No. 86-36 

IN THE SUPR.EME COURT OF THE STATE OF MONTANA 

1987 

IN RE THE MARRIAGE OF 

CAROL A. SHIRILLA, 

Petitioner and Respondent, 

and 

STEVEN J. SHIRILLA, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Third Judicial District, 

In and for the County of Powell, 

The Honorable Robert Boyd, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Charles A. Graveley, Helena, Montana 

For Respondent: 

Johnson, Skakles & Kebe; Greg J. Skakles, Anaconda, 

Montana 

Submitted on Briefs: Sept. 11, 1986 

Decided : January 13, 1957 

a, ' . :-, .< J.QJY i. ;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 

District Court of the Third Judicial District, Powell County, 

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 the minor child to Carol. (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 division of marital 

property by awarding the house to Carol with Steven receiving 

no benefit therefrom until the minor child reaches majority. 

Steven and Carol Shirilla were married in February, 

1982. At the time of the marriage, Steven was a physician 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 

includes utilities. 

A petition for dissolution was filed in October, 1983. 

From the date of the separation, Steven paid one-half the 

house payment ($330) and $200 per month in child support. In 

July, 1984, the Court entered an order dissolving the 

marriage and retaining jurisdiction over custody, support and 

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. Carol had to borrow over $8,000 from her relatives 

to bring the payments current to prevent foreclosure. 

In October, 1985, following a hearing on the issues the 

District Court entered its findings of fact, and conclusions 

of law. The Court granted sole custody of Beth Ann to Carol, 

with reasonable visitation for Steven. The court also 

granted Carol use of the family residence until the minor 

child reached the age of majority, and required each party to 

make one-half the house payment. Steven was directed to pay 

support in the amount of $635 per month, and was ordered to 

pay the attorney fees incurred by Carol. The District Court 

also made a division of other assets acquired during the 

marriage which is not an issue on 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 of marital 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 reviewing the judgment of the court below we 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 

judgment will 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, In Re Marriage of Wessel (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 "equitably apportion[ed] between the parties . . . however 

and whenever acquired and whether the title thereto is in the 

name of the husband or wife or both . . ." 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 continue paying one-half the house payment-s 

until the child reaches 18. At that time the house will be 
sold 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 the past approved of having 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 

its discretion in making such an order. 

The second issue on appeal is whether the court erred 

when it determined the entire support of the minor 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 

support has 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 has made no payments to Carol so she has been 

providing for all of Reth Ann's support. Steven argues the 

Court erred by making child support retroactive to the date 

of the last payment in July, 1984. He contends this violates 

§ 40-4-208, MCA, which allows a court to modify 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 is whether 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 fees under 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 findings of fact on custody. 

14. That following the separation of the parties 

herein, [Steven] voluntarily restricted his 

visitation with the minor child, Beth Ann, 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, 

acknowledges the good relationship existing between 

[Steven] and his minor daughter. 

10. That no application has ever been made 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.ving with [Carol], and 
his unwillingness and failure to provide support 

for the child since July of 1984, the Court deems 

joint cust0d.y inappropriate at this time. 

The District Court's decision is presumed correct and 

will be upheld unless a clear abuse of discretion is shown. 

In I?.e the 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) 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. 

Section 40-4-212, MCA. 

In this case, the District Court consid-ered the 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 

Its discretion. 
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 

per month. 

That. includes: 

$360 one-half the house payment & 

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 

District Court applied the Carlson formula and determined the 

ratio of Carol's earnings to Steven's earnings was 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 the parents. 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 

per month. Pursuant to S 33-2-204, MCA, we hereby modify 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 judgment are affirmed. 

The last issue on appeal is whether the District Court 

erred in its d.ivision of marital property by awarding the 
house 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 as modified. 

We Concur: 

fd:,L,x Chief Justice