Marriage of Ronshaugen ( 1996 )

IN THE SUPREME COURT OF THE STATE OF MONTANA
IN RE THE MARRIAGE OF
JEFFREY L. RONSHAUGEN,
KIMBERLY JEAN RONSHAUGEN,
Respondent/Respondent.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Thomas McKittrick, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Daniel L. Falcon, Matteucci, Falcon, Squires &
Lester, Great Falls, Montana
For Respondent:
Joan E. Cook & M. Gene Allison, Law Offices of Joan
E. Cook, Great Falls, Montana
Submitted on Briefs: April 18, 1996
Decided: August 15, 1996
Filed:
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Justice James C. Nelson 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 Publishing Company and West Publishing
Company.
Appellant Jeffrey Ronehaugen appeals from the findings of
fact, conclusions of law and order entered by the Eighth Judicial
District Court, Cascade County, dissolving his marriage with his
wife Kimberly, dividing the parties1 property, and awarding child
support, custody, and visitation. we affirm.
ISSUES
Jeffrey raises the following issues on appeal:
1) Did the District Court err in changing primary physical
custody of the parties' three minor children from Jeffrey to
Kimberly?
2) Did the District Court err in calculating child support
based on Jeffrey's income earned the previous year?
3) Did the District Court err in its division of the parties'
personal property?
4) Did the District Court err in awarding Kimberly attorney
fees?
BACKGROUND
Jeffrey and Kimberly Ronshaugen were married on April 1, 1988,
in Seattle, Washington. Three children, now ages 7, 5, and 4, were
born of the marriage. The parties acquired real property in Great
Falls, Montana, which they sold when they separated in May 1993.
At the time of the separation, Jeffrey worked for Cascade
Circulation, a telemarketing firm, earning $74,207 in 1994.
Because he thought that he might be laid off from employment and to
gain more flexible hours. Jeffrey voluntarily terminated his
position with Cascade Circulation and became self-employed,
reducing his income to approximately $37,000. In his new job,
Jeffrey had to work on weekends.
Jeffrey petitioned for dissolution of the marriage on June 23,
1993 and moved the District Court for temporary custody of the
children. The court awarded the parties joint custody with primary
physical custody with Jeffrey and first only allowed Kimberly
supervised visitation but later allowed her unsupervised
visitation. Upon Kimberly's request, the District Court appointed
an attorney to represent the children. The District Court also
granted Kimberly's motion to conduct psychological evaluations on
the children. Following trial, the attorney for the children filed
a recommendation that primary physical custody be changed to
Kimberly.
On August 15, 1995, the District Court issued its findings of
fact, conclusions of law and order, granting the parties joint
custody with primary phys'ical custody with Kimberly, awarding
Jeffrey visitation for two days in alternating weeks, visitation
for alternating holidays, and 30 consecutive days in the summer,
awarding child support of $1,224 per month to Kimberly, ordering
Jeffrey to pay 95% of all uncovered medical expenses, and ordering
Jeffrey to pay one-half of Kimberly's attorney fees. Jeffrey
appeals the District Court's findings of fact, conclusions of law
and order.
DISCUSSION
1) Did the District Court err in changing primary physical
custody of the parties' three minor children from Jeffrey to
Kimberly?
We review a district court's award of child custody to
determine whether the district court's findings are clearly
erroneous. In re Marriage of DeWitt (1995), 273 Mont. 513, 516,
905 P.2d 1084, 1085 (citing In re Marriage of Dreesbach (1994), 265
Mont. 216, 220-21, 875 P.2d 1018, 1021) . The findings of fact must
be based on substantial credible evidence and will be upheld unless
it is shown that the District Court clearly abused its discretion.
Marriaqe of DeWitt, 905 P.2d at 1085. Jeffrey contends that in
light of the applicable law and public policy, the District Court
abused its discretion by appointing Kimberly as the primary
physical custodian of the children.
A district court must determine child custody in accordance
with the best interests of the child as set forth in § 40-4-212,
MCA. However, the court need not make specific findings on each
factor of § 40-4-212, MCA. Marriaqe of Dreesbach, 875 P.2d at
1021.
In the instant case, the findings of fact and conclusions of
law indicate that the District Court considered the best interests
of the children. Specifically, the District Court noted that
Kimberly's "work, daycare, and living arrangements appear to be
more suited to a stable lifestyle for the children." Additionally,
the District Court found that the oldest daughter expressed a
desire to spend more time with her mother, that Kimberly's mother
would be available to provide day care for the children, that
Kimberly's treating psychiatrist opined that Kimberly could
adequately parent her children and does not present a danger to
herself or her children, and that although both parents expressed
concerns about the threat of physical abuse or chemical abuse,
neither appears to be a current factor that would favor one parent
over the other. Accordingly, we conclude that there is substantial
credible evidence to support the District Court's determination of
child custody, and therefore, the court's findings are not clearly
erroneous.
2) Did the District Court err in calculating child support
based on Jeffrey's income earned the previous year?
Jeffrey contends that the District Court erred in calculating
child support by imputing excessive income to Jeffrey and too
little income to Kimberly. We review a district court's award of
child support to determine if the District Court abused its
discretion. Marriaqe of ~ewitt,905 P.2d at 1086 (citing In re
Marriage of Craib (1994), 266 Mont. 483, 490, 880 P.2d 1379, 1384).
Section 40-4-204, MCA, sets forth the standards that a
district court must consider when awarding child support.
Furthermore, Title 46, Chapter 30 of the Administrative Rules of
Montana sets forth the guidelines that must be used in all cases
awarding child support. See also Brandon v. Brandon (1995), 271
Mont. 149, 152, 894 P.2d 951, 953. We have held that a district
court may impute income to under-employed or unemployed parents
after examining the reasons for the limitation on the earnings. In
re Marriage of Gebhardt (19'89),240 Mont. 165, 171, 783 P.2d 400,
404. A district court is obliged to consider the employment
opportunities available in the local job market for under-employed
parents.
In the instant case, the District Court based its award of
$1,224 per month in child support on Jeffrey's gross income for
1994. The court based its child support calculations on Jeffrey's
demonstrated ability to earn $74,207 and on its finding that
Jeffrey voluntarily terminated his employment with Cascade
Circulation and therefore voluntarily took a 50% cut in pay. The
District Court clearly examined Jeffrey's reasons for leaving his
job with Cascade Circulation and acknowledged that Jeffrey thought
that he might be laid off, but the court nonetheless found that
Jeffrey left his job voluntarily.
Because the District Court examined Jeffrey's reasons for
taking a lower paying job before imputing income to him, we
conclude that the District Court did not abuse its discretion in
calculating child support based on Jeffrey's income earned the
previous year.
3) Did the District Court err in its division of the parties'
personal property?
Jeffrey contends that the District Court erred in equally
dividing the proceeds from the sale of the parties' real property,
the proceeds from the parties' joint bank accounts and erred in
dividing Jeffrey's life insurance and pension without hearing
testimony on them. Specifically, Jeffrey claims that Kimberly did
not present substantial credible evidence regarding the division of
the marital estate
We review a district court's division of marital property to
determine whether the district court's findings of fact are clearly
erroneous. Marriase of DeWitt, 905 P.2d at 1087 (citing In re
Marriage of Smith (1995), 270 Mont. 263, 267, 891 P.2d 522, 525).
Where substantial credible evidence supports the court's findings
and judgment, this Court will not alter the district court's
decision unless there is an abuse of discretion. Marriaqe of
DeWitt, 905 P.2d at 1087.
Section 40-4-202,MCA, directs a district court to equitably
apportion between the parties the property and assets belonging to
either or both. Similarly, we have granted broad discretion to the
district courts to equitably apportion marital assets. See In re
Marriage of Danelson (1992), 253 Mont. 310, 317, 833 P.2d 215, 219-
20.
Here, the record supports that the proceeds from the sale of
real property amounted to $2,983.44 and the joint bank accounts
totalled $7,126.72. The District Court concluded that these assets
should be divided equitably and equally. Moreover, Jeffrey
included his life insurance and pension on his list of property.
Accordingly, we hold that substantial credible evidence supports
the District Court's findings and judgment and there is nothing in
the record to indicate that the District Court abused its
discretion in apportioning the marital estate.
4) Did the District Court err in awarding Kimberly attorney
fees?
Jeffrey contends that the District Court erred in failing to
accurately consider Kimberly's financial resources when awarding
her attorney fees. We review an order granting attorney fees for
an abuse of discretion. In re Marriage of Barnard (1994), 264
Mont. 103, 109, 870 P.2d 91, 95. Therefore, when reviewing a grant
of attorney fees, this Court will not disturb a District Court's
findings on appeal if substantial credible evidence supports those
findings. In re Marriage of Hall (1990), 244 Mont. 428, 436, 798
P.2d 117, 122.
Section 40-4-110, MCA, gives a district court discretion,
after considering the financial resources of both parties, to award
attorney fees. Marriaqe of Barnard, 870 P.2d at 95. "An award of
attorney fees under this statute must be based on necessity, must
be reasonable, and must be based on competent evidence." Marriaqe
of Barnard, 870 P.2d at 95. In Marriaqe of Barnard, we held that
the party requesting attbrney fees must make a showing of
necessity.
Although Jeffrey contends that Kimberly's "financial picture
was not as bleak as she presented," Kimberly contends that she pays
for her own auto insurance and that she was $15,000 in debt at the
time of trial. Moreover, the District Court found that Kimberly
makes approximately $500 a month working for a log manufacturing
business, but that her total monthly expenses total more than
$1,200. The District Court also noted that Kimberly borrows money
from her mother to cover the monthly deficit. After reviewing the
record, we conclude that the District Court did not abuse its
discretion. We hold that substantial credible evidence supports
the District Court's conclusion that the award of attorney fees was
based on necessity.
Affirmed .
We Concur: -R
Chief Justi