992 order itself,we infer that the provision that "Father shall be the primary custodial parent sixmonths of theyear1' merely refers to control over schedulingof visitation and does 

## not mean that Father is to have physical custody. We base this inference onJudgeMoranisfindingsof fact, in which he stated that the parties have shared custody for the past two years "so that Mother has the children for approximately 215 days per year and Father has the children approximately 150 days per year." He found that "the children have adapted 8successfully to this amountof shared custody and haveprospered by being with each parent a substantial amount of time each month," These findings indicate that Judge Moran found the previous custodial arrangement to be in the best interests of the children, and that he intended to preserve that arrangement while altering visitation so that Victor had more weekend visitation and more control over the scheduling ofvisitation. In short,

### we infer that in the order of August 1992, the phrase "custodial parentw refers merely to control over scheduling of visitationand not tophysical custody. The court's child support order also indicates that it intended its custody order to preserve the ten-month/two-month division of physical custody, as it is based explicitly on the court's expectation that the childrenwould live with Victor five months, not six, each year. Our standard of review in this case is whether substantial credible evidence supports the court's determination. In re Marriage of Clingingsmith (1992),254Mont. 399, 404-405, 838 P.2d 417, 420-421; In re Marriage of Nash (1992), 254 Mont. 231, 234, 836 P.2d 598, 600. Joint custody is presumed to be in the best interests of the child and is awarded to assure the child frequent and continuing contact with both parents. Section 40-4-224,MCA. Physical custody should be arranged as equally aspossible between the parents to comply with the express purpose of a joint custody award,with thechild'sbest interestastheprimary consideration. In re Marriage of Ulland (1991), 251 Mont. 160, 823 ~.2d 864. The District Court must consider the factors set forth in 940-4-212, MCA, in determining whether modification of physical custody is in the child's best interest. Ulland, 823 P.2d at 869; Clinsinqsmith, 838 P.2d at 421. Candy argues that the court erred in failing to address these factors in its findings of fact and conclusionsof law. We disagree. All the statute requires is that the court consider the factors listed. It is not required to make specific findings concerning each element, though it must express "the essential and determining facts upon which its conclusions rest." Ulland, 823 P.2d at 869: Zlinqinclsmith, 838 P.2d at 421. Here, the essential and determining fact was the court's findingthattheFesolowitz children "have successfullyadaptedwto shared custody and "have prospered by being with each parent a substantial amount of time each month." The court therefore did not materially alter the amount of time the children would live with each parent--both parents testified that the childrenhad been living with Victor an average of twelve days a month--but instead specified that their time with Victor would include two weekends each month, rather than one. Candy did not object to the court's findings with regard to the children's successful adaptation, or to the number of days allotted to eachparent'svisitation orphysical custody. Instead, she appears to object primarily to the court's designation of the party who was to control the scheduling of visitation, unfortunately termed the "primary custodial parent" in Judge Moran's order. In her confidential position paper, she requested that she have control over scheduling for sevenmonths,rather than six, and that Victor's visitation include two weekends only in 10September, October and January., Thecourt evidentlywas persuadedbyVictor's argument,inhis position paper, listingnumerous activitiesthathe could not share with his childrenbecause they were not with him onmost weekends. It found that Candy had used the job-bidding process at Nortinwest Airlines to confine Victor to one weekend with the children each month,and that thisarrangement is "contraryto thebest interests of the children,because of their age and good relationship with their father." The court amended tine parties' visitation arrangements accordingly. Section 40-4-224(2), MCA, states that in a joint custody situation, "[tlhe allotment of time between theparents must be as equal as possible; however 

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# . . each case shall be determined according to its own practicalities, with the best interest of the child as the primary consideration. 

## . . .* See In re Marriage of Ward (1986), 223 Mont. 401, 725 P.2d 1211 (district court's visitation order, giving the father in a joint custody situation only 75days of visitation out of a total of approximately 170nonschool days available, was affirmed as a practical method of providing for the child's best interests). Here, the court produced an order,based on itsperception of the Fesolowitz children's best interests, that was adapted to the exigencies of the parents' airline work schedules. We conclude that substantial credible evidence supports the District Court's allocation of visitation time and control over visitation days. 111 Did the District Court err in modifying child support?Both parents requested in 1991 that the court review Judge Gary's 1988 child support order, applying the guidelines. After extensivetestimonyby theparties and their accountants, the court found thatunder theguidelines, 23.6 percent of theparents' total combined net resources was to be allocated orchiid support. Finding that theparents' total combined resources, less reasonable deductions, were $96,036 annually, it arrived at a figure of $22,664per year for child support. Candy objects to the courtisassessment of Victor's net

resources. Inparticular, she objects to the court'sdeduction of $27,205 from Victor's income and assets, reflecting lossesVictor incurred on his Big Sky condominium and an apartment house in Madison, Wisconsin, and his $7,171disability insurancepremium. In reviewing an award of child support,we presume that the judgment of the district court is correct,and we will reverse the district court only if it has abused its discretion. In re Marriage of Sacry (1992), 253 Mont. 378, 833 P.2d 1035: In re Marriage of Smith (1990), 242 Mont. 495, 791 P.2d 1373. Here, the District Court heard exhaustive testimony about Victor's rental property and concluded that he had in fact sustained a net loss on that property. Losses of this kind are legitimate business deductions, allowed by the guidelines. 

# m,791 P.2d at 1377. Disability insurance premiums arenot specified asadeduction under the guidelines. In 

### Smith, however, we concluded that the obligor in that case "should be encouraged, as a matter of public policy, to carry disability insurance. 

# . . . Consequently, the Court concludes that the disability insurance premium is a 12legitimate expense deduction under the guidelines, and is at least partially for the benefit of theminor child." 791 P.2d at 1377. Candy urges us to distinguish 

### Smith on the grounds that the obligor was a self-employed doctor, while Victor has an employer and "wouldbe covered under Workmen's [-: 

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# - Compensationprovisions in the event he was injured on the job." We are not persuaded by this argument. WorkerstCompensationbenefits would be available only if Victor were injured on the job, while his disability insurance covers injuries he might sustain while commuting, driving, skiing, and so on. We conclude that disability insurance benefits the children and that the District Court did not err in allowing Victor to deduct his disability insurance premiums. Candy argues that in reducing Victor's monthly child support obligation by over $500 a month the court ignored the standard of living the children would have enjoyed had the marriage not been dissolved. This is one of the factors the District Court must consider in awarding child support,under 5 40-4-204(2), MCA. See InreMarriage of Anderson (1988), 230Mont. 89, 748 P.2d 469 (preguidelines child support award remanded because it was not commensurate with the father's financial resources and the children's pre-dissolution standard of living). Here, the total child support award in the 1988 order, adjusted for increases inVictor's salary,was $16,200per year at the beginning of 1992. 

### In the 1992 order this was increased to $22,664per year, taking into account increases in Candy's salary

as well as Victor's. Victor's monthly payment was reduced partly because Candy's obligation was increased, pursuant to the 13guidelines, and partly because Victor is, as he testified, providing a fully-equippedhome for the children fivemonths out of every twelve. TheDistrict Court found that the total child supportaward of $22,664per yearwas "ample tomaintain thechildren in a lifestyle to which they have become accustomed." We hold that substantial credible evidence supports this conclusion, and that the District Court did not abuse its discretion in determining Victor's child supportpayments. Affinned.May 

### 18,1993 CERTIFICATEOFSERVICE 

### Ihereby certifythatthefollowingorderwas sentby United Statesmail,prepaid,to the followingnamed:

Rienne

### H.McElyea Berg,Lilly,Andriolo&Tollefsen 910 TechnologyBlvd., SuiteA Bozeman,

### MT 59715 EdmundP.Sedivy,Jr. Morrow,Sedivy&Bennett 

### P. 0.Box 1168 Bozeman,MT 59771 

### EDSMITH CLlERKOF

### THESUPREME COURT