Marriage of Manus, In re, 86-193

• Decision Date: 04 March 1987
• Docket Number: No. 86-193,86-193
• Citation: 225 Mont. 457,733 P.2d 1275,44 St.Rep. 398
• Parties: In re the MARRIAGE OF Mary Ann MANUS, Petitioner and Respondent, and Tex W. Manus, Respondent and Appellant.
• Court: Montana Supreme Court

Page 1275

733 P.2d 1275

225 Mont. 457

In re the MARRIAGE OF Mary Ann MANUS, Petitioner and Respondent and Tex W. Manus, Respondent and Appellant.

No. 86-193.

Supreme Court of Montana.

Submitted on Briefs Nov. 13, 1986.

Decided March 4, 1987.

Hash, Jellison, O'Brien & Bartlett; M. Dean Jellison, Kalispell, for respondent and appellant.

George B. Best, Kalispell, for petitioner and respondent.

TURNAGE, Chief Justice.

Tex Manus appeals the findings of fact and conclusions of law entered by the Eleventh Judicial District Court, Flathead County, on December 11, 1985. The court awarded Mary Ann Manus sole custody of the two children, child support of $250 per month per child, maintenance of $300 per month for five years, property division payments of $207.46 per month for five years, and Mary Ann's attorney fees. We affirm the District Court on all issues.

Tex raises six issues for our review:

1. Did the District Court abuse its discretion when it granted sole custody to Mary Ann?

2. Did the District Court abuse its discretion when it awarded child support to Mary Ann?

3. Did the District Court abuse its discretion when it adopted Mary Ann's valuation of the marital property?

4. Did the District Court abuse its discretion when it awarded maintenance to Mary Ann?

5. Did the trial court abuse its discretion when it awarded attorney fees to Mary Ann?

6. When a retired district judge who was called into jurisdiction during a judicial vacancy, has rendered judgment and has been succeeded by a duly-appointed district judge, does the retired district judge retain jurisdiction to deny a subsequent motion for new trial?

Tex Manus and Mary Ann Manus were married on June 20, 1969, in Bonner's Ferry, Idaho. Two daughters were born of the marriage, Channin in 1970 and Nickole in 1971. During the marriage, Tex and Mary Ann acquired a marital estate worth $115,000. This included the home now occupied by Tex, rental property, household goods, vehicles, a balance receivable on a contract in escrow, a savings account, and Tex's profit sharing account.

In August 1984, Mary Ann separated from Tex. Mary Ann filed a petition for dissolution on February 22, 1985. She and her daughters currently reside in Usk, Washington, near Mary Ann's parents. Tex currently resides in Whitefish, Montana.

Issue 1

Did the District Court abuse its discretion when it granted sole custody to Mary Ann?

The standard of review on custody issues was outlined in Bier v. Sherrard (Mont.1981), 623 P.2d 550, 551, 38 St.Rep. 158, 159:

In order to prevail, [appellant] must show an abuse of discretion by the judge, must demonstrate that there is a clear preponderance of evidence against the findings, and must overcome the presumption that the judgment of the trial court is correct. In reviewing the District Court's custody order, this Court need only look to the record to see if the factors set forth in section 40-4-212, MCA, were considered, and then must determine whether the trial court made appropriate findings with respect to these criteria. [Emphasis added.]

The factors set forth in Sec. 40-4-212, MCA, place paramount importance on the best interests of the child:

The court shall determine the custody in accordance with the best interests of the child. The court shall consider all relevant factors including:

(1) the wishes of the child's parent or parents as to his custody;

(2) the wishes of the child as to his custodian;

(3) the interaction and interrelation of the child with his parent or parents, his siblings, and any other person who may significantly affect the child's best interest;

(4) the child's adjustment to his home, school, and community; and

(5) the mental and physical health of all individuals involved.

In its findings of fact, the District Court recognized that several of the factors of Sec. 40-4-212, MCA, weighed heavily in favor of granting custody to Mary Ann:

3. That one of the children, Channin, is mildly retarded and, although attends school, is in a special education program, is unable to care for herself, and in all likelihood will be unable to care for herself for many years to come.

4. There is a close relationship between mother and daughters. They have lived together continuously during the period of separation. Mother is required to and does take care of the daily needs of both children in addition to taking care of the special needs of Channin, both educational and practical.

5. That while visiting their father, their paternal grandfather molested Channin.

6. Prior to this molestation, Respondent herein was made aware of the father's propensities by Mrs. Manus having warned him that such an attempt had been made upon her.

7. That as a result of the molestation which occurred to Channin, she will require continuous psychiatric care in addition to her special education needs.

The record further reveals that Tex had only seen the children three times in the previous eighteen months, and the children did not express any desire to spend time with Tex. In spite of this, Tex requested joint custody. He now argues that the District Court failed to state adequate reasons for denying his request, as required by Sec. 40-4-224(1), MCA. The statute provides:

Upon application of either parent or both parents for joint custody, the court shall presume joint custody is in the best interests of a minor child unless the court finds, under the factors set forth in 40-4-212, that joint custody is not in the best interests of the minor child. If the court declines to enter an order awarding joint custody, the court shall state in its decision the reasons for denial of an award of joint custody. [Emphasis added.]

We note that any presumption favoring joint custody in Sec. 40-4-224, MCA, was overridden by the abundant evidence supporting the grant of sole custody to Mary Ann. The findings and reasons for granting her sole custody are identical to the reasons for denying joint custody to Tex, and thereby comply with the mandates of Sec. 40-4-224(1), MCA.

We have repeatedly given the District Court broad discretion in deciding custody disputes. "The responsibility of deciding custody is a delicate one which is lodged with the district court. The judge hearing oral testimony in such a controversy has a superior advantage in determining the same, and his decision ought not to be disturbed except upon a clear showing of abuse of discretion." Gilmore v. Gilmore (1975), 166 Mont. 47, 51, 530 P.2d 480, 482, citing In Re Adoption of Biery (1974), 164 Mont. 353, 522 P.2d 1377. The record fully supports the court's findings and conclusions. We hold that the District Court properly considered the children's best interests and did not abuse its discretion when it granted custody to Mary Ann.

Issue 2

Did the District Court abuse its discretion when it awarded child support to Mary Ann?

Tex argues that the court did not make any findings about the financial needs of the children or the ability of each parent to pay. He contends that the court failed to follow the holding of In Re Marriage of Capener (1978), 177 Mont. 437, 441, 582 P.2d 326, 328, which states: "The pertinent factors in [Sec. 40-4-204, MCA], with findings of fact to support them, should be set out in the District Court's decision for otherwise the appellate court has nothing upon which to base its review."

Section 40-4-204, MCA, lists six factors the court shall consider when ordering child support:

(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 his educational needs;

(e) the financial resources and needs of the non-custodial parent; and

(f) for the purposes of determining a minimum amount for support, the amount received by children under the AFDC program, as defined in 53-2-702.

We have ample findings upon which to base our review. Judge Allen specifically noted the financial resources and needs of the children and parents in the following findings:

8. That the estimated charges for [Channin's] continuing psychiatric treatments will be approximately $120.00 per week.

10. Mr. Manus is an able-bodied, employed man, having worked for the past ten years for Plum Creek as a chip truck driver. He is 42 years of age, in good health, and his expected salary for the year 1985 will exceed $38,000.00. His income has grown steadily during the past ten years. His take home pay is approximately $2,400.00 per month after depositing to voluntary retirement programs in excess of $200.00 per month. As part of his employment, Mr. Manus receives medical health coverage, which coverage is available to members of his family.

11. Mary Ann Manus lives in Usk, Washington with her daughters, is a person of 43 years of age, is presently under a doctor's care, taking prescription medication three times daily. Mary Ann Manus works as a part-time waitress earning approximately $3.50 per hour. She takes home approximately $400.00 per month. There is no other suitable employment available to her as a result of her physical and emotional conditions requiring medical care.

12. The expenses for Mr. Manus and his girlfriend are less than $1,000.00 per month.

13. The expenses of Mrs. Manus, excluding psychiatric care for Channin, exceed $1,584.00 per month.

These findings are well-supported by the record. We will not set aside the District Court's findings of fact unless there is a clear abuse of discretion. Grenfell v. Grenfell (1979), 182 Mont. 229, 232, 596 P.2d 205, 207. We find no such abuse in this case. Therefore, we hold that the District Court properly awarded child support of $250 per month per child.

Issue 3

Did the District Court abuse its discretion when it adopted Mary Ann's valuation of the marital property?

The District Court substantially adopted Mary Ann's valuation of the marital...