No. 86-136 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

IN RE THE MARRIAGE OF 

CARLA WILEY HAMMILL, 

Petitioner and Appellant, 

and 

GARY DOUGLAS HAMMILL , 

Respondent and Repondent. 

APPEAL FROM: District Court of the Eleventh Judical District, 

In and for the County of Flathead, 

The Honorable Nat Allen, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Oleson Law Firm; H. James Oleson, Kalispell, Montana 

William Boggs, Missoula, Montana 

For Respondent: 

Warden, Christiansen, Johnson & Berg; Gary R. Christiansen, Kalispell, Montana 

Robert B. Allison, Kalispell, Montana 

Filed : 

Submitted on Briefs: Nov. 25, 1986 

Decided: February 4, 1987 

FEB 4 - 1987 

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

Court. 

Carla Willey Hammill appeals the disposition of marital 

property and award of joint custody ordered by the District 

Court, Eleventh Judicial District, County of Flathead. The 

valuation and division of marital property is affirmed; the 

issue of child custody is remanded. 

Carla Willey Hammill and Gary Douglas Hammill were 

married June 3, 1967 in Iowa. They both attended Iowa State 

University, and upon their graduation in 1969, moved to 

Whitefish, Montana where Gary had a job as a veterinarian. 

Carla taught art and physical education in Whitefish until 

she became pregnant with her first son, Chet. Chet was born 

in September, 1971. A second son, Curt, was born in May, 

1974. 

The family moved to Kalispell in 1971, where Gary opened 

his own practice at Ashley Creek Animal Clinic. He suffered 

a severe back injury in 1972 when a metal kennel gate fell on 

his back. The pain caused by the injury led him to curtail 

his veterinary practice. He took on a partner in 1983, and 

eventually sold out his interest to the partner in January, 

1985. 

Carla and Gary separated in 1982, and the petition for 

dissolution was filed December 2, 1982. The couple entered 

into a temporary joint custody agreement on September 6, 

1983, whereby the primary residency of the two boys was to be 

with their mother, the father having the boys every other 

weekend and six weeks during the summer. Gary also agreed to 

pay $250.00 per child per month in child support. 

On December 13, 1983, the District Court appointed an 

attorney, Robert Allison, to represent the boys in this 
proceeding. A bench trial took place before the Honorable 

James M. Salansky on June 14, 1984. Attorneys for all 

parties were present, and a request that the court talk with 

the children in chambers was taken under advisement. The 

children did not testify at this time, and when the parties 

rested, the entire proceeding was taken under advisement. 

Mr. Allison also submitted a report to the court on the 

matter of custody arrangements, this report also being taken 

under advisement. 

Judge Salansky's subsequent illness and death prevented 

a final disposition of the matter. The Honorable Nat Allen 

was appointed to the case, and another bench trial was held 

December 5, 1985, at which time the marital property division 

and permanent custody arrangements were decided. For some 

reason, the children's attorney was not notified of this 

trial, and no evidence or testimony other than that of the 

parents was presented on the children's behalf. Each boy was 

briefly and separately interviewed by Judge Allen in 

chambers, with a court reporter present. 

At the end of the trial, Judge Allen stated he was going 

to keep the boys together rather than split custody between 

the parents, and that physical custody would alternate 

annually between mother and father. He stated that while the 

parties were free to propose findings otherwise, he was 

deciding custody as indicated. Both parties submitted 

findings of fact and conclusions of law as to the value of 

marital assets, the division of assets and liabilities, and 

child custody arrangements. The court adopted the husband's 

findings verbatim, and the wife appeals the decision. 

Carla Hammill sets forth the following issues on appeal: 

(1) Whether the District Court erred in evaluating 

the marital property as of December, 1985 (the date 

of the dissolution), rather than as of October, 

1982 (the date of the parties' separation)? 
(2) Whether the District Court erred in dividing 

the marital property on a 50-50 basis? 

(3) Whether the District Court erred in adopting 

the husband's findings verbatim? 

(4) Whether the District Court can determine 

contested custody without stating its reasons 

there for? 

(5) Whether the District Court determined custody 

without considering the best interests of the 

children? 

The younger son, Curt, also appeals the custody order 

through his co-counsel, William Boggs. Mr. Boggs was 

appointed co-counsel with Mr. Allison, and given leave to 

file a brief by order of this Court dated August 21, 1986. 

The issues raised by Curt are: 

1. Whether a custody decree can stand where the 

attorney appointed to represent the children was 

not notified of and did not participate in the 

trial which determined custody? 

2. Whether the District Court considered all five 

factors affecting the best interests of the 

children, as required by § 40-4-212, MCA? 

3. Whether joint custody is in the best interests 

of the children? 

Property Disposition 

In reviewing the division of property made by a district 

court, we will not disturb the decision absent a clear abuse 

of discretion. The test of abuse of discretion is whether 

the trial court acted arbitrarily without employment of 

conscientious jud.gment or exceeded the bounds of reason 

resulting in substantial injustice. In Re Marriage of Rolfe 

(Mont. 1985), 699 P.2d 79, 83, 42 St.Rep. 623, 626. 

Carla Hammill first challenges the valuation date used 

by the District Court. She argues the court should have used 
1982 values for the marital property - 1982 being the date of 

the parties' separation - rather than 1985 values - 1985 

being the date of the dissolution of the marriage. 

The general rule in Montana is that "[a] proper 

disposition of marital property in a dissolution proceeding 

requires a finding of the net worth of the parties at --- or near 

---- the time of the dissolution." In Re Marriage of Loegering 

(Mont. 1984), 689 P.2d 260, 264, 41 St.Rep. 1892, 1896. 

(Emphasis added.) The policy of using the dissolution dat.e 

for valuation of property is that this valuation date most 

clearly reflects the status of the property at the time of 

trial. In Re Marriage of Hamilton (1980), 186 Mont. 282, 

283, 607 P.2d 102. In this case, Carla does not argue that 

the 1985 values were inaccurate or incorrect in themselves. 

Rather, she argues that the court should have adopted the 

1982 values which she proposed. A trial judge is free to 

select whatever value he or she wishes, so long as there is 

substantial credible evidence to support the value selected. 

In Re Marriage of Staudt (Mont. 1985), 700 P.2d 175, 177, 42 

St.Rep. 740, 743. 

There is no evidence in the record which conflicts with 

the 1985 values adopted by the District Court, and we 

therefore hold the court did not abuse its discretion in 

adopting the 1985 valuation date. 

The second issue Carla raises is whether the court erred 

in dividing the marital property on a 50-50 basis. The 

marital property was divided as follows: 

Property To Husband To Wife 

Home (1015 First Avenue $ 34,568.18 (He 

East, Kalispell, MT) shall be solely 

responsible for 

the mortgage balance) 
Property To Husband To Wife 

Unimproved property % (the Easterly tract) 3/4 (The 

(LaBrant Road tract) Westerly 

Flathead County, MT) three tracts) 

(The parties shall share the payment of the Contract for 

Deed obligations on a pro rata basis, i.e., % Husband, 

3/4 Wife and property taxes shall be shared similarly if 

the taxes are not assessed separately) 

International Scout $ 500.00 

Van $ 3,000.00 

Life Insurance Policy $ 665.00 

Teacher's Retirement 

Household Furnishings: 

Items 1 through 35 

on Exhibit "A" as 

indicated $ 3,500.00 

(Note: Items being used 

by the parties' sons at this 

time will be made available 

to Respondent at the end of 

the 1985-86 school year.) 

Items 1 through 35 on 

Exhibit "A" as indicated, 

exclusive of Item 17, which 

is located in the Kalispell 

home and shall be considered 

a part of said home 

Items 36 through 67 on 

Exhibit "A" $ 2,000.00 

Unknown 

Each party shall retain 

the personal gifts noted at 

the end of Exhibit "A" 
Property To Husband 

Contract Receivable $ 8,833.41 

(The parties will share 

payments received on this 

Contract receivable in the 

proportion that has been 

allocated) 

TOTAL $75,266.59 

To Wife 

$ 1,166.59 

The marital liabilities (exclusive of those noted 

above) total $8,768.94 and shall be shared equally 

between the parties. The farm equipment, horse and 

shop equipment and the horses, which have not been 

allocated to either party above, shall be sold and 

the sales proceeds shall be applied to the marital 

debt. Husband, because of his experience with 

horses and horse owners, shall be primarily 

responsible for the sale of these assets. As 

assets are sold and debts are satisfied, a full and 

complete accounting shall be provided by him to 

Wife. Any proceeds from the sale of assets not 

required to satisfy the marital debts specified in 

Finding of Fact No. 13 or not required to pay the 

ongoing expenses incurred in keeping the horses 

from the time of this trial until their disposal 

(which the Court also recognizes as marital debt) 

shall be shared equally between the parties. 

The District Court based this division of property on the 

nature of the assets, the contributions of the parties, the 

education and employment backgrounds and prospects of the 

parties, the health of the parties and their needs as 

parents. The court found that both parties were 

employed - Carla as a school teacher earning $15,000 per year 

with expectation of a tenured position; Gary as a 

veterinarian who did some consulting work, who was trying to 

start a new business, and who earned approximately $10,000 

per year. Gary's back injury had caused him to limit and 

finally sell his veterinary practice in Kalispell, thus 

limiting his earning capacity. Carla had no physical 

disabilities. Carla also planned to remarry after the 
dissolution of the marriage, and had established a household 

in Missoula three years previously. We find sufficient 

evidence in the record to support the District Court's 

division of marital property on a 50-50 basis. 

Carla next contends the District Court's adoption of 

Gary's proposed findings of fact and conclusions of law was 

error. The standard of review for findings made by a 

district court is the same whether the district court 

prepared the findings or whether it adopted a party's 

proposed findings. In Re Marriage of Goodmundson (1982) , 201 

Mont. 535, 538, 655 P.2d 509, 511. This Court's test for the 

adequacy of findings is whether they are sufficiently 

comprehensive and pertinent to the issues to provide a basis 

for decision, and whether they are supported by the evidence 

presented. In Re Marriage of Hurley (Mont. 1986), 721 P.2d 

1279, 1285, 43 St.Rep. 1271, 1277. The findings in this case 

do meet the above tests. The court heard testimony from both 

parties as to the property and child custody issues, as well 

as examined exhibits, memoranda, and interrogatories filed 

and made part of the record below. There is ample evidence 

in the record to support the District Court's adoption of 

respondent's proposed findings of fact and conclusions of 

law, and we find the court did not abuse its discretion in so 

doing. 

Child Custody 

The remaining two issues raised by Carla involve the 

propriety of the award of custody of the two children. She 

urges us to reverse the joint custody award based on the 

alleged failure of the District Court to state its reasons 

for awarding joint custody, and its failure to consider the 

best interests of the children as set forth under § 40-4-212, 

MCA. The younger child, Curt, has also appealed the custody 

order, based on the alleged failure of the court to consider 
the best interests of the children, and also on the failure 

to notify his attorney of the trial which determined custody. 

We find that the failure to notify a child's attorney of 

proceedings affecting that child's interest constitutes 

reversible error, and so do not reach the issue of adequacy 

of the court's findings as to the best interests of the 

children. 

Robert Allison was appointed by Judge Salansky as the 

children's attorney on December 13, 1983. Mr. Allison 

received notice of and attended conferences and a non-jury 

trial before Judge Salansky in 1984. The non-jury trial did 

not address the custody issue. On August 30, 1984, Mr. 

Allison submitted a report to the court detailing his 

interviews with the various parties and other witnesses, and 

suggesting a joint custody arrangement with physical custody 

being awarded to the mother until the children reached ninth 

grade, and thereafter physical custody being with the father 

for the remainder of the boys' time in high school. 

Due to Judge Salansky's illness and death, the case was 

not decided in 1984. In 1985, Judge Allen was appointed to 

the case. For some reason, all notices thereafter concerning 

conferences and the trial were sent to counsel for Carla and 

Gary, but not to the children's attorney, Mr. Allison. While 

the appointment of an attorney to represent children in 

custody matters is discretionary with the court under § 

40-4-205, MCA, once the attorney has been appointed, it is 

required that he or she is served with all orders, pleadings, 

notices, motions and other papers pertinent to the action. 

Rule 5 (a) , M.R.Civ.P. ; S 25-3-402, MCA. 

Further, the purpose of $$ 40-4-205, MCA, is to provide 

children with an advocate who will represent their interests 

and not the parents' interests. In Re Marriage of Kramer 

(1978), 177 Mont. 61, 72, 580 P.2d 439, 445. This means the 
attorney must actively represent the children and and he 

given an opportunity to present to the court all the evidence 

he or she can marshal concerning the best interests of the 

children. - Id. Obviously, the attorney cannot perform this 

role unless notified of conferences and hearings. 

We therefore set aside the custody award as it applies 

to Curt Hammill. As we found in our order of August 21, 

1986, the okler brother, Chet, is apparently satisfied. with the 

time-sharing custody arrangement and the custody award as to 

Chet is not at issue in this appeal. The District Court's 

disposition of the marital property is affirmed. 

C,L& a, Justice 

/ 

We Concur: L,