No. 86-568 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

IN RE THE MARRIAGE OF 

MICHELLE JEAN ENSIGN, 

Petitioner and Appellant, 

and 

GEORGE DOUGLAS ENSIGN, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Charles Luedke, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Davidson & Poppler; Doris M. Poppler, Billings, 

Montana 

For Respondent: 

Jock B. West, Billings, Montana 

Submitted on Briefs: April 16, 1987 

Decided: July 2, 1987 

Filed: JUL 2 - 1987 

5) *, 4W.l 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Michelle Jean Ensign appeals the judgment of the 

District Court, Thirteenth Judicial District, County of 

Yellowstone. We remand the case for determination of a joint 

custody plan and a determination of maintenance. 

Michelle and George Ensign were married November 20, 

1971 in Billings, Montana. They had two children, Sam, born 

November 17, 1972 and Matt, born December 20, 1974. George 

is employed as a tenured teacher by School District No. 2 in 

Billings, and holds an M.A. in Education plus 45 credits. 

Michelle has a high school education, and has had no further 

schooling or training. She married George at age 18 and was 

a fulltime mother and homemaker for 14 years. At the time of 

trial, Michelle was working two minimum wages jobs, six days 

a week, in Red Lodge, Montana. George's net salary is 

$1,781.12 per month. Michelle's net salary is approximately 

$784.00 per month. 

Michelle filed a petition for dissolution of marriage on 

February 13, 1985 and an amended petition February 28, 1985. 

On August 13, 1985, Michelle obtained a final decree of 

dissolution by default. George made a motion to set aside 

the default judgment, such motion being granted August 21, 

1985. The matter came before the District Court, sitting 

without a jury, on June 30, 1986. The District Court issued 

findings of fact, conclusions of law and a decree of 

dissolution September 6, 1986. 

Michelle appeals the District Court's findings of fact, 

conclusions of law and judgment on the following issues: 

1. Did the trial judge err by failing to make final 
decisions as to the sale of the family home, a 

maintenance award to the wife and a joint custody plan, 

prior to his retirement from the bench? 

2. Does a newly appointed judge have jurisdiction to 

make findings in a case which he or she did not hear? 

3. Did the District Court err in failing to use the 

Carlson formula in determining child support for the 

minor children of the parties? 

Under issue no. 1, Michelle argues that the final decree 

was not final since the decree reserved the question of the 

entitlement to and the amount of a maintenance award and also 

reserved the formulation of a final joint custody plan until 

the sale of the family home was resolved. However, under S 

40-4-108(l), MCA, a decree of dissolution of marriage is 

final when entered, subject to the right of appeal. Under § 

40-4-104, MCA, a district court is required to enter a decree 

of dissolution if: 

(a) the court finds that one of the parties, at 

the time the action was commenced, was domiciled in 

this state or was stationed in this state while a 

member of the armed services and that the domicile 

or military presence has been maintained for 90 

days next preceding the making of the findings; 

(b) the court finds that the marriage is 

irretrievably broken, which findings shall be 

supported by evidence: 

(i) that the parties have lived separate and apart 

for a period of more than 180 days next preceding 

the commencement of this proceeding; or 

(ii) that there is serious marital discord which 

adversely affects the attitude of one or both of 

the parties towards the marriage; 

(c) the court finds that the conciliation 

provisions of the Montana Conciliation Law and of 

40-4-107 either do not apply or have been met; and. 
(d) to the extent it has jurisdiction to do so, 

the court has considered, approved, or made 

provision for child custody, the support of any 

child entitled to support, the maintenance of 

either spouse, and the disposition of property. 

We note in particular S 40-4-104(1) (d), which has been 

amended by the 1985 legislature. That subsection formerly 

read that the court could provide "for a separate, later 

hearing to complete [the] matters" of child custody, child 

support, maintenance and property division. The provision 

for the bifurcated process of granting a dissolution of 

marriage and later determining the specific terms of property 

settlement and child custody was deleted by the Montana 

legislature in an attempt to prevent the situation at bar; 

namely the prolonged fight over custody, child support and 

maintenance. 

We therefore hold it was error for the District Court to 

fail to establish a final joint custody plan for the minor 

children and maintenance award for Michelle Ensign. While 

the District Court made extensive findings and perceptively 

outlined the parties' dispute over finances and the sale of 

the family home, its resolution of those disputes was 

somewhat ambiguous. In findings nos. 21 through 23, the 

court stated: 

21. The fact of the matter is that respondent's 

own figures demonstrate that in his present 

circumstance, his expenses exceed his income by at 

least $200.00 per month, even without paying 

anything to petitioner for any purpose. Therefore, 

keeping the home, which is the anchor to such 

losing situation, is of questionable advisibility 

unless it is assumed that doing so will preserve 

the real potential value of the home for later 

realization when market conditions improve, and 

that in the interim, having it for the children 

represents a significant benefit to them. But, for 

the reasons already discussed, the only way 

retention of the home can be accomplished with 
fairness to petitioner is for the respondent to buy 

her interest out. The evidence does not expressly 

demonstrate that this is within the capabilities of 

respondent to arrange, however, neither does it 

eliminate such a possibility. Therefore, it should 

be retained as an available option. 

22. In such circumstances, the respondent should 

be given the right to purchase, in 30 days from the 

date hereof, petitioner's one-half interest in the 

family home, calculated on the basis of a market 

value of $85,000.00. In calculating the equity of 

the parties, a deduction of one-half of the usual 

real estate commission of 7% should be allowed. In 

addition, there is a loan outstanding to the 

Teacher's Credit Union in the amount of $4,211.92 

at the time of trial. It was incurred in 

connection with the financing of the family home. 

There is no evidence that it comprises a lien 

against the property, but it is not disputed that 

it is a home-related indebtedness, currently being 

paid by a deduction from respondent's monthly 

paycheck. It is appropriate that the petitioner 

should bear one-half of the balance at the time of 

sale, to be implemented as a deduction from her 

share of the home sale proceeds, whether the sale 

is to respondent or another. 

23. If respondent either rejects such opportunity 

to buy petitioner's interest, or does not do so 

within the 30 days allowed, the family home should 

be placed upon the market and sold, with the net 

proceeds divided equally. 

On one hand, the court stated that the sale of the home 

"should be retained as an available option," on the other 

hand, the court, recognizing the inherent unfairness of 

allowing the husband to live in the family home without 

reimbursing the wife for her interest, set forth the terms of 

a 30 day buy-out or sale period. Further, the resolution of 

the joint custody plan and the maintenance award hinged on 

the sale of the home. It is therefore essential that the 

District Court implement its findings and establish a final 
custody plan and maintenance schedule through an appropriate 

order. 

The second issue raised by Michelle is whether a newly 

appointed judge may make findings in a case which he or she 

did not hear. Under the Montana Uniform Marriage and Divorce 

Act, a court has continuing jurisdiction in matters of 

maintenance, support, property disposition and child custody. 

Sections 40-4-208, -211 and -219, MCA. While the new judge 

may need to hear new evidence in order to formulate the joint 

custody plan and to determine a maintenance schedule, the 

judge is also entitled to rely on the record established in 

the case. On remand both parties will have the opportunity 

to produce further evidence in support of a joint custody 

plan and maintenance. 

The final issue is whether the District Court was 

required to use the child support formula set forth in In Re 

Marriage of Carlson (Mont. 1984), 693 P.2d 496, 41 St.Rep. 

2419. As we have previously stated, the Carlson formula is a 

suggested guideline. In Re Marriage of DiPasquale (Mont. 

1986), 716 P.2d 223, 226, 43 St.Rep. 557, 561. The District 

Court's decision will be upheld absent a clear showing of 

abuse of discretion. In Re Marriage of Ryan (Mont. 1986), 

720 P.2d 691, 693, 43 St.Rep. 1163, 1165; In Re Marriage of 

Rolfe (Mont. 1985), 699 P.2d 79, 82, 42 St.Rep. 623, 626. We 

find no evidence to indicate the District Court abused its 

discretion in determining child support payments in this 

case. However, on remand the District Court may need to 

reconsider the factors listed in S 40-4-204(1), MCA, if the 

financial resources of the parties have changed since the 

decree was issued. It should be noted that on January 13, 

1987, we also adopted suggested guidelines for courts to 

determine child support, now found in 44 St.Rep. 828. 
We remand this case to the District Court for a 

determination of a joint custody plan, a maintenance award 

and a settlement of the 

We Concur: 

C