Marriage of Nash, In re

Citation254 Mont. 231,836 P.2d 598
Decision Date20 August 1992
Docket NumberNo. 91-610,91-610
PartiesIn re the MARRIAGE OF Monica Lyn NASH, Petitioner and Respondent, and Steve Orvill Nash, Respondent and Appellant.
CourtUnited States State Supreme Court of Montana

Donna M. Trotter, Winkjer, McKennett, Stenehjem, Trotter & Reierson, Williston, for respondent and appellant.

Mary L. Zemyan, Wolf Point, for petitioner and respondent.

TRIEWEILER, Justice.

On July 3, 1990, Monica Lyn Nash petitioned the Fifteenth Judicial District Court, Sheridan County, to dissolve her marriage to respondent Steve Orvill Nash. On November 20, 1991, the District Court dissolved the couple's marriage, divided the marital estate between them, awarded sole custody of their only child to Monica, and awarded child support retroactive to the date of the parties' separation in March 1990. From that judgment, Steve appeals. We affirm.

The issues are:

1. Did the District Court err when it awarded Monica sole custody and granted visitation to Steve?

2. Did the District Court err when it awarded child support based on the parties' 1990 tax returns?

3. Did the District Court err when it awarded child support retroactive to the date of separation?

Steve and Monica Nash were married on September 3, 1981. Their marriage was dissolved on November 20, 1991. They have one child, born September 7, 1988. At the time of the hearing on October 17, 1991, Monica was 33 years old, and Steve was 35. Steve is a high school graduate. Monica is not, but plans to get her GED and attend post-secondary classes. Monica lives in Redstone, Montana and works for the Nash family farming corporation. Steve left Redstone in March 1989 when the child was six months old to work in Alaska. Steve works in Cordova, Alaska as a fabricator, building and designing boats with aluminum and steel.

In its findings of fact and conclusions of law, the District Court rejected Steve's request for split joint custody which would have given each parent physical custody for six months. Experts performing home studies found both parents fit, but disagreed over the effects of split physical custody on a preschool-aged child. The Court found that it was in the best interests of the child to grant sole custody to Monica. Steve was granted liberal visitation in Redstone, and week-long blocks at other times and locations.

The Court awarded Monica $482.27 per month as child support under the Child Support Guidelines, based on the parties' 1990 tax returns. Monica received gross income in 1990 of $3400, while Steve earned $45,328.18 from his Alaska employment, and $24,165 from his farming interests. However, he claimed a capital loss of $35,276 when he sold his farm real estate and machinery. In calculating child support, the Court disregarded the parties' farming income and loss since it was eliminated in 1990. Thus, the calculation was based on Steve's 1990 Alaska income of $45,328.18, and Monica's income of $3400.

The Court found that Steve failed to establish good cause to deviate from the Guidelines and to excuse him from providing health insurance coverage for his son. The Court ordered Steve to provide health insurance for the child despite the child's eligibility for Indian Health Care, because that facility is a 90-mile-round-trip from Redstone, while alternative health care is only a 35-mile-round-trip.

The Court divided the parties' real and personal property as agreed before trial. Steve received 4.32 acres of Alaska property, and Monica received 1.24 acres of Montana property.

Steve was also required to pay child support retroactive to the date of separation totalling $7716.32.

I.

Did the District Court err when it awarded custody and visitation?

The standard of review for custody and visitation is whether substantial credible evidence supports the court's judgment. In re the Marriage of Cole (1986), 224 Mont. 207, 211, 729 P.2d 1276, 1279.

Section 40-4-212, MCA, requires a court to determine custody in accordance with the best interests of the child. The court must consider all relevant factors, including those set forth in the statute.

(1) The court shall determine custody in accordance with the best interest of the child. The court shall consider all relevant factors, including but not limited to:

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

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

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

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

(e) the mental and physical health of all individuals involved;

(f) physical abuse or threat of physical abuse by one parent against the other parent or the child; and

(g) chemical dependency, as defined in 53-24-103, or chemical abuse on the part of either parent.

The District Court properly considered all relevant factors when it awarded sole custody to Monica. The Court found that it was in the best interests of the child to grant sole custody to Monica based on findings that she is the child's psychological parent and has provided for the child's physical needs, environmental stimuli, emotional needs, and moral development, as well as interaction with Steve's family and home community. The record confirms that the District Court heard sufficient testimony on each of the factors to support its finding. Experts performing home studies found both parents fit, but disagreed over the effects of split physical custody on a pre-school child. It is within the court's discretion to believe one expert over another. The District Court did not abuse its discretion when it awarded sole custody to Monica.

Section 40-4-217, MCA, provides that the parent not granted custody is entitled to reasonable visitation rights. Here, the court granted Steve visitation as summarized:

(1) Liberal visitation when he is in Redstone so long as school is not interrupted;

(2) Week-long blocks every three or four months at the father's home or other appropriate location, provided the child is accompanied by an adult family member when traveling;

(3) Fourteen day visitation blocks when the child is in elementary school under the above conditions; and

(4) Increased visitation which he and the child will jointly decide after the child enters junior high.

We hold that the custody and visitation award is supported by substantial credible evidence and the court...

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16 cases
  • Albrecht v. Albrecht
    • United States
    • United States State Supreme Court of Montana
    • October 10, 2002
    ...child support based upon one year's income. In re Marriage of Jacobson, 251 Mont. at 399, 825 P.2d at 565; In re Marriage of Nash (1992), 254 Mont. 231, 235-36, 836 P.2d 598, 600-01. While we did not require evidence of income from more than one year in either case, the cited cases are inap......
  • State v. Butler, 94-341
    • United States
    • United States State Supreme Court of Montana
    • August 4, 1995
  • Marriage of Dreesbach, In re, 93-421
    • United States
    • United States State Supreme Court of Montana
    • June 28, 1994
    ...of review for visitation is whether substantial credible evidence supports the district court's findings. In re Marriage of Nash (1992), 254 Mont. 231, 234, 836 P.2d 598, 600. We will overturn a court's visitation decision only when the court's findings and conclusions clearly demonstrate a......
  • Marriage of Griffin, In re
    • United States
    • United States State Supreme Court of Montana
    • August 18, 1993
    ...in § 40-4-204, MCA? This Court employs an abuse of discretion standard when reviewing awards of child support. In re Marriage of Nash (1992), 254 Mont. 231, 836 P.2d 598. Section 40-4-204, MCA, sets forth the factors a court must consider in setting support orders, and the guidelines it mus......
  • Request a trial to view additional results

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