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IN RE THE MARRIAGE OF TERESA JOHNSON and LEO JOHKSON

Date: 04-27-2022

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:









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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,