Marriage of King, In re, 84-336
| Decision Date | 13 May 1985 |
| Docket Number | No. 84-336,84-336 |
| Citation | 700 P.2d 591,216 Mont. 92 |
| Parties | In re the MARRIAGE OF Pamela Sue KING, Petitioner and Respondent, and Jack Dean King, Respondent and Appellant. |
| Court | Montana Supreme Court |
William Law Firm, Richard Ranney, Missoula, for respondent and appellant.
Goldman & Goldman, Joseph M. Goldman, Missoula, for petitioner and respondent.
Milodragovich, Dale & Dye, Karl Boehm, Missoula, for children.
Jack King appeals an order and an amended order of the Missoula County District Court which divided his and Pamela King's marital property, and established custody and visitation rights, and the support obligations of the parties to their two minor children. Two issues are presented for review: first, whether substantial evidence supports the District Court's award of nearly all the marital estate to the wife; and second, whether the District Court erred in awarding the parties' real property to the wife in lieu of requiring the husband to make child support payments. We affirm the District Court.
Jack and Pamela King married in March 1971, in Mexico. Thereafter, they resided in California, where their two children were born, in 1971 and 1973. In 1977, they moved to Montana. They separated in June 1980, and the District Court dissolved their marriage in June 1981, reserving the issues of division of marital property, custody, visitation rights and child support until a later time. Maintenance was neither sought nor awarded, and custody and visitation rights are not in issue on this appeal.
On February 29, 1984, the District Court entered findings of fact, conclusions of law and its order deciding those reserved issues. All parties filed certain objections to the order, and thereafter, on April 16, 1984, the court entered its amended findings, conclusions and order. That amended order awarded each party the personal property then in their possession, and awarded the family residence to Pamela.
Jack asserts several of the court's findings of fact are unsupported by substantial evidence. We will address them in order. In its finding no. 2, the court noted:
"The distribution of the proceeds of the sale of the family home if it is ordered sold makes inadequate provision for the support of the minor children of the parties."
Finding no. 3:
"A substantial hardship would be imposed upon the children of the parties if they would be required to vacate the family home if it is ordered sold."
Finding no. 4:
"The expenses of sale, including realtors' commissions, attorneys' fees and potential capital gain tax liability would take a disproportionate amount of marital assets needed for child support."
And no. 5:
"It would be in the best interests of the minor children of the parties to continue to reside in the family home."
Jack contends the division of property should be separate from and not contingent upon child support. However, a fair reading of Sec. 40-4-202, MCA, shows that the District Court, in a proceeding for dissolution of marriage, may take into account support considerations, and may protect and promote the best interests of the children by setting aside a portion of the jointly and separately held estate of the parties for the support of their children. In reaching such a result, the court shall equitably apportion between the parties, the property or assets belonging to either or both. The court is neither required to divide each asset 50-50, nor to sell all the parties' property and divide the proceeds 50-50. Equitable apportionment is the guideline under any or all of the many factors which apply. To order the sale of the family residence would subject the marital estate to realty fees, would lose a favorable interest rate, and would uproot the children from their home and possibly from their neighborhood. These findings are well supported in the record.
Finding no. 7 provided that if Pamela were awarded the residence, she would be able to devote sufficient monies from her earnings to support the children. Jack contends the finding is not supported by substantial evidence because she probably would be able to support the children without the award of the residence. His contention, even if correct, neither per se invalidates the finding, nor begs the conclusion that she would not be able to support them without the home. Rather, it is reasonable to view the finding in light of the court's order relieving Jack of a financial support obligation. Viewing the record in its entirety, as we must, we cannot say the finding was erroneous.
Jack also attacks finding no. 8, wherein the court noted he had not presented satisfactory means of verifying his present or future income, given the nature of his occupation as a professional gambler. He did testify without objection that he earned approximately $1,000.00 per month in California from gambling winnings, and approximately $500.00 per month therefrom after the parties moved to Montana. Yet, when questioned further about his income, Jack was very evasive, and eventually conceded that there was no way of verifying his income. That makes it difficult to ascertain whether he would be able to make support payments. It is reasonable to conclude the court meant he did not have a regular paycheck as such. It is also reasonable to infer the court meant he had not presented sufficient income evidence to...
To continue reading
Request your trial