NO. 85-70 

IN THE SUPREME COIJRT OF THE STATE OF MONTANA 

1985 

IN RE THE MARRIAGE OF 

CARLIN RUSSELL ALT, 

Petitioner and Appellant, 

and 

JUANITA SUSAN ALT 

Respondent and 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: 

John R. Cobb, Augusta, Montana 

For Respondent: 

Graybill, Ostrem, Warner & Crotty; Gregory H. Warner, 

Great Falls, Montana 

Submitted on briefs: Aug. 22, 1985 

Decided: October 31, 1985 

X fi?, & 

Clerk 
Mr. Chief Justice J. A. Turnage delivered the Opinion of the 

Court. 

The husband appeals from two decrees of the District 

Court of the Eighth Judicial District, Cascade County, awarding custody, support, and visitation and dividing the property of the parties. 

Because the District Court has considered the factors 

delineated by 5s 40-4-110, -202, -203, -204, -212, and -223, 

MCA, and because the District Court's findings are generally 

supported by the record, we cannot say that the District 

Court abused its discretion on most of the issues. The 

decrees are generally affirmed, hut we remand on the creation 

of the trust out of appellant's inherited property. 

Appellant raises the following issues for the Court's 

consideration: 

1. Whether the District Court abused its discretion in 

adopting respondent's findings of fact and conclusions of law 

as to custody, child support and visitation. 

2. Whether the District Court abused its discretion in 

not allowing joint custody of the child between respondent 

and appellant. 

3. Whether the District Court allowed liberal visitation of the child to appellant. 

4. Whether the District Court abused its discretion in 

awarding the amount of child support. 

5. Whether the District Court failed to exercise 

independent judgment in distribution of the marital assets 

and erred in adopting respondent's findings of fact and 

conclusions of law as to the property settlement. 

6. Whether the District Court erred in adopting the 

respondent's method of creating a trust for the child. 
7. Whether the District Court abused its discretion in 

awarding temporary maintenance to respondent. 

8. Whether the District Court abused its discretion in 

awarding costs and attorney fees to respondent. 

Appellant (petitioner below) and respondent married on 

March 28, 1975. Their only child was born January 6, 1980. 

The parties separated in early February 1983. Appe1 lant 

works full time as a mechanic, earning about $25,000 per 

year. Respondent was a homemaker during most of the marriage 

but attended an airline vocational school after the parties 

separated in 1983 and current]-y works in a travel agency in 

Great Falls earning about $9,000 per year. 

The District Court awarded custody of the minor child 

to the respondent. Appellant's visitation includes every 

other weekend from Friday evening to Sunday evening and one 

evening per week in addition to alternate major holidays and 

two weeks during the summer months. The court also ordered 

appellant to pay $300 per month in child support. That child 

support is to be made through an assignment of his earnings. 

Appellant was required to make an assignment of his earnings 

because of his past history in failing to meet his child 

support obligations. 

The District Court found that both parties had contributed equally to the property acquired during the marriage 

through their respective efforts. This property was valued 

at about $10,000, including the equity of $3,200 in their 

residence, three vehicles and a portable sawmill. In distributing the property, the court also considered property 

valued at about $90,000 that appellant inherited from his 

father subsequent to the parties' separation. The parties 

had outstanding bills totalling about $6,600. The bulk of 
these debts are associated with the costs of respondent's 

vocational schooling. 

The District Court awarded all the marital. estate 

except the residence to appellant. The former residence was 

to be sold with the proceeds applied to the outstanding 

bills. Appellant is solely responsible for the remaining 

outstanding bills as part of the temporary maintenance to 

respondent. In order to give respondent an approximately 

one-half share of the property accumulated during the marriage, the court ordered appellant to pay respondent $5,000. 

The court also awarded all of the inherited property to 

appellant subject to the following provision: 

To protect and promote the best interests of the minor child, in the event 

any of said real property is sold prior 

to the minor child's eighteenth 

birthday--one-third, (1/3) of the proceeds of su.ch sa-le after deductions of 

legitimate costs of sale shall be set 

aside and placed in trust, for the 

benefit of [minor child], with said 

funds to be applied to the expense of 

higher education, vocational training 

and general welfare, said trust to 

terminate and be distributed to said 

minor child on his eighteenth birthday 

or when he otherwise attains majority. 

Appellant claims that the District Court abused its 

discretion by adopting respondent's proposed findings and 

conclusions as to custody, child support and visitation which 

were clearly erroneous. We will apply the rule we adopted 

for a simil-ar claim in Kowis v. Kowis (1981), 658 P.2d 1084, 

Where, as here, findings and conclusions 

are sufficiently comprehensive and 

pertinent to the issue to provide a 

basis for decision, and are supported by 

the evidence, they will not be 
overturned simply because the court 

relied upon proposed findings and conclusions submitted by counsel. 

Appellant disputes specific findings of fact which the 

District Court adopted from respond.ent's proposed findings. 

We have reviewed the transcript, and while there is conflicting testimony, there is substantial credible evidence to 

support the findings and conclusions of the District Court. 

As such, we have no reason to overrule those findings and 

conclusions. 

The next issue we will consider is whether the District 

Court abused its discretion in not permitting joint custody 

of the child between respondent and appellant. To develop 

this issue, appellant claims that the District Court did not 

consider all of the factors required by S 40-4-212 and 

5 40-4-223, MCA, in awarding custody of the minor child to 

respondent. We disagree. 

The applicable sections of the Montana Code Annotated 

are as follows: 

40-4-21.2. Best interest of child. The 

court shall determine custody in accordance with the best interest of the 

child. The court shall consider all 

relevant factors including: 

(1) the wishes of the child's parent or 

parents a.s 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 ment.al and physical health of 

all individuals involved. 

and 

40-4-223. Award of joint or separate 

custody. In custo3 dispute~involving 

both parents of a minor child, custody 

shall be awarded to the following according to the best interests of the 

child. as set out in 40-4-212: 

(1) to both parents jointly pursuant to 

40-4-224; the court, in its discretion, 

may require the submission to the court 

of a plan for the implementation of the 

joint custody order; or 

(2) to either parent. In making an 

award to either parent, the court shall 

consider, along with the factors set out 

in 40-4-212, which parent is more likely 

to allow the child frequent and continuing contact with the noncustodial pa-rent 

and may not prefer a parent as custodian 

because of the parent's sex. The court, 

in its discretion, may require the 

submission to the court of a plan for 

the implementation of the custody order. 

The District Court made a number of specific findings 

of fact in its decree relevant to these criteria and then 

sums the matter up in its Findings XI1 and XIII: 

The court has considered the prospect of 

joint custody; based upon the findings 

herein, the present custody arrangements, and the living and working requirements of the parties, the court 

finds the best interest of the child 

will be served with custody remaining 

with Respondent JUANITA ALT. 

Based upon the criteria set forth in 

40-4-212, as well as 40-4-222 through 

40-4-225, MCA pertaining to joint and 

separate custody, including the wishes 

of the parties herein, the 

inter-reaction and inter-rela.tionship of 

the child with his parents, and any 

other person who may significantly 

affect the child's best interests, the 

child's adjustment to his home, community and environment, and the mental and 

physical health of all individuals 
involved, and: the custodial parent 

allowing frequent and continuing contact 

with the non-custodial parent, the Court 

finds that the best interests of the 

child will be served awarding custody to 

Respondent JUANITA SUSAN (ALT) MATTHEWS 

with reasonable and liberal rights of 

visitation to the Petitioner RUSSELL 

ALT, as hereinafter set forth. 

As stated earlier, these findings are supported by the 

record. In view of these findings by the District Court, 

appellant's claim that the required criteria in awarding 

custody were not considered borders on frivolous. 

111 

The District Court found tha.t appellant is entitled to 

"reasonable and liberal rights of visitation." Appellant 

claims the court then abused its discretion by contradicting 

itself and not awarding "liberal" visitation. Appellant's 

visita.tion includes every other Friday evening to Sunday 

evening and one evening per week in addition to alternate 

major holidays and two weeks during summer months. We will 

not quibble with the District Court's definition of liberal. 

The visitation award is reasonable if not liberal and we 

affirm. 

Appellant also challenges the District Cour-t's child 

support award by claiming the statutory criteria were not 

considered. The applicable statute is: 

40-4-204. Child support. In a proceeding for dissolution of marriage, legal 

separation, maintenance, or child support, the court may order either or both 

parents owing a duty of support to a 

child to pay an amount reasonable or 

necessary for his support, without 

regard to marital misconduct, after 
considering all relevant factors 

including: 

(1) the financial resources of the 

child; 

(2) the financial resources of the 

custodial parent; 

(3) the standard of living the child 

would have enjoyed had the marriage not 

been dissolved; 

(4) the physical and emotional condition 

of the child and his educational needs; 

(5) the financial resources and needs of 

the noncustodial parent; and 

(6) for the purposes of determining a 

minimum amount for support, the amount 

received by children under the AFDC 

program, as defined in 53-2-702. 

Appellamt cl-aims that the court onl-y considered his financial 

resources. The d.ecree of the District Court and the testimony, however, indicates that all the statutory criteria were 

considered. Child support awards 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 Brown (1978), 179 Mont. 417, 426, 587 ~.2d 

361, 367. We cannot say that the District Court erred in 

awarding $300 per month for the support of the minor child. 

The fifth issue raised by appellant is similar to the 

first issue considered. Appellant argues that the District 

Court erred by failing to exercise independent judgment by 

adopting responderit's proposed findinss of fact as to the 

property settlement. Again, however, as with the findings 

regarding custody, the District Court's findings are supported by the record, and we affirm. 
The standard for review of findings made by a District 

Court is the same whether the District Court prepared the 

findings or adopted a party's proposed findings. In re 

Marriage of Goodmundson (Mont. 1982), 655 P.2d 509, 511, 39 

St.Rep. 2295, 2297. Error occurs when the proposed findings 

are relied upon to the exclusion of the proper consideration 

of the facts and the exercise of independent judgment. In re 

the Marriage of Hunter (Mont. 1982), 639 P.2d 489, 495, 39 

St.Rep. 59, 67. Here, the record reflects conscientious 

concern and participation by the District Court. 

There is one specific finding that appellant objected 

to under this issue on which we will comment. Appellant 

argues that the property he inherited from his father subsequent to the separation should not have been considered in 

the property division. 

Under S 40-4-202, MCA, the District Court must consider 

future acquisition of assets in proceedings to divide property following dissolution of marriage. In Goodmundson, 655 

P.2d at 512, we determined that S 40-4-202, MCA, made the 

husband's expectation of a sizeable inheritance a valid 

consideration in the equitable distribution of the marital 

property. If an expectation of inheritance is a valid consideration in the distribution of marital property, so also 

is an actual inheritance a valid consideration in such proceedings even if not actually classified as marital property. 

The District Court did not err in considering appellant's 

inheritance. On the contrary, the court may have erred had 

it not made such a consideration. 
Appell-ant claims the District Court abused its discretion by adopting respondent's method of creating a trust for 

the child. We have already applied the law in this opinion 

that the District Court does not abuse its discretion simply 

by adopting a party's proposals. However, there is an abuse 

of discretion where the court adopts a proposed trust that is 

beyond the authority of the court to order. Here, the trust 

adopted by the District Court goes beyond the authority 

granted in 5 40-4-202(2), MCA. 

Section 40-4-202(2), MCA, provides: 

(2) In a proceeding, the court may 

protect and promote the best interests 

of the children by setting aside a 

portion of the jointly and separately 

held estates of the parties in a separate fund or trust for the support, 

maintenance, education, and general 

welfare of any minor, dependent, or 

incompetent children of the parties. 

Such trusts, then, by the language of the statute, are to be 

established only for support and maintenance of minor, dependent incompetent children. The trusts are compliance with Montana law that a parent's obligation to 

support a. child ends upon the child becoming eighteen years 

old, Chrestenson v. Chrestenson (1959), 180 Mont. 96, 97, 589 

P.2d 148, 150, unless the child is retarded or otherwise 

unable to care for itself. In re Marriage of Wolfe (Mont. 

of Maberry (1979), 1.83 Mont. 210, 221, 598 P.2d 1115, 1116. 

The trust created the District Court's property 

settlement decree would be distributed to the child on his 

eighteenth birthday. The child is not retarded, incompetent 

or disabled. The trust would therefore go to support the 

child after the parent's obligation of support had end.ed. As 
such the trust is contrary to S 40-4-202(2), MCA, and Montana 

law and cannot be upheld. 

VII 

There is no need to deal with appellant's final two 

issues in any detail. Much of what we could say would repeat 

our earlier conclusions in this opinion. 

We have read the applicable statutes, the testimony and 

the District Court's findings and conclusions and can find no 

abuse of discretion. 

The District Court judgment is affirmed on seven of the 

eight issues raised by appellant. We remand to the District 

Court only on the sixth issue for additional findings of fact 

pertinent to the need for a trust. If the District Court 

finds that a trust is needed in addition to child support to 

provide for the minor child, the District Court may then 

establish one. The trust must go for the support, maintenance, education, and general welfare of the child only prior 

to his eighteenth birthday. 

Costs to respondent. 

We concur: