Marriage of DeWitt, In re

• Decision Date: 31 October 1995
• Docket Number: No. 95-192,95-192
• Citation: 52 St.Rep. 1089,905 P.2d 1084,273 Mont. 513
• Parties: In re the MARRIAGE OF Denise DeWITT, Petitioner and Appellant, and John J. DeWitt, Respondent and Respondent.
• Court: Montana Supreme Court

Page 1084

905 P.2d 1084

273 Mont. 513

In re the MARRIAGE OF Denise DeWITT, Petitioner and Appellant and John J. DeWitt, Respondent and Respondent.

No. 95-192 Supreme Court of Montana.

Submitted on Briefs Oct. 12, 1995.

Decided Oct. 31, 1995.

Bernard J. "Ben" Everett; Knight, Dahood, McLean & Everett, Anaconda, for Appellant.

Brad L. Belke, Butte, for Respondent.

LEAPHART, Justice.

Denise DeWitt appeals from the December 29, 1994, Findings of Fact and Conclusions of Law of the Second Judicial District Court, Silver Bow County, dissolving the marriage, distributing the marital estate and awarding child support, custody and visitation. We affirm in part and reverse in part.

The following issues are raised on appeal:

1. Did the District Court err in awarding child custody and visitation?

2. Did the District Court err in concluding that Respondent did not have to pay child support?

3. Did the District Court err in distributing the marital estate?

John J. DeWitt (John) and Denise DeWitt (Denise) were married on October 10, 1987. Two daughters, now ages 4 and 6, were born of the marriage. At the time their marriage was dissolved, Denise was employed as a real estate loan officer and John was employed seasonally as a golf pro. The District Court found that both parties were in excellent health and that both have a good opportunity to acquire income and assets in the future. The court noted that Denise has no college degree, and that John has a college degree in marketing.

Both parties requested that the children be placed in their joint custody, and both petitioned to be the primary physical custodian. The District Court, finding that joint custody was in the best interests of the children, awarded joint custody to the parties and designated Denise as the primary physical custodian. The court noted that John's employment was seasonal and, to accommodate his schedule, awarded him a thirty-day "summer visitation" period during the winter months of January, February, or March. In its custody determination, the court also recognized the parties' religious background and that John's extended family lives outside the state of Montana.

The District Court adopted the parties' stipulation as to the values of the marital assets and the amounts of the marital debts. The court distributed marital assets to Denise in the amount of $145,522.98, and to John in the amount of $35,099.14. The court apportioned all of the parties' debts, in the amount of $80,177.24, to Denise. The court ordered that the family home be maintained for the benefit of the children, but that Denise was required to pay John $20,000 as his share of the equity in the house when the youngest child reaches age 18. Further, the court ordered that Denise pay $1,200 per year as interest on this obligation.

The court stated that the parties agreed that John would not be required to pay child support until such time as he obtains regular monthly employment. At that time, the court stated that child support obligations should be calculated according to the Uniform Child Support Guidelines.

Denise appeals from the District Court's rulings on child custody and visitation, child support, and the distribution of the marital estate.

1. Did the District Court err in awarding child custody and visitation?

In reviewing a district court's award of child custody, we determine whether the district court's findings are clearly erroneous. In re Marriage of Dreesbach (1994), 265 Mont. 216, 220-21, 875 P.2d 1018, 1021. The findings of fact must be based on substantial credible evidence and the court's decision will be upheld unless a clear abuse of discretion is shown. Marriage of Dreesbach, 875 P.2d at 1021; In re Marriage of Hunt (1994), 264 Mont. 159, 164, 870 P.2d 720, 723.

In determining child custody, the district court must consider the "best interest" criteria set forth in § 40-4-212, MCA, however, the court is not required to make specific findings on each individual factor. Marriage of Dreesbach, 875 P.2d at 1021; In re Marriage of Merriman (1991), 247 Mont. 491, 493, 807 P.2d 1351, 1353. Here, the Findings of Fact and Conclusions of Law illustrate that the District Court considered the best interest factors. In addition, the court considered the religious traditions of the parties, John's out-of-state relatives, and John's summer employment. Substantial credible evidence supports the District Court's determination of child custody. The District Court's findings are not clearly erroneous.

2. Did the District Court err in concluding that Respondent did not have to pay child support?

In reviewing a district court's award of child support, we consider whether the district court abused its discretion. In re Marriage of Craib (1994), 266 Mont. 483, 490, 880 P.2d 1379, 1384. In its Findings of Fact and Conclusions of Law, the District Court stated:

Because of John DeWitt's present employment status the parties agree that he not be required to pay to Denise DeWitt any monthly child support until such time as he obtains regular employment. At that time, he should notify Denise DeWitt of his employment status and his child support will be calculated in accordance with the child support guidelines of the State of Montana. If John DeWitt does not find regular employment within twelve (12) months from the date of this Decree, he shall present to the Court in writing, proof of his efforts to find employment and the reasons he has not become employed.

Although the District Court stated that "child support will be calculated in accordance with the child support guidelines," the court did not require either party to complete the Uniform Child Support Guidelines Affidavit. Section 40-4-204(3)(a), MCA, requires that the guidelines must be used in all cases. See also In re Marriage of Brandon (Mont.1995), 894 P.2d 951, 953, 52 St.Rep. 381, 382-83.

If the court deviates from the guidelines, the court must justify its failure to follow the guidelines with "clear and convincing" evidence. Section 40-4-204(3)(a), MCA; Marriage of Brandon, 894 P.2d at 953. Further, the guidelines require that findings which vary the amount of guideline support must include a statement of the amount of support that would have been ordered under the guidelines without a variance. 46.30.1507(4), ARM.

John argues that he and Denise agreed that he would not be required to pay child support. The District Court's finding relies upon such a stipulation. Denise argues that no such stipulation or agreement was made by the parties. In either event, the District Court was still required to calculate support according to the Uniform Child Support Guidelines. The guidelines themselves provide that:

A court or administrative hearing officer may vary from the guidelines based on a stipulation or agreement of the parties only if the stipulation or agreement meets the following criteria:

(a) it is in writing executed by the parties;

(b) the parties have signed the stipulation or agreement free of coercion (c) it contains specific justification as to why application of the guidelines is unjust or inappropriate; and

(d) it contains a statement of the amount of support that would have been appropriate under the guidelines without the variance.

46.30.1507(5), ARM; Marriage of Brandon, 894 P.2d at 954. Even if John and Denise had stipulated that he would not be required to pay child support until he was regularly employed, the above criteria must still be satisfied before the court can vary the support obligation. Here, none of the criteria are satisfied; there is no written agreement, there is no specific finding that...