NO. 95-162 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1995 

IN RE MARRIAGE OF 

ANN MARIE BUKACEK, 

Petitioner and Respondent, 

and 

EDWARD PAUL JANES, 

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. 

COUNSEL OF RECORD: 

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 a petition 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. We affirm 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? 

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FACTUAL BACKGROUND 

Ann and Ed were married in Lane County, Oregon, on April 26, 

1978. Soon afterward, Ann expressed a desire to continue her 

education. With Ed's support, she earned her undergraduate degree 

and enrolled in medical school. In 1989, Ann completed a threeyear medical residency. 

Ann and Ed had four children while Ann was pursuing her 

medical education. During that time, Ed was not employed and 

served as the homemaker and primary caretaker for the children. 

Although Ann devoted a great deal of her energy to her studies and 

her residency, she shared as much as possible in child care and 

housekeeping responsibilities. 

In 1989, Ann and Ed and their four children moved to Redmond, 

Oregon, where Ann worked as a physician with a local hospital and 

established a private practice. Ed remained the children's primary 

caretaker during this time. 

The parties and their children moved to Libby, Montana, in 

December 1991. Ann and Ed separated immediately, and Ann filed a 

petition for dissolution with the District Court. Pursuant to a 

written settlement agreement, Ann appeared before the court for 

entry of a decree by default on February 24, 1992. The District 

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 be granted. 

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

agreement on the issues of child custody and support. Although Ann 

first agreed that Ed should 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. 

On December 20, 1994, the District Court entered a decree of 

dissolution. The court awarded joint custody of the four children 

to both parties, and designated Ann the primary residential parent. 

The court also approved the distribution of marital property set 

forth in the parties' original February 1992 property settlement 

agreement, relieved Ed of 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? 

A decree 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 a final 

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 

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Court in this case purported to orally grant the parties' 

dissolution at the initial hearing, that statement was by no means 

a "final determination" of the couple's rights. AS the court 

stated at that time, the issues of child custody, support, and 

maintenance had yet to be decided. Furthermore, the court later 

acknowledged that it had no jurisdiction to grant a dissolution 

without resolving those related issues. In a written memorandum, 

the court stated: 

During the course of the hearing which was held on 

February 22, 1993, the Court advised that it would 

prepare and enter a decree of dissolution. However, the 

Court has subsequently determined that it is without 

jurisdiction to enter the decree of dissolution at this 

time. See 40-4-104 (d) MCA and In reMarriageofSkinner, [240 

Mont. 2991, 783 P.2d 1350 (Mont. 1989). 

We therefore 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. 

ISSUE 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? 

When a district court determines the conscionability of a 

marital and property settlement agreement it 

engage[sl in discretionary action which cannot be 

accurately categorized as either a finding of fact or a 

conclusion of law. These discretionary judgments made by 

the trial court are presumed to be correct and will not 

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be disturbed by this Court absent an abuse of discretion 

by the lower court. 

InreMarriageofCaras (1994), 263 Mont. 377, 380-81, 868 P.2d 615, 617 

(quoting InreMarriageofHamilton (1992), 254 Mont. 31, 36, 835 P.2d 702, 

704-05) (alteration in original). 

Ed contends 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 have approved the division of 

property included in the agreement. 

Section 40-4-201(2), MCA, provides: 

In a proceeding 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, are binding upon the court unless 

it finds, after considering the economic circumstances of 

the parties and any other relevant evidence produced by 

the parties, on their own motion or on request of the 

court, that the separation agreement is unconscionable. 

In InreMarriageofSimms (1994), 264 Mont. 317, 325-26, 871 P.2d 

899, 904, we clarified the district court's obligations: 

In short, in a marriage dissolution case . . . [tlhe 

district court . . is not bound by the parties' oral or 

written agreements or stipulations in matters of custody, 

support and visitation (the applicable statutory criteria 

always being paramount), and is bound on the matters of 

property division and maintenance only to the extent that 

the parties' agreement is reduced to writing and is 

found, after review, to be not unconscionable. 

In this case, the parties' written agreement settled the 

distribution of the couple's real and personal property; designated 

Ed as the children's primary residential custodian for so long as 

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

residential expenses of up to $1000 per month; and provided that Ed 

would receive one-half of Ann's disposable income for ten years. 

As provided in Simms, the District Court was not bound by the 

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 Ed were child support or maintenance, and did not set forth how 

the monthly figure for Ann's disposable income would be determined. 

Furthermore, the court's request that the agreement be re-written 

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

If the court finds the separation agreement 

unconscionable, it may request the parties to submit a 

revised separation agreement or may make orders for the 

disposition of property, maintenance, and support. 

The parties did not submit a revised agreement which addressed the 

court's concerns about the maintenance provision. Therefore, since 

the court held that the original agreement was unconscionable, it 
was free to make its own order with regard to the issue of 

maintenance. 

We further hold that the District Court did not abuse its 

discretion when it held that the written property settlement was 

conscionable. As the court noted, both parties testified at trial 

that their agreed-upon distribution of the marital estate was fair 

and equitable. In addition, Ed stated in his consent to entry of 

default that "[he did1 not have any complaint about the Property 

Settlement . . . .I) As the District Court noted, the agreement 

results in a net distribution to Ed of approximately $40,000 and to 

Ann of approximately $35,000. In addition, the agreement requires 

Ann to assume all remaining marital obligations, which total over 

$175,000. In light of these circumstances, the court clearly did 

not abuse its discretion when it upheld the property distribution 

provisions in the agreement. 

For these reasons, we affirm the District Court's treatment of 

the parties' settlement agreement. 

ISSUE 3 

Did the District Court adequately consider the children's 

preferences when it made its child custody determination? 

Because the district court is in a superior position to weigh 

evidence, we will 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. He maintains 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 

a factor in its custody determination. 

Children's preferences for custody are a factor which should 

be considered by the district court. Section 40-4-212(b), MCA. 

However, the court need not interview the children to discern their 

preferences. InreMarriageofSusen (1990), 242 Mont. 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 make specific factual findings 

regarding the children's preferences. In re Marriage of Hi&y ( 19 8 4 ) , 

213 Mont. 38, 42, 689 P.2d 1222, 1224. 

In this case, the children's wishes were adequately addressed 

by Dr. John Santa, who was 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 

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

recommendations as a basis for its final determination. 

Therefore, because the District Court appointed a professional 

counselor who set forth his opinions about the children's 

preferences in a custody 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? 

We review a district court's underlying findings of fact in 

a child custody case to determine whether those findings are 

clearly erroneous. In re Marriage of Dreesbach (1994 ) , 265 Mont. 2 16, 

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 , 8 7 5 

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 

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it must set forth the "essential and determining" factors on which 

its determination is based. In re Marriage ofMerriman ( 19 9 1) , 24 7 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 them to 

be in the joint custody of the parties, with [Ann] 

designated the primary residential parent. 

On appeal, Ed contends that the court's determination does not 

fairly represent the record. Ed contends that the District Court 

accepted Ann's concerns without an independent review of the facts; 

that the court failed to fairly review Ed's record as the primary 

provider for his children; and that the court either ignored or 

misconstrued facts concerning the children's welfare. 

We have thoroughly reviewed the record, however, and find that 

the District Court did consider such factors as the wishes of Ann 

and Ed, the children's preferences, the interrelationships between 

the parties and their children, the children's adjustment to Libby, 

and the mental health of both Ann and Ed when it made its custody 

determination. Specifically, the court set forth the following 

facts in its decree: The court 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 Ann was an 

"emotionally stable" parent who "obviously loves, and cares for her 

children," and who is "supportive of the children and their school 

work and activities"; and the court noted that Ed's plan to move to 

Kalispell with the children would not serve the children's best 

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interests because they would lose Ann's "considerable warmth, and 

nurturing" and because Ed had failed to create an identity of his 

own unrelated to the children. In addition, the court addressed 

the issue of Ed's continued bitterness toward Ann throughout the 

dissolution proceedings, stating: 

[Ed] has made it clear, at each hearing that has 

been conducted, that he considers [Ann] immoral, unsuited 

to have the custody of the children, and that he has made 

this clear to the children; notwithstanding the Court has 

remonstrated with [Ed] about this attitude, it has not 

changed. 

Finally, in a written memorandum attached to the December 

decree, the court stated: 

This has been one of the most difficult dissolutions 

that I have had. There is no question of the closeness 

between the father and the children; by the same token, 

the children are equally fond of their mother. The 

father has been so distraught about the dissolution that 

becoming the residential custodian has been an obsession. 

His remarks concerning the children's mother in the 

presence of the children are sufficient to terminate any 

visitation; and but for the love that the children have 

for their father, visitation would be terminated. 

Nevertheless, that cannot continue. 

1993 

We conclude that the District Court's findings of fact are not 

clearly erroneous, and that the court did not abuse its discretion 

when it awarded Ann primary physical custody of the children. 

ISSUE 5 

Did the District Court demonstrate bias which prevented it 

from impartially deciding the issues presented? 

Ed contends that the District Court was biased against shared 

custody and did not award shared custody because of this bias. He 

further asserts that the court failed to seriously consider his 

12 
request for maintenance because of his gender. He contends that 

because he is a male the court imputed income to him that would not 

have been imputed had he been a woman. We find no merit to these 

allegations. 

The record is clear that neither Ann nor Ed wanted to continue 

a shared custody arrangement, and that the court considered all the 

necessary factors when it made its child custody determination. As 

the court stated in its findings, ('[bloth parties testified that 

they do not believe it is in the best interests of their children 

to continue this shared parenting situation." Furthermore, 

although Dr. Santa recommended shared 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 make joint 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 and forth daily between Ann's and Ed's homes. As the 

court stated: 

I feel some of the problems that you are having have been 

testified to and when you have children back and forth 

like a yoyo, you are going to get behavioral problems 

that you really can't blame on anybody. 

Ed's claim of gender bias is also unsupported. The court 

awarded maintenance in the sum of $500 per month for one year, even 

though it expressed concerns that Ed had failed to take advantage 

of educational opportunities throughout his marriage and that Ed's 

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unemployment 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. 

We affirm the decree of the District Court. 

We concur: 

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