NO. 94-081

IN THE SUPREME COURT OF THE STATE OF MONTANA

1994

IN RE THE MARRIAGE OF

MICHAEL K. COREY,

Petitioner and Respondent,

and

VALERIE A. COREY,

Respondent and Appellant.

APPEAL FROM: District Court of the Seventeenth Judicial District,

In and for the County of Valley,

The Honorable Leonard H. Langen, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Linda L. Harris; Harris Law Firm, Billings,

Montana

For Respondent:

James D. Rector, Attorney at Law, Glasgow,

Montana

Submitted on Briefs: August 4, 1994

Decided: September 12, 1994

Filed:
Justice John Conway Harrison delivered the Opinion of the Court.

The petitioner Michael K. Corey petitioned the District Court

of the Seventeenth Judicial District, Valley County, for

dissolution of his marriage to his wife, Valerie A. Corey, on April

20, 1993. On December 20, 1993, following a trial on all issues,

the District Court entered its findings of fact, conclusions of

law, and decree from which Valerie Corey now appeals. We remand

for modification of the decree and, as modified, affirm.

The issues are:

1 . Did the District Court err in distributing the property of

the marital estate?

2 . Did the District Court err in its calculation of the amOUnt

of maintenance awarded to Valerie Corey?

3 . Did the District Court err by failing to make provisions

for visitation between Valerie Corey and the minor children of the

parties during Michael Corey's periods of summer visitation?

4 . Did the District Court err when it ordered Michael Corey's

child support payments reduced by one-half during those months that

he has the minor children in his care for at least twenty-five

consecutive days?

5. Did the District Court err when it did not order Michael

Corey to continue providing health insurance for the minor

children?

Michael Corey (Michael) and Valerie Corey (Valerie) were

married on December 3, 1977. They had two children during their

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marriage: Brandon Corey, born September 19, 1978, and Shannon

Corey, born November 19, 1981.

Michael petitioned for dissolution on April 20, 1993. In his

petition, Michael requested dissolution of the couple's marriage,

joint custody of the children with suitable visitation, that

Michael be required to pay child support, and division of the

marital property. In her responsive pleadings, Valerie joined in

Michael's request for dissolution, joint custody with suitable

visitation, Michael's payment of child support, and division of the

marital property.. In addition, Valerie sought maintenance and

attorney's fees.

In its findings of fact, conclusions of law, and decree

dissolving the couple's marriage, the District Court found that

both parties were fit and proper persons to be granted custody of

the minor children and granted joint custody of the children to

both parties. As a plan of implementation, the District Court

ordered that Valerie have primary residential custody of the

children and that Michael have visitation rights for three months

in the summer, weekends, alternating holidays, and all other times

reasonable under the circumstances.

In addition, the District Court found that Michael was

financially able to provide support for the children and ordered

him to pay child support in the amount of $275 per month for each

child until emancipation. The District Court ordered these

payments reduced by one-half during any month in which Michael had

actual custody of the children for at least twenty-five consecutive
days.

Also, the District Court found that the parties had

accumulated real and personal property in the marital estate valued

at $49,688. The court awarded Valerie various personal property

worth $10,800, and awarded Michael real and personal property worth

$38,888. The court also awarded Valerie maintenance payments of

$400 per month for twelve months beginning January 1, 1994; $300

per month for twenty-four months beginning January 1, 1995; and

$200 per month for twenty-four months beginning January 1, 1997.

Finally, the court ordered Michael to pay one-half of Valerie's

attorney's fees, amounting to $2,500.

Did the District Court err in distributing the property of the

marital estate?

The standard this Court applies in reviewing a distribution of

marital property is that, absent a clear abuse of discretion, the

district court will not be overturned where the court based its

distribution of marital assets on substantial credible evidence.

In re Marriage of Otto (1990), 245 Mont. 271, 277, 800 P.2d 706,

710. Valerie contends that the District Court erred in dividing

the marital property in an amount which equaled an approximate

distribution of 78% of the marital estate to Michael and 22% of the

marital estate to Valerie.

In support of her contention that the property division should

be reversed, Valerie cites In re Marriage of Berthiaume (1977), 173

Mont. 421, 567 P..2d 1388. In Marriaae of Berthiaume, this Court

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held that it was a clear abuse of discretion for the trial court to

find that the marital property should be divided as equally as

possible, and then grant one party well over 90 percent of the

property without making any offset provision for the other party.

Marriase of Berthiaume, 567 P.2d at 1390. Valerie contends that

Marriaoe of Berthiaume is controlling, and thus the District Court

committed reversible error. We disagree.

The present case is distinguishable from Marriage of

Berthiaume. Here, after stating that the property should be

equally divided, the District Court explained why it had not made

an equal division of the property. The disparity in the division

came from the award to Michael of a mobile home and real property

on which the mobile hone rested. The court explained that it would

award the mobile home and land to Michael as the mobile home was

damaged to a point where it was nearly uninhabitable and Michael

was in a better position to repair it. Unlike Marriaqe of

Berthiaume, the court stated that it was making up the difference

in the values of the properties by increasing the amount of

maintenance awarded to Valerie. In addition, it should be noted

that this Court has held that an equitable division need not be an

equal division. :In re Marriage of Fitzmorris (1987), 229 Mont. 96,

99, 745 P.2d 353, 354.

The District Court did not abuse its discretion in

apportioning the marital property. It based its decision on

substantial credible evidence and accounted for the unequal

property distribution by increasing the amount of maintenance

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awarded to Valerie. We therefore affirm the District Court's

division of the marital property.

II

Did the District Court err in its calculation of the amount of

maintenance awarded to Valerie?

The District Court awarded Valerie maintenance in the amount

of $400 per month for the first twelve months following the

dissolution, $300 per month for the following twenty-four months,

and $200 per month for an additional twenty-four months. The

parties do not dispute that Valerie is entitled to maintenance.

Valerie contends that the District Court did not sufficiently

consider her expenses and that this constitutes reversible error.

The standard of review for a maintenance award is whether the

district court's findings are clearly erroneous. In re Marriage of

Eschenbacher and Crepeau (1992), 253 Mont. 139, 142, 831 P.2d 1353,

1355. The amount and period of maintenance are determined by

reference to Montana statute. See § 40-4-203(2), MCA. The factors

to be considered include:

(a) the financial resources of the party seeking

maintenance, including marital property apportioned to

him, and his ability to meet his needs independently,

including the extent to which a provision for support of

a child living with the party includes a sum for that

party as custodian:

(b) the time necessary to acquire sufficient education or

training to enable the party seeking maintenance to find

appropriate employment;

(c) the standard of living established during the

marriage;

(d) the duration of the marriage;

(e) the age and the physical and emotional condition of

the spouse seeking maintenance: and

(f) the ability of the spouse from whom maintenance is

sought to meet his needs while meeting those of the

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spouse seeking maintenance.

Section 40-4-203(2), MCA.

The findings of fact indicate that the District Court

considered all the statutory factors listed above. In particular,

the District Court considered the unequal property division, the

additional training Valerie will need to reenter the work force,

her living expenses and current job opportunities, and Michael's

financial ability to pay maintenance. The court need not be fact

specific as to its analysis of every factor. This Court has upheld

maintenance awards where the trial court did not make specific

findings regarding each statutory element, but its findings

demonstrated that it considered the proper factors and the award

was based on substantial credible evidence. In re Marriage of Cole

(19881, 234 Mont. 352, 359, 763 P.2d 39, 43.

We conclude that the District Court considered the proper

factors and its maintenance award was based on substantial credible

evidence. The District Court's findings regarding maintenance

award were not clearly erroneous. Therefore, we affirm the court's

calculation and award of maintenance.

III

Did the District Court err by failing to make provisions for

visitation between Valerie and the minor children of the parties

during Michael's periods of summer visitation?

According to Montana statute, "A parent not granted custody of

the child[ren] is entitled to reasonable visitation rights unless

the court finds, after a hearing, that visitation would endanger

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seriously the child[ren]'s physical, mental, moral, or emotional

health." Section 40-4-217(l), MCA.

In the present case, the District Court granted Michael

visitation rights for three summer months, weekends, alternating

holidays, and all other reasonable times. The court did not grant

Valerie visitation rights during the three summer months in which

Michael has the children. Valerie contends that Michael's

visitation rights for three summer months amount to Michael having

custody of the children for three months in the summer, and that

she should have visitation rights during this time.

Michael asserts that the District Court's order should not be

modified. In support of his contention, Michael cites Meyer v.

Meyer (1983), 204: Mont. I??, 663 P.2d 328. In Mever, this Court

held that a specific visitation schedule was not necessary when the

district court had split custody of the three children (one to the

wife, two to the husband) and provided that each party should have

reasonable visitation. Meyer, 663 P.2d at 330-31. However, Mever

is not controlling in this case.

Here, the District Court did not provide for Valerie to have

reasonable visitation when Michael has the children during the

summer months. The only mention of equal access to Valerie is

contained in the court's finding establishing joint custody of the

minor children. The court then made a separate finding on

visitation which granted Michael visitation rights. Its finding on

visitation did not include any rights of visitation for Valerie.

Michael's visitation rights for three summer months amount to

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custody of the minor children for three months. Valerie, who is

the noncustodial parent during these months, is entitled to

reasonable visitation since there is no evidence that such

visitation would in any way endanger the children. See 5 40-4-

217(1), MCA. Thus we remand to the District Court and instruct the

court to amend its decree to provide that Valerie have reasonable

visitation during the three summer months in which Michael has

physical custody of the minor children.

IV

Did the District Court err when it ordered Michael's child

support payments reduced by one-half during those months that he

has the minor children in his care for at least twenty-five

consecutive days?

The District Court ordered Michael to pay child support in the

amount of $550 per month for those months Valerie has custody of

the children. The court also ordered him to pay child support in

the amount of $275 per month for those months he has the children

in his care for at least twenty-five consecutive days. Valerie

contends that the District Court erred because the reduction is an

unaccounted variation from the Uniform Child Support Guidelines.

Michael asserts that the court correctly reduced the child support

because the $550 per month guideline figure initially was based on

a payment plan involving child support payments for only those nine

months of the year in which Valerie has custody of the children.

In reviewing an award of child support, a presumption exists

in favor of the district court's determination: and we will reverse

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a district court's determination only for an abuse of discretion.

In re Marriage of Clingingsmith (1992), 254 Mont. 399, 406, 838

P.2d 417, 421-22.

Montana statute sets out several factors for a court to

consider in determining the amount of child support, including the

following:

(a) the financial resources of the child;

(b) the financial resources of the custodial parent:

(c) the standard of living the child would have enjoyed

had the marriage not been dissolved;

(d) the physical and emotional condition of the child and

the child's educational and medical needs;

(e) the financial resources and needs of the noncustodial

parent;

(f) the age of the child;

(g) the cost of day care for the child:

(h) any custody arrangement that is ordered or decided

upon; and

(i) the needs of any person, other than the child, whom

either parent is legally obligated to support.

Section 40-4-204(2), MCA. In addition, a court must apply the

uniform child support guidelines when ordering child support. See

§ 40-4-204(3)(a).

Here, the District Court established the award of child

support based on the guidelines and the statutory factors listed

above. The court considered the undisputed guideline amount

offered by Michael, and, among other factors, considered the

custodial arrangement of Michael having the children during three

summer months. Having considered these factors, the court reduced

Michael's child support payments by one-half during those months

that Michael has custody of the children for at least 25

consecutive days.

We hold that the District Court did not abuse its discretion

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and properly applied the guidelines and the statutory child support

factors in making the child support award. Therefore, we affirm

the District Court's award of child support.

V

Did the District Court err when it did not order Michael to

continue providing health insurance for the minor child?

The record establishes that at the time of trial, the minor

children had health insurance coverage through Michael's employer.

The District Court's findings of fact, conclusions of law, and

decree do not mention provisions for health insurance.

Section 40-4-204(4)(a), MCA, applies to child support orders

and health insurance. It provides in relevant part:

(4) Each district court judgment, decree, or order

establishing a final child support obligation under this

title and each modification of a final order for child

support & include a provision addressing health

insurance coverage in the following cases:

(a) If either party has available through an employer or

other organization health insurance coverage for the

child or children for which the premium is partially or

entirely paid by the employer or organization, the

judgment, decree, or order may contain a provision

requiring that coverage for the child or children be

continued or obtained. [Emphasis added.]

Section 40-4-204(4)(a), MCA.

The record and Michael's Respondent's brief make it clear that

the parties intended Michael to continue to carry the minor

children on his employee health insurance policy. It was judicial

oversight for the District Court to fail to include a provision

regarding the children's health insurance in its decree. The

decree should be modified to include a provision that Michael will

continue to provide health insurance coverage for the minor

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children until they reach the age of majority. Thus, we remand for

the District Court to modify its decree accordingly.

The judgment of the District Court is remanded for

modifications consistent with this opinion, and, as modified, is

affirmed.

i

Justice

We concur:

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