IN RE MARRIAGE OF HEDGES, 01-106.

• Decision Date: 10 September 2002
• Docket Number: No. 01-106.,01-106.
• Parties: In re the MARRIAGE OF Rom Donald HEDGES, Petitioner/Appellant, and Kristi Jo Hedges, Respondent/Respondent/Cross-Appellant.
• Court: Montana Supreme Court

53 P.3d 1273

2002 MT 204

In re the MARRIAGE OF Rom Donald HEDGES, Petitioner/Appellant, and

Kristi Jo Hedges, Respondent/Respondent/Cross-Appellant.

No. 01-106.

Supreme Court of Montana.

Submitted on Briefs January 31, 2002.

Decided September 10, 2002.

Kevin J. Chapman, Chapman Law Office, Williston, North Dakota, for Appellant.

Phillip N. Carter, Sidney, Montana, for Respondent. Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 The Fifteenth Judicial District Court in Sheridan County, Montana, dissolved Rom and Kristi Hedges' marriage, valued and distributed the couple's property and entered a parenting plan governing custody of the couple's only child. Rom and Kristi each appeal from various aspects of the District Court's ruling. We affirm in part and reverse and remand in part.

ISSUES

¶ 2 The parties took exception to several aspects of the District Court's ruling. A restatement of Rom's issues is:

1. Did the District Court err in adopting the Final Parenting Plan?

2. Did the District Court err in its ordered property distribution?

3. Did the District Court err in ordering Rom to pay post-judgment interest?

¶ 3 Kristi's issues as cross-appellant are:

1. Did the District Court err in characterizing the year 2000 crop as Rom's income rather than including it in the marital estate?

2. Did the District Court err when it calculated Rom's child support obligation?

3. Did the District Court err when it awarded 960 acres of pasture land to Rom instead of Kristi?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 4 Rom Donald Hedges and Kristi Carol Hedges were married on October 10, 1992. The couple ranched and farmed in Antelope, Montana, during their marriage. On November 7, 1997, their only child, Risa Carol Hedges, was born. Rom and Kristi separated on or about April 30, 1999. Rom filed a Petition for Dissolution of Marriage and a Motion for Interim Parenting Plan on May 5, 1999. In the interim plan, Rom requested that Risa reside with him on the family farm for a majority of the time. Kristi contested the motion and a hearing was held on June 7, 1999, before District Court Judge David Cybulski.

¶ 5 On June 18, 1999, Judge Cybulski entered an interim parenting plan under which Risa's primary residence was with Rom but she spent at least three days per week with Kristi, on Kristi's days off from her job with the postal service. In March 2000, Kristi moved the court to modify the interim parenting plan. A hearing was held on this motion on May 10, 2000. Judge Cybulski had recused himself in August 1999, and therefore Judge Richard Phillips presided. After hearing testimony from the parties, various friends and relatives, and a clinical psychologist who evaluated Kristi and Risa, the court denied Kristi's motion to modify the parenting plan by Order dated May 24, 2000, concluding that no substantial change of circumstances had occurred and that a change of custody was not required for Risa's best interests.

¶ 6 In August 2000, a two-day trial was held before Judge Phillips. During the trial, the court instructed the parties that it would hear only post-May 10, 2000 evidence pertaining to parenting issues and custody, as it was already aware of relevant custodial information up through the May 10, 2000 hearing. Following trial, the court entered its Findings of Fact, Conclusions of Law and Decree of Dissolution of Marriage (Decree) on November 2, 2000. The Decree included a Final Parenting Plan (the FPP or Plan) and a distribution of marital property.

¶ 7 The FPP departed substantially from the interim parenting plan, and established that Risa would henceforth reside with Kristi instead of Rom. The District Court claimed, however, that the FPP would "provide for continuing shared time between the parties as evenly as possible." To achieve this "evenly shared time," the Plan provided that the parents should alternate weekends with Risa, and that Kristi should allow Risa to spend three days and one night at Rom's house during each week that Risa would not be spending the following weekend with Rom. On the weeks leading to the weekends that Risa would spend with Rom, Kristi was to arrange for Risa to spend two days with Rom. For the remainder of those weeks while Kristi was working, Risa would stay with Kristi's family or in day care. The upshot of this rather complicated plan is that Risa spends much more time with her mother than with her father. The FPP also addressed holiday and summer schedules, decision-making issues and general rules applicable to divorced parents jointly raising a child in separate households. The Decree established the amount of monthly child support Rom must pay based upon an estimated annual income of $35,000.

¶ 8 Rom appeals the residential provisions of the FPP, arguing that no substantial change of circumstances had occurred that warranted departing from the interim parenting plan. Kristi supports the FPP but appeals the amount of child support Rom was assigned, arguing that the District Court underestimated Rom's income.

¶ 9 Also during the August trial, the court heard substantial testimony regarding the value, ownership and use of articles of personal property and parcels of real property. Additionally, the District Court took testimony on the income and debt of both parties. From this testimony, the District Court attributed value to these items of property and distributed them between Rom and Kristi. The parties hotly disputed to whom a 960-acre parcel of pasture land should be allocated. After attempting a "Solomon-like" division in the court's original Decree, Judge Phillips reversed himself in an amended Order and granted the entire parcel to Rom. Kristi appeals this decision.

¶ 10 Additionally, in an attempt to equalize the estate between the parties, the court ordered Rom to pay Kristi $32,000, plus 10% post-judgment interest, before September 30, 2001, and an additional $19,500, plus 10% post-judgment interest over a period of three years. Rom appeals both the amount to be paid and the imposition of post-judgment interest.

¶ 11 Lastly, Kristi appeals the District Court's decision to exclude the value of the year 2000 crop of grain, hay, calves and lambs from the marital estate. The District Court concluded that farm and ranch production for the year 2000 minus production costs for that year constituted Rom's income and should not be included in the marital estate. Kristi disagreed and argued that these items were acquired during the marriage and should be part of the marital estate. Moreover, she argued that should this Court determine that the 2000 crop was Rom's income, then the District Court underestimated the income amount and therefore miscalculated Rom's monthly child support obligation.

STANDARD OF REVIEW

¶ 12 We review a district court's findings related to custody or visitation modification to determine whether those findings are clearly erroneous. In re Marriage of Drake, 2002 MT 127, 310 Mont. 114, 49 P.3d 38 (citing In re Marriage of Elser (1995), 271 Mont. 265, 270, 895 P.2d 619, 622, overruled on other grounds by Porter v. Galarneau (1996), 275 Mont. 174, 911 P.2d 1143). In Elser, we said that "[f]indings are clearly erroneous if they are not supported by substantial evidence, the court misapprehends the effect of the evidence, or this Court's review of the record convinces it that a mistake has been made." Elser, 271 Mont. at 270, 895 P.2d at 622. If the findings on which its decision are based are not clearly erroneous, this Court will reverse a district court's decision regarding custody modification or visitation only when an abuse of discretion is demonstrated. Elser, 271 Mont. at 270, 895 P.2d at 622 (citation omitted).

¶ 13 We review a district court's division of marital property to determine whether the findings on which it relied are clearly erroneous. In re Marriage of DeBuff, 2002 MT 159, 310 Mont. 382, 50 P.3d 1070 (citing In re Marriage of Engen, 1998 MT 153, ¶ 26, 289 Mont. 299, ¶ 26, 961 P.2d 738, ¶ 26.) If the findings are not clearly erroneous, we will affirm the distribution of property unless the district court abused its discretion. DeBuff, ¶ 14.

¶ 14 A district court's award of post-judgment interest is a conclusion of law which we review de novo. DeBuff, ¶ 15 (citing Tipp v. Skjelset, 1998 MT 263, ¶ 11, 291 Mont. 288, ¶ 11, 967 P.2d 787, ¶ 11).

DISCUSSION

¶ 15 The first issue we address is whether the District Court erred in its adoption of the FPP.

¶ 16 Rom appeals the terms of the FPP and argues that the District Court erroneously adopted an FPP that was significantly different from the interim parenting plan without a showing of a substantial change in circumstances as required by § 40-4-219, MCA. Rom also argues that the FPP adopted by the court is much more one-sided, in Kristi's favor, than either parties' proposed parenting plan. Rom maintains that the FPP was not based upon substantial evidence and was therefore clearly erroneous.

¶ 17 We begin our analysis by recognizing the difficult position in which district courts are placed when presented with contentious marriage dissolution and child custody cases. We reiterate our firm belief that the trial court is in a better position than this Court to resolve child custody issues. We therefore presume the district court's ruling is correct and we will uphold it unless the court's findings of fact are clearly erroneous or a clear abuse of discretion is shown. See In re Custody of Arneson-Nelson, 2001 MT 242, ¶ 22, 307 Mont. 60, ¶ 22, 36 P.3d 874, ¶ 22 (citation omitted).

¶ 18 Section 40-4-219, MCA, authorizes a district court to modify a parenting plan if it determines that the child's circumstances have changed since the prior plan was entered and that the modification serves the best interests of the child. In defining the best interests of the child, courts are guided by § 40-4-212, MCA, which outlines several relevant factors to be considered....