NO. 94-417

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

IN RE THE MARRIAGE OF

JANET MARIE HULETT,

Petitioner and Respondent,

and

JAMES P. HULETT,

Respondent and Appellant.

APPEAL FROM: District Court of the Twelfth Judicial District,

In and for the County of Hill,

The Honorable John Warner, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Patricia Jensen, Attorney at Law,

Bozeman, Montana

For Respondent:

Keith A. Maristuen, Bosch, Kuhr, Dugdale,

Martin & Kaze, Havre, Montana

Filed:

Submitted on Briefs: March 23, 1995

Decided: May 23, 1995
Justice William E. Hunt, Sr., delivered the opinion of the Court.

Appellant James P. Hulett appeals the final decree of

dissolution and order issued by the Twelfth Judicial District

court, Hill County. We affirm.

The following issues are raised on appeal:

1 . Did the District Court abuse its discretion when it

divided the parties' property?

2 . Did the District Court abuse its discretion when it

determined the amount of child support due from James?

3 . Did the District Court err when it awarded joint custody

but did not establish a specific visitation schedule?

4 . Did the district Court err when it awarded temporary

maintenance to Janet?

The parties were married on March 22, 1975, in Havre.

Respondent Janet Marie Hulett filed her petition for dissolution on

November 3, 1993. Final judgment on the decree of dissolution was

entered June 27, 1994. At the time of trial, two of the parties'

three children, Lisa (16) and Christopher (121, were minors.

Patrick (18) also lived with Janet.

James's shift at Burlington Northern Railroad in Havre is from

11 p.m. to 7 a.m. However, this shift is not permanent, nor does

the location of his job appear to be permanent. The record

indicates that he spent most of 1993 working in Great Falls while

the rest of the family stayed in Havre. His annual salary varies

from $29,000 to $37,000, depending on what job he does and the

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amount of overtime he works. Janet works as a bookkeeper in Havre

and makes $15,000 annually.

At trial, both parties submitted various exhibits and gave

testimony. The District Court spoke with both minor children.

James appeals several awards and allocations set out in the

District Court's final decree.

Relevant facts concerning each issue will be discussed below.

ISSUE l--PROPERTY DIVISION

Did the District Court abuse its discretion when it divided

the parties' property?

The appropriate standard of review is whether or not the

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

Maedje (1994), 263 Mont. 262, 265-66, 868 P.2d 580, 583 (citing In

re Marriage of McLean/Fleury (1993), 257 Mont. 55, 849 P.2d 1012).

There was an exhaustive list of the parties' property

containing 213 items, with a detailed breakdown of their values in

the final decree. This list specified which party received which

item of property.

A. Retirement Accounts: Janet's retirement account,

totalling $2363 at the time of trial, was awarded to her by the

District Court. The parties had three IRA accounts totalling

$13,697. Janet was awarded $8233 from those accounts. James has

a retirement account with BN. According to a letter he received

from the Railroad Retirement Board, Janet, as a divorced spouse, is

statutorily entitled to a portion of James's BN retirement account.

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James argues that the District Court erred in its division of the

three IRA accounts and the parties' retirement accounts.

B . Marital propertv: James disagrees with the award to

Janet of three items of marital property valued at $65. James's

argument seems to be based on Janet's proposed findings in which

those particular three items were distributed to him. He states

that the District Court's award of the $65 of personal property to

Janet contradicts evidence. He also states that in awarding her

those personal property items the District Court granted relief to

Janet that she did not request.

C . Nonmarital prowertv: Five items of personal property

that James classifies as nonmarital property were awarded to Janet.

He claims that these items were acquired by gift or inheritance, or

were owned by him prior to the marriage. The items include a

buffet/hutch ($125), a washer-dryer pair ($1501, a forge ($15),

one-half of a silver dollar collection (value not listed), and a

shelf ($5). Testimony was received that the buffet/hutch was given

to James by a neighbor. Patrick, the parties' oldest so*,

refurbished the buffet/hutch and gave it to Janet as a Christmas

gift. James received the washer/dryer set from his mother. It had

belonged to his deceased father. The silver dollars were found in

the family home when the parties moved in at the beginning of their

marriage. The home had previously belonged to James's grandmother.

There was no testimony given about the origins of the forge and the

shelf.

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Also, there was a recently established $17,000 joint savings

account in Janet's and her father's names. The account contained

the proceeds from the sale of her father's home. Testimony

indicated that the money in the account was her father's and that

he controlled the account. Janet also testified that she paid

income tax on the interest from that account. James claims that he

paid income tax on the account via a joint tax return with Janet

and contributed to the maintenance of the account thus creating an

interest in it.

D . Familv residence: At trial, the parties stipulated to a

$43,000 value for the family home. The home was appraised for

$47,000, and a market valuation report set its value at $43,000.

The District Court valued it at $46,000. Evidence was presented

concerning items on the property list that would accompany the

family home (i.e., pool table, shed, statue, and fire extinguisher)

and a $1500 savings account that was specifically for the purpose

of fixing the roof. Those items and the savings account do not

appear to be a part of the stipulated value of $43,000. James

receives the home as of September 1, 1995. He also receives the

four items listed above, and the $1500 savings account. The

District Court ordered him to purchase Janet's portion of equity in

the home for $23,000 sometime prior to his possession on

September 1, 1995. James argues that the court granted relief not

requested, that it did not provide supporting reasons for the

valuation of the home, and did not indicate that it took into

consideration James's contributions to the equity in the home.

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E . Debt allocation: James was allocated a Visa credit card

debt of approximately $775 that Janet stated she would assume.

James again asserts that a court may not grant relief not

requested.

The district court has broad discretion in its determination

and apportionment of the marital estate. The apportionment should

be equitable under the surrounding circumstances. In re Marriage

of Zander (1993), 262 Mont. 215, 221, 864 P.2d 1225, 1229 (citing

In re Marriage of Rock (19931, 257 Mont. 476, 850 P.Zd 296). If

there is substantial credible evidence to support the findings, we

will not disturb a district court's ruling without a showing that

the district court abused its discretion. Maedie 868 P.2d at 583

(citing In re Marriage of Scoffield (1993), 258 Mont. 337, 852 P.2d

664). There is substantial credible evidence to support the

District Court's decision. We hold that the District Court did not

abuse its discretion.

ISSUE 2--CHILD SUPPORT

Did the District court abuse its discretion when it

established the amount of child support due from James?

The standard of review that we employ in reviewing child

support is whether or not the district court abused its discretion

in its determination of child support. In re Marriage of D.F.D.

and D.G.D. (1993), 261 Mont. 186, 203, 862 P.2d 368, 378 (citing In

re Marriage of Nash (1992), 254 Mont. 231, 235, 836 P.2d 598, 601).

James's income was $31,097 for 1993 and $37,096 in 1992. He

estimated his 1994 income to be $29,341, based on his earnings from

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January through April 1994. James's child support calculations,

attributing an income of $29,34lto himself, resulted in the amount

of $188 per month per child. Janet's child support calculations,

attributing an income of $31,155 to James, resulted in $213 per

month per child. The District Court ordered James to pay $210 per

month per minor child. James argues that the District Court did

not make specific findings to explain how it arrived at the award

of $210 per month per child. While the District Court should have

made a specific finding as to how it arrived at its support figure,

we cannot say from this record that the District Court abused its

discretion in its award of $210 per month per child in child

support payments, given James's earning record.

The district court has discretion in setting child support

payments and in the absence of an abuse of that discretion, we will

not reverse its decision. Marriage of D.F.D. and D.G.D., 862 P.2d

at 378. We hold that the District Court did not abuse its

discretion in determining the child support amount.

ISSUE 3--CUSTODY

Did the District Court err when it awarded joint custody but

did not establish a specific visitation schedule?

The applicable standard of review of custody and visitation is

whether or not there is substantial credible evidence to support

the district court's decision. Romo v. Hicock (Mont. 1994), 871

P.2d 894, 896, 51 St. Rep. 320, 321 (citing Nash, 836 P.2d at 600).

The parties seek joint custody of the two minor children, and

James wants 50 percent of the physical custody of Christopher.

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Christopher agreed that he wanted to spend time with his father,

but appeared quite distressed about spending nights alone in the

house while James works the 11 p.m. to 7 a.m. shift. The District

Court awarded the parties joint custody, and stated that 'I [tlhe

parties shall have shared [physical] custody of Christopher so that

he may spend his time as equally as practical with both parents."

James argues that a specific visitation schedule insuring

50 percent physical custody of Christopher should have been issued

by the District Court due to the parties' inability to communicate.

There is substantial credible evidence to support the District

Court's decision. We hold that the District Court did not abuse

its discretion in awarding joint custody without a specific

visitation schedule.

ISSUE 4--MAINTENANCE

Did the District Court err when it awarded temporary

maintenance to Janet?

Our standard of review for maintenance awards is whether or

not the district court's findings are clearly erroneous. Marriaqe

of D.F.D. and D.G.D., 862 P.2d at 377 (citing In re Marriage of

Eschenbacher (1992), 253 Mont. 139, 142, 831 P.2d 1353, 1355).

The District Court awarded temporary maintenance to Janet in

the form of ordering James to pay insurance and property taxes on

the family home, and ordering him to be responsible for repairing

the roof and any other necessary major repairs on the family home

through August 31, 1995. Janet and the children will live in the

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home through August 1995. James will take possession of the home

on September I, 1995.

We hold that the District Court's decision to award temporary

maintenance is not clearly erroneous.

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court

1988 Internal Operating Rules, this decision shall not be cited as

precedent and shall be published by its filing as a public document

with the Clerk of the Supreme Court and by a report of its result

to Montana Law Week, State Reporter and West Publishing Company.

Justice

We concur:
May 23, 1995

CERTIFICATE OF SERVICE

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

to the following named:

Patricia Jensen

Attornev at Law

1822 WY Lincoln, Ste. B

Bozeman, MT 59715

Keith A. Maristuen

BOSCH, KUHR, DUGDALE, MTIN & KAZE

Box 7152

Havre MT 59501,-7152

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA