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Date: 04-27-2022
Case Style:
IN RE THE MARRIAGE OF TERESA JOHNSON and LEO JOHKSON
Case Number: 86-448
Judge: Kathleen H. Richardson
Court:
IN THE SUPREME COURT OF THE STATE OF MONTANA
On appeal from The District Court of the Twelfth
&dicial District
Plaintiff's Attorney:
Defendant's Attorney: Kathleen 8. Richardson
Description:
Helena, MT – Divorce lawyer represented Petitioner with petitioning for a legal separation.
The parties entered into a written
Stipulation for Temporary Custody and Support which
was incorporated in an Order of the District Court
dated December 17, 7984. 1 9, 1985, the
Respondent-Appellant, Leo Johnson, filed his
Response and Counterclaim for dissolution of the
marriage. A Hearing was held on February 3, 1986
before the Efonorable Chan Ettien, Judge of the
District Court. On July 23, 1986, the District
Court entered its Findings of Fact, Conclusions of
Law and Decree. A Notice of Appeal was filed by
Leo Johnson on August 21, 1986.
STATEMENT OF THE FACTS
(Reference to the transcript of the February 3,
1986, hearing, shall be designated as follows:
T:l: I, thus transcript paye 1: line 1)
The Petitioner-Respondent Teresa Johnson,
hereinafter "Teresa", and the Respondent-Appellant
Leo Johnson, hereinafter "Leo" were married on
August 2, 1974. %e parties separated on September
9, 1984. There were two children born during the
marriage: Carissa Lynn, age 9 and Nicole Marie, age
6. Teresa filed a Hation for Temporary Custody and
Support. Pursuant to Stipulation, the District
Court entered an Order giving Teresa temporary
custody and requiring Leo to pay $400.00 per month
per child for the support of the children.
(T: l2:7-3). me children have resided with Wresa
since the parties' separation. The Court's Decree
awarding joint legal custody of the minor children
with physical custody in Teresa is not at issue in
this appeal.
At the time of trial, lkresa was 32 years old.
She completed high school, went to Eorthern Eiontana
College for trm years and took a legal secretary
course, Her work experience consisted of part time
work hile she was going to college as a helpsr fur
one of the teachers, and five years as a keypunch
operator and part time bookkeeper at Wrthern
Montana Hospital. She left her einployment in
nugust of 1979, just prior to the birth of her
oldest child. (T:7: 7-22).
Teresa earned income by doing babysittirg in
her home during the marriage and subsequent to the
parties' separation
income for the year
and for the month pr
3, i986, was $549.00
T:46:8-13; T:7:4-5). Her
985 was a gross of $5,447.00,
or to the hearing on February
I Appellant's Brief , Appendix
G). Teresa was attempting to find other
employment, From Ray of 1985, she ha6 listed her
naxe with the Job Service. During the period of
time prior to trial, she was contacted only twice
by the Job Service and for only part time jobs.
Teresa determined that she was able to make more
money babysitting than by accepting part time
employment which would require her to pay someone
else to Look after her own children. (T:7:24-8: 14)
In addition, Teresa had been keeping a close eye on
want ads in the newspaper. IT:8(4-5).
Leo has been employed by Baltrusch Construction
for approximately 10 or $1 years. His present
position is superintendent (T:9:14-18; T:32:32-16).
Teresa testified that Leo" average net annual
Income, based upon deposits to their checking
account, was approximately $22,000.00. (T: 9:20,
Petitioneri s &hibit "B") . Subsequent to trial,
the parties stipulated in writing on March 28, 7986
that bookkeeping changes by bo's employer would
result in Leo having a net take home pay of $377.41
per week, or a net annual income of $19,625.32.
(Appellant's Brief, Appendix D).
Teresa's expenses for the support of herself
and the two minor children were admitted into
evidence by exhibit, without objection, (Appendix
1). Teresa testified that the expenses were
comparable to the standard of living which was
established during the marriage. (T: 1 l:2l-l2:6).
!I'hese expenses amounted to $1,476.49 per month.
Teresa testified that she believed that Leo was
financially able to pay $403.00 per month per child
for the support of his children. (T:l3:15-19).
>o ;:2hnson testifieir that he had individual^
expenses which included $1 00.00 per month for the
support of a child by a previous marriage,
(T:37:15-17, 23-25), and expenses for rent and the
accaiulation of utilities and everything roughly
around $450.00 per month. (T:40:8-10). The Court
questioned LRo f urthar concerning his living
ex pen se s :
(Ti40: 13-24).
THE COURT: IS your live-in friend employed?
A: No she is not,
TH6 COURT: You support her?
A: Yes. I do.
Q. Will she be employed later in the year?
A: Yes. She Will.
Q: She works seasonally, is that right?
A: Yes. That's correct
THE COURT: What kind of work?
A. She is in construction.
THE COURT: With Baltrusch?
A. Yes.
(T:47:22-T:48: 16).
Q. The individual that you are residing with
now does not receive a check year round,
as you do?
A: No. She does not.
THE COURT: Or unemployment?
A: Yes.
THE COURT: What does she bring into the
house?
A: Well, we split the rent right now. Icontribute to paying the power. All the
utilities in the house, plus the food,
THE CODXT: What is your monthly contribution?
A: Roughly around, with everything together,
roughly better than $500.00 per month.
THE COURT: That's you and the live-in?
A: Right.
0: I am sorry. That is your individual living
expenses?
A: %atf s not my individual. mat is a combination of where I an residing, and if I
was by myself, I would probably take around
a hundred and fifty dollars 1$150.00) off
of that figure right now.
Q: So you are contributing then, in a sense,
to the support of her child, the nine year
old who is living with her?
A: Well, to some extent, I would imagine.
Teresa testified that during the effective period
of the Court's Temporary Custody and Support Order,
which required Leo to pay $400.00 per month per
child for the support of his children, he had in
fact paid only the mortgage on the family home of
approximately $460.00 per month and an additional
$100,00 to $200.00 per month. iT:12:7-18). Leo
himself testified that he contributed on the
average, approximately $750,00 per month,
2). He estimated that a realistic child
support figure would be $130.00 to $150.00 per
month per child. (T:44:23-25).
The parties were in the process of purchasing a
home during their marriage. Teresa estimated the
fair market of the home, based upon a realtor's
appraisal at between $63,OOO.GO and $67, 000. 00.
(T:14:6-8). Leo estimated the fair market value at
$70,000.00, based upon his own opinion.
(T:34:16-18). The balance due on the outstanding
mortgage on the home amounted to $4I,lOO.00.
:- In her &tition for legal
separation, Teresa petitioned the Court to award
her the use of the home until the parties' youngest
child reaches the age of 18. She testified as to
her reasons:
(T: 15:4-T: l6:2).
Q: Can you explain to the Court why you are
requesting the use of the home?
A: I feel that the girls are very, very comfortable in their house. We have just an
excellent neighborhood. It's close to
the schools. it's chose to the bus
service. They each have their own
bedroom. It has a fenced in yard, As 1
say, it % an excellent neighborhood to
live in.
Q: Have the children, in fact, lived there
all their lives?
A: Yes. Theyhave.
Q: What efforts have you made to seek other
housing?
A: I have checked approximately for a month.
I checked into alternative housings as far
as houses, apartments and trailers, and
for that particular month time, which I
think is between September and October, I
called newspaper ads and realtors and
checked into alternative housings, and at
this particular time, what was available,
most all were two bedrooms, the price
range was anywhere between $350.00 and
$400.00 rent. Alot of them I have all
written down here, but alot of them did
not have fenced yards. Alot of them were
not near schools or near bus service. A
lot of them did not have a garage or play
areas for the kids.
Q: How would that effect your employment as
a babysitter?
A: Well, it also, right, alot of the places
like ;.,he apartne?en:s and stuff that were
for rent muld not be big enough for me to
take on as many kids as I have had, and,
of course, there were alot that would not
allow me to babysit in their apartments.
hn itemized statement of the personal property
acquired by the parties during the marriage,
together with Teresa's estimate of that property's
fair market value, was admitted in evidence by way
of Mnibit, without objection. (Appellant's Brief,
Appendix E). &ither party brought substantial
assets into the marriage. J&o testified that
basically the parties started pretty much from
scratch. iT: 33: 75-1 9). Both parties contributed
their income from employment to the marriage, and
Wresas contribution as a homemaker was acknowledged. Leo disagreed with the valuation of the
personal property, testifying that the Lincoln
Continental was worth roughly $1,300.00, rather
than $2,000.00, and that the household furnishings
in total were worth from $5,000.00 to $7,000.00.
(T:35: 13-15? T:36:243-24). The Court adopted
Teresa's evidence concerning the fair market value
of the personal property. (Appellant's Brief,
.Appendix A, Exhibit "A"') , . On cross exmination,
Leo had acknowledged that in his Answers to
Interrogatories, dated August 13, 1985, he had
stated that the fair market value of the Lincoln
Continental was $2,000.00. His explanation that
the difference in his fair market valuation was,
"basically rust has really set in on this car
here", was not found credible by the Court.
:5:-8 Leo offered no evidence at all
concerniny the fair market value of the other
individual items of personal property. The
personal property of the parties had been divided
between them as set forth in Teresa's Exhibit since
their separation. Leo offered no evidence of any
proposed alternative distribution of the property.
The fair market value of the property in Teresa's
possession was 57,325.00; the fair market value of
the personal property in Leo's possession,
including the parties' anticipated income tax
refund, was $4,700.00.
Teresa testified by way of Ekhibit,
(Appellant's Brief, Appendix F), admitted without
objection, that the parties had incurred debts
during the course of the marriage amounting to
S% 61 0.00. mese debts did not include the
outstanding mortgage on the family home.
(T: 7 7: 2-3). &e debts had increased subsequent to
the parties' separation. Teresa charged things for
the children, apparently in Lieu of her full child
support papsent, T 7-9 Leo testified that
there was a third Visa card not included on
Teresa's exhibit with an outstanding balance of
$4,500.00, incurred for his own benefit and for
that of the individual with whom he was living. He
testified that the outstanding balance on that Visa
at the time of the separation from Teresa w-s
around $1,500.00 to $2,000.00 (T:50:4-6). Teresa
testified that she was not financially able to make
payments on the outstanding debts in that she was
living from check to check just buying the food and
paying the power bills and water bills.
(T:1?:?4-??I.
Subsequent to the trial , both parties
submitted proposed Findings of Fact and Conclusions
of JAW with supporting Briefs, The District Court
entered its findings and conclusions and a Decree
on July 23, 1986, (Appellant's Erief, Appendix A).
Tine District Court did not adopt the proposal of
either party with respect to the amount of child
support or the distribution of the marital assets
and liabilities. ?he District Court did adopt
substantial portions of the langsage of Teresa's
proposed findings and .conclusions, Tne parties
were awarded joint legal custody of their minor
children, with Teresa having physical custody, &c
was ordered to pay $600.00 per month for child
support, payable by wage assignment through the
Clerk of Court. Teresa and the minor children were
awarded the use of the fmily home until the
youngest child reached the age of 18. In addition,
the Court ordered Leo to pay the mortgage payments
on the hone. 7he pirties were each awarded the
personal property in their possession, and Leo was
awarded the anticipated income tax refund. Leo was
ordered to assume and pay the o~tetanding debts
incurred during the marriage. In addition, Leo was
ordered to naintain health insurance for the
benefit of the children and to pay a reasonable
attorneys fee for Teresa. Leo does not appeal from
the determination of custody or from the award of
attorneys fees.
AKGUMENY'
Leo Johnson brings this appeal to challenge
the District Court's distribution of marital assets
and liabilities and determination of child support.
The findings of a trial judge will not be disturbed
on appeal where they are based on substantial
though conflicting evidence, unless there is clear
preponderance of evidence against such findings.
In Re the Harriage of Schwartz, 184 Nont. 178, 602
P.2d 175, (1979). It is well established that the
District Court has wide discretion in equitably
dividing property and its judgment will not be
altered on appeal unless a clear abuse of
discretion is shown. In Re the Marriage of
Cruikshank, ( Mont . 1986) P.2d - 43 St. Rep.
1132. The trial court must evidence the basis of
its ultimate Conclusion and Findings of Fact.
However, the statutory guide1 ines promulgated in
Section 40-4-202, M.C.A. were not designed as
requisite criteria to be individually itemized in
every property distribution decree. In Re the
- Marriage of Ziegler, {Mont. 1985) 696 P.2d 383, 42
St. Rep. 298. With respect to the determination of
child sup?ort, the Court has held that its
function is net to substitute its judgment in place
of the trier of factl's, but rather it is "confined
to determining whether there is substantial
credible evidence to support the Findings of Fact
and Conclusions of Law". In Re the Marriage of
- Keel, (Mnt. 1986) - P.2d - , 43 St. Pep. 1742.
I. ALTFIOUGH RESPONDEKT-APPELLANT RECEIVED A
DISPROPORTIONATE SHARE OF THE MARITAL ASSETS,
THE DISTRICT COURT PXOPERLY CONSIDERED T86
FACTORS SET FORTH IN SFCTION 40-4-202, M. C.A.,
SPECIFICALLY INCLUDING WHETHER OR NOT THE
HUSBAND HAD A GREATER OPPORTUNITY TO ACQUIRE
ASSETS IN THE FUTURE, THE FACT THAT PHYSICAL
CUSTODY WAS AWARDED TO THE WIFE, AND TWE
DISPARITY IN THE PARTIES' INCOFPIE, TO EQUITABLY
APPORTION THE NARITAL ASSETS AND LIABILITIES
BEWEEP; TEE PARTIES.
The District Court found that the prries had
purchased a hone located at 1019 McKinley, Wavre,
Montana. Tne fair market value of the property was
found to be $67,000.00. The Court did not state
why it determined the fair market value to be
$67,000.00, however, Teresa had testified that the
fair market value was between $63,000.00 and
$67,000. 00. (T: 14:6-8). LEio testified that he
estimated the fair market value at $70,000.00, and
agreed with his attorney that his estimate was
fairly close to Teresa's. (T:34: 35-20). It is
reaso~able for the District Ccurt to have selected
a middle figure for the fair market value of the
house, based on the evidence, The house was found
to be subject to a? csgcstanding mortgage to
rtgage in the amount of $41,108.45. The District
Court further found that the property was purchased
during the marriage through the joint efforts of
both parties. The children have resided in the
home for their entire lives. The home is in a good
neighborhood, close to schools and is a suitable
environment for the children. Further, the Court
found that the Petitioner-Respondent's income
depended upon her having sufficient space and yard
to enable her to babysit youngsters. She had made
a reasonable attempt to find alternative housing
but had been unable to do so, (Findings and
Conclusions, page 5, line 20; Appellant's Brief,
Appendix A). The Court adopted Teresa's proposed
personal property division. The Court determined
that the personal property awarded to the
Petitioner-Respondent had a fair marked value of
$7,325.00, while the personal property awarded to
the Respondent-Appellant had a fair market value of
$4,700.OC. Finding of Fact #21 states "the parties
have agreed that each party shall keep the personal
property now in his or her possession". Counsel
for the Petitioner-Respondent can find no testimony
in the tra-nscript on appeal which supports this
finding. However, if the result reached by the
trial court is correct, it shauld be upheld by the
Supreme Court regardless of the reason given for
the conclusion. Norwest Bank of Billings v.
Murnion, (Mont. l984), 684 P.2d 1067. me personal
property awarded to Teresa included one vehicle and
the household furnishings and appliances necessary
to continue living in the family home with the two
minor children. LE?o had access to a company
vehicle for transportation. In addition, he
purchased the 1975 Lincoln Continental. It was
reasonable to award a vehicle which would provide a
means of transportation for Teresa and her
children. The District Court clearly awarded the
1985 estimated tax refund to Leo. 'Pne Si ,qOO.OO
cash refund helps to offset the fair market value
of the older, household possessions which were
awarded to Teresa.
The Court ordered Leo to assme and pay the
outstanding debts incurred during the marriage.
The Court's stated reasons were that !&resa muld
not have sufficient income to meet her current
monthly expenses; the Repondent-Appellant (Leo) is
in a better position to pay the outstanding debts
during the marriage; %here is a substantial.
disparity between Leo's earnlng capacity and that
of Teresa; and Leo has a greater ootential for
acquiring assets in the future. (Findings and
Conclusions, pzge 6, lines 1-8, Pgpellant's Brief,
Appendix A). The Court further ordered Leo to pay
the mortgage payments on the home until the
youngest child reaches the age of 18. At that
time, the home should be sold and the equity
divided equally between the parties. The cost of
any home repairs were ordered to be shared equally
by the parties. ( Findings and Conclusions, page 7,
lines 8-14, Appellant's Brief, Appendix A). The
Court concluded as a matter of law that the
property distribution set forth in the Findings of
Pacts "is a fair and equitable distribution of the
parties' assets and liabilities, based upon their
equal contribution to the acquisition of assets,
and their disparate incomes and ptential for
acquiring assets in the future." (Findings and
Conclusions, page 7, lines 15-1 9, Appellant's
Brief, Appendix Gi .
In Hickeyy, (Mont. 1984!, 689 P.2d
1222, 41 St. Rep. 1931, the Court upheld the
discretion of the Court to award one party the
right to exclusive possession of the family home.
'&ere are three reasons in the present case which
support ari award to Teresa of the use and enjoyrient
of the family home- First, the parties' children
have live3 in the home all of their lives, It is
located in a good neigbborhooii. ?Ae cbildren are
comfortable and familiar there. Staying in their
own home will help to minimize the disruption of
the divorce. Second, Teresa requires the home to
maintain her income. She babysits 5 to 10 children
each week. She has to have a home which is large
enough to accomodate that number of children and
which has an adequate yard for them to play in.
Teresa has searched for alternate housing. She
found that rent in a smaller two bedroom home is no
cheaper than the payments due on the present
mortgage. Finally, Teresa does not have the same
opportunity for acquiring assets in the future as
Leo does. She does not have the income to enable
her to purchase atother home. For the children to
enjoy the standard of living established during the
marriaqe, this hone is really Teresa's only option.
The Court has protected Leo's investment in the
home by requiring that the home be sold when the
youngest child reaches the age of 18, with the
equity to be equally divided between the parties.
Had Teresa been required to make the mortgage
payments herself, a substantial portion of Leo's
child support payments would have gone to build his
om eqility in the home, As it is, the Court's
requirement that Leo make the mortgage paynents is,
in effect, a farced investment for Leo.
In Levandowski v. Levandowski, ( Mont . l98l),
630 P.2d 239, the Court upheld a? award of the use
of the farnily home to the Wife, a secretary earning
$7,000.00 per year gross incoine. The Husband, a
battalion chief for the fire department, earning an
annual gross income of $22,000.00, was required to
make the house payements and to pay insurance,
taxes and any repairs in excess of $100.00. The
Court held that the District Court did not act
arbitrarily in dividing the marital estate. The
record was found to be replete with competent
credible evidence concerning the factors set forth
in Section 40-4-202, M.C.A. The District 63~1rt
particularly considered (a) the present and future
earning capacity of the parties; (b) the education,
vocational skills, employability and needs of the
parties; and (c) the needs of the Wife for
additional maintenance.
Section 40-4-202, M.C.A., provides:
"In making apportionment, the Court
shall consider the duration of the
marriage and prior marriage of either
party; antenuptual agreement of the
parties ; the age, health, station,
occupation, amount and sources of
income, vocational skills, employability,
estate, liabilities, and needs of each
of t2e partles ; custodeal provisioils ;
whether the apportionment is in lieu
of or in addition to maintenance ; and
the opportunity of each for future
acquisition of assets and income."
Wresa and Leo were married for 11 years. During
the first 5 years of marriage, Teresa was employed,
She left her employment to raise the parties'
children. Her current employability is limited
by her lack of her current work experience and lack
of jobs in the marketplace. Even if Teresa is able
to resume employment as a secretary or a bookkeeper, her income prospects are not comparable
with Leo's. & has been employed with Baitrusch
for 11 years, His gross income has exceeded
$22,000.00 per year. The Court may properly
consiaer whether or not a distribution of assets
and liabilities is in lieu of maintenance.
Nunnally v. Nunnally, (Mont. 1381), 625 P.2d 1159.
In Kunnally, the Court affirmed a disproportionate awar3 of marital property to the Wife
finding that the District Court's Decree reflected
a careful and conscientious consideration of the
factors set forth in Section 40-4-202, M.C.A. The
Court had concluded that because of the i?ifels age
and lack of skills, because custody was awarded to
the Wife, and because the property division was in
lieu of maintenance, that the house and its
furnishings shoilld be awarded to the Wife, th
parties had contributed to the marriage but the
Wife ha3 a greater need for the assets. Id, at
11 62.
In Re the Marriage of Kramer, (Mont. 19781 580
P.2d 439, would appear to be a case which supports
Leo's position. In that case, the Court held that
the District Court did abuse its discretion in its
distribution of the marital property by awarding
the Wife the family home with an appraised value of
S39,000.00, plus the value of the prsonal
property in the home. The home and the personal
property were to be divided equally when the
chilriren reached the age of majority, however, in
the meantime, the hdsband was to liquidate the debt
on the property, maintain the property, and pay all
the taxes and insurance on the property. The basis
for the Court's decision appears to be that the
trial Court failed to determine the net worth of
the parties based upon competent credible evidence.
Tne Court orzere.' that, in a new trial on the issue
of property distribution, the Court must determine
the net worth of the parties at the time of the
divorce. The case can be distinguished from the
present case on that basis. In the present case,
the District Court made sufficient findings from
which the net mrth of %?resa and Leo can be
deterrnlned. Nunnaliy, supra. Tnere is no
discussion 3f whether or not the Court in Krarner
considered the relevant elements of Section
40-4-202, M.C.A.
In the case of In Re the Marriage of Schwartz,
184 Mont. 178, 602 P.2d 175, (l979), the Court
affirmed an award distributing the family home and
household furnishings to the Wife until the
children were emancipated or reached majority at
which time the house would be disposed of and the
parties would each receive one-half of the equity.
The Court held that under Montana law, a District
Court has far reaching discretion in resolving
property divisions following divorce and its
judgment will not be altered unless a clear abuse
of discretion is shown. The findings of a trial
judge should not be disturbed on appeal *ere they
are based on substantial though conflicting
evidence, unless there is a clear preponderance of
evidence against such findings. In the case at
bar, the findings showed careful consideration by
the District Court of the factors contained in
Section 40-4-202, M. C.A., specificiall y including
the mount and sources of income, vocational
skills, employability, needs of each of the
parties, custodial provisions, and the opportunity
of each pirty for future acquisition of capital
assets and income.
II. THE DISTRICT COURT PROPERLY AVYARDED A
NECESSARY AND REASONABLE AMOUNT OF CHILD
SUPPORT,
Tne District Court ordered Leo to pay the sum
of $600.00 per month for child support. The
District Court found as a fact that Teresa's
average gross income was $453.91 per month, and
that her income was reasonable given her prior work
experience, the fact that she had not worked
outside the home since August of 1979, the fact
that she had applied for work through Job Service
but had only been contacted twice for possible
einployment in part tixe minimurn wage positions, and
that she is able to earn more income as a
babysitter tilac she would earn in such position.
me parties had stipulated that Leo's net annual
income was $19,625.32. The Court further found
that Teresa and the two minor children had monthly
expenses for the mortgage on the family home,
utilities, insurance, groceries, clothing,
transportation and school expenses aiiounting to
$1,476.49, Sroken down as follows: Teresa -
$642.83; Carissa - $447.83; and Nicole - $391,83,
The monthly expenses -ere found to be reasonable
and necessary ( Flnd rngs and Conclusions, pages 3
and 4, lines 17-32 and 1-5). The Court applied
the Carlson Forxula, In Re the Marriage of Carlson, -
(klont. 19841, 693 P.2d 495, 41 St. Rep. 2419, to
arrive at the amount of Leo's obligation for child
support. The Court determined that Leo was able
to pay up to $533.72 per month for child support,
and subsequently ordered him to pay $600.00 per
month. (Findings and Conclusions, page 4, lines
6-19, Appellant's Brief, Appendix A). Totaling all
sources of income available to Teresa under the
terms of the District Cburt Decree, Teresa would
have had, effectively, $1,483.00 of income with
which to meet her familys expenses. ($466.00 -
mortgage payments; $600.00 - child support; $9 17.00
- net income from babysitting). We submit that the
District Court correctly determined that $600.00
per month for child support was a necessary and
reasonable asnount of support for the children. A
lesser amount would not have enabled Teresa to meet
the family's monthly expenses. Ps stated In Re the
Marriage of Carlson, id, "the effect of an inadequate child support award is that the adverse
economic impact of divorce is absorbed by the
custodial parent and the children ,"
However, it does appear that the District
court incorrectly applied the Carlson formcla in
light of its property distribution which required
Leo to pay the monthly mortgage payments, Rs
contended by Leo's counsel, including the mortgage
payment as an expense in determining the children's
needs under the Carlson formula does appear to
require Leo to make a double mortgage payment. The
correct application of the Carlson formula, in
light of the property distribution, would be as
follows: N equals $523.00 ($833.66 minus $310.66
proportionate share of mortgage) ; v equals
$1,635.00 per month ($377.41 per week times 52
weeks divided by 12 months) ; c equals $417.00 per
month (average gross monthly income - $453.00,
minus $29.00 federal taxes, and $7-50 state taxes! . Leo should be required to pay $4
child support; Teresa will pay $
kind.
Respondent-Appellant argues
6.71 per month for
06.28 per month in
that the District
Court failed to consider the ability of Leo to meet
his own needs. In that regard, the RespondentAppellant makes several mis-statements of fact.
boss monthly income is a net of $1,635.00, based
upon a stipulated net income of $377.41 per week,
times 52 weeks, divided by 12 months; not $1,509.64
as suqgested by Respondent-Appellant (Appellant's
Brief, page 4, line 231, In addition, Respor?dentAppellant repeatedly asserts that Leo has monthly
paynents on the familyse outstanding obligations of
$500.00 per month (Appellant's Brief, page 4, line
13 and line 22; page 7, lines 7-8; page 10, line
2). There is no testimony or other evidence in the
record to support this statement by the RespondentAppellant. Leo testified at the time of trial that
his individual living expenses amounted to $500.00
per month, and could be reduced by St50.00 a month
by disregarding his contributions to the expenses
of his live-in companion. (T:48:5-16). The Court
found that Leo's monthly expenses were $450.00 per
month. (Findings and Conclusions, page 4, llne 15,
Appellant's Brief, Pppendix A). Leo's fixed
expenses as determined by the District Court
($450.00 - personal expense; $466.00 - mortgage
pipent; $600.00 - child support) would leave him
with over $100.00 a month with which to negotiate
with his other creditors.
Respondent-Appellant suggests that the Court
should apply its decision In Re the Marriage of
- Keel, ! Mont. 1986) , - P.28 - , 43 St- Rep, 1742,
to the facts in this case. The - Keel case can be
distinguisheci from the facts in the present case,
first, because the District Court in the present
case specifically considered and made Findings of
Fact concerning Leo% persona?. financial needs, as
set forth above. Second, the Court in - Keel stated
"the second factor to consider is whether the Wife
is able to support herself through appropriate
employment". The District Court in the case at bar
specifically found that Wresa was appropriately
eaployed given her past work experience, the number
of years since she had last worked outside the
home, the apparent lack of opportunities for
employment, and the fact that she was able to earn
more income as a babysitter than she would earn in
the part time minimum wage positions that were
available to her. ( Find inijs and Conclusions, page
3, lines 19-26, Appellant's Brief, Appendix A),
If the District Court is correct in its
conclusion that $600.00 per month is a necessary
and reasonable amount of child support, then the
reasons which the District Court assigned for that
conclusion are immaterial. This Court should
affirn? the award of the District Court. Norwest
Bank of Billings v. Murnicn, supra. If the Court
determines that the Carlson formula should be
strictly applied, then the correct amount of child
support should be $474.91 per month.
111. THE FINDINGS OF FACT AKD CONCLUSIONS OF
LAK OF THE DISTRICT COURT ARE SUPPORTED
9Y SUBSTAXTIAL CREDIBLE EVIDENCE,
The argument of the Respondent-Appellanr that
the 3istr ict Cburt 's Finding i)f Fact and
Conclusions were clearly erroneous and an ahuse of
discretion ignores many of the express findings of
the District Court and contains several misstatements of the evidence. Respondent-Appellant
states that the Court failed to properly consider
Wife's ability to acquire income assets. The Court
found :
"Petitioner is 33 years of age. She has
2 years of college training as a legal
secretary, but has never worked in that
capacity. She worked for 5 years as a
key punch operator and assistant bookkeeper
at the hospital, but has not worked outside
the home since August of 1979. She
presently does babysitting in her home.
Her average gross incone 1s $453.91 per
month. She has applied for work through
the Job Service. The Job Service has contacted her twice for possible employment
in part time, minimuw wage positions. She
is able to earn more income as a babysitter
than she would earn in such positions.''
(Findings and Conclusions, page 3, lines
17-26, Appellant's Brief, Appendix A).
Teresa testified at trial:
1T:7:9-8: 143.
I went through high school, and then I went
2 years to Northern P~ntana College and I
took a legal secretary course.
What kind of previous work have you done?
I had worked a little bit at the college,
and then I was going, when I was going to
college, as a helper for one of the
teachers, and then I worked 5 years at
Northern Montana Hospital.
What was your position at Northern Wntana
Hospital?
1 was a key punch operator, and I did do
some part time bookkeeping.
When did you leave that job?
LEts see, August of 1979.
And why did you leave the job?
I left because Nicole was born in October
of 79, and 1 felt then, we both felt at
the time then that I was going to stay
home and raise the children until they
were both into school.
Rave you taken any steps now to attempt to
find a job?
Yes. I have. I have had some, since
of 1985, I have had my rime at Joo Service.
They have only callec! me a couple of
different times. Once was for just a part
time job, and the other one was als~ a
part time bookkeeping job. And so therefore I could not go for one of those 2
jobs because I was making more money babysitting, and I have checked, kept a very
close eye on the want ads in the paper.
Q: What kinds of salaries were offered on the
2 jobs at Job Service?
A: 'he one was minimum wage, and the other
one was starting out at $3.50 an hour.
Q: Alright. And why do you say that you
would be able to make more money babysitting?
A: Because by the time I went and worked and
then I had to pay for a babysitter for my
own 2 children, then with that a-nount of
money I am making now babysitting, I could
be making more definitely.
Cn cross examination, Teresa testified :
(T:21: 24-23: 21).
Q: You have testifed that you finished high
school and had 2 years of college, is that
r ight?
A: Right.
Q: Did you tell the Court wlnere that was?
A: It was at Northern Montana College.
Q: And you recelved some legal secretary
training?
A: I received legal secretary training, but I
have never used it. I never had any
experience in the field.
Q: Since May of 1985, you testified that you
turned dothn two temporary positions presented to you through Job Service, is that
correct?
A: Yes.
Q: Have you looked on your own besides the
Job Service, for jobs?
A: I have. I have continually watched the
want ads in the paper.
Q: i3ave you gone out and made applications
A: At the present, no. I have had, felt
that I wanted to maintain with the amount
of money I was making, with babysitting,
to maintain to stay home in my home and do
that, so I would be at home with Nicole.
Q: Okay. Mrs. Johnson, you are physically
able to work. Is that correct?
A: Yes.
Q: .nd you have ssme educational background
that would allow you to work, is tnat
correct?
A: Yes.
Q: Wring the last year, did you take any
steps to improve your vocational training?
A: Pat yet, I have not. I 60 have plans to do
that.
Q: You have plans to improve your vocational
training?
A: Yes.
Q: And would you do that through Northern
Montana College?
A: Yes. 1: 1 was in Havre, I am sure that is
what I would do. Yes I have taken some
adult education courses at night.
Q: Both of your daughters are in school now
is that correct?
A: Yes. Although, Nicole is just in kindergarten. She just goes for 2 hours a day.
Q: And Nicole, beginning in September, will
be in the first grade, is that correct?
A: Correct yes.
Q: And then both of the children will be
attending school full time?
A: Yes.
Q: At that &mint you muld not nee
sitting services during the time they are
in school, is that correct?
A: Riqht.
Q: i?ould that free you up to be able to go
out and find a full time job outside of
your home?
a: yes. ~t would.
Q: And do you plan to try to take steps to
fina a job?.
A: Yes. I do.
The District Court's conclusion that Teresa was
appropriately employed at the time of the trial, is
supported by substantial credible evidence. There
was no evidence offered by the Respondent-Appellant
concerning job opportunities or salary ranges which
would tend to contradict the findings of the
District Court.
Tne Respondent-Appellant contends that it was
inequitable for the Court to conclude that the Wife
snould have the exclusive use of the home while the
Husband made the monthly mortgage pa-pents for the
next 11 years. mere is substantial credible
evidence to support the District Court's conclusion
that there were factors ich warranted an award of
the use of the family home to the Wife. These
factcrs included the fiading that the children have
resided in the home for their entire lives and that
the home is in a good neighborhood, close to
schools and is a suitable environment for the
children. Further, that Teresa's income depended
upon her having sufficient space and yard to enable
her to babysit 5 to 10 youngsters. Finally, that
Teresa has made a reasonable attempt to find
alternative housing, but has been unable to do so.
(Findings and Conclusions, page 5, line 11-18,
Appellanti s Brief , Iippendix A) . Tkese findings are
supported by Teresa's testimony, and were
uncontradicted by the Respondent-Appellant. at
trial .
Respondent-Appellant contends that the trial
Court erred in accepting Wife's estimate of the
value of the Husband's vehicle at $2,000.00. The
trial Court is in the best pnsition to judge the
credibility of the witnesses. Leo's testimony that
the vehicle had a fair market value of $1,300.00
was substantially impeached on cross examination.
Finally, Respondent-Appellant contends that
Wife did not request an award of maintenance. That
is correct. No maintenance was awarded. However,
with respect to distribution of property, Section
40-4-202, N.C.A., provides that the Court nay
consider in distributing property whether or not
the distribution is in lieu of maintenance,
Outcome: The Respondent-Appellant has failed to
establish that the District Court abused its
discretion with respect to either the property
distribution or the award of child support. As in
this case, where it is clear that the District
Court conscientiously considered the appropriate
statutory criteria, the judgment should be
affirmed. With respect to the application of the
Carlson formula, Petitioner -Respondent submits
that either the award of $600.00 child support
should be affirmed as being supported by
substantial credible evidence in this case, or the
award should be mended to $516.71 per month by
reducing the children 3 need by their proprtionate
share of the monthly mortgage payment.
Plaintiff's Experts:
Defendant's Experts:
Comments: