In Re the Marriage of Dunn ( 1987 )

No. 86-428
I N T H E SUPREME COURT O F THE S T A T E O F MONTANA
1987
I N R E T H E MARRIAGE O F
V I C K I LYNNE DUNN,
P e t i t i o n e r and R e s p o n d e n t ,
and
DOUGLAS R E E D DUNN,
R e s p o n d e n t and A p p e l - l a n t .
A P P E A L FROM: D i s t r i c t C o u r t of t h e S i x t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of P a r k ,
T h e H o n o r a b l e Joseph B . G a r y , J u d g e p r e s i d i n g .
COISMSEL O F RECORD:
For A p p e l l a n t :
S w a n d a l , D o u g l a s s L a w F i r m ; W i l l i a m F. Frazier, Jr.,
Livingston, Montana
For R e s p o n d e n t . :
Knuchel & McGregor; D a n i e l R. McGregor, Livingston,
Montana
S u b m i t t e d on R r i e f s : Jan. 22, 1987
Decided: April 16, 1987
Filed:
Clerk
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.
This is an appeal from the Sixth Judicial District by
husband, Douglas Reed Dunn, from the findings of fact,
conclusions of law and decree of dissolution which relate to
child custody and support. We affirm.
The issues raised on appeal are:
1. Whether the court erred in its valuation of the
personal property of the parties.
2. Whether the court erred in failing to award joint
custody of the children to the parties.
3. Whether the court erred in its determination and
award of child support payments.
Appellant, Doug Dunn, and respondent, Vicki Dunn, were
married on September 6, 1980. When they married, Vicki and
Doug both worked for the Bell Telephone system earning
approximately equal salaries. They continued to work until
March, 1984, when twin daughters, Colleen and Shelley were
born. At that time Vicki quit work to raise the girls. She
did not seek employment outside the home until it became
clear that she and Doug were going to separate.
Doug admitted to having several extramarital affairs
while married to Vicki and openly pursued one relationship.
Vicki repeatedly asked that Doug stop seeing the woman, but
he refused. Eventually, Vicki felt that she and Doug had to
live separately and moved out of the family home due to
Doug's refusal to leave. After Vicki and the girls moved
out, Doug's girlfriend moved into the house with Doug.
On May 31, 1985, Vicki filed a petition for dissolution,
custody, support, property settlement, maintenance and
attorney fees. Doug filed a counterpetition seeking custody
of the girls.
In September, 1985, the court granted temporary custody
and support to Vicki. On October 4, 1985, the court issued
an order approving its previous temporary order with a
modification of the support payments. On the same day,
without knowledge of the court order the parties stipulated
to support, maintenance and that Vicki could take the
children to California where she was seeking employment.
Vicki moved five times in less than a year while seeking
employment to support herself and the twins. She moved with
them to California in October of 1985 and presently lives in
Washington where she works as a cable splicer for General
Telephone. Vicki and the twins live with a retired gentleman
who has been a long-term friend of Vicki's. She pays him for
rent, food and childcare. The living environment in
Washington was found to be fit and proper for the girls.
In March, 1986, a hearing was held to resolve the issues
of support, custody and property settlement. The District
Court entered its findings of fact, conclusions of law and
decree of dissolution of marriage in April, 1986.
Doug Dunn filed several post-judgment motions, but due
to delays caused by difficulty in obtaining a judge to hear
the motions, the deadline for consideration expired.
Doug appeals from the April 21, 1986, judgment.
I.
On appeal, Doug Dunn claims that the trial court erred
in its valuation of the personal property of the parties. We
hold that the lower court did not err.
In numerous decisions this Court has held that where
there are conflicting valuations of property, the court must
give an explanation for its determination of value. If no
explanation is made, it is an abuse of the court's
discretion. In re Marriage of Rolfe (Mont. 19851, 699 ~ . 2 d
79, 83, 42 St.Rep. 623, 627; In re Marriage of ~ o l f e (Mont.
1983), 659 P.2d 259, 262, 40 St.Rep. 211, 214.
The District Court heard testimony from both parties
concerning the value of personal property which Doug and
Vicki Dunn brought into the marriage and acquired during the
marriage. No qualified appraiser was called to give an
opinion as to the value of this property. The District Court
judge is in the best position to judge the credibility of the
witnesses and determine the weight to be given their
testimony. Rule 52 (a), M.R.Civ.P.
In the present case, the District Court found that:
The marital estate determination presents great
difficulty to the court because of the almost total
lack of agreement between the parties as well as
great disparity on value, which has been guessed at
by each of the parties but unsubstantiated by any
qualified appraiser. The court therefore accepts
the list of property as submitted by the Petitioner
and assumes a depreciation factor of 0.25 on all
values.
In its discretion, the District Court found Vicki's
valuations to be the more credible than those submitted by
Doug. The court imposed a depreciation factor of .25 on the
values to ensure against an inflated estimation. We find.
that this is not a clearly erroneous abuse of the court's
discretion and affirm the District Court's valuation of the
parties' personal property.
The second issue raised on appeal is whether the
District Court erred in failing to award joint custody of the
children to the parties. We hold that it did not err.
The well established standard of review is that this
Court will not disturb a district court's findings unless
there is a "clear preponderance of evidence against such
findings." Cameron v. Cameron (1978), 179 Mont. 219, 227,
In Rolfe, we stated:
The trial judge in a divorce proceeding is in a
better position than this court to resolve child
custody. The district court's decision is presumed
correct and will be upheld unless clear abuse of
discretion is shown. The appealing party must
show, by clear error (Rule 52 (a), M.R.Civ.P. ) that
the record does not support the judgment of the
district court.
In determining the custody of children the court is
required to follow § 40-4-212, MCA, which outlines the "best
interest of (the) child." Although S 40-4-222, MCA, makes
the presumption that joint custody is in the best interests
of the child, it allows the court discretion in determining
what the "best interests" are in each case. There is no
mandate that joint custody must be awarded even if both
parents are found to be fit and proper.
In this case, the court made detailed findings that,
although both Doug and Vicki are both fit parents, it is in
the best interests of the children for Vicki to be the
primary custodial parent. Doug's living situation and
lifestyle do influence the children's well being and reflect
on the home environment which Doug could provide for them.
The court's finding that Doug has a propensity for liaisons
with females outside the household was made with respect to
the stability of Doug's home as a healthy environment for the
girls. The record and findings show substantial reasons why
joint custody would not be in the twin infant girls' best
interest including; the geographical distance between the
parties of 750 miles, the inability of the parties to
communicate regarding issues involving their children due to
the interference of Doug's present female cohabitant, Doug's
record of indifference with respect to visitation of his
children, the mother's role as primary caretaker for their
entire two years of life, and Doug's difficulties in dealing
with young children, namely his daughters, when they are
fussy.
This Court will not set aside findings of the District
Court unless they are clearly erroneous. Findings are not
clearly erroneous if supported by substantial credible
evidence. Marriage of Obergfell (Mont. 19851, 708 P.2d 561,
563, 42 St.Rep. 1414, 1417-18. There is substantial credible
evidence to sustain the custody determination and it is
affirmed.
The final issue raised by Doug is whether the District
Court erred in its determination and award of child support
payments. We hold that it did not err.
Child support awards made by the District Court will not
be disturbed on appeal unless there is a clear abuse of
discretion resulting in substantial injustice to a party. In
re Marriage of Alt (Mont. 1985), 708 P.2d 258, 261, 42
St.Rep. 1621, 1626. Although Doug has many financial
obligations including debts from the partiest marriage and
child support from a previous marriage, the court found that
$200 per month per child was an appropriate support award.
The court based this award on the equal salaries of the
parties, the needs of the children and Doug's ability to pay
the amount. The record supports the District Court's
decision awarding child support and shows no clear abuse of
discretion. The support award is affirmed.
Doug argues further that the court's finding which
requires him to pay a back support payment for the month of
February 1-986 is in error. The record supports the court's
finding that Doug's monthly payments were payment for the
previous month and that Doug did not- pay child support for