No. 86-36 IN THE SUPR.EMECOURT 

### OF THE STATEOF MONTANA 1987

INRE THEMARRIAGE OF CAROLA. SHIRILLA, Petitionerand Respondent, and STEVENJ. SHIRILLA, Respondentand Appellant.

APPEAL FROM: DistrictCourt 

### of the Third JudicialDistrict, Inand for the County of Powell, TheHonorable Robert Boyd, Judgepresiding.

COUNSEL OF RECORD:

ForAppellant: CharlesA. Graveley, Helena,Montana

For Respondent: Johnson,Skakles & Kebe;Greg J. Skakles,Anaconda, Montana

Submitted onBriefs: Sept. 11, 1986 Decided: January 13,1957

a, ' . :-, .< 

### J.QJYi.;j;,;:-i Filed: 

# 4?,~ Clerk

### Mr. Justice William E. 

### Hunt, Sr., delivered the Opinion of the Court.

This is an appeal by Steven Shirilla from the findings of fact and conclusions of law and judqment entered by the DistrictCourt of the Third JudicialDistrict,PowellCounty, granting dissolution of the parties' marriage and ordering child support, a property settlement and attorney fees. We affirm and modify the judgment. Steven raises six issues on appeal. (1) Whether the trial court erred when it determined the relative contribution of the parties to the acquisition of marital assets. (2) 

### Whether the trial court erred when it determined that the entire support of the minor child was borne by Carol. (3) 

### Whether the trial court erred when it required Steven to pay the attorney fees incurred by Carol.

(4) 

### Whether the trial court erred in its award of sole custody of theminor child toCarol. (5) 

### Whether the trial court erred in its determination of child support to be paid by Steven, and in making that support retroactive.

(6) Whether the trial court erred in its divisionofmarital property by awarding the house to Carol with Steven receiving no benefit therefrom until theminor child reachesmajority. Steven and Carol Shirilla were married in February, 1982. At 

### the time of the marriage, Stevenwas aphysician at Deer Lodge Clinic who makes approximately $56,990 per year and Carol was a medical technologist at Powell County Memorial Hospital who makes $21,400 per year. One child was born during the marriage, Beth Ann, who was born July 6, 1983. In October, 1983, the parties separated and Steven established his residence on the grounds at Galen State

### Eospital. Steven's housing is provided for him on the hospital grounds. He pays $186 a month for rent which includesutilities. A petition for dissolution was filed in October, 1983. From the date of the separation, Steven paid one-half the house payment ($330) and $200per

### month in 

### child support. In July, 1984, the Court entered an order dissolving the marriage and retaining jurisdiction over custody, supportand the property division. As of July, 1984, Steven stopped making house payments and paying child support. Since Carol only made one-half the house payment and Steven was not making the other half, the Bank threatened to foreclose the mortgage. Carolhad toborrow over $8,000 from her relatives tobring thepayments current toprevent foreclosure. In October, 1985, following a 

### hearing on the issues the District Court entered its findingsof fact,and conclusions of law. TheCourtgranted sole custody of BethAnn to Carol, with reasonable visitation for Steven. The court also granted Carol use of the family residence until the minor child reached the age ofmajority, and required eachparty to make one-half the house payment. Stevenwas directed to pay support in the amount of $635 per month, and was ordered to pay the attorney fees incurredby Carol. The District Court also made a division of other assets acquired during the marriage which isnot an issueon this appeal. At the outset, we note that ferreting out appellant's arguments was a 

### difficult and time consuming task because appellant had listed issues presented for review that were not briefed and failed to brief some issues that were raised. Counsel are admonished to conform their briefs to Rules 23 

### through 27,

### M.R.App.Ci17.P.

### The first issue on appeal is whether the court erred when it determined the relative contribution of the parties to the acquisition ofmarital assets and failed to determine the net worth of the marital estate. While the issue is 

### phrased, as above in the appellant's brief, the argument refers to the fact that Steven brought a 

### higher net 

### worth into the marriage and that he wanted the house sold and the balance divided. In reviewingthe judgmentof the court belowwe note the standard of review in Marriage of Gallinger and Weissman (Mont. 1986), 719 P.2d 777, 780, 43 

### St.Rep. 976,979: In dividing property in a 

### marriage dissolution the district court has far reaching discretion and its judgmentwill not be altered without a showing of clear abuse of discretion. The test of discretion is whether ' 

### the trial court acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice. Also see, InRe Marriage ofWessel (Mont.1986), 715 P.2d 45, 50, 43 St.Rep. 405, 411; citing Becker v. ~ecker(~ont.

While it may be true that Steven brought more assets into the marriage, the statute requires the marital property be "equitablyapportion[ed] between the parties

# .

# ..however andwhenever acquired andwhether the title thereto is in the

name of thehusband orwife orboth

# . .

# ." Section 40-4-202, MCA. The court is not bound to restore the parties to their premarital status. In Re Marriage of Keepers (~ont. 1984),

Next, Steven contends that the family home should have been sold and the profits divided. The District Court ordered Steven to continuepaying one-half thehousepayment-s until the child reaches 18. 

### At that time the house will besold and the first $2,000 goes to Steven, the next $1,336 to Carol and the balance will be divided equally. This Court has in thepast approved ofhaving both parties contribute to maintain the family home until such time as the minor children are grown. Marriage of Ryan (Mont. 1986)

## , 720 P.2d 691, 43 St.Rep. 1163; Marriage of Hereford (Mont. 1986), 723 P.2d 960, 43 St.Rep. 1508. The District Court did not abuse itsdiscretion in making such an order. The second issue on appeal is whether the court erred when it determined the entire support of theminor child was borne by Carol since July, 1984. The District Court found: That since July of 1984, [Steven! has made no payment for the support and maintenance of the minor child, Reth Ann Shirilla, and her entire supporthas been provided by [Carol]herein. Steven alleges he has been paying $200 a month into a trust fund for Beth Ann. This may be so, hut the fact remains that he hasmade nopayments to Carol so shehasbeen providing for all of Reth Ann's support. Steven argues the Court erred by making child support retroactive to the date of the lastpayment in July, 1984. He contends thisviolates § 40-4-208, MCA,which allows a court tomodify support only as to future payments, not retroactively. Section 40-4-208, NCA, applies only to actions to modify existing support payments. This Court has held that once the issue of child. support is placed before the court by the pleadings, the court has jurisdiction to award child support payments retroactive to the time of the separation of the parties. Marriage of DiPasquale and Getz (Mont. 1986), 716 P.2d 223, 43 St.Rep. 557. The District Court. did not err in making child support payments retroactive to the date of dissolution.The third issue on appeal iswhether the District Court erred when it ordered Steven to pay Carol's attorney fees. Section 40-4-110, MCA, allows the District Court to award attorney fees after considering the financial resources of both parties. An award of attorney feesunder the statute is "largely discretionary with the District Court and we will not disturb its judgment in the absence of an abuse of that discretion." In Re the Marriage of Johnston (~ont.1986), 726 P.2d 322, 326, 43 St.Rep. 1808, 1813, quoting In Re Marriage of Mila-novich (Mont. 1985), 697 P.2d 927, 929, 42 St.Rep. 436, 439; Talmage v. Gruss (1983), 202 Mont. 430, 41.2, 658 P.2d 419, 420. The record indicates that the financial resources of both parties were considered. The District Court did not abuse its discretion in a.warding attorney fees to Carol. Next, Steven contends the District Court erred by awarding sole custody of Eeth Ann to Carol. The District Court made these findingsof fact on custody. 14. That following the separation of the parties herein, [Steven] voluntarily restricted his visitation with theminor child,BethAnn,upon the advice of Counsel and of Dr. Timothy 

### J. Casey, Psychologist. That subsequently, visitation was increased as the child became somewhat older and was had on Tuesdays, Thursdays and Saturdays, outside the residence of [Carol]. 15. That during employment periods, [Carol] has made adequate and substantial arrangements for child care and the testimony indicates that the child relates well with the present babysitting arrangements, and, likewise, relates well during visitation periods with [Steven]. [Steven], likewise, agrees that [Carol] is taking excellent care of the child, and [Carol], 3-ikewise, acknowledgesthe good relationshipexisting between

[Steven]and hisminor daughter. 10. Thatno applicationhas ever beenmade to this Court for a joint custody arrangement,and in view of [Steven's] unwillingness to assume any responsibility for payments upon the residence in which the child has been 1.i.vingwith [Carol], andhis unwillingness and failure to provide support for the child since July of 1984, the Court deems joint cust0d.yinappropriateat this time. The District Court's decision is presumed correct and will be upheld unless a clear abuse of discretion is shown. In I?.ethe Marriage of Rolfe (Mont. 1985), 699 P.2d 79, 42 St.Rep. 623. "The responsibility of deciding custody is a delicate one which is lodged with the district court. The judge hearing oral testimony in such a controversy has 

### a superior advantage in determining the same, and his discretion ought not to be disturbed except on a clear showing of abuse of discretion." In Re Marriage of Obergfell

(Mont. 1985), 708 P.2d 561, 563, 42 St.Rep. 1414, 1417; Gilmore v. Gilmore (1P75), 166 Mont. 47, 51, 530 P.2d 480,

In determining custody, the court is bound to consider all relevant factors including: (1) the wishes of the child's parent or parents as to his custody; (2) thewishes of the child as to his custodian; (3) the interactionand interrelationshipof the childwith hisparent orparents, 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. Section 40-4-212,MCA. In this case, the DistrictCourt consid-eredthe relevant factors and decided sole custody should be with the mother. The District Court made specific findings on why joint custody was not granted. The District Court did not abuse Itsdiscretion.

### Next, Steven contends the District Court erred in its determination of child support. Carol testified at the hearing that the needs of 

### the child are approximately $875 

### permonth. That.includes: $360 

### one-halfthehousepayment & 

### utilities 100 

### food

45 

### transportation 55 

### clothing 40 

### diapers 258 

### child care Steven did not introd.uce any evidence or present testimony to refute these figures at the hearing. The DistrictCourt applied the Carlson formula and determined the ratio of Carol's earnings to Steven's earningswas 27.4% 

### to 72.6%. 

### Therefore the District Court found Carol should contribute $240 

### per month to the needs of the child and Steven should contribute $635

### per month. We approve of the District Court's use of the Carlson formula and apportionment of the needs of the child between the incomes of theparents. However,the District Court made

a slight mathematical error in totaling the needs of the child. The figure should have been $858 

### rather than $875, 

### Applying the same ratio, Carol should contribute $235 

### per month for Beth's support and Steven should contribute $633 

### permonth. Pursuant to S 33-2-204, 

### MCA,we herebymodify the judgment of the Third Judicial District, Powell County, entered October 18, 1985 

### and direct that judgment be entered ordering Steven to pay child support in the sum of $623 

### per month rather than S635 

### per month. All other provisions of the judgmentare affirmed. 

### The last issue on appeal is whether the District Court erred 

### in its 

### d.ivisionof marital property by awarding thehouse to Carol with Steven receiving no benefit therefrom until the minor child reaches majority. We have already addressed this issue and found no errcr. Affirmed asmodified.

We Concur: 

# fd:,L,x Chief Justice