Marriage of Peterson ( 1996 )

No. 95-364
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
IN RE THE MARRIAGE OF
DEBBIE A. PETERSON,
Petitioner and Respondent,
and
APPEAL FROM: District Court of the Fifteenth Judicial District,
In and for the County of Roosevelt,
The Honorable Kenneth R. Wilson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Arnie A. Hove, Circle, Montana
For Respondent:
Loren J. O'Toole II, Plentywood, Montana
Submitted on Briefs: November 30, 1995
Decided: January 18, 1996
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Pursuant to Section I, Paragraph 3 (c), Montana Supreme Court
1995 Internal Operating Rules, the following decision shall not be
cited as precedent and shall be published by its filing as a public
document with the Clerk of the Supreme Court and by a report of its
result to State Reporter and West Publishing Companies.
Richard M. Peterson appeals from the findings of fact and
decree of dissolution of marriage entered by the Fifteenth Judicial
District Court, Sheridan County. We affirm.
We rephrase the issues as follows:
1. Were the District Court's findings of fact concerning its
custody decision clearly erroneous?
2. Did the court abuse its discretion by its award of child
support to Debbie?
3. Did the court deny Richard equal protection and due
process of law by relying on the reports of Debra Johnson?
Richard and Debbie Peterson were married on September 30,
1978, in Wolf Point, Montana. Three children were born of this
marriage: Richard, Jr., Jessica, and Samantha. Debbie filed a
petition for dissolution of the marriage on June 10, 1991.
Following an April 18, 1994 hearing, the District Court issued its
findings of fact, conclusions of law and decree of dissolution.
Richard appeals from the court's findings of fact and decree of
dissolution.
Issue 1
Were the District Court's findings of fact concerning its
custody decision clearly erroneous?
The standard of review of a district court's award of child
custody is whether the court's findings are clearly erroneous. In
re the Marriage of Dreesbach (1994), 265 Mont. 216, 220-21, 875
P.2d 1018, 1021. A finding is clearly erroneous only if it is not
supported by substantial, credible evidence, if the district court
misapprehended the effect of the evidence, or, if after reviewing
the record, this Court is left with a definite and firm conviction
that a mistake has been made. In re the Marriage of Allison
(1994), 269 Mont. 250, 259, 887 P.2d 1217, 1223.
At the April 18, 1994 hearing, the District Court heard
testimony from the following witnesses: Linda Pusateri, a social
worker with Eastern Montana Mental Health; Debra Johnson, a social
worker with the Department of Family Services (now the Department
of Public Health and Human Services); Kim Nash of Hi-Lines Homes
Program, Inc.; and Carol Johns, the Guardian Ad Litem. The court
also received the deposition of Dawn Marie Burke, a clinical
psychologist with the Eastern Montana Community Health Center.
Following the hearing, the court granted Debbie and Richard joint
custody with Debbie as residential custodian during the school year
and Richard custodian during the summer.
Pursuant to § 40-4-212, MCA, the District Court must determine
custody in accordance with the best interest of the child. A
review of the record, and specifically the testimony of the above-
3
listed witnesses, reveals that substantial, credible evidence
supports the District Court's award of custody as in the children's
best interest. The District Court did not misapprehend the
evidence nor are we left with a definite and firm conviction that
a mistake has been committed. We therefore conclude the District
Court's award of custody was not clearly erroneous.
Issue 2
Did the District Court abuse its discretion by its award of
child support to Debbie?
We review a district court's award of child support to
determine if the court abused its discretion. In re the Marriage
of Craib (1994), 266 Mont. 483, 490, 880 P.Zd 1379, 1384.
In its findings of fact, the District Court noted that the
parties had not submitted the financial information necessary to
calculate child support obligations and directed the parties to
submit such financial records and their suggested child support
calculations. The court stated:
Neither party has submitted calculation for child support
in accordance with the guidelines, therefore, the Court
orders the parties in the decree to establish support for
the three children in accordance with the Montana Child
Support Guidelines
Despite this clear directive, Richard failed to submit his proposed
calculation of child support according to the Montana Child Support
Guidelines. Debbie, on the other hand, supplied the court with a
child support calculation pursuant to the Montana Child Support
Guidelines. Debbie utilized the most recent financial records
available to her in calculating the child support. If any discrep-
4
ancies exist in the calculation of child support, they are the
result of Richard's failure to supply the court with proposed child
support calculations utilizing the financial data he deemed
appropriate.
We conclude that the award of child support was calculated
pursuant to the Child Support Guidelines and in accordance with the
financial information available to the court. We hold that the
District Court did not abuse its discretion in its award of child
support to Debbie.
Issue 3
Did the District Court deny Richard equal protection and due
process of law by relying on the reports of Debra Johnson?
Richard makes a sketchy argument that he was somehow treated
differently than Debbie and was denied due process of law because
he is a Native American. However, his constitutional argument is
raised in merely a conclusory manner. It is not the duty of this
Court to make a party's argument. In re the Marriage of McFate
(1989), 239 Mont. 492, 781 P.2d 759. Regardless of Richard's
failure to set forth any legal argument, his factual allegations of
discrimination are not supported by the record.
We conclude that Richard has not established that he was
denied equal protection or due process of law by the District
Court's reliance on the reports of Debra Johnson.
We affirm the decision
We concur:
6