In Re the Marriage of Corey

NO. 94-081
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
IN RE THE MARRIAGE OF
MICHAEL K. COREY,
Petitioner and Respondent,
and
VALERIE A. COREY,
Respondent and Appellant.
APPEAL FROM: District Court of the Seventeenth Judicial District,
In and for the County of Valley,
The Honorable Leonard H. Langen, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Linda L. Harris; Harris Law Firm, Billings,
Montana
For Respondent:
James D. Rector, Attorney at Law, Glasgow,
Montana
Submitted on Briefs: August 4, 1994
Decided: September 12, 1994
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.
The petitioner Michael K. Corey petitioned the District Court
of the Seventeenth Judicial District, Valley County, for
dissolution of his marriage to his wife, Valerie A. Corey, on April
20, 1993. On December 20, 1993, following a trial on all issues,
the District Court entered its findings of fact, conclusions of
law, and decree from which Valerie Corey now appeals. We remand
for modification of the decree and, as modified, affirm.
The issues are:
1. Did the District Court err in distributing the property of
the marital estate?
2 . Did the District Court err in its calculation of the amOUnt
of maintenance awarded to Valerie Corey?
3 . Did the District Court err by failing to make provisions
for visitation between Valerie Corey and the minor children of the
parties during Michael Corey's periods of summer visitation?
4 . Did the District Court err when it ordered Michael Corey's
child support payments reduced by one-half during those months that
he has the minor children in his care for at least twenty-five
consecutive days?
5. Did the District Court err when it did not order Michael
Corey to continue providing health insurance for the minor
children?
Michael Corey (Michael) and Valerie Corey (Valerie) were
married on December 3, 1977. They had two children during their
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marriage: Brandon Corey, born September 19, 1978, and Shannon
Corey, born November 19, 1981.
Michael petitioned for dissolution on April 20, 1993. In his
petition, Michael requested dissolution of the couple's marriage,
joint custody of the children with suitable visitation, that
Michael be required to pay child support, and division of the
marital property. In her responsive pleadings, Valerie joined in
Michael's request for dissolution, joint custody with suitable
visitation, Michael's payment of child support, and division of the
marital property.. In addition, Valerie sought maintenance and
attorney's fees.
In its findings of fact, conclusions of law, and decree
dissolving the couple's marriage, the District Court found that
both parties were fit and proper persons to be granted custody of
the minor children and granted joint custody of the children to
both parties. As a plan of implementation, the District Court
ordered that Valerie have primary residential custody of the
children and that Michael have visitation rights for three months
in the summer, weekends, alternating holidays, and all other times
reasonable under the circumstances.
In addition, the District Court found that Michael was
financially able to provide support for the children and ordered
him to pay child support in the amount of $275 per month for each
child until emancipation. The District Court ordered these
payments reduced by one-half during any month in which Michael had
actual custody of the children for at least twenty-five consecutive
days.
Also, the District Court found that the parties had
accumulated real and personal property in the marital estate valued
at $49,688. The court awarded Valerie various personal property
worth $10,800, and awarded Michael real and personal property worth
$38,888. The court also awarded Valerie maintenance payments of
$400 per month for twelve months beginning January 1, 1994; $300
per month for twenty-four months beginning January 1, 1995; and
$200 per month for twenty-four months beginning January 1, 1997.
Finally, the court ordered Michael to pay one-half of Valerie's
attorney's fees, amounting to $2,500.
Did the District Court err in distributing the property of the
marital estate?
The standard this Court applies in reviewing a distribution of
marital property is that, absent a clear abuse of discretion, the
district court will not be overturned where the court based its
distribution of marital assets on substantial credible evidence.
In re Marriage of Otto (1990), 245 Mont. 271, 277, 800 P.2d 706,
710. Valerie contends that the District Court erred in dividing
the marital property in an amount which equaled an approximate
distribution of 78% of the marital estate to Michael and 22% of the
marital estate to Valerie.
In support of her contention that the property division should
be reversed, Valerie cites In re Marriage of Berthiaume (1977), 173
Mont. 421, 567 P..2d 1388. In Marriaae of Berthiaume, this Court
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held that it was a clear abuse of discretion for the trial court to
find that the marital property should be divided as equally as
possible, and then grant one party well over 90 percent of the
property without making any offset provision for the other party.
Marriase of Berthiaume, 567 P.2d at 1390. Valerie contends that
Marriaoe of Berthiaume is controlling, and thus the District Court
committed reversible error. We disagree.
The present case is distinguishable from Marriage of
Berthiaume. Here, after stating that the property should be
equally divided, the District Court explained why it had not made
an equal division of the property. The disparity in the division
came from the award to Michael of a mobile home and real property
on which the mobile hone rested. The court explained that it would
award the mobile home and land to Michael as the mobile home was
damaged to a point where it was nearly uninhabitable and Michael
was in a better position to repair it. Unlike Marriaqe of
Berthiaume, the court stated that it was making up the difference
in the values of the properties by increasing the amount of
maintenance awarded to Valerie. In addition, it should be noted
that this Court has held that an equitable division need not be an
equal division. :In re Marriage of Fitzmorris (1987), 229 Mont. 96,
99, 745 P.2d 353, 354.
The District Court did not abuse its discretion in
apportioning the marital property. It based its decision on
substantial credible evidence and accounted for the unequal
property distribution by increasing the amount of maintenance
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awarded to Valerie. We therefore affirm the District Court's
division of the marital property.
II
Did the District Court err in its calculation of the amount of
maintenance awarded to Valerie?
The District Court awarded Valerie maintenance in the amount
of $400 per month for the first twelve months following the
dissolution, $300 per month for the following twenty-four months,
and $200 per month for an additional twenty-four months. The
parties do not dispute that Valerie is entitled to maintenance.
Valerie contends that the District Court did not sufficiently
consider her expenses and that this constitutes reversible error.
The standard of review for a maintenance award is whether the
district court's findings are clearly erroneous. In re Marriage of
Eschenbacher and Crepeau (1992), 253 Mont. 139, 142, 831 P.2d 1353,
1355. The amount and period of maintenance are determined by
reference to Montana statute. See § 40-4-203(2), MCA. The factors
to be considered include:
(a) the financial resources of the party seeking
maintenance, including marital property apportioned to
him, and his ability to meet his needs independently,
including the extent to which a provision for support of
a child living with the party includes a sum for that
party as custodian:
(b) the time necessary to acquire sufficient education or
training to enable the party seeking maintenance to find
appropriate employment;
(c) the standard of living established during the
marriage;
(d) the duration of the marriage;
(e) the age and the physical and emotional condition of
the spouse seeking maintenance: and
(f) the ability of the spouse from whom maintenance is
sought to meet his needs while meeting those of the
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spouse seeking maintenance.
Section 40-4-203(2), MCA.
The findings of fact indicate that the District Court
considered all the statutory factors listed above. In particular,
the District Court considered the unequal property division, the
additional training Valerie will need to reenter the work force,
her living expenses and current job opportunities, and Michael's
financial ability to pay maintenance. The court need not be fact
specific as to its analysis of every factor. This Court has upheld
maintenance awards where the trial court did not make specific
findings regarding each statutory element, but its findings
demonstrated that it considered the proper factors and the award
was based on substantial credible evidence. In re Marriage of Cole
(19881, 234 Mont. 352, 359, 763 P.2d 39, 43.
We conclude that the District Court considered the proper
factors and its maintenance award was based on substantial credible
evidence. The District Court's findings regarding maintenance
award were not clearly erroneous. Therefore, we affirm the court's
calculation and award of maintenance.
III
Did the District Court err by failing to make provisions for
visitation between Valerie and the minor children of the parties
during Michael's periods of summer visitation?
According to Montana statute, "A parent not granted custody of
the child[ren] is entitled to reasonable visitation rights unless
the court finds, after a hearing, that visitation would endanger
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seriously the child[ren]'s physical, mental, moral, or emotional
health." Section 40-4-217(l), MCA.
In the present case, the District Court granted Michael
visitation rights for three summer months, weekends, alternating
holidays, and all other reasonable times. The court did not grant
Valerie visitation rights during the three summer months in which
Michael has the children. Valerie contends that Michael's
visitation rights for three summer months amount to Michael having
custody of the children for three months in the summer, and that
she should have visitation rights during this time.
Michael asserts that the District Court's order should not be
modified. In support of his contention, Michael cites Meyer v.
Meyer (1983), 204: Mont. I??, 663 P.2d 328. In Mever, this Court
held that a specific visitation schedule was not necessary when the
district court had split custody of the three children (one to the
wife, two to the husband) and provided that each party should have
reasonable visitation. Meyer, 663 P.2d at 330-31. However, Mever
is not controlling in this case.
Here, the District Court did not provide for Valerie to have
reasonable visitation when Michael has the children during the
summer months. The only mention of equal access to Valerie is
contained in the court's finding establishing joint custody of the
minor children. The court then made a separate finding on
visitation which granted Michael visitation rights. Its finding on
visitation did not include any rights of visitation for Valerie.
Michael's visitation rights for three summer months amount to
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custody of the minor children for three months. Valerie, who is
the noncustodial parent during these months, is entitled to
reasonable visitation since there is no evidence that such
visitation would in any way endanger the children. See 5 40-4-
217(1), MCA. Thus we remand to the District Court and instruct the
court to amend its decree to provide that Valerie have reasonable
visitation during the three summer months in which Michael has
physical custody of the minor children.
IV
Did the District Court err when it ordered Michael's child
support payments reduced by one-half during those months that he
has the minor children in his care for at least twenty-five
consecutive days?
The District Court ordered Michael to pay child support in the
amount of $550 per month for those months Valerie has custody of
the children. The court also ordered him to pay child support in
the amount of $275 per month for those months he has the children
in his care for at least twenty-five consecutive days. Valerie
contends that the District Court erred because the reduction is an
unaccounted variation from the Uniform Child Support Guidelines.
Michael asserts that the court correctly reduced the child support
because the $550 per month guideline figure initially was based on
a payment plan involving child support payments for only those nine
months of the year in which Valerie has custody of the children.
In reviewing an award of child support, a presumption exists
in favor of the district court's determination: and we will reverse
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a district court's determination only for an abuse of discretion.
In re Marriage of Clingingsmith (1992), 254 Mont. 399, 406, 838
P.2d 417, 421-22.
Montana statute sets out several factors for a court to
consider in determining the amount of child support, including the
following:
(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
the child's educational and medical needs;
(e) the financial resources and needs of the noncustodial
parent;
(f) the age of the child;
(g) the cost of day care for the child:
(h) any custody arrangement that is ordered or decided
upon; and
(i) the needs of any person, other than the child, whom
either parent is legally obligated to support.
Section 40-4-204(2), MCA. In addition, a court must apply the
uniform child support guidelines when ordering child support. See
§ 40-4-204(3)(a).
Here, the District Court established the award of child
support based on the guidelines and the statutory factors listed
above. The court considered the undisputed guideline amount
offered by Michael, and, among other factors, considered the
custodial arrangement of Michael having the children during three
summer months. Having considered these factors, the court reduced
Michael's child support payments by one-half during those months
that Michael has custody of the children for at least 25
consecutive days.
We hold that the District Court did not abuse its discretion
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and properly applied the guidelines and the statutory child support
factors in making the child support award. Therefore, we affirm
the District Court's award of child support.
V
Did the District Court err when it did not order Michael to
continue providing health insurance for the minor child?
The record establishes that at the time of trial, the minor
children had health insurance coverage through Michael's employer.
The District Court's findings of fact, conclusions of law, and
decree do not mention provisions for health insurance.
Section 40-4-204(4)(a), MCA, applies to child support orders
and health insurance. It provides in relevant part:
(4) Each district court judgment, decree, or order
establishing a final child support obligation under this
title and each modification of a final order for child
support & include a provision addressing health
insurance coverage in the following cases:
(a) If either party has available through an employer or
other organization health insurance coverage for the
child or children for which the premium is partially or
entirely paid by the employer or organization, the
judgment, decree, or order may contain a provision
requiring that coverage for the child or children be
continued or obtained. [Emphasis added.]
Section 40-4-204(4)(a), MCA.
The record and Michael's Respondent's brief make it clear that
the parties intended Michael to continue to carry the minor
children on his employee health insurance policy. It was judicial
oversight for the District Court to fail to include a provision
regarding the children's health insurance in its decree. The
decree should be modified to include a provision that Michael will
continue to provide health insurance coverage for the minor
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children until they reach the age of majority. Thus, we remand for
the District Court to modify its decree accordingly.
The judgment of the District Court is remanded for
modifications consistent with this opinion, and, as modified, is
affirmed.
i Justice
We concur:
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