No. 86-568
INTHE SUPREME COURT OF THE STATEOF MONTANA
1987

INRE THEMARRIAGEOF MICHELLE JEAN ENSIGN, Petitioner andAppellant, and GEORGE DOUGLAS ENSIGN, Respondent and Respondent.

APPEAL FROM: District Court of theThirteenth JudicialDistrict, Inand for the County ofYellowstone, TheHonorable Charles Luedke, Judgepresiding.
COUNSELOF RECORD:
ForAppellant: Davidson & Poppler; DorisM. Poppler,Billings, Montana
ForRespondent:
Jock B. West,Billings,Montana

SubmittedonBriefs: April 16, 1987 Decided: July 2,1987 Filed:

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4W.l ClerkMr. 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 determinationofmaintenance. 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 teacherby School DistrictNo. 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 fulltimemother and homemaker for 14years. At the time of trial,Michelle was working twominimumwages 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 apetition 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 finaldecisions as to the sale of the family home, a maintenance award to thewife and a joint custodyplan, prior to his retirement fromthebench?
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 childrenof the parties?
Under issueno. 1,Michelle argues that the final decree
was not final since the decree reserved the question of the entitlement to and the amount of amaintenance 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 finalwhen entered, subject to the right of appeal. Under § 40-4-104,MCA,adistrict court is required to enter adecree of dissolution if: (a) the court finds that one of the parties, at the time the actionwas commenced,was domiciled in this state or was stationed in this statewhile 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 supportedby evidence:

(i) that thepartieshave lived separateand apart for a period of more than 180 days next preceding the commencementof thisproceeding; or

(ii) that there is serious marital discord which adversely affects the attitude of one or both of theparties 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 beenmet; 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 laterdeterminingthe specificterms ofproperty 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 thereforehold itwas 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 incomeby at least $200.00 per month, even without paying anything topetitioner for anypurpose. 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 representsa significant benefit to them. But, for the reasons already discussed, the only way retention of the home can be accomplished withfairnesstopetitioner is for the respondenttobuy her interest out. The evidence does not expressly demonstrate that this iswithin the capabilitiesof respondent to arrange, however, neither does it eliminate suchapossibility. Therefore,it should be retainedasan availableoption.
22. In such circumstances, the respondent should be given the right topurchase, 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 realestate commissionof 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 reimbursingthewife forher interest, set forth the terms of
a 30day buy-out or saleperiod. 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 finalcustody plan and maintenance schedule through an appropriate order. The second issue raised by Michelle iswhether a newly appointed judge may make findings in a case which he or she did nothear. Under theMontana UniformMarriage and Divorce Act, a court has continuing jurisdiction in matters of maintenance,support,property dispositionand child custody. Sections 40-4-208, -211 and -219,MCA. While the new judge may need tohear 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 InRe 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), 699P.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