No. 88-233 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

IN RE THE MARRIAGE OF 

LINDA KATHLEEN SYLJUBERGET, 

Petitioner and Respondent, 

and 

GARY WARREN SYLJUBERGET, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Fifteenth Judicial District, 

In and for the County of Sheridan, 

The Honorable M. James Sorte, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

K. Dale Schwanke; Jardine, Stephenson, Rlewett & Weaver, 

Great Falls, Montana 

David Cybulski, Plentywood, Montana 

Ken Hoversland, Scobey, Montana 

For Respondent : 

Loren J. O'Toole, Plentywood, Montana 

Submitted on Briefs: Aug. 26, 1388 

~ecided: September 27, 1988 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal brought by the appellant, Gary Warren 

Syljuberget, from a marital dissolution order of the 

Fifteenth Judicial District, Sheridan County, awarding Wife 

custody of the parties' only child, child support of $200 per 

month, maintenance of $200 per month for one year, one-half 

the sale proceeds of the marital home, and one-half her 

attorney's fees. We affirm the District Court on all issues. 

Husband raises five issues for our review: 

1. Whether the District Court erred in awarding sole 

custody to Wife. 

2. Whether the District Court erred in awarding F7ife 

$200 per month child support. 

3. Whether the District Court erred in distributing 

the marital estate. 

4. Whether the District Court erred in awarding Wife 

maintenance. 

5. Whether the District Court erred in awarding Wife 

one-half her attorney's fees. 

Linda Kathleen Syljuberget and Gary Warren Syljuberget 

were married June 10, 1983. On July 21, 1983, the parties 

only child, Amanda Valeta Syljuberget, was born. The 

parties' resided in the family home located at 421 East 1st 

Avenue, Plentywood, Montana. Husband owned the property 

prior to their marriage. 

The parties separated on August 8, 1985. Wife was 

given temporary custody of Amanda until trial. On September 

16, 1985, the parties stipulated to $175 per month as a 

reasonable amount of child support. Wife remained in the 

family residence in Plentywood pending dissolution. Husband 

now lives in Livingston, Montana. 
On January 23, 1987, Wife moved to hold Husband in 

contempt for failing to pay child support; Husband was in 

arrears approximately $2,525. On March 2, 1987, the District 

Court ordered Husband to pay $200 per month child support. 

In addition, the court enjoined Husband from entering the 

family residence until completion of the action. 

Husband and Wife were involved in a number of business 

ventures, beginning in 1976 and continuing until their 

separation. At various times during this period, the parties 

jointly operated stores in Billings, Montana, Crosby, North 

Dakota and Plentywood, Montana. Wife managed the day-to-day 

operations of the business, while Husband oversaw the 

financial matters. Each party financially invested in the 

stores. Husband had significant resources and extensive 

financial experience and Wife contributed cash savings and 

amounts received from the sale of two trailer homes. In 

addition, the parties obtained a number of business loans, 

including one secured by a mineral interest inherited by Wife 

which was satisfied prior to dissolution. 

Neither party drew a regular salary from their work. 

Instead, money was occasionally withdrawn from profits to 

reinvest or make loan payments and improvements to the family 

home. 

As the stores gradually became unprofitable, the 

parties were forced to liquidate other assets, including 

taking additional mortgages on the family home. Finally, the 

Plentywood store was sold at a loss. 

After separation Husband moved to Livingston, Montana, 

where he acquired two Town Pump Covenience Stores. In 

addition to his two stores, Husband owns a one-third interest 

in BOS Enterprises, certificates of deposit worth $2,225, 

various recreational vehicles and boats, and a note 

receivable worth $10,000. Husband nets approximately $8,000 
per year through his part-time accounting practice. At 

trial, financial statements were introduced evidencing 

Husband's net worth to be between $105,000 and $211,000. 

Wife works as an advertising salesperson for a local 

radio station. She earns a net salary of $694 per month, 

plus commissions of $150 per month. 

On February 22, 1988, the District Court issued its 

final decree awarding sole custody of Amanda to Wife, plus 

$200 per month child support, $200 per month maintenance for 

one year, one-half the proceeds from the sale of the family 

residence and one-half Wife's attorney's fees. 

The first issue raised by Husband is whether the court 

was correct in awarding sole custody to Wife. Husband argues 

the District Court failed to property state in its decision 

the reasons considered in making the custody award, in 

accordance with S 40-4-212, MCA. Instead, Husband argues the 

evidence supported an award of joint custody. 

The standard of review on custody issues was discussed 

in Bier v. Sherrad (Mont. 1981), 623 P.2d 550, 551, 38 

St.Rep. 158, 159: 

In order to prevail, [the appellant] must 

show an abuse of discretion by the judge, 

must demonstrate that there is a clear 

preponderance of evidence against the 

findings, and must overcome the 

presumption that the judgment of the 

trial court is correct. In reviewing the 

District Court's custody order, this 

Court need only look to the record to see 

if the factors set forth in section 

40-4-212, MCA, were considered, and then 

must determine whether the trial court 

made appropriate findings with respect to 

these criteria. (Citations omitted.) 
In all cases, the primary importance is placed on 

determining the best interest of the child. Section 

40-4-212, MCA (1985). The court shall consider all relevant 

factors including: 

(1) the wishes of the child's parent or parents as to 

his custody; 

(2) the wishes of the child as to his custodian; 

(3) the interaction and interrelationship of the child 

with his parent or parents, his siblings, and any other 

person who may significantly affect the child's best 

interest; 

(4) the child's adjustment to his home, school, and 

community; and 

(5) the mental and physical health of all individuals 

involved. 

Husband correctly asserts the District Court must 

presume joint custody is in the best interest of the child. 

However, the District Court may, under the factors set forth 

above, decline to order joint custody. Section 40-4-224(1), 

MCA (1985). In such cases, the jud.ge must enter in his 

decision the reasons for a denial. While we recognize the 

District Court's findings were not exemplary, we nonetheless 

find no error. 

This Court will not substitute its judgment for that of 

the trier of fact. "The responsibility for deciding custody 

is a delicate one which is lodged with the district court." 

In re Marriage of Manus (Mont. 1987), 733 P.2d 1275, 1277, 44 

St.Rep. 398, 401, quoting Gilmore v. Gilmore (1975), 166 

Mont. 47, 51, 530 P.2d 480, 482. "[Tlhe trial court is in 

the best position to observe the witnesses and acquire a feel 

for their credibility and character." In re Marriage of 

J.J.C. (Mont. 1987), 739 P.2d 465, 467, 44 St.Rep. 1068, 

1071. The record indicates that Amanda was well adjusted to 
her home in Plentywood, where she had many friends and 

relatives. Amanda has spent the great majority of her life 

with her mother, and they enjoy a good and continuous 

relationship. On the other hand, Mr. Syljuberget was often 

separated from his daughter, having moved to Livingston. 

During sporadic visits to Plentywood, Mr. Syljuberget 

admitted to taking Amanda into bars, for lack of any other 

place to visit. Testimony also alluded to possible alcohol 

related problems. The District Court found sole custody to 

be in Amanda's best interest. 

Additionally, parental cooperation is a key factor in 

an award of joint custody. In re Marriage of Jacobson (Mont. 

1987), 743 P.2d 1025, 1027, 44 St-Rep. 1678, 1680. The 

District Court saw no such cooperation. Indeed, the record 

reveals numerous instances of hostility, meddling and 

harassment, culminating in the temporary relief order of 

March, 1987. Viewing the record as a whole, strong evidence 

exists to support the District Court's award of sole custody 

to the wife. On this basis, we find no abuse of discretion. 

The second issue raised by Husband is the award of 

child support. Neither party disputes the appropriateness of 

child support. Husband's only complaint surrounds the amount 

awarded by the District Court. 

In reviewing child support issues, our 

standard is that the "award made by the 

District Court will not be disturbed on 

appeal unless there has been a clear 

abuse of discretion resulting in 

substantial injustice." 

In re Marriage of Tonne (Mont. 1987), 733 P.2d 1280, 1284, 44 

St.Rep. 411, 416, quoting Grenfell v. Grenfell (1979), 182 

Mont. 229, 232, 596 P.2d 205, 207. 
The District Court was well aware of the parties' 

original stipulation of $175 per month child support. 

However, evidence on the record nonetheless supports the 

trial judge's award of $200 per month. Most illustrative is 

the temporary relief order, entered March 2, 1987, ordering 

Husband to pay an additional $25 per month for past due child 

support amounts. Additionally, Husband is financially able 

to pay the amount awarded. No abuse of discretion appears in 

the District Court's award of child support. 

111. 

Third, Husband argues the District Court improperly 

distributed the marital estate. Again, this Court recognizes 

the District Court has far-reaching discretion in resolving 

property divisions in dissolution proceedings and its 

judgment will not be altered unless a clear abuse of 

discretion is shown. In re Marriage of Watson (Mont. 1987) , 

739 P.2d 951, 954, 44 St.Rep. 1167, 1170. 

Section 40-4-202, MCA (1985) , governed the division of 

property in a marital dissolution. The trial court need not 

articulate each factor separately as long as the findings are 

sufficient to allow non-speculative review by this Court. In 

re Marriage of Reid (Mont. 1987), 733 P.2d 1302, 1304, 44 

St.Rep. 500, 503. These factors give the lower court ample 

latitude to equitably divide the property. 

Husband disputes two aspects in the property division: 

the inclusion of the home in the marital estate, and the 

exclusion of Wife's mineral interest. 

First, Husband disputes the award of one-half the 

proceeds from the sale of the marital home. Because Husband 

owned the home prior to the marriage, he asserts it should 

not have been included in the marital estate. While the 

source of marital property is a factor to be considered by 
the District Court, Watson, 739 P.2d at 954, it is not 

absolutely determinative. The court is not bound to restore 

the parties to their premarital status. In re Marriage of 

Keepers (Mont. 1984), 691 P.2d 810, 813, 41 St-Rep. 2163, 

2167. Section 40-4-202(1), MCA (1985), provided in pertinent 

part: 

[IJn dividing property acquired prior to 

the marriage . . . the court shall 

consider those contributions of the other 

spouse to the marriage, including: (a) 

the non-monetary contribution of a 

homemaker; (b) the extent to which such 

contributions have facilitated the 

maintenance of this property; and (c) 

whether or not the property division 

serves as an alternative to maintenance 

arrangements. 

Under this standard, prior acquired property may properly be 

included as part of the marital assets where contributors of 

the other spouse have, for example, facilitated maintenance 

of the property. In re Marriage of Snyder (Mont. 1986) , 714 

P.2d 556, 557, 43 St.Rep. 346, 348; In re Marriage of 

Jorgensen (1978), 180 Mont. 294, 299, 590 P.2d 606, 610. In 

the present case, the house in Plentywood was undisputably 

the property of the Husband prior to the marriage. In 

evaluating the facts, we note the District Court found the 

parties had accumulated several debts during their marriage, 

including debts on the family home. The record further 

indicates these debts to be directly related to the parties' 

joint business operations. Indeed, Husband admits money was 

borrowed against the home for the express purpose of 

investing in the businesses. Certainly, a division of the 

equity in the home, upon sale, is a fair means to compensate 

Wife for her contributions. We cannot say the District Court 

abused its discretion in including the home as part of the 

marital property. 
Second, Husband disputes the lower court's exclusion of 

Wife's mineral interest as a marital asset. Husband alleges 

the mineral interest was fraudulently placed outside of the 

marital estate through a "sham" transfer. We find these 

allegations to be without basis. The record illustrates Wife 

transferred the mineral interest to her aunt and uncle in 

return for payment of various bills and expenses totalling 

over $1,500. A mineral deed transferring ownership was also 

presented to the court. No evidence, apart from Husband's 

own testimony, shows the transaction to be in bad faith. 

Accordingly, no abuse of discretion is evident. 

IV. 

Husband's fourth allegation of error focuses on the 

award of maintenance. The District Court awarded Wife $200 

per month for one year. Husband argues under $ 40-4-203, MCA 

(1985), the court may only grant maintenance if two 

conditions are present: (1) the spouse seeking maintenance 

lacks sufficient property to provide for her needs; and 

(2) the spouse is unable to support herself through 

appropriate employment. Husband contends Wife's mineral 

interest would provide her with sufficient funds. Yet as we 

have already discussed, the District Court found the mineral 

interests to be outside the marital estate. 

In determining whether maintenance should be awarded 

$ 40-4-203 (2), MCA (1985), requires the District Court look 

to a number of factors, including financial resources, 

marital standard of living, duration of marriage, and the 

ability of the spouse from whom maintenance is sought to meet 

his needs while meeting those of the spouse seeking 

maintenance. 

This Court will not substitute its judgment for that of 

the District Court. Instead, we must determine whether there 
is substantial evidence to support the findings and 

conclusions of the District Court. In re Marriage of Schenck 

(Mont. 1984), 692 P.2d 6, 8, 41 St.Rep. 2137, 2139. We find 

several factors in the record which support the District 

Court's award. Affidavits indicated Mrs. Syljuberget was 

spending virtually every penny to support herself and her 

child. These expenses do not include rent, an inevitable 

expense once the marital home is sold. Equity in the home is 

minimal. Further, Wife was not awarded significant property, 

only her personal property. Mr. Syljuberget, on the other 

hand, was awarded - all income-producing property. Given the 

facts as they are presented on the record, we ourselves may 

find the maintenance award slight. However, under the 

statutory factors discussed above, the award is just. We 

find no abuse of discretion. 

v. 

Finally, Husband contests the District Court's award of 

one-half her attorney's fees. Husband claims he is without 

resources, even to pay his own attorneys. 

Our standard of review on the payment of attorney's 

fees is whether the court abused its discretion. In re 

Marriage of Gallinger (Mont. 1986), 719 P.2d 777, 783, 43 

St.Rep. 976, 984. Under S; 40-4-110, MCA (1985), the trial 

court may order a party to pay the other party's fees after 

considering their respective financial resources. As 

discussed above, and encompassed in the court's findings, 

Wife is without funds to pay her attorney. Yet, the District 

Court found Husband to have sufficient resources. 

Most supportive of the award is not the Husband's 

financial resources as is his conduct throughout the 

dissolution proceedings. The record is replete with evidence 

indicating a majority of fees were due solely to Husband's 
lack of cooperation. Indications include demands for 

discovery, contempt proceedings for failure to pay child 

support, and an injunction from entering the family home. 

The lower court's discretion will not be disturbed if 

substantial evidence is found in the record to support the 

award. In re Marriage of Carr (19831, 205 Mont. 269, 667 

P.2d 425. We find more than substantial evidence. 

Affirmed on all issues.