No. 94-493

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

IN RE THE MARRIAGE OF

MONICA ELAINE SMITH,

Petitioner and Respondent,

and

VAN EARL SMITH,

Respondent and Appellant

APPEAL FROM: District Court of the Eighth Judicial District,

In and for the County of Cascade,

The Honorable Thomas M. McKittrick, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Michael S. Smartt; Big Sky Law Center,

Great Falls, Montana

For Respondent:

Joan E. Cook; Miller and Cook,

Great Falls, Montana

Filed:

Submitted on Briefs: March 7, 1996

Decided: May 6, 1996

/

Clerk
Justice Karla M. Gray delivered the Opinion of the Court.

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court

1995 Internal Operating Rules, the following decision shall not be

cited as precedent and shall be published by its filing as a public

document with the Clerk of the Supreme Court and by a report of its

result to State Reporter Publishing Company and West Publishing

Company.

Van Earl Smith (Van) appeals from the June 10, 1994, judgment

of the Eighth Judicial District Court, Cascade County, granting

Monica Elaine Smith (Monica) primary physical custody of the

couple's children and awarding child support in the amount of $310

per month. We affirm.

We address the following issues on appeal:

1 . Did the District Court abuse its discretion in awarding

primary physical custody of the children to Monica?

2. Did the District Court err in its application of the child

support guidelines?

Monica and Van married on May 31, 1985. They had two children

during their marriage. The District Court entered a Final Decree

of Dissolution on November 14, 1990, adopting and incorporating the

parties' settlement agreement provisions regarding custody. Under

the agreement, the parties would alternate actual physical custody

of the children every six months until the oldest child started

kindergarten, at which time actual physical custody would be

redetermined. In incorporating the agreement's custody provisions

into the decree, the District Court added that the standard for

redetermining custody would be the best interests of the children.

Neither party appealed.

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The oldest child started kindergarten in 1992. In January of

1993, upon motions by both parties, the District Court entered a

temporary custody order in which Monica was awarded physical

custody of the children for the rest of the school year and onehalf of the summer. Van was granted physical custody for the

remainder of the summer and the beginning of the 1993-94 school

year. The District Court stated that it would be necessary to

review the children's custody at a later date.

In December of 1993, Monica petitioned the court to review the

children's custody arrangement. On June 13, 1994, the District

Court entered its Findings of Fact, Conclusions of Law and Order

awarding Monica primary physical custody of the children; the court

gave Van secondary physical custody from one week after school

terminates in the summer until two weeks before school begins in

the fall. Van was required to provide child support in the amount

of $155 per month per child, for a total of $310 per month, for the

months Monica has physical custody of the children. Van appeals.

1 . Did the District Court abuse its discretion in awarding

primary physical custody of the children to Monica?

The District Court made extensive findings of fact relating to

custody of the children, concluded that the "best interests"

standard contained in § 40-4-212(l), MCA, applied and determined

that it was in the children's best interests to be placed in

Monica's primary physical custody. We will overturn a district

court's custody determination only when its findings and

conclusions clearly demonstrate an abuse of discretion. & In re

Marriage of Hunt (19941, 264 Mont. 159, 164, 870 P.2d 720, 723

3
(citation omitted); In re Marriage of Strizic (19941, 263 Mont.

193, 195, 867 P.2d 386, 387 (citation omitted).

a . Did the District Court err in applying § 40-4-212, MCA,

instead of § 40-4-219, MCA?

Van argues that the District Court improperly relied on the

best interests standard contained in § 40-4-212, MCA, in determining the children's physical custody. He contends that the

court's action was a modification of custody subject to the more

stringent requirements of § 40-4-219, MCA. We review a district

court's conclusions of law to determine whether the court's

interpretation of the law is correct. In re Marriage of Kovash

(1995) I 270 Mont. 517, 521, 893 P.2d 860, 863 (citation omitted).

A district court making an original determination of child

custody applies the best interest of the child standard contained

in § 40-4-212, MCA. A modification of custody, on the other hand,

can be accomplished only under § 40-4-219, MCA. The § 40-4-219,

MCA, "change of circumstance" requirement and the requirement that

the court find that one of the subsection (a) through (f) factors

exists are jurisdictional prerequisites to modification of custody;

unless the prerequisites are satisfied, a court may not modify

custody even if it finds that modification is in the child's best

interest. Section 40-4-219, MCA; In re Marriage of Johnson (1994),

266 Mont. 158, 162-66, 879 P.2d 689, 692-94. The more stringent

requirements of !$ 40-4-219, MCA, reflect the Legislature's recognition of the importance of continuity and stability in children's

living arrangements. Marriase of Johnson, 879 P.2d at 694.

We have held that a petition to modify child custody which has

the effect of substantially changing the residential living

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arrangements of a child must satisfy the jurisdictional

requirements set forth in § 40-4-219, MCA. Marriase of Johnson,

a79 P.2d at 694. Monica and Van's motions in this case sought to

substantially change the children's residential arrangements by

terminating the alternating six-month custody schedule and having

themselves designated the children's primary physical custodian for

the entirety of the school year. Thus, pursuant to Marriaqe of

Johnson, § 40-4-219, MCA, ordinarily would apply.

The District Court, however, applied the terms of its original

decree under which custody was to be "redetermined in accordance

with the best interests of the children" when the oldest child

started kindergarten. The redetermination provision had been

agreed upon in Monica and Van's settlement agreement and incorporated into the original decree with the addition of the best

interest standard. Neither party appealed the 1990 decree, which

predated Marriase of Johnson. Thus, the decree reflected the

parties' voluntary intentions and expectations regarding custody

redetermination and the standard under which redetermination would

be made. Under these unique facts, it would be altogether

inequitable to permit Van to now reject his earlier agreement and

invoke § 40-4-219, MCA, in order to vary the express terms of the

1990 decree. We conclude, therefore, that the District Court did

not err in determining the children's custody under the best

interest standard contained in § 40-4-212, MCA.

b. Did the District Court abuse its discretion in determining

that it was in the children's best interests to award primary

physical custody to Monica?

Van argues that the evidence supports his contention that it

is in the children's best interests that he be designated their

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primary residential custodian and challenges several of the court's

findings. However, our standard in reviewing a district court's

underlying findings of fact in a child custody case is whether

those findings are clearly erroneous; we review the ultimate

custody determination under a clear abuse of discretion standard.

In re Marriage of Dreesbach (1994), 265 Mont. 216, 220-21, 875 P.2d

1018, 1021 (citations omitted). Moreover, it is particularly

important in custody modification cases that this Court defer to

the district court which personally evaluated the testimony and was

in the best position to determine the credibility and character of

the witnesses. In re Marriage of Starks (1993), 259 Mont. 138,

143, 855 P.2d 527, 530 (citation omitted). In the face of

conflicting evidence, it is the trier of fact's function to resolve

the conflicts and we will not substitute our judgment for that of

the district court. Marriase of Starks, 855 P.2d at 530.

The evidence of record in this case regarding the parties' and

children's circumstances is substantial and often contradictory.

The District Court entered extensive findings relating to the

factors to be considered under § 40-4-212, MCA, in determining a

child's best interest.

With regard to Monica, the court found that Monica appears to

have a strong marital relationship with her new husband, they have

attended parenting classes and the children enjoy normal play and

educational activities at her house; during the post-July 1993

period when Van had custody of the children, Monica maintained

regular telephone contact with them and traveled from North Dakota

to Great Falls to see them a number of times. The court further

found that Monica and her husband have a large house, Monica is

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currently a housewife and one child's deficient academic

performance resulted from unsatisfactory maturity skills rather

than poor schools near Monica's residence.

Van asserts that certain of the District Court's findings

relating to Monica are not supported by the evidence. He contends,

for example, that no evidence supports the findings that Monica's

psychological counseling was terminated at the suggestion of her

counselor and that Monica and her husband, Joel, have a strong

marital relationship. The record, however, reflects otherwise.

Monica testified that her counselor terminated her counseling

sessions and both Monica and Joel testified to the strength of

their marriage.

Van also asserts that no evidence supports the District

Court's finding that the children experienced "educationally

related endeavors" while in Monica's custody. Monica testified,

however, that she engages with the children in coloring, Sunday

school and playing cars. Given the children's ages, these

activities fairly can be said to constitute educationally-related

endeavors.

In addition, Van apparently contends that the District Court's

finding that Monica and Joel attend church, "although not every

Sunday," is exaggerated. The finding is supported by Monica's

testimony that she and Joel attend church as often as they can and

that work obligations prevent them from attending church every

Sunday.

Van's final argument regarding lack of evidence to support the

court's finding relates to one child's alleged breathing problem.

According to the District Court, Monica "testified that . there

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was no interruption in Jordan's breathing." Van is correct that

the record does not contain testimony by Monica that the child's

breathing was not interrupted; her actual testimony was that she

was not sure that the child had stopped breathing. Such a minor

variance from the record with regard to one portion of one sentence

in a four-sentence finding relating to the child's breathing

problem does not, however, constitute a lack of evidence to support

the remainder of the finding. The variance is, at best, harmless

error in the context of the extensive findings of fact relating to

the children's custody.

Van's remaining challenges to the court's findings essentially

suggest that the District Court was required to make additional

findings. We disagree. The court's findings are sufficiently

comprehensive in light of the factors enumerated in § 40-4-212,

MCA.

The District Court weighed the evidence before it and entered

extensive findings pursuant to § 40-4-212, MCA. We conclude that

the findings are supported by substantial evidence and are not

otherwise clearly erroneous. We hold that the District Court did

not abuse its discretion in awarding primary physical custody of

the children to Monica.

2 . Did the District Court abuse its discretion in applying

the child support guidelines?

The District Court awarded Monica a total of $310 per month

child support for the months that Monica has physical custody of

the children. Our standard in reviewing a district court's child

support award is whether the court abused its discretion. In re

Marriage of Noel (1994), 265 Mont. 249, 252, 875 P.2d 358, 359

8
(citation omitted). The district court must take into account the

parties' actual situation and apply its discretion in a realistic

manner. Marriage of Noel, 875 P.2d at 359 (citation omitted).

Under Montana's child support guidelines, each parent is

required to contribute child support in an amount proportionate to

his or her share of the parents' combined resources after specific

allowable deductions are made from each parent's gross income.

Marriage of Noel, 875 P.2d at 359. Van argues that the District

Court erred by including depreciation relating to his employmentrelated equipment in his income and that, had the court properly

deducted the depreciation from his gross income, his total child

support obligation would have been only $133 per month. According

to Van, the District Court thereby abused its discretion.

Section 46.30.1508(l) (c), ARM, provides that depreciation for

vehicles, machinery and tangible assets may be deducted from the

gross income of a person who is self-employed upon a showing of

economic necessity. The "may be" in the guideline language is

discretionary on its face. Indeed, we previously have held that

although a district court may allow depreciation on a showing of

economic necessity under the guideline, the court is not required

to do so. Pederson v. Nordahl (1993), 261 Mont. 284, 287-88, 862

P.2d 411, 413.

Van contends that his testimony regarding the propriety of

deducting depreciation establishes "economic necessity" under

§ 46.30.1508(l) (c), ARM. His argument ignores the discretion

vested in the District Court by the guideline itself and by

Pederson. We conclude that Van has failed to establish an abuse of

discretion by the court with regard to its treatment of the

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depreciation and, on that basis, we hold that the District Court

did not abuse its discretion in applying the child support

guidelines.

LO