IN THE SUPREME COURT OF THE STATE OF MONTANA

IN RE THE MARRIAGE OF JEFFREY L.RONSHAUGEN,

KIMBERLY JEAN RONSHAUGEN, Respondent/Respondent.

APPEAL FROM: District Court of the Eighth Judicial District, In and for the County of Cascade, The Honorable Thomas McKittrick, Judge presiding.

COUNSEL OF RECORD: For Appellant: Daniel L. Falcon, Matteucci, Falcon, Squires & Lester,Great Falls,Montana For Respondent: Joan E. Cook & M. Gene Allison, Law Offices of Joan E. Cook,Great Falls,Montana

Filed: Submitted on Briefs: April 18, 1996 Decided: August 15, 1996

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### /Justice James C. Nelson delivered the Opinion of the Court.

Pursuant to Section 

### I, Paragraph 3(c),Montana Supreme Court 1995 Internal Operating Rules, the following decision shallnot be cited asprecedent and shallbe publishedby its filingas apublic document with the Clerk of the Supreme Court andby a report of its result to State Reporter Publishing Company and West Publishing Company. Appellant Jeffrey Ronehaugen appeals from the findings of fact, conclusions of law and order entered by the Eighth Judicial District Court, Cascade County, dissolving his marriage with his wife Kimberly, dividing the parties1property, and awarding child support, custody,and visitation. we affirm. ISSUES Jeffrey raises the following issues on appeal: 1) Did the District Court err in changing primary physical custody of the parties' three minor children from Jeffrey to Kimberly? 2) Did the District Court err in calculating child support based on Jeffrey'sincome earned the previous year? 3) Did the District Court err in its division of theparties' personal property? 4) Did the District Court err in awarding Kimberly attorney fees? BACKGROUND Jeffreyand Kimberly Ronshaugen were married onApril 1,1988, in Seattle,Washington. Three children,now ages 7,5,and 4,wereborn of the marriage. The parties acquired real property inGreat Falls, Montana,which they sold when they separated in May 1993. At the time of the separation, Jeffrey worked for Cascade Circulation, a telemarketing firm, earning $74,207 in 1994. Becausehe thought that he might be laid off from employment and to gain more flexible hours. Jeffrey voluntarily terminated his position with Cascade Circulation and became self-employed, reducing his income to approximately $37,000. In his new job, Jeffrey had to work on weekends. Jeffreypetitioned fordissolutionof the marriage on June 23, 1993 and moved the District Court for temporary custody of the children. The court awarded theparties joint custody with primary physical custody with Jeffrey and first only allowed Kimberly supervised visitation but later allowed her unsupervised visitation. Upon Kimberly'srequest,the District Court appointed

an attorney to represent the children. The District Court also granted Kimberly'smotion to conduct psychological evaluations on the children. Followingtrial,the attorney for the children filed



### a recommendation that primary physical custody be changed to Kimberly. OnAugust 15, 1995,the District Court issued its findingsof fact, conclusions of law and order, granting the parties joint custody with primary phys'ical custody with Kimberly, awarding Jeffrey visitation for two days in alternating weeks, visitation for alternating holidays, and 30 consecutive days in the summer, awarding child support of $1,224per month to Kimberly, orderingJeffrey topay 95% of all uncovered medical expenses,and ordering Jeffrey to pay one-half of Kimberly's attorney fees. Jeffrey appeals the District Court'sfindings of fact, conclusions of law and order. DISCUSSION 1) Did the District Court err in changing primary physical custody of the parties' three minor children from Jeffrey to Kimberly? We review a district court's award of child custody to determine whether the district court's findings are clearly

erroneous. In re Marriage of DeWitt (1995),273 Mont. 513, 516, 905 P.2d 1084,1085 (citingIn reMarriage of Dreesbach (1994),265 Mont. 216, 220-21,875 P.2d1018,1021)


### . The findingsof factmust be based on substantialcredible evidence andwill be upheld unless it is shown that the District Court clearly abused its discretion. Marriaqe of DeWitt, 905 P.2d at 1085. Jeffrey contends that in light of the applicable law and public policy, the District Court abused its discretion by appointing Kimberly as the primary physical custodian of the children. A district court must determine child custody in accordance with the best interests of the child as set forth in § 40-4-212, MCA. However, the court need not make specific findings on each factor of § 40-4-212,MCA. Marriaqe of Dreesbach, 875 P.2d at 1021.In the instant case, the findings of fact and conclusions of law indicate that the District Court considered the best interestsof the children. Specifically, the District Court noted that Kimberly's "work,daycare, and living arrangements appear to be

more suited to a stable lifestyle for the children." Additionally, the District Court found that the oldest daughter expressed a desire to spendmore time with her mother, that Kimberly'smother would be available to provide day care for the children, that Kimberly's treating psychiatrist opined that Kimberly could adequately parent her children and does not present a danger to herself or her children,and that although both parents expressed

concerns about the threat of physical abuse or chemical abuse, neither appears to be a current factor that would favor one parent over the other. Accordingly,we conclude that there is substantial credible evidence to support the District Court'sdeterminationof child custody,and therefore, the court'sfindings are not clearly

erroneous. 2) Did the District Court err in calculating child support based on Jeffrey'sincome earned the previous year? Jeffrey contends that the District Court erred in calculating child support by imputing excessive income to Jeffrey and too little income to Kimberly. We review a district court'saward of child support to determine if the District Court abused its discretion. Marriaqe of ~ewitt, 905 P.2d at 1086 (citing In re Marriage of Craib (1994),266 Mont. 483, 490, 880 P.2d 1379,1384). Section 40-4-204,MCA, sets forth the standards that a district court must consider when awarding child support. Furthermore, Title 46, Chapter 30 of the Administrative Rules ofMontana sets forth the guidelines that must be used in all cases awarding child support. See also Brandon v. Brandon (1995) 

### , 271 Mont. 149, 152, 894 P.2d 951, 953. We have held that a district court may impute income to under-employed or unemployed parents after examining the reasons for the limitationon the earnings. In

re Marriage of Gebhardt (19'89),240 Mont. 165, 171, 783 P.2d400, 404. 

### A district court is obliged to consider the employment opportunitiesavailable in the local jobmarket forunder-employed parents. In the instant case, the District Court based its award of $1,224per month in child support on Jeffrey'sgross income for 1994. The court based its child support calculationson Jeffrey's demonstrated ability to earn $74,207 and on its finding that Jeffrey voluntarily terminated his employment with Cascade Circulation and therefore voluntarily took a 50% cut in pay. The District Court clearly examined Jeffrey'sreasons for leaving his jobwith Cascade Circulation and acknowledged that Jeffrey thought that he might be laid off, but the court nonetheless found that Jeffrey left his job voluntarily. Because the District Court examined Jeffrey's reasons for taking a lower paying job before imputing income to him, we conclude that the District Court did not abuse its discretion in calculating child support based on Jeffrey's income earned the previous year. 3) Did the District Court err in its division of the parties' personal property?Jeffrey contends that the District Court erred in equally dividing the proceeds from the sale of the parties' real property, the proceeds from the parties' joint bank accounts and erred in dividing Jeffrey's life insurance and pension without hearing testimony on them. Specifically, Jeffrey claims that Kimberly did not present substantialcredible evidence regarding thedivisionof the marital estate We review a district court'sdivision of marital property to determine whether the district court'sfindingsof fact are clearly erroneous. Marriase of DeWitt, 905 P.2d at 1087 (citing In re Marriage of Smith (1995),270 Mont. 263, 267, 891 P.2d 522, 525). Where substantial credible evidence supports the court's findings and judgment, this Court will not alter the district court's decision unless there is an abuse of discretion. Marriaqe of DeWitt, 905 P.2dat 1087. Section 40-4-202, MCA, directs a district court to equitably apportion between the parties the property and assets belonging to either orboth. Similarly,we have granted broad discretion to the district courts to equitably apportion marital assets. See In re Marriage of Danelson (1992),253 Mont. 310,317, 833 P.2d 215, 219- 20. Here, the record supports that the proceeds from the sale of real property amounted to $2,983.44 and the joint bank accounts totalled $7,126.72. TheDistrict Court concluded that these assets should be divided equitably and equally. Moreover, Jeffrey included his life insurance and pension on his list of property.Accordingly, we hold that substantial credible evidence supports the District Court'sfindings and judgment and there is nothing in the record to indicate that the District Court abused its discretion in apportioning the marital estate. 4) Did the District Court err in awarding Kimberly attorney fees? Jeffrey contends that the District Court erred in failing to accurately consider Kimberly's financial resources when awarding her attorney fees. We review an order granting attorney fees for an abuse of discretion. In re Marriage of Barnard (1994), 264 Mont. 103, 109, 870 P.2d 91, 95. Therefore, when reviewing a grant of attorney fees, this Court will not disturb a District Court's findings on appeal if substantial credible evidence supports those findings. In re Marriage of Hall (1990),244 Mont. 428, 436, 798 P.2d 117, 122. Section 40-4-110,MCA, gives a district court discretion, after considering the financial resourcesof bothparties, to award attorney fees. Marriaqe of Barnard, 870 P.2dat 95. 

### "Anaward of attorney fees under this statute must be based on necessity, must be reasonable, and must be based on competent evidence."Marriaqe of Barnard, 870 P.2dat 95. In Marriaqe of Barnard, we held that the party requesting attbrney fees must make a showing of necessity. Although Jeffrey contends that Kimberly's "financialpicture was not asbleak as shepresented,"Kimberly contendsthat shepays for her own auto insurance and that she was $15,000 in debt at thetime of trial. Moreover, the District Court found that Kimberly makes approximately $500 a month working for a log manufacturing business, but that her total monthly expenses total more than $1,200. The District Court also noted that Kimberly borrows money fromher mother to cover the monthly deficit. After reviewing the record, we conclude that the District Court did not abuse its discretion. We hold that substantial credible evidence supports the District Court'sconclusion that the award of attorney fees was based on necessity. Affirmed



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We Concur: -R

Chief Justi