NO. 95-162 IN THE SUPREMECOURTOFTHE STATE OFMONTANA 1995

IN REMARRIAGE OF ANNMARIE BUKACEK,

Petitioner and Respondent, and EDWARDPAULJANES,

Respondent and Appellant.

APPEAL FROM: District Court of the Nineteenth Judicial District,

In and for the County of Lincoln, The Honorable Robert S. Keller, Judge presiding.

COUNSELOFRECORD:

For Appellant: Peter F. Carroll, Attorney at Law, Kalispell, Montana For Respondent: L. Charles Evans, Attorney at Law, Libby, Montana

Decided: November 21, 1995 Filed:Justice Terry N. Trieweiler delivered the opinion of the Court.

Petitioner Ann Marie Bukacek filed apetition for dissolution of her marriage to Edward Paul Janes, in the District Court for the Twentieth Judicial District in Lincoln County. Following numerous hearings, the District Court entered its decree in which it awarded the parties joint custody of their four minor children and designated Ann the primary custodian. The court also divided the couple's marital estate, provided for child support, and ordered Ann to pay maintenance to Ed for one year. Ed appeals from the District Court's decree. Weaffirm the District Court. There are five issues presented on appeal: 1. Did the District Court have continued jurisdiction after stating at the initial proceeding that the dissolution was granted? 2. Did the District Court abuse its discretion when it enforced that part of the couple's settlement agreement which related to property division, but refused to enforce provisions related to child custody, child support, and maintenance? 3. Did the District Court adequately consider the children's preferences when it made its child custody determination? 4. Did the District Court abuse its discretion when it determined that Ann should have primary residential custody of the children? 5. Did the District Court demonstrate bias which prevented it from impartially deciding the issues presented?

2FACTUALBACKGROUND

AnnandEdwere married in Lane County, Oregon, onApril 26, 1978. Soon afterward, Ann expressed a desire to continue her education. With Ed's support, sheearned her undergraduate degree and enrolled in medical school. In 1989, Anncompleted athreeyear medical residency. Ann and Ed had four children while Ann was pursuing her medical education. During that time, Edwas not employed and served as the homemaker andprimary caretaker for the children. Although Anndevoted agreat deal of her energy to her studies and her residency, she shared as muchas possible in child care and housekeeping responsibilities. In 1989, AnnandEdandtheir four children movedto Redmond, Oregon, where Annworked asaphysician with alocal hospital and established aprivate practice. Edremained the children's primary caretaker during this time. Theparties and their children moved to Libby, Montana, in December 1991. AnnandEdseparated immediately, andAnnfiled a petition for dissolution with the District Court. Pursuant to a written settlement agreement, Ann appeared before the court for entry of adecree by default on February 24, 1992. TheDistrict Court expressed concern about support provisions in the agreement, and recommended that tax consequences be considered, and that further advice be considered. The court did, at that time, indicate that the dissolution would begranted.

3After the first hearing, the parties were unable to reach an

agreement onthe issues of child custody and support. Although Ann first agreed that Edshould have primary residential custody of the children, she later became concerned about his emotional stability and hostility. By the time of trial in September 1993, each party sought primary residential custody of the children. OnDecember 20, 1994, the District Court entered adecree of dissolution. The court awarded joint custody of the four children to both parties, and designated Annthe primary residential parent. The court also approved the distribution of marital property set forth in the parties' original February 1992 property settlement agreement, relieved Edof child support payments for one year, and ordered Ann to pay maintenance to Ed for one year. ISSUE 1 Did the District Court have continued jurisdiction after stating at the initial proceeding that the dissolution was granted? Adecree of dissolution is final when entered subject to the right of appeal. Section 40-4-108(l), MCA. Ed contends that the District Court's oral statement during the initial hearing to the effect that the dissolution was granted had the effect of afinal decree and divested the court of further authority to act. The term "decree" includes the term "judgment." Section 40-4-103(4), MCA. The Montana Rules of Civil Procedure define "judgment" as "the final determination of the rights of the parties in an action or proceeding

. . . and includes a decree

. . . ." Rule 54(a), M.R.Civ.P. (emphasis added). Although the District

4Court in this case purported to orally grant the parties'

dissolution at the initial hearing, that statement wasbynomeans

a "final determination" of the couple's rights. ASthe court stated at that time, the issues of child custody, support, and maintenance had yet to bedecided. Furthermore, the court later acknowledged that it had no jurisdiction to grant a dissolution without resolving those related issues. In awritten memorandum, the court stated:

During the course of the hearing which washeld on February 22, 1993, the Court advised that it would prepare andenter adecree of dissolution. However, the Court has subsequently determined that it is without jurisdiction to enter the decree of dissolution at this time. See40-4-104 (d) MCAand InreMarriageofSkinner, [240 Mont. 2991, 783 P.2d 1350 (Mont. 1989). Wetherefore conclude that the court's statement at the initial hearing to the effect that the parties' marriage was dissolved did not divest it of jurisdiction to act further in this

case. ISSUE2 Did the District Court abuse its discretion whenit enforced that part of the couple's settlement agreement which related to property division, but refused to enforce provisions related to child custody, child support, andmaintenance? Whena district court determines the conscionability of a marital andproperty settlement agreement it engage[sl in discretionary action which cannot be accurately categorized aseither afinding of fact or a conclusion of law. Thesediscretionary judgments madeby the trial court are presumed to becorrect andwill not

5bedisturbed bythis Court absent anabuse of discretion

by the lower court. InreMarriageofCaras (1994), 263Mont. 377, 380-81, 868P.2d 615, 617 (quoting InreMarriageofHamilton (1992), 254Mont. 31, 36, 835P.2d 702, 704-05) (alteration in original). Edcontends that the District Court abused its discretion when it found that the terms of the parties' settlement agreement which pertained to child custody, support, and maintenance were unconscionable. He further contends that if the agreement was unconscionable, the court should not haveapproved the division of property included in the agreement. Section 40-4-201(2), MCA,provides: In aproceeding for dissolution of marriage or for legal separation, the terms of the separation agreement, except those providing for the support, custody, and visitation of children, arebinding uponthe court unless it finds, after considering the economic circumstances of the parties andanyother relevant evidence produced by the parties, on their ownmotion or on request of the court, that the separation agreement is unconscionable. In InreMarriageofSimms (1994), 264Mont. 317, 325-26, 871 P.2d 899, 904, weclarified the district court's obligations:

In short, in amarriage dissolution case

. . . [tlhe district court

. . is not boundbythe parties' oral or written agreements or stipulations in matters of custody, support andvisitation (the applicable statutory criteria always being paramount), and is bound onthe matters of property division andmaintenance only to the extent that the parties' agreement is reduced to writing and is found, after review, to benot unconscionable. In this case, the parties' written agreement settled the distribution of the couple's real andpersonal property; designated Edas the children's primary residential custodian for so long as

6he lived in the same city as Ann; required Ann to pay Ed's

residential expenses of upto $1000per month; andprovided that Ed would receive one-half of Ann's disposable income for ten years. Asprovided in Simms, the District Court wasnot bound bythe agreement's provisions related to child custody and support, and

was bound by the provisions regarding property division and maintenance only to the extent that the court found them to be conscionable. We conclude that the District Court did not abuse its discretion when it held that the maintenance award was unconscionable. The court alerted the parties to its concerns about the maintenance provision at the first hearing. At that time, the court indicated that it would not sign the agreement until it Was modified and reviewed by a certified public accountant. The court's concerns were well-founded. The settlement agreement did not indicate whether the monthly payments to Edwere child support or maintenance, anddid not set forth how the monthly figure for Ann's disposable incomewould bedetermined. Furthermore, the court's request that the agreement bere-written

wasauthorized pursuant to §40-4-201(3), MCA,which provides that:

If the court finds the separation agreement unconscionable, it mayrequest the parties to submit a revised separation agreement or maymakeorders for the disposition of property, maintenance, andsupport. Theparties did not submit arevised agreement which addressed the court's concerns about the maintenance provision. Therefore, since the court held that the original agreement wasunconscionable, itwas free to make its own order with regard to the issue of

maintenance. Wefurther hold that the District Court did not abuse its discretion when it held that the written property settlement was conscionable. Asthe court noted, both parties testified at trial that their agreed-upon distribution of the marital estate wasfair andequitable. In addition, Edstated in his consent to entry of default that "[he did1 not have any complaint about the Property Settlement

. . . .I) Asthe District Court noted, the agreement results in anet distribution to Edof approximately $40,000 andto Annof approximately $35,000. In addition, the agreement requires Annto assumeall remaining marital obligations, which total over $175,000. In light of these circumstances, the court clearly did not abuse its discretion whenit upheld the property distribution provisions in the agreement. Forthese reasons, weaffirm the District Court's treatment of the parties' settlement agreement. ISSUE3 Did the District Court adequately consider the children's preferences whenit madeits child custody determination? Because the district court is in asuperior position to weigh evidence, wewill not overturn the court in child custody matters unless we determine that there has been a clear abuse of discretion. In reMarriageofBolt (19931, 259 Mont. 54, 58, 854 P.2d 322, 324.Ed claims that the District Court abused its discretion

because it did not question the children directly regarding their custodial preferences. Hemaintains that the psychological custody evaluation ordered by the court did not discuss the children's preferences, and that the District Court record is devoid of any indication that the court considered the children's preferences as

afactor in its custody determination. Children's preferences for custody are afactor which should be considered by the district court. Section 40-4-212(b), MCA. However, the court neednot interview the children to discern their preferences. InreMarriageofSusen (1990), 242Mont. 10, 12, 788 P.2d 332, 334. It may rely on the evaluation of a professional counselor. Bolt, 854 P.2d at 325. If the court does not interview the children, it is not required to makespecific factual findings regarding the children's preferences. InreMarriage 

### ofHi&y (1984), 213Mont. 38, 42, 689P.2d 1222, 1224. In this case, the children's wishes were adequately addressed by Dr. John Santa, whowas appointed by the court to perform a custody evaluation. Although Dr. Santa did not directly ask the children where they wanted to live, he did interview each child regarding "their views of their situation," and made specific reference to the children's views of their parents and their lifestyles with each parent. From this report, the court could have accurately discerned the children's preferences. In fact, as evidenced by the court's many references to that report, it is

9clear that the court read and considered Dr. Santa's

recommendations as abasis for its final determination. Therefore, because the District Court appointed aprofessional counselor who set forth his opinions about the children's preferences in acustody evaluation report, and because the court considered that report in its decree, we hold that the court did not abuse its discretion because it did adequately consider the children's preferences. ISSUE 4 Did the District Court abuse its discretion when it determined that Ann should have primary residential custody of the children? Wereview a district court's underlying findings of fact in

a child custody case to determine whether those findings are clearly erroneous. In reMarriage of Dreesbach (1994 ), 265 Mont. 216, 220-21, 875 P.2d 1018, 1021. This Court will overturn the district court's final custody award which is based on those findings only when an abuse of discretion is clearly demonstrated. Dreesbach , 875 P.2d at 1021. Section 40-4-212, MCA, lists the relevant factors that a district court must consider when it makes a child custody determination. The factors include the preferences of the parties, the preferences of the children, the interaction and interrelationship between the children and their family, and the children's adjustment to home, school, and community. The court is not required to make specific findings which address each factor, but

10it must set forth the "essential anddetermining" factors onwhich

its determination is based. InreMarriage ofMerriman (1991) , 247 Mont

. 491, 493, 807 P.2d 1351, 1353. In its decree, the District Court concluded that: [Ulpon consideration of all relevant factors, including those set forth in §40-4-212, MCA(1991), it is in the best interests of the parties' minor children for themto be in the joint custody of the parties, with [Ann] designated the primary residential parent. Onappeal, Edcontends that the court's determination does not fairly represent the record. Edcontends that the District Court accepted Ann's concerns without anindependent review of the facts; that the court failed to fairly review Ed's record asthe primary provider for his children; and that the court either ignored or misconstrued facts concerning the children's welfare. Wehavethoroughly reviewed the record, however, andfind that the District Court did consider such factors asthe wishes of Ann andEd, the children's preferences, the interrelationships between the parties andtheir children, the children's adjustment to Libby, andthe mental health of both AnnandEdwhenit madeits custody determination. Specifically, the court set forth the following facts in its decree: Thecourt addressed Ann's concerns about Ed's emotional instability and his attempts to alienate the children from Ann; the court set forth Dr. Santa's findings that Annwasan "emotionally stable" parent who"obviously loves, andcares for her children," andwhois "supportive of the children andtheir school work andactivities"; andthe court noted that Ed's plan to moveto Kalispell with the children would not serve the children's best 11interests because they would lose Ann's "considerable warmth, and

nurturing" andbecause Edhad failed to create an identity of his

ownunrelated to the children. In addition, the court addressed the issue of Ed's continued bitterness toward Annthroughout the dissolution proceedings, stating:

[Ed] has madeit clear, at each hearing that has beenconducted, that heconsiders [Ann] immoral, unsuited to havethe custody of the children, andthat hehasmade this clear to the children; notwithstanding the Court has remonstrated with [Ed] about this attitude, it has not changed. Finally, in a written memorandumattached to the December decree, the court stated:

This hasbeenoneof the mostdifficult dissolutions that I have had. There is noquestion of the closeness between the father andthe children; by the sametoken, the children are equally fond of their mother. The father hasbeensodistraught about the dissolution that becoming the residential custodian hasbeenanobsession. His remarks concerning the children's mother in the presence of the children are sufficient to terminate any visitation; andbut for the love that the children have for their father, visitation would be terminated. Nevertheless, that cannot continue. 1993

Weconclude that the District Court's findings of fact are not clearly erroneous, andthat the court did not abuse its discretion whenit awarded Annprimary physical custody of the children. ISSUE5 Did the District Court demonstrate bias which prevented it from impartially deciding the issues presented? Edcontends that the District Court wasbiased against shared custody anddid not award shared custody because of this bias. He further asserts that the court failed to seriously consider his

12request for maintenance because of his gender. Hecontends that

because heis amalethe court imputed income to himthat would not have been imputed hadhebeenawoman. Wefind nomerit to these allegations. Therecord is clear that neither Annnor Edwanted to continue

ashared custody arrangement, andthat the court considered all the necessary factors whenit madeits child custody determination. As the court stated in its findings, ('[bloth parties testified that they donot believe it is in the best interests of their children to continue this shared parenting situation." Furthermore, although Dr. Santa recommendedshared parenting in his evaluation, the court pointed out Dr. Santa's concerns that the animosity of the parties toward each other and that the different parenting styles might makejoint parenting unworkable. Finally, although the court did state that it was "prejudiced" against shared visitation, its statement was made against the backdrop of a two-year custody battle in which the parties' children had been shuttled back andforth daily between Ann's andEd's homes. Asthe court stated: I feel someof the problems that youare having havebeen testified to andwhenyou have children back and forth like ayoyo, you are going to get behavioral problems that you really can't blame onanybody. Ed's claim of gender bias is also unsupported. The court awarded maintenance in the sumof $500per month for oneyear, even though it expressed concerns that Edhadfailed to take advantage of educational opportunities throughout his marriage andthat Ed's

13unemployment at the time of the trial was not wholly unintentional.

In addition, the record is clear that the court imputed income to Ed not on the basis of his gender but because Ed was capable of employment but had chosen to forsake several opportunities to be available full-time for his children. It is clear that gender was not the basis for the court's maintenance decision. For these reasons, we conclude that Ed's claim of bias is without merit. Weaffirm the decree of the District Court.

Weconcur:

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