text:
    In Re the Marriage of ROBERT JOSEPH IRWIN, Petitioner and Appellant, and KELLY ANN IRWIN, Joint-Petitioner and Respondent.
    No. 92-425.
    Submitted on Briefs December 17, 1992.
    Decided June 23, 1993.
    50 St.Rep. 741.
    259 Mont. 176.
    855 P.2d 525.
    For Petitioner and Appellant: Christopher Daly, Attorney at law, Missoula.
    For Respondent: Kelly Ann Irwin, Pro Se, Arroyo Grande, California.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Robert Joseph Irwin appeals from a July 13, 1992, order of the District Court for the Fourth Judicial District, Missoula County, in which the court reaffirmed its decision that Montana is an inconvenient forum for child custody determinations pursuant to § 40-7-108, MCA, and stayed further proceedings for 30 days to allow Kelly Irwin to move a California court to assume jurisdiction over this matter. We affirm.

The sole issue for our consideration is whether the District Court abused its discretion when it concluded that, in this instance, Montana is an inconvenient forum for a child custody proceeding.

The Irwin marriage was dissolved by order of the Fourth Judicial District Court on October 31, 1989. The parties were awarded joint custody of the two minor children — Jake, who was six years old, and Caitlin, who was four years old — and Kelly was named as primary physical custodian. Two months later, after giving Joseph notice as required by the divorce decree, Kelly and the children moved to California to be closer to family and friends. At the time, Joseph was unemployed and could not provide support for the children.

After Kelly left Montana, Joseph returned to Seattle, where the couple had previously lived, to look for employment. They attempted reconciliation during the spring of 1990, but when unsuccessful, Joseph brought the children to Montana for summer visitation.

In August 1990, Joseph moved the court to modify custody and requested that he be named primary physical custodian. Kelly filed a motion to dismiss based on lack of jurisdiction, inconvenient forum, and insufficient grounds to modify custody. The court denied Kelly’s motion and concluded that it would exercise jurisdiction to hear Joseph’s motion. Based on the serious allegations which were raised by Joseph, the court allowed the children to stay in Montana with Joseph during the 1990-91 school year, pending a decision on the merits of the motion.

The court held extensive hearings, and on February 22, 1991, issued an order in which it concluded that Joseph’s allegations were unfounded and that the modification motion had been frivolous and an abuse of the judicial process. The court ordered the original decree to remain in place without alteration. However, because the children were enrolled in Montana schools, the court determined that it would be in their best interests to have them remain with Joseph until the end of the school year, at which time Kelly would be reinstated as primary physical custodian.

Kelly removed Jake and Caitlin to California in June 1991, and they have lived in California since that time. Joseph has continued to work temporary jobs in the State of Washington, but has maintained legal residency in Montana, and has brought the children to Montana for brief visits.

Because the Montana court was continuing to exercise jurisdiction over the issue of child support, Kelly moved the District Court on April 29, 1992, to stay further proceedings and determine proper venue due to the fact that the children have continuously resided and attended schools in California since June 1991. The court issued its opinion and order on June 1, 1992, in which it concluded that Montana is an inconvenient forum pursuant to § 40-7-108, MCA. All Montana proceedings were stayed for 30 days to allow Kelly to move a California court to assume jurisdiction. Joseph moved the court to reconsider its ruling, and on July 13, 1992, the court reaffirmed its decision that Montana is no longer the proper forum for further custody determinations. Joseph appeals.

Joseph contends that the District Court abused its discretion when it relinquished jurisdiction in favor of California and concluded that Montana is an inconvenient forum under the provisions of the Uniform Child Custody Jurisdiction Act (UCCJA), found at §§ 40-7-101 through -125, MCA. He argues that the Montana court is in the superior position to determine the merits of the case because it has had extensive opportunities to observe numerous witnesses, hear the testimony of experts, and observe the demeanor and character of the parties that have been involved in this litigation since the time of the original dissolution. Furthermore, he contends that he should not be penalized because he is currently employed and resides in Washington. Joseph asserts that it is Kelly who has created the inconvenience by putting 2000 miles between herself and the Missoula court.

The stated purpose of the UCCJA is to avoid the jurisdictional conflicts that arise in the enforcement and modification of custody decrees, and to assure that any litigation involving minor children occurs in the state where the child has the closest connection and where significant evidence concerning the child’s care, protection, training, and personal relationships is most readily available. Section 40-7-102, MCA. Section 40-7-108, MCA, provides that a court of competent jurisdiction may decline to exercise jurisdiction if it finds that it is an inconvenient forum under the circumstances, and that a court of another state is a more appropriate forum. In making such a determination, the court shall consider if it is in the child’s best interest for another state to assume jurisdiction, taking into account such factors as whether another state is the child’s home state, whether substantial evidence concerning the child’s welfare is more readily available in another state, and whether the exercise of jurisdiction by a Montana court would contravene the UCCJA’s stated purposes. Section 40-7-108(3), MCA.

When reviewing discretionary matters such as this, our standard of review is whether or not the court abused its discretion. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 475, 803 P.2d 601, 603-04. In this instance, we conclude that the court did not abuse its discretion when it determined that Montana is an inconvenient forum and that the children’s interests would be best served by having a California court assume jurisdiction.

It is apparent from reviewing the record and the court’s findings of fact and conclusions of law that the court carefully considered where evidence regarding the children’s environment and welfare was most readily available. After considering the factors in § 40-7-108(3), MCA, the court found that it would be inappropriate to require Kelly and the children, and any witnesses familiar with the children, to travel to a remote court in Montana every time an issue involving custody, child support, or modification of the prior decree was raised. California is now the children’s home state, and that is where the most significant evidence regarding the children’s care, protection, and social development is available.

For these reasons, the decision of the District Court is affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, GRAY, and HUNT concur.


source: Caselaw Access Project

author: JUSTICE HARRISON

license: Public Domain

text:
    IN RE THE MARRIAGE OF DAVID JOHN WHITING, Petitioner and Respondent, and ROBIN RENE WHITING, Respondent and Appellant.
    No. 92-558.
    Submitted on Briefs May 20, 1993.
    Decided June 23, 1993.
    50 St.Rep. 747.
    259 Mont. 180.
    854 P.2d 343.

      For Respondent and Appellant: John E. Smith, Attorney at Law, Missoula.
    For Petitioner and Respondent: Keith W. McCurdy; McCurdy Law Firm, Poison.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Robin Rene Whiting (Rene) appeals from a default decree of marital dissolution entered on August 21, 1992, by the Twentieth Judicial District Court, Lake County, the Honorable C. B. McNeil presiding. The decree divided the marital estate and awarded the parties joint custody with equal physical custody of their minor child. We reverse and remand.

Rene and David Whiting were married on April 18, 1988, in Coeur d’Alene, Idaho. David petitioned for legal separation in August 1989, and for marital dissolution in January 1990. Rene moved to dismiss for failure to state a claim in February 1990; this motion was denied for lack of a supporting brief. No further proceedings took place until David filed an amended petition for marital dissolution on July 23,1992.

In the meantime the parties reconciled temporarily and had a daughter, Kalani, bom September 10,1991. At the time he filed his amended petition, David was working as a roofer and Rene was working as a janitor. The couple lived in Pablo, Montana. They had acquired three lots in different subdivisions and owned several vehicles.

In his amended petition for dissolution David requested sole custody of the child, with Rene to visit on alternate weekends and on Wednesday evenings. He requested all of the real property, in exchange for payment to Rene of half the net equity, or $16,630, in installments over a five-year period. He also asked for a hearing to show cause, having filed an affidavit stating that Rene had physical custody and that he had been informed that she intended to take the child out of the state. A hearing was set for August 5, 1992, but was later vacated at the request of David’s lawyer.

Copies of the amended petition and the order to show cause were served on Rene by a Lake County deputy sheriff on July 25, 1992. A copy of the petition was mailed to Rene’s attorney of record, Greg Ingraham, who had prepared her motion to dismiss in response to David’s original petition.

David and Rene then attempted to negotiate the terms of the dissolution directly. They agreed on a distribution of assets and debts but not on custody, visitation and child support. On August 11,1992, David advised his lawyer that a negotiated settlement was not possible and asked him to proceed with the dissolution. On the following day his lawyer filed a “N otice of Intention to Proceed,” which stated that David intended to proceed with the dissolution of his marriage and that Rene:

must comply with the terms of the Summons heretofore served on her on July 25, 1992 or Judgment will be taken against her in accordance with the prayer of the Amended Petition for Dissolution of Marriage served on her on July 25, 1992.

Copies of this notice were mailed to Rene and to Greg Ingraham on August 11, 1992.

Upon receiving the Notice of Intention to Proceed on August 12, 1992, Ingraham wrote to David’s lawyer, Keith McCurdy, saying that he was no longer representing Rene. McCurdy’s office received the letter on August 17, 1992.

Rene received the notice on Monday, August 17, 1992. She telephoned McCurdy on Tuesday, August 18, to find out what it meant. What McCurdy said is in dispute. Rene later stated that he told her she had “until Wednesday” (i.e., August 19) to respond to the amended petition. McCurdy said during oral argument that he had told Rene the matter was “going to court at ten o’clock in the morning and that if she wanted to contest it, she had to get an appearance filed by herself or by her attorney prior to that time.” No notice of the hearing that took place on August 19, 1992, appears in the record.

David and Rene met by appointment on Tuesday, August 18,1992, to discuss the dissolution. They failed to resolve their differences, and Rene told David that she intended to contact her lawyer. David did not tell Rene that he was scheduled to appear in court on the following morning, Wednesday, August 19. Believing that she had until 5:00 p.m. on Wednesday to file an answer to the amended petition, Rene consulted Ingraham that morning. He prepared the answer she filed late on Wednesday afternoon. By then, the court had issued a minute order, stating that Rene was “noticed” about the hearing but was not present and ordering default entered. The court found that the marriage was irretrievably broken and approved the child custody, child support, and property division as prayed for.

A decree of dissolution, prepared by McCurdy, was filed two days later, on August 21, 1992. It divided the parties’ real and personal property, giving Rene a choice of their three parcels of real estate and providing for cash payments to equalize their shares of the net equity. The decree awarded the parties joint custody of their child, with each party to have physical custody one week at a time, for alternating weeks. Finding that David’s income was $14,000 annually and that Rene’s income was $12,000 annually, the court awarded Rene child support in the amount of $100 per month and assigned each party equal responsibility for the child’s uncovered medical expenses.

Substitution of counsel for Rene was filed on August 24, 1992. On August 26, 1992, her new lawyer, Shawn Rosscup, filed a motion to set aside the default decree of dissolution. The motion was based primarily on David’s failure to provide notice of application for default judgment as required by Rule 55(b)(2), M.R.Civ.P. It also alleged misconduct by David, because he negotiated with Rene on August 18 without telling her that he intended to appear in court the following day, and because he testified during that appearance that the parties were in agreement concerning property division, custody, and child support, when in fact they had agreed only on a division of property, one that differed from the distribution ordered in the decree.

David’s response to this motion asserted that he was not obligated by Rule 55(b)(2), M.R.Civ.R, to provide notice of his intention to apply for a default judgment, because Rene had not “appeared” by responding to the amended petition for dissolution. After hearing oral argument, without testimony, on September 17, 1992, the District Court denied Rene’s motion to set aside the decree.

The dispositive issue on appeal is whether the District Court abused its discretion in refusing to set aside the default decree of dissolution. As we reverse on that issue alone, we need not address the child support and custody issues raised by Rene.

Rene argues that the District Court should not have entered a default decree of dissolution, or judgment, against her because she received no notice of the August 19, 1992 hearing. She concedes that notice of entry of default was not required, but argues that Rule 55(b)(2), M.R.Civ.R, requires three days notice before the default is made a judgment. The relevant portion of Rule 55(b)(2), M.R.Civ.R, follows:

If the party against whom judgment by default is sought has appeared in the action, the party ... shall be served with written notice of the application for judgment at least 3 days prior to the hearing on such application.

At the hearing on Rene’s motion to set aside the decree, the District Court ruled that Rene was not entitled to notice because she had not filed an answer to David’s amended petition. David adopts this proposition in his brief, arguing also that his Notice of Intention to Proceed was served on Rene by mail on August 11,1992, eight days prior to entry of default, and that she therefore had ample time to answer his amended petition.

We hold that the District Court erred in ruling that Rene had not appeared in the action. Rene appeared when her then counsel, Greg Ingraham, filed a motion to dismiss David’s original petition for marital dissolution, on February 14, 1990. See In re Marriage of Neneman (1985), 217 Mont. 155, 703 P.2d 164, in which we held that the wife’s failure to appoint counsel or otherwise appear in response to the husband’s request that she do so by a certain date did not constitute failure to appear in the action, and that she therefore was entitled to notice under Rule 55(b)(2), M.R.Civ.R

Here, David’s “Notice of Intention to Proceed” does not constitute the notice required by Rule 55(b)(2), M.R.Civ.R While it warned Rene that judgment would be taken against her, it said nothing about any proceedings in court and did not indicate the date, time and place of such proceedings. Nor does it fulfill the notice requirement of § 37-61-405, MCA, which provides in pertinent part that:

When an attorney ... ceases to act as such, a party to an action for whom he was acting as attorney must, before any further proceedings are had against him, be required by the adverse party, by written notice, to appoint another attorney or appear in person.

We have interpreted this statute to mean that unless the prescribed notice has been given, no proceedings may be had against an unrepresented party, and no judgment may be taken. Montana Bank of Roundup v. Benson (1986), 220 Mont. 410, 717 P.2d 6, quoting Endresse v. Van Vleet (1946), 118 Mont. 533, 169 P.2d 719. We have said also that the notice must set forth the date of the next hearing or action in the matter pending. Neneman, 703 P.2d at 166, quoting McPartlin v. Fransen (1978), 178 Mont. 178, 185, 582 P.2d 1255, 1259.

Here, the record shows that David’s lawyer knew or should have known by August 17,1992, that Rene was not represented by counsel. As we hold that the “Notice of Intent to Proceed” that McCurdy mailed to Rene on August 11 did not constitute notice that David would apply for default judgment on August 19,1992, we conclude that the default judgment entered against Rene was premature and voidable. See Neneman, 703 P.2d at 167.

Entry of default, as opposed to a default judgment, may be set aside for good cause shown. Rule 55(c), M.R.Civ.P.; Cribb v. Matlock Communications, Inc. (1989), 236 Mont. 27, 30, 768 P.2d 337, 339. Rene should have been given notice of the impending default in time to prepare a defense that would meet the “good cause” standard defined in Cribb, that is, by showing that her failure to respond was not willful; that David would not be prejudiced if the default were set aside; and that she had a meritorious defense. Cribb, 768 P.2d at 339.

We conclude that Rene would have met the “good cause” standard for setting aside entry of default if she had been properly notified and given an opportunity to move to set aside the default. Her default was not willful, because she had tried to resolve dissolution issues with David for weeks preceding the default, and because she tried to meet what she understood to be the deadline for answering the amended petition. Moreover, her objections to equal physical custody constitute a meritorious defense. Finally, David has not shown that he would have been prejudiced by setting aside the default. See Hoyt v. Eklund (1991), 249 Mont. 307, 815 P.2d 1140 (district court should have vacated default because defendant’s attorney had not been notified that plaintiff had begun an action against bis client).

As Rene had no opportunity to resist the entry of default, however, she must meet the more exacting Rule 60(b) standard imposed by Rule 55(c), M.R.Civ.P., for setting aside a default judgment. Cribb, 768 P.2d at 339. She argues that she has met this standard and that the judgment should be vacated under Rule 60(b)(1), M.R.Civ.P., because her failure to file a timely response to the amended petition was due to excusable neglect, and under Rule 60(b)(3), M.R.Civ.P., because David misrepresented to the court their agreed property settlement, as well as the extent of their agreement on child custody and visitation.

We agree that Rene’s failure to respond to the petition was due to excusable neglect, especially in view of her lack of representation. See Little Horn State Bank v. Real Bird (1979), 183 Mont. 208, 598 P.2d 1109, in which we reversed the district court’s refusal to set aside a default judgment despite evidence that the defendant had relied on assurances that she would have time to negotiate a settlement before action was taken against her. As excusable neglect alone justifies relief from judgment under Rule 60(b)(1), M.R.Civ.P., we do not address Rene’s Rule 60(b)(3) argument.

In reviewing a default judgment, we are guided by the principle that every litigated case should be decided on its merits; judgments by default are not favored. Lords v. Newman (1984), 212 Mont. 359, 688 P.2d 290. When appeal is from a denial of a motion to set aside a default judgment, our standard of review is that only slight abuse of discretion need be shown to warrant reversal. Lords, 688 P.2d at 293; Blume v. Metropolitan Life Insurance Co. (1990), 242 Mont. 465, 791 P.2d 784.

Moreover, we have consistently held that any doubt as to the late filing of an answer should be resolved by trial on the merits. Cure v. Southwick (1960), 137 Mont. 1, 349 P.2d 575 (affirming a district court order that vacated a default decree of divorce); Duffey v. Duffey (1981), 193 Mont. 241, 631 P.2d 697 (affirming a district court’s decision to extend a parent’s deadline for filing proposed findings and conclusions in an action to modify custody, child support and visitation, over the other parent’s objections; we noted that “custody cases present a compelling reason for a hearing on the merits”).

In keeping with these precedents, we conclude that the District Court abused its discretion in denying Rene’s motion to set aside the default decree of dissolution. We vacate the default decree and remand the case to the District Court for further proceedings in accord with this opinion.

CHIEF JUSTICE TURNAGE and JUSTICES GRAY, HUNT and WEBER concur.


author: CHIEF JUSTICE TURNAGE

text:
    IN RE THE PATERNITY OF W.L., a Minor: ELIZABETH LAMDIN, Petitioner and Appellant, v. ANGELO FERRARA, Respondent and Respondent.
    No. 93-013.
    Submitted on Briefs May 13, 1993.
    Decided June 23, 1993.
    50 St.Rep. 751.
    259 Mont. 187.
    855 P.2d 521.

      For Petitioner and Appellant: Donald L. Harris, Crowley, Haughey, Hanson, Toole and Dietrich, Billings.
    For Respondent and Respondent: Mark D. Parker, Parker Law Firm, Billings.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

The mother appeals from the findings, conclusions, and order entered in this paternity action in the District Court for the Thirteenth Judicial District, Yellowstone County. We affirm in part and reverse and remand in part.

The issues are:

1. Did the District Court err by not applying the uniform child support guidelines to determine child support?

2. Did the court err by failing to award the mother past child support?

3. Did the court err by failing to award the mother her lost wages during the period of her confinement?

4. Did the court err by failing to order the father to pay child support for W.L.’s college education?

5. Did the court err by failing to grant the mother sole custody of W.L.?

6. Did the court err by finding that the best interest of W.L. does not require that the mother remain home to raise him?

7. Did the court err by failing to award the mother her attorney fees and costs?

W.L. was sixteen months old at the time of trial. His mother, a registered nurse, and his father, a cardiologist, never married. As is indicated by the issues on appeal, the focus of this action is on child support, not on paternity, which has been conceded.

W.L.’s father, who now lives in another state, has an annual income of nearly $280,000. During the first year of W.L.’s life, the father voluntarily paid the costs of W.L.’s birth and $2,000 per month in child support. This allowed W.L.’s mother to stay home and raise him during that time. After W.L.’s first birthday, the father reduced his child support from $2,000 per month to $1,000 per month. W.L.’s mother returned to work and placed W.L. in day-care. Then she brought this action.

After a hearing, the District Court granted the parties joint legal custody of W.L. with the mother as residential custodian. It ordered the father to pay child support of $950 per month. It denied the mother’s request for attorney fees and costs and her lost wages immediately after W.L.’s birth. The court did not grant the mother’s requests that it order the father to pay for a college education for W.L. or that it order the father to pay past child support. The mother appeals.

I

Did the District Court err by not applying the uniform child support guidelines to determine child support?

The District Court found that, from the evidence presented, necessary expenses for the care of W.L. are no more than $700 per month. The court concluded that the child support guidelines apply. It stated, however, that

[c] hild support is meant to support the child, not the custodial parent of the child. The noncustodial parent has no obligation to support the custodial parent. Child support should not be used as a subterfuge to award maintenance to the custodial parent. [Citations omitted.]

As stated above, the court ordered child support of $950 per month. The mother contends that the uniform child support guidelines enacted by the Department of Social and Rehabilitation Services pursuant to § 40-5-209, MCA, require the father to pay $2,309.95 per month in child support.

The child support guidelines were amended after the hearing in this matter but before the court issued its findings, conclusions, and order. The effect of the amendment was to change the method by which child support is calculated on parental income in excess of $39,500 per year.

This Court recently held that district courts are to determine child support obligations according to the guidelines in effect at the time the court makes its decision. In re Marriage of Johnston (1992), 255 Mont. 421, 843 P.2d 760, 763. The amount of child support awarded in this case is therefore governed by the guidelines which took effect on July 31, 1992.

The July 31, 1992 guidelines determine child support in cases in which the parents’ combined income exceeds $39,500 by adding 14 percent of the total income deemed available for child support purposes to abasic support amount. Section 46.30.1534, ARM. In making the child support order in this case, the District Court did not use that procedure.

A district court can depart from the guidelines, but only if it finds “by clear and convincing evidence that the application of the standards and guidelines is unjust to the child or to any of the parties or is inappropriate in that particular case.” Section 40-6-116(6)(a), MCA. In such a situation, a district court is required to “state its reasons for finding that the application of such standards and guidelines is unjust to the child or a party or is inappropriate in that particular case.” Section 40-6-116(6)(b), MCA. In this case, the District Court has not met those statutory requirements for departing from the guidelines.

We remand this case for reconsideration of the proper amount of child support to be paid by the father to the mother and, if necessary, for entry of the required findings and conclusions in support of the court’s determination as to child support.

II

Did the court err by failing to award the mother past child support?

The mother asks for past child support to reflect the difference between the amount the father should have been paying under the child support guidelines and the amount he actually paid. She concedes that the proper amount of past child support is established under the guidelines then in effect as 13.65 percent of the first $39,500 of parental income, supplemented on a case-by-case basis from the remaining income. Section 46.30.1543(2), ARM (1990).

As discussed under Issue I, departures from the guidelines must comply with § 40-6-116(6)(a) and (b), MCA. On remand, the District Court is directed to make such adjustments to its findings, conclusions, and order concerning past child support as are necessary as a result of this Opinion.

III

Did the court err by failing to award the mother her lost wages during the period of her confinement?

Section 40-6-116(3)(c), MCA, provides that, in a paternity action, the court may direct the father to pay “the reasonable expenses of the mother’s pregnancy and confinement.” The mother contends that, under that statute, she is entitled to $3,000 as compensation for the net income she lost during the last weeks of her pregnancy and the first six weeks after W.L. was born.

We decline to interpret § 40-6-116(3)(c), MCA, so broadly as to include lost wages as a reasonable expense of the mother’s pregnancy and confinement. We hold that the District Court did not err in failing to award the mother those lost wages.

IV

Did the court err by failing to order the father to pay child support for W.L.’s college education?

Section 40-4-208(5), MCA, provides that a child support obligation terminates no later than the child’s nineteenth birthday “unless the termination date is extended or knowingly waived by written agreement or by an express provision of the decree.” The mother cites this Court’s opinion in Torma v. Torma (1982), 198 Mont. 161, 645 P.2d 395, as authority that a district court cannot later modify child support to extend beyond a child’s emancipation unless the original decree so provided. She claims the District Court erred in assuming it would retain continuing jurisdiction so that it could later provide for W.L.’s college education.

Section 40-4-208(5), MCA, and Torma do not control the issue of future educational support in this case, however. The mother did not bring her action under Title 40, Chapter 4, MCA, which governs child support in the context of marriage dissolution actions. She, instead, brought her action under the Uniform Parentage Act, Title 40, Chapter 6, MCA. In the instant case, § 40-6-118, MCA, controls. That statute provides that “[t]he court has continuing jurisdiction to modify or revoke a judgment or order: (1) for future education and support[.]” (Emphasis added.)

Under that section of the code, the District Court retains jurisdiction to modify its initial support order to provide for the educational needs of the child. We therefore hold that the District Court did not err.

V

Did the court err by failing to grant the mother sole custody of W.L.?

There is no dispute about the actual custodial arrangement, just about whether it is called joint custody or sole custody. The mother contends that the court did not consider the factors required pursuant to § 40-4-212, MCA, for deciding custody. She argues that the case should be remanded for entry of further findings on the issue of custody.

The father points out that the court heard a day’s worth of testimony in this case, and that it was not disputed that the mother is doing a good job of raising W.L. or that she should be his primary custodian. He also points out the statutory presumption favoring joint legal custody. See § 40-4-222, MCA.

The District Court found that both parents and W.L. are in good health. It found that W.L. has lived with his mother since his birth and that the father has visited him on numerous occasions. These findings relate directly to factors listed under § 40-4-212, MCA, for determining the best interest of a child. The court made no findings which rebut the statutory presumption favoring joint custody.

We conclude that the court has met its obligation to state the determining factors upon which it based its decision on child custody in the best interest of W.L. We hold that the court did not err in failing to grant the mother sole custody of W.L.

VI

Did the court err by finding that the best interest of W.L. does not require that the mother remain home to raise him?

The mother claims that it would be in W.L.’s best interest for her to work only part-time, because she alone is raising him. She proposed to work two days a week and to stay home with W.L. five days a week.

As the father points out, the court cannot order the mother to stay home and raise W.L. Best interest as defined at § 40-4-212, MCA, is used to determine the type of custody arrangement for a child, not to determine the employment status of the parents. We hold that the court did not err in finding that the best interest of W.L. does not require the mother to stay home to raise him.

VII

Did the court err by failing to award the mother her attorney fees and costs?

The mother argues that, in light of the parents’ relative incomes and the father’s position that he should be obligated to pay only $600 per month in child support, the District Court committed reversible error by failing to award her reasonable attorney fees and costs.

Montana statutes do not provide for the award of attorney fees in a paternity action. We hold that the District Court did not err in failing to award the mother her attorney fees in this action.

Affirmed in part and reversed and remanded in part.

JUSTICES HARRISON, GRAY, TRIEWEILER, HUNT, NELSON and WEBER concur.


author: JUSTICE NELSON

text:
    MARY M. TONDU, Plaintiff and Appellant, v. WALTER S. “PETE” AKERLEY, Defendant and Respondent.
    No. 93-078.
    Submitted on Briefs May 13, 1993.
    Decided June 23, 1993.
    50 St.Rep. 754.
    259 Mont. 194.
    855 P.2d 116.

      For Plaintiff and Appellant: Max A. Hansen, Max A. Hansen & Associates, Dillon.
    For Defendant and Respondent: Robert Edd Lee, Crowley, Haughey, Hanson, Toole & Dietrich, Billings.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal from a Fifth Judicial District Court, Beaverhead County, judgment in a bench trial. We affirm.

There are two issues on appeal:

1. Did the District Court err in concluding that a partnership did not exist between Mary Tondu and Walter Akerley?

2. Did the District Court equitably distribute the funds at issue?

Mary M. Tondu (Mary) and Walter S. “Pete” Akerley (Pete) met in late 1988. They had similar interests in raising cattle and soon verbally agreed to enter into business together to raise purebred registered cattle. Each of the parties contributed assets, monetary and otherwise, to begin the enterprise. Both parties contributed their knowledge, skills, and experience toward the management and operation of the business. They were to have equal one-half interests in the business.

Mary and Pete also entered into a domestic relationship, living together and conducting their business in a rental property in Sheridan. During this time, each party also devoted time to separate pursuits and other employment.

Wages from these other income sources were added to monies from the business. Mary and Pete also took out joint loans to finance their operation. Mary and Pete had a joint checking account, a joint savings account, and two separate checking accounts, owned individually. In fact, monies from all income sources were commingled within the 4 accounts and used to pay business and personal expenses.

Although they shared their incomes and their business interests, they filed separate income tax returns during their venture together, instead of a partnership tax return. Mary indicated that the couple’s accountant advised her that filing separately was the appropriate method for filing their returns.

In the spring of 1991, the personal relationship was terminated and in April, Mary moved to Arizona. The parties tried to terminate their business relationship as well, but they encountered problems, and Mary filed this action on January 27, 1992.

The trial court concluded that no partnership was established. Mary was entitled to the sum of $2,750, together with her share of the allocated interest. Brian Barragree, who performed some work for the couple, was owed $1,000, and the remainder of the money from the sale of the business assets sold at the termination of the relationship and deposited with the Clerk of Court, was awarded to Pete. The total account was approximately $14,000. Mary appeals.

Our standard of review of a district court’s findings of fact is clear. Rule 52(a), M.R.Civ.P., provides in pertinent part:

Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses ...
In interpreting this rule, we have adopted the following three-part test: First, the Court will review the record to see if the findings are supported by substantial evidence. Second, if the findings are supported by substantial evidence we will determine if the trial court has misapprehended the effect of evidence. Third, if substantial evidence exists and the effect of the evidence has not been misapprehended, the Court may still find that “[A] finding is ‘clearly erroneous’ when, although there is evidence to support it, a review of the record leaves the court with the definite and firm conviction that a mistake has been committed.”

Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287. (Citations omitted.)

ISSUE I. FORMATION OF PARTNERSHIP

In her complaint, Mary asserts that she and Pete formed a partnership and at its dissolution, Pete must make an accounting and pay her for her share of the partnership assets. Pete contends that they had a cooperative business relationship and he has fully compensated Mary for her share of the assets.

Section 35-10-201(1), MCA, defines a partnership as “an association of two or more persons to carry on as co-owners a business for profit.” Barrett v. Larsen (1993), [256 Mont. 330], 50 St. Rep. 96, 846 P.2d 1012, provides the following elements as indicative of a partnership:

To establish ... a partnership, it is necessary to determine the intent of the parties: such business relationships arise only when the parties intend to associate themselves as such. There must be some contribution by each co-adventurer or partner or something promotive of the enterprise. There must be joint proprietary interest and a right of mutual control over the subject matter of the enterprise or over the property engaged therein, and there must be an agreement to share the profits. The intention of the parties has to be clearly manifested, and must be ascertained from all the facts and circumstances and actions and conduct of the parties. (Citations omitted.)

Barrett, 846 P.2d at 1015.

A. Clear Manifestation of Intent to Establish a Partnership

In Antonick v. Jones (1989), 236 Mont. 279, 769 P.2d 1240, we pointed out that “[t]he initial test of whether a partnership exists is the intent of the parties. This inherently implies a mutual agreement or meeting of the minds.” Antonick, 769 P.2d at 1242-1243. (Citation omitted.)

The element of intent to associate as partners in this instance is highly debatable. Pete testified that “I wouldn’t have considered a partnership.” He also asserted, when asked why by the court, ‘Your Honor, I think a partnership has to be equal donations and equal service. I’ve been in comparably the same situations previous, and I’ve never seen them work. And I wasn’t about to get into another one.” Section 35-10-401(7), MCA, states that “[n]o person can become a member of a partnership without the consent of all the partners.” In this case, there is direct testimony that one of the alleged partners did not wish to be associated in a partnership.

Moreover, there is other evidence to support Pete’s argument that he did not want to form a partnership with Mary. Although the two parties used the Diamond Dot brand, owned by Pete, it was never transferred to the partnership. Mary was a signer on the brand, not a co-owner.

Although Mary stated that they conducted business under the name of “Akerley and Tondu” or Akerley and Tondu d/b/a “Diamond Dot Ranch” or “Diamond Dot Angus”, they never registered the name of their partnership with the Secretary of State. They also never put into writing their desire to associate in a partnership.

Further, they filed separate tax returns instead of partnership returns. The intention of the parties to form a partnership is not clearly manifested as required.

B. Contribution and/or Promotion of the Enterprise

Each party made a contribution to start the business. The trial court stated that Mary contributed about $12,000 and some of her shorthorn cattle to the enterprise and Pete contributed about $3,000 in cash and “his knowledge and experience in the unique business of transplants and artificial insemination.” The parties obtained joint loans and jointly purchased cattle and necessary equipment to facilitate their operation. Both parties were involved in the operation and management of the business. From the testimony elicited, it is clear that both parties put considerable effort into promoting this enterprise.

C. Right of Mutual Control

In the pre-trial order, the agreed statement of facts states that “[b]oth of the parties actively participated in purchasing and marketing their livestock.” For instance, during the Labor Day weekend of 1991, Pete and Mary met with Walter Perkins and Floyd Fredrickson about the sale of some of their cattle. Pete had earlier arranged the meeting with Walter Perkins. Mary arranged to have some of the cattle cared for and taken to the winter fair for show by some Sheridan high school students for possible sale at a later date.

When Mary’s attorney asked Floyd whether he was dealing with both Mary and Pete concerning the sale of cattle, Mr. Perkins stated, ‘Yes.” From the testimony presented, Mary and Pete maintained mutual control over the animals.

D. Agreement to Share Profits

The trial court’s findings of fact concerning sharing of profits stated: The parties had no agreement expressed or implied as to the sharing of the financial benefits of their business relationship. Indeed there was little, if any profit as the term is commonly used in a joint business venture. It is apparent from the record that the enterprize (sic) was aesthetically mutually satisfying, and supplemented their individual incomes, providing them a good living during the short-lived association. Even Mary’s daughter was advanced money and otherwise benefitted from the relationship. Repeatedly the parties withdrew money from the business accounts for their respective personal use. In November, 1989, Mary actually repaid a $4,500 loan which had been negotiated by Pete, from her own personal account. Pete contributed $1,700 from his personal account to purchase a tractor and horse. Once Mary withdrew $775 from joint funds to supplement the purchase by her of an automobile. Neither party ever objected to this co-mingling [sic] and joint personal use of these assets.

Mary and Pete both stated that they had no agreement as to sharing profits. When asked about any agreement to share profits, Pete testified, “No. Just pool our money. It was just an oral agreement. We would pool and just go on.” Further testimony revealed that money from cattle sales would be deposited into any account at any time and may have been used by Mary or Pete or jointly by the two. This is a second element of a partnership that the Tondu-Akerley business relationship cannot meet; there was no agreement between the parties to share profits.

The burden of establishing a partnership is on the party claiming one. Antonick, 769 P.2d at 1242. We conclude that Mary has failed in her burden of proof, and we hold that the cooperative business association entered into by Mary Tondu and Walter “Pete” Akerley does not contain the elements necessary to establish a partnership.

This Court notes that a side issue existed which reflected upon Mary’s credibility and her contention that she and Pete had established a partnership. There were a number of checks written on Pete’s individual checking account which purportedly contain Pete’s signature but do not appear to be in Pete’s handwriting. Mary repeatedly denied signing these checks but the trial court concluded that:

Mary wrote checks on Pete’s account, signing his name. While Mary now denies that she did this, the evidence was persuasive that she did. Pete now denies that he authorized these checks, the evidence however convinces the Court that he at least knew or should have known about it. In any case the so called unauthorized checks amounted to less than $2,000.

“The trier of fact is in the best position to hear the testimony and observe the witnesses and their demeanor. ... Particularly where credibility of witnesses is involved, we give great weight to fact-findings of a district court.” Scott v. Eagle Watch Investments, Inc. (1991), 251 Mont. 191, 195, 828 P.2d 1346, 1349. The trial court was in the best position to determine whether Mary was credible, and we give its decision due regard.

ISSUE II. EQUITABLE DISTRIBUTION OF ACCOUNT

As a final issue, Mary seeks a determination as to whether an equitable distribution of the funds was effected. “[A] court of equity will, when its jurisdiction has been invoked for an equitable purpose, proceed to determine any other equities existing between the parties connected with the main subject of the suit, and grant all relief necessary to an entire adjustment of such subject.” Tiffany v. Uhde (1950), 123 Mont. 507, 512-513, 216 P.2d 375, 378.

Pete’s attorney, in moving the court for a judgment upon the evidence at the close of the hearing, stated:

... that Mary Tondu is entitled to the proceeds from Cow No. 161 sold to Fredrickson .... that Mary Tondu is entitled to registration and entry fees which Pete Akerley agreed to pay her during the Labor Day weekend of 1991 in the approximate amount not exceeding $2,000, except for Cow No. 161, which was her cow and upon which she ought to pay her own fees ....

However, in his post-trial supplemental findings and conclusions, Pete states that Mary should be awarded $849.75 for registration and other expenses incurred on the sale of Akerley cattle after the settlement in June 1991. He also argues that there was no transfer of Cow 161 and therefore, no money owed for the animal.

Mary states, in her final proposed findings of fact and conclusions of law and her additional brief in support of the final proposal, that she is entitled to have the partnership capital accounts equalized. According to Mary, she should receive the balance of the approximately $14,000 on deposit with the Clerk of Court after Brian Barragree is paid the $1,000 owed him for his work. She also claims an additional payment of $10,900 is necessary to “reimburse her for her excess capital contributions.” The trial court, in its findings of fact, stated that, among the unfinished business between the two parties, were Mary’s expenditures during the 1991 Labor Day weekend. It concluded that registration and entry fees and other costs of approximately $2,000 were incurred by Mary.

The judgment, filed on September 10,1992, awarded Mary the sum of $2,750 and her allocated share of the interest. Pete Akerley was awarded the remainder of the trust after Brian Barragree, a fitter the couple hired to prepare some of their cattle for sale, was paid $1,000 for work performed. We conclude that the trial court effected an equitable settlement.

In conclusion, the findings of fact are supported by substantial evidence, the trial court did not misapprehend the effect of the evidence and the findings are not clearly erroneous. AFFIRMED.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, WEBER and TRIEWEILER concur.


text:
    IN THE MATTER OF THE ESTATE OF CHARLES G. VANDENHOOK, a/k/a CHUCK VANDENHOOK, Deceased.
    No. 93-091.
    Submitted on Briefs May 20, 1993.
    Decided June 23, 1993.
    50 St.Rep. 758.
    259 Mont. 201.
    855 P.2d 518.

      For Appellant: Karl P. Seel, Bozeman.
    For Respondent: Joseph W. Sabol, II, Bozeman; David G. Davies, Phoenix, Arizona.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Sharon Groth appeals from a ruling of the District Court for the Eighteenth Judicial District, Gallatin County, that she did not establish a claim against the estate of Charles Vandenhook as his common law wife. We affirm.

The issue is whether the District Court erred in entering summary judgment denying Groth’s claim against Vandenhook’s estate.

Vandenhook was seventy-six years old at the time of his death in October 1991. Groth, who was in her forties, had been introduced to him through a mutual friend in Utah in late 1990. Because Groth lived in Oklahoma and Vandenhook lived in Montana, their relationship initially consisted of letters and telephone calls.

In March 1991, Groth visited Vandenhook at his home in Belgrade, Montana, for five days. During that visit, Vandenhook presented Groth with a diamond ring which she says they considered as an engagement ring. Groth returned to Oklahoma and the relationship continued through the mail and over the telephone. Groth conveyed to Vandenhook her concerns about his wish that she join him in Montana, which would require her to leave behind her Oklahoma home, friends, and job.

Groth made a second trip to Montana in September 1991. She stayed with Vandenhook at his home for four days. On the last day of her visit, they exchanged the original diamond ring for one with a larger stone. Groth then returned to Oklahoma.

Vandenhook died on October 22, 1991. His holographic will executed on that date states:

SEVENTH: I give and devise and bequeath to Sharon, my wife, after special bequests, all of my remaining stocks, bonds, real estate, cash, contracts and personal property.
EIGHTH: Sharon is to act as Personal Representative of my estate

His proposed first codicil, also dated October 22, 1991, states:

Sharon and I are not married yet. Any reference to her name is hereby deleted on page 2.

Sharon is to receive my 1985 Cadillac.

Anna Lee Purdy is to act as my personal representative. Groth is presumed to be the “Sharon” mentioned in Vandenhook’s will and codicil.

Anna Lee Purdy and another person were appointed as co-personal representatives of Vandenhook’s estate. Groth filed a demand for notice and a statement of her interest in the estate as Vandenhook’s common law wife and a beneficiary under the will. She contends that she and Vandenhook entered a common law marriage during her September 1991 visit to Montana.

The co-personal representatives moved for summary judgment, supporting their motion with their own affidavits and those of others. Groth filed a brief in opposition to the motion for summary judgment. The District Court granted the motion, concluding:

The undisputed facts are insufficient to elevate the parties’ relationship to that of a valid common law marriage. There was no mutual long-term commitment to a relationship of husband and wife; there was no cohabitation as husband and wife after the date Petitioner alleges the marriage “probably” took place, September 24, 1991; the parties did not generally hold themselves out to, or in any way indicate to, their friends, relatives, or members of the general community that their relationship was that of husband and wife.

Groth appeals.

Did the District Court err in entering summary judgment denying Groth’s claim against Vandenhook’s estate?

Summary judgment is appropriate when, based on the pleadings, depositions, answers to interrogatories, admissions, and any affidavits filed, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. Once the moving party meets its initial burden of proof, it is up to the non-moving party to establish that genuine issues of material fact exist. Simmons v. Jenkins (1988), 230 Mont. 429, 432, 750 P.2d 1067, 1069. Our standard of review is the same as that of the district court. Shimsky v. Valley Credit Union (1984), 208 Mont. 186, 189-90, 676 P.2d 1308, 1310.

To establish a common law marriage in Montana, the party alleging the existence of the marriage has the burden of proving: 1) that the parties were capable of consenting to the marriage; 2) that the parties assumed such a relationship by mutual assent and agreement; and 3) that the parties established the marriage by cohabitation and repute. In re Marriage of Geertz (1988), 232 Mont. 141, 145, 755 P.2d 34, 37. All three elements must be present.

In this case, the parties’ capability to consent to the marriage is not disputed, although there is some evidence that Vandenhook’s alcoholism impaired his judgment. The presence of the second element, consent by mutual assent and agreement, is put into question by two letters submitted to the District Court.

In an October 1, 1991 letter, the matchmaking friend from Utah wrote to Vandenhook:

You take care of yourself + try + build your strength up. I am really looking forward to you coming to St. George —so hurry! We will find you a good doctor here + I will see to it you will not need for anything like shopping for household needs, etc., until Sharon makes up her mind, etc.

In a letter to Groth dated October 22, 1991, Vandenhook wrote:

I am just too mixed up to go through with our arrangement.
We have not been able to see enough of each other.
Montana is really my home and I don’t really know how you will feel about that.
I am so much older and less active than you are. I would be very lucky to have you, but we need to get each other thinking better.
I feel this will maybe disappoint you but we really are not close enough yet that your heart will be broken.
I still hope we will get to know each other better and I want to keep our friendship going. I think you understand and have had doubts about leaving your job and Oklahoma, where you have always lived.

It is the third element of common law marriage, cohabitation and repute, which is decisive in determining the motion for summary judgment. In her deposition, Groth testified that she and Vandenhook felt they were married after he gave her the second diamond ring in September 1991. However, the only time thereafter during which the couple can possibly be said to have cohabitated was that afternoon, before Groth returned to Oklahoma.

As to repute, a common law marriage cannot be kept secret by the parties, and if the relationship is kept secret, no valid common law marriage exists. Miller v. Sutherland (1957), 131 Mont. 175, 184-85, 309 P.2d 322, 327-28. Groth testified that, right after Vandenhook gave her the second ring, he took her out to lunch with Anna Lee Purdy but that they did not mention to her or to anyone else they saw that day that they were married.

Also, the co-personal representatives filed affidavits stating that, despite their close personal relationships with Vandenhook, he never indicated to them that he had entered into a marriage relationship with Groth. They stated that they had made efforts to locate any friend, relative, associate, or acquaintance of Vandenhook to whom he had held out Groth as his wife, but that their efforts were unsuccessful. Several other personal friends of Vandenhook filed affidavits stating that they were aware that Vandenhook was corresponding with Groth, but that Vandenhook never indicated expressly or by implication that he had entered into a marriage of any sort with her.

The co-personal representatives further filed an affidavit by the jeweler who sold the second diamond ring to Vandenhook and Groth. The jeweler stated that he did not recall hearing any statements between Groth and Vandenhook that the purchase of the ring constituted a marriage between them.

Groth testified by deposition that she did not change her credit cards or income tax withholding to indicate that she was married. She and Vandenhook had no jointly held property or bank accounts and did not name each other as beneficiaries on their insurance policies. Groth filed her 1991 income tax return under “single,” not “married,” status.

Groth also testified in her deposition that she told her son, the friend in Utah who introduced her to Vandenhook, and a coworker that she was married. However, she failed to include with her brief opposing the motion for summary judgment any affidavits to support these claims.

Groth has not met her burden of demonstrating a genuine issue of fact as to the third element necessary to show a common law marriage, cohabitation and repute. We therefore hold that the District Court did not err in entering summary judgment that Groth has failed to prove her claim that she was the common law wife of Charles Vandenhook.

Affirmed.

JUSTICES GRAY, HUNT, NELSON and WEBER concur.