No. 89-100 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

IN RE THE MARRIAGE OF: 

SHARON DARLENE GEBHARDT, 

Petitioner and Respondent, 

and 

LeROY GEBHARDT , 

Respondent and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District 

In and for the County of Missoula 

The Honorable James G. Wheelis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Richard A. Reep, Graham & Reep, Missoula, Montana 

For Respondent: 

Jon E. El..lingson, Ellingson & Moe, Missoula, Montana 

Filed: 

Submitted on Briefs: September 21, 1989 

Decided: December 5, 1989 
Justice Diane G. Barz delivered the Opinion of the Court. 

LeRoy Gebhardt (LeRoy) appeals from a Decree of 

Dissolution entered in the District Court of the Fourth 

Judicial District, Missoula County, Montana, the Honorable 

James B. Wheelis presiding. We affirm in part, reverse in 

part and remand. 

LeRoy and Sharon Gebhardt (Sharon) were married on 

October 7, 1967, in Seattle, Washington. LeRoy completed his 

Ph.d in Mechanical Civil Engineerinq shortly before the 

marriage of the parties. Sharon's education consisted of two 

years of college and a two-year x-ray technology course. 

Immediately after the marriage, the parties moved to 

California where LeRoy worked first for TRW and later for 

Agbabian & Associates. At the time of separation, Sharon had 

worked outside the home as an x-ray technician for a total of 

twelve days. 

Six children were born to LeRoy and Sharon: Connie in 

1968, Chris in 1970, Theresa in 1971, Beth in 1975, JoAnna in 

1977, and Jennifer in 1981. Both Connie and Chris were 

emancipated at the time of trial. In 1978, the parties moved 

from California to a farm in Ronan, Montana. The purpose of 

the move was to enhance the family life and provide more 

interaction between LeRoy and the children. The parties' 

primary source of income from 1978 until the present was a 

California trailer park purchased as an investment in 1969. 

LeRoy did the original investigation of the property and has 

overseen its management almost exclusively. 

In 1974, LeRoy established an irrevocable trust for the 

benefit of his children. The primary source of the trust 

corpus was an inheritance from LeRoy's mother, althouqh LeRoy 

contributed certain other inheritances and income, and 

LeRov's brother, Guy, made contributions as well. Guy 
Gebhardt is the trustee for the benefit of the children. The 

trust expires when the youngest child reaches twenty-five. 

In 1984, Sharon and the children moved to Missoula so 

that the children, each of whom had experienced some degree 

of academic difficulty, could attend school there. The 

parties then purchased a home on Mount Avenue in Missoula. 

On July 16, 1986, Sharon filed for dissolution. The assets 

owned by the parties at that time included: the farm and 

related assets in Ronan, the Mount home, the California 

trailer park, a Franklin Fund account and personal property. 

The farm, the trailer park and the home were all encumbered 

by outstanding debt. By stipulation dated September 4, 1986, 

the parties agreed to an equal division of both the Franklin 

Fund account and the proceeds of the sale of the farm assets 

as well as to a division of the trailer park income. The 

only assets not disposed of by this agreement were the Mount 

home and the parties1 personal property. Both parties 

acquired certain assets between the time of filing and 

dissolution. In particular, IleRoy purchased a home 

encumbered by a mortgage. 

On May 2, 1988, LeRoy and Sharon entered into an 

Agreement for Partial Settlement of Marital Estate. Pursuant 

to that agreement, LeRoy executed a promissory note in favor 

of Sharon as partial consideration for her share of the Ronan 

farm and its remaining assets. LeRoy also agreed to 

indemnify Sharon for any liability on the underlying contract 

for deed. 

Sharon testified as to eight incidents of LeRoyls abuse 

of either her or the children. Sharon s and LeRoy ' s 

testimony conflicted as to who instigated separate 

confrontations involving LeRoy and Sharon and LeRoy and 

Chris. Both parties agreed that corporal punishment was an 

acceptable form of discipline. 
LeRoy's specifications of error fall into three 

categories: 

1. The District Court abused its discretion by its 

wholesale adoption of Sharon's Findings of Fact and 

Conclusions of Law in light of the lack of substantial, 

credible supporting evidence. 

2. The District Court failed to consider statutory 

factors. 

3. The District Court exceeded its jurisdiction in 

ordering the parties to prevail upon the assets of the LeRoy 

Gebhardt Trust for payment of the children's medical and 

dental expenses. 

The findings of the District Court are presumed 

correct. In re the Marriage of Johnson (1987), 225 Mont. 

404, 405-06, 732 P.2d 1345, 1346. We will- not reverse the 

District Court's ruling absent an abuse of discretion. In re 

the Marriage of Johns (Mont. 1989), 776 P.2d 839, 840, 46 

St.Rep. 1249, 1251; In re the Marriage of Stephenson (Mont. 

1989), 772 P.2d 846, 848, 46 St.Rep. 700, 702. Although we 

have consistently encouraged district courts to employ 

conscientious judgment and active participation in preparing 

findings, adoption verbatim of one party's proposed findings 

is not error -- per se. In re the Marriage of Watson (19871, 

227 Mont. 383, 387-88, 739 P.2d 951, 954; In re the Marriage 

of Sessions (Mont. 1988), 753 P.2d 1306, 1307, 45 St.Rep. 

744, 746. Reversible error exists only where substantial 

credible supporting evidence is lacking. In re the Marriage 

of Stewart (Mont. 1988), 757 P.2d 765, ?67, 45 St.Rep. 850, 

852. Neither is the District Court required to make specific 

findings related to each statutory factor set forth in either 

SS 40-4-202 or 40-4-204, MCA. In re the Marriage of Reid 

(1987), 226 Mont. 116, 120, 733 P.2d 1302, 1304. However, 

the findings must clearly reflect consideration of these 
factors. In re the Marriage of Syljuberget (Mont. 1988), 763 

P.2d 323, 326, 45 St.Rep. 1825, 1828. LeRoy asserts that the 

District Court made incredible findings and failed to 

consider statutory factors in its division of marital 

property, establishment of child support and visitation. We 

will address each area separately. 

Marital Property 

LeRoy first contends that the District Court failed to 

consider certain of his obligations in apportioning the 

marital estate and thus effected an inequitable division. 

The debts at issue are as follows: 

Note to Sharon Gebhardt (Ranch) $17,404.26 

Contract for Deed to 

MacGillivary (Ranch) 65,191.49 

Home Loan 42,165.00 

Personal Loan -- Guy Gebhardt 16,000.00 

Ranch Taxes & Water Assessment 4,241.81 

1988 Income Tax -- Estimate 3,054.00 

TOTAL $148,056.56 

This case is analogous to In re the Marriage of Wagner 

(1984), 208 Mont. 369, 679 P.2d 753. Husband and wife in 

Wagner divided their marital assets and embarked upon 

divergent financial paths. Wagner, 679 P.2d at 755. Wife 

aggressively pursued development of her ranch assets whi1.e 

husband proceeded to divest himself of certain property and 

to encumber substantially all that remained. -- Wagner, 679 P.2d 

at 755. We held in Wagner that: 

To include in the valuation of the 

marital estate any accumulation of 

financial wealth or, conversely, the 

increase in financial liabilities of 

either spouse subsequent to the 

termination of the "marital relationship" 

may effectuate an injustice and frustrate 

the intended purpose of division of 

marital property. 
Wagner, 679 P.2d at 757-58. 

LeRoyls first three listed liabilities were incurred 

subsequent to the filing of the petition and the parties' 

"financial" separation. The terms of the parties' Agreement 

for Partial Settlement of Marital Estate required LeRoy to 

execute a promissory note payable to Sharon as consideration 

for her interest in the ranch. LeRoyls separately incurred 

obligation represented by the note is thus not a marital 

debt. Similarly, pursuant to the same Agreement, LeRoy 

agreed to indemnify Sharon both for any amount she becomes 

obligated to pay pursuant to the MacGillivary contract for 

deed and for any liability related to ranch taxes and 

irrigation fees. LeRoy assumed liability for all three debts 

as part of his resolution to hold the farm property and 

render it profitable. Sharon should not be penalized for 

LeRoyls investment decisions once their paths diverged in 

regard to financial matters. These debts are therefore not 

marital obligations subject to division. By his own 

testimony, LeRoy purchased a home on North Avenue with 

proceeds from the sale of the farm assets after the parties 

stipulated to equally distribute the farm sale proceeds. The 

record is unclear as to the origin of the debt to Guy 

Gebhardt and the 1988 Estimated Taxes. We remand for further 

proceedings regarding the nature and timing of these 

obligations and disposition consistent with our determinations above. 

Secondly, LeRoy asserts as error the District Court's 

award of all the equity in the Mount home and the personal 

property to Sharon despite its equal division of other, more 

significant assets. Section 40-4-202, MCA, mandates an 

equitable apportionment of marital property. Equitable does 

not necessarily mean equal. In re the Marriage of Fitzmorris 

(Mont. 1987), 745 P.2d 353, 354, 44 St.Rep. 1809, 1811. We 
will not reverse the district court absent an abuse of 

discretion. In re the Marriage of Stewart (Mont. 1988), 757 

P.2d 765, 767, 45 St.Rep. 850, 852. We do not find an abuse 

of discretion in the District Court's award of the Mount home 

and its contents in light of Sharon's custody of the four 

minor children. We affirm. 

Thirdly, LeRoy specifies as error the District Court's 

order which he claims divests both parties of substantially 

all control over the California trailer park. The District 

Court found that "[nleither party should manaqe the trailer 

park except as a short term interim manager between hired 

managers." We find the District Court's order lacked 

sufficient, credible supporting evidence. Substantial 

credible evidence will persuade a reasonable person and 

should be of such a character that reasonable persons would 

not disagree as to its meaning. Kukuchka v. Ziemet (1985), 

219 Mont. 155, 157-58, 710 P.2d 1361, 1363. We are not 

convinced that LeRoy's past management of the trailer park 

warrants his complete exclusion from the same in the future. 

Under LeRoy's supervision, this investment increased in value 

from $120,000 to $700,000 over a nineteen year period. The 

Gebhardt family has relied on this asset for its support 

since 1978. No evidence supports the District Court's 

conclusion that LeRoy should not continue to oversee the 

management of the trailer court. The lower court's order 

that the parties relinquish hands-on control of this 

singularly important asset is clearly an abuse of discretion. 

We remand for additional proceedings and redetermination of 

management of the trailer park during the period the parties 

hold the same as co-tenants. 

Child Support 
LeRoy claims the District Court improperly imputed 

excessive income to him and minimal income to Sharon in 

establishing the child support obligations of both parties. 

Furthermore, he asserts the District Court failed to consider 

statutory factors in its award of child support. 

The District Court imputed income to LeRoy of $40,000 

per year based solely on LeRoy's testimony that he supposed 

his salary would have doubled had he remained in California 

and the speculation of LeRoy's former co-worker that LeRoy 

could probably find a job in the aerospace industry. 

Additionally, the lower court found Sharon capable of earning 

barely over $3,000 per year. 

We stated upon adopting the Uniform Child Support 

Guidelines that District Courts may properly impute income to 

under-employed or unemployed parents. Uniform District Court 

Rule on Child Support Guidelines (Mont. 1987), 44 St.Rep. 

828. However, 

In cases where the obligor parent is not 

working or is not working at full earning 

capacity, the reasons for such a 

limitation on earnings should be 

examined. If the reason is a matter of 

choice, the local job market should be 

reviewed to determine what a person with 

the obligor parent's trade skills and 

capabilities could earn. Those typical 

earnings can then be imputed to the 

obligor parent for use in this guide. 

This approach is most useful when the 

obligor parent has a relatively stable 

and recent work history. The approach 

can also be used when the obligor parent 

has minimal skills and no work history by 

ascribing earnings based on a minimum 

wage for a full work week. 

Uniform District Court Rule on Child Support Guidelines, 44 
District Courts are obliged to consider the employment 

opportunities available in the local job market for 

unemployed or under-employed parents. The record does not 

reflect the District Court's consideration of local 

employment opportunities in imputing income to either of the 

parties. Sharon's income was established at approximately 

$3,000 per year with only her previous year's earnings as 

support for that finding. The court imputed $40,000 of 

income to LeRoy based only on his conjecture that had he 

remained in California, his salary might have doubled. 

Obviously, LeRoy did not remain in California. The findings 

of the trial court "[mlust realistically reflect what the 

parents are capable of earning using their actual earnings as 

a guideline. " In re the Marriage of Mitchell (Mont. 1987) , 

746 P.2d 598, 602, 44 St.Rep. 1936, 1941, (quoting In re the 

Marriage of Carlson (1981), 214 Mont. 209, 216, 693 P.2d 496, 

500). Neither LeRoy's nor Sharon's earning capacity was 

realistically reflected in the District Court's findings due 

to the lack of sufficient supporting evidence. 

Adequate consideration of statutory factors is absent 

in the District Court's findings as well. We find no 

indication that the lower court considered the needs of the 

children, their lifestyle prior to dissolution or LeRoy's 

financial resources. In re the Marriage of Anderson (Mont. 

1988), 748 P.2d 469, 471, 45 St.Rep. 40, 43. We remand for a 

calculation of both parties' child support obligation based 

on a reasonable imputation of income and in light of the 

statutory considerations set forth above. 

LeRoy also specifies as error the District Court's 

award of retroactive child support. The District Court may, 

once the issue of child support is properly before it, award 

retroactive child support. In re the Marriage of Shirilla 

!1987), 225 Mont. 106, 110, 732 P.2d 397, 399; In re the 
Marriage of DiPa-squale (1986), 220 Mont. 497, 499, 716 P.2d 

223, 225. Because the District Court abused its discretion 

in its imputation of income to both parties, the award of 

retroactive child support based on that calculation is error. 

Sharon did not seek modification of the parties' stipulation 

during the pendency of this action and only raised the issue 

of retroactive child support upon filing her Proposed 

Findings of Fact and Conclusions of Law. There was no 

testimony to support such an award. In light of the above, 

we remand for redetermination of the propriety of retroactive 

child support based on both parties' actual and reasonably 

imputed income. 

Visitation 

LeRoy contends the District Court erred by imposing 

limitations on his visitation with his two youngest child-ren. 

We agree. Section 40-4-217, MCA (1987), states that "a 

parent not granted custody of the child is entitled to 

reasonable visitation rights unless the court finds, after a 

hearing, that visitation would endanger seriously the child's 

physical, mental, moral, or emotional health." While 

portions of Sharon's proposed findings, adopted verbatim by 

the District Court, were self-serving beyond the point of 

advocacy, nowhere is there reflected a potential for serious 

endangerment. "Error occurs only when the proposed findings 

are relied upon to the exclusion of proper consideration of 

the facts and the failure to exercise independent judgment." 

In re the Marriage of Jacobsen (Mont. 1987), 743 P.2d 1025, 

1029, 44 St.Rep. 1678, 1683. 

The District Court ordered: 

Summer visitation of six weeks on the 

condition that [LeRoy] employs a 

responsible, live-in adult to provide 

assistance with care for the children 
during this period. This adult must be 

sufficiently independent of [LeRoy] and 

sufficiently committed to the children to 

be able to intervene on behalf of the 

children to interrupt any physical abuse 

directed at them by [LeRoy] . If [LeRoy] 

is unwilling to hire such an adult, then 

he shall have visitation with JoAnna and 

Jennifer during the summer consisting of 

two one week periods separated by at 

least a three week period. Given the age 

of the children and [LeRoy ' s] 

responsibilities on the farm, [LeRoy] 

shall have the obligation to obtain child 

care assistance during these visitations. 

What the court failed to set forth was any indication of 

LeRoy's ability to meet this potentially onerous financial 

burden which appears to foreclose any summer visitation. The 

District Court did not employ its independent judgment and 

abused its discretion by making findings not based on 

substantial, credible evidence. In re the Marriage of J.A.M. 

& D.A.M. (Mont. 1988), 750 P.2d 1097, 1099, 45 St.Rep. 437, 

440. F7e reverse and remand for further determination of a 

reasonable visitation schedule. 

LeRoy Gebhardt Trust 

The District Court, in Conclusion of Law No. 11, 

ordered the parties to prevail upon the trustee of the LeRoy 

Gebhardt Trust for payment of "medical insurance and expenses 

for the children including dental and ocular expenses and any 

extraordinary expenses . . ." 

The LeRoy Gebhardt Trust is an irrevocable trust 

created for the benefit of the children of LeRoy and Sharon 

Gebhardt. During the trust term, the trustee may "distribute 

to or for the benefit of Trustor's [LeRoylsl children . . . such amount or amounts of income or principal as Trustee in 

his sole discretion deems to be necessary for the health, 
education and maintenance of the beneficiaries." LeRoy's 

clear intention was to create an irrevocable trust for the 

benefit of his children. Thus, the LeRoy Gebhardt Trust is 

not marital property and the District Court erred in 

attempting to dispose of it as such. In re the Marriage of 

Malquist (Mont. 1988), 763 P.2d 1116, 1119, 45 St.Rep. 2020, 

2023-24. 

We reverse the order of the District Court and remand 

for further proceedings regarding the parties' responsibility 

for the medical and dental insurance needs of their children 

consistent with this opinion. 

Affirmed i-n part, reversed in part and remanded. 

We concur: 4~. f7 

C 'ef Justice