NO. 92-553 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

IN RE THE MARRIAGE OF 

CANDIS K. FESOLOWITZ 

njleja C-ANDIS DECHAINE, 

Petitioner and Appellant, 

and 

VICTOR M. FESOLOWITZ, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

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, 1993 
Justice 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 

entered by the Eighteenth Judicial District Court, 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 on July 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 for Northwest Airlines, living in Bozeman 

and Big Sky, Montana, but flying out of Detroit, Michigan. 

The Auqust 1988 Order 

A decree of dissolution was entered by Judge Gary on October 

30, 1987, "reserving until 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 

on August 9, 1988, granting the parties joint custody with 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: 

[Dluring these nine months of the school year, Victor is 

granted visitation of no less than ten days during each 
month. 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 times by the court, and 

the party causing a return to court shall he responsible 

for both attorney fees incurred. . . . 

[Dluring the two months that Victor is the primary 

custodian the reverse procedures for Candy shall apply. 

[Wlhile Candy is remarried and has a number of relatives 

in the western 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 

support was to increase at a rate equivalent to the annual increase 

in Victor's salary. 

Candy moved 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's order" that the parties 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 $98,000 and Candy's, $22,000, or its finding that the 

cost of caring for the two children was $1,000 per month. 

In September 1988, the parties 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 

younger child's seventh birthday. In Jane 1991, four months before 

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 Judge Moran on January 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 

custody and visitation arrangements ordered by Judge Gary in August 

1988, the court recessed while Candy and Victor met with their 

lawyers. On returning three hours later, Victor's lawyer told the 

court that the parties had "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 

4 
had 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 stipulation based 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 

for Victor (ten or eleven, during the ten months 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 the children two 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 

following month. It will 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 that under the child support guidelines for 

two children ages seven and 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 the District Court failed to provide for the 

best interests of the children in its custody decree; and 

3. Whether the District Court erred in modifying child 

support. 

L 

Did the District Court err in modifying a stipulation without 

notifying the parties? 

In her motion for a new trial, filed in September 1992, Candy 

6 
stated that she and Victor had agreed, in an oral stipulation at 

the January 31, 1992 hearing, that she would have physical custody 

for ten months; that Victor's visitation would include one weekend 

per month; and that she would schedule the visitation for seven 

months each year. Victoris law~er told the court: 

We've agreed that we would submit in writing to the court 

the agreed portion of our stipulation, and that we will 

submit . . . 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 

issues were unresolved, and having no evidence that the parties had 

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 re Marriage of Carlson (19841, 214 Mont. 209, 693 P.2d 

496; In re Marriage of Neiss (1987), 228 Mont. 479, 743 P.2d 1022. 

Whether the stipulation is written or oral is unimportant, 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 the best interests of the children. In 
re 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. 

I I 

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 decreew and a modification of the visitation 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's visitation 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 

six months of the year1' merely refers to control over scheduling of 

visitation and does not mean that Father is to have physical 

custody. We base this inference on Judge Moranis findings of 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 

8 
successfully to this amount of shared custody and have prospered 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 of visitation. In short, we infer that 

in the order of August 1992, the phrase "custodial parentw refers 

merely to control over scheduling of visitation and not to physical 

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 children would 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), 254 Mont. 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 as possible between 

the parents to comply with the express purpose of a joint custody 

award, with the child's best interest as the primary consideration. 

In re Marriage of Ulland (1991), 251 Mont. 160, 823 ~.2d 864. 

The District Court must consider the factors set forth in 

9 
40-4-212, 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 

conclusions of 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 

finding that the Fesolowitz children "have successfully adaptedw to 

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 children had 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 each parent's visitation or physical 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 seven months, rather than 

six, and that Victor's visitation include two weekends only in 

10 
September, October and January., 

The court evidently was persuaded by Victor's argument, in his 

position paper, listing numerous activities that he could not share 

with his children because they were not with him on most 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 this arrangement is "contrary to the best 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 the parents must be as 

equal as possible; however . . . 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 75 days of visitation out of a total of approximately 170 nonschool days available, was affirmed as a practical method of 

providing for the child's best interests). 

Here, the court produced an order, based on its perception 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 

extensive testimony by the parties and their accountants, the court 

found that under the guidelines, 23.6 percent of the parents' total 

combined net resources was to be allocated or chiid support. 

Finding that the parents' total combined resources, less reasonable 

deductions, were $96,036 annually, it arrived at a figure of 

$22,664 per year for child support. 

Candy objects to the court is assessment of Victor's net 

resources. In particular, she objects to the court's deduction of 

$27,205 from Victor's income and assets, reflecting losses Victor 

incurred on his Big Sky condominium and an apartment house in 

Madison, Wisconsin, and his $7,171 disability insurance premium. 

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 are not specified as a deduction 

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 

12 
legitimate expense deduction under the guidelines, and is at least 

partially for the benefit of the minor 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 "would be covered under Workmen's [-: ,,,I - Compensation provisions 

in the event he was injured on the job." We are not persuaded by 

this argument. Workerst Compensation benefits 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 

In re Marriage of Anderson (1988), 230 Mont. 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 in Victor's salary, was $16,200 per year at 

the beginning of 1992. In the 1992 order this was increased to 

$22,664 per 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 

13 
guidelines, and partly because Victor is, as he testified, 

providing a fully-equipped home for the children five months out of 

every twelve. 

The District Court found that the total child support award of 

$22,664 per year was "ample to maintain the children 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 

support payments. 

Af f inned. 
May 18, 1993 

CERTIFICATE OF SERVICE 

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

following named: 

Rienne H. McElyea 

Berg, Lilly, Andriolo & Tollefsen 

910 Technology Blvd., Suite A 

Bozeman, MT 59715 

Edmund P. Sedivy, Jr. 

Morrow, Sedivy & Bennett 

P. 0. Box 1168 

Bozeman, MT 59771 

ED SMITH 

CLlERK OF THE SUPREME COURT