In Re Marriage of Hogstad

914 P.2d 584, 275 Mont. 489, 53 State Rptr. 257, 1996 Mont. LEXIS 53
CourtMontana Supreme Court
DecidedApril 5, 1996
Docket95-362
StatusPublished
Cited by23 cases

This text of 914 P.2d 584 (In Re Marriage of Hogstad) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Marriage of Hogstad, 914 P.2d 584, 275 Mont. 489, 53 State Rptr. 257, 1996 Mont. LEXIS 53 (Mo. 1996).

Opinion

JUSTICE ERDMANN

delivered the Opinion of the Court.

Dennis Hogstad and Martha Hogstad were divorced in October 1994. Dennis appeals from the findings of fact, conclusions of law, and decree of dissolution entered by the Sixth Judicial District Court, Park County. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

We restate the issues on appeal as follows:

1. Did the District Court err in designating Martha the primary custodial parent for Matthew, the parties’ minor child?

2. Did the District Court err in dividing the marital property?

3. Did the District Court err in determining child support?

4. Did the District Court err in establishing a visitation schedule for Matthew?

FACTS

Dennis and Martha were married on May 31,1986, in Livingston. Matthew Hogstad, who is currently eight years old, is the only child *493 born of the marriage. Martha has a thirteen-year-old daughter, Laura, from a previous marriage.

The parties resided in Livingston during the course of their marriage. Martha was employed as the office manager for Brand-S Corporation until the plant closed its Livingston operation in May 1994. Dennis worked as a carpenter for the National Park Service in Yellowstone National Park from approximately April to October of each year. During the winter months Dennis worked locally for a Livingston contractor.

Martha and Dennis separated in September 1993 and on September 17, 1993, Martha filed a petition for dissolution. When Martha’s employment in Livingston ceased she disclosed her intent to relocate to Oregon with Matthew. Martha sought physical custody of Matthew for the school year with Dennis having summer visitation. Dennis sought just the opposite — he requested custody of Matthew for the school year with Martha receiving summer visitation.

The parties agreed that a custodial evaluation for Matthew should be performed and they stipulated that Dr. Chuck Kelly and Suzy Saltiel would jointly perform the evaluation. The evaluators determined that Martha had been Matthew’s primary caretaker. They were aware of Martha’s intent to move to Oregon with Matthew, but nonetheless concluded that Martha should remain the primary custodial parent. The evaluators recommended that Martha have physical custody of Matthew during the school year with Dennis having visitation during summer months and on alternating holidays.

In addition to the issues of Matthew’s custody, support, and visitation, the parties each claimed certain premarital property interests. Martha owned the couple’s residence prior to the marriage and she and Dennis both agreed that she should receive her premarital equity in the home as part of the distribution of marital assets.

Prior to the marriage, Dennis and a friend jointly owned property and a cabin in the Crazy Mountains. The original purchase price was $16,000 and Dennis’s contribution was $8,000. During the marriage, Dennis and his friend divided the property. Dennis received approximately half the property and $6,000 in lieu of his friend keeping the cabin. Dennis deposited $5,200 from that transaction into the parties’ Franklin Money Market account and when the property was divided Dennis and Martha filed a joint tenancy deed to the property. The parties agreed that the value of the property at the time of the divorce was $21,500. They also agreed that at the time of the marriage Dennis had approximately $7,700 in separate credit union accounts.

*494 On September 26 and 27, 1994, a final hearing on the matter was conducted, and on October 31, 1994, the District Court entered its findings of fact, conclusions of law, and decree of dissolution. The District Court awarded the parties joint custody of Matthew and determined that Matthew’s primary residence should be with Martha, subject to liberal visitation for Dennis. The District Court ordered Dennis to pay $275 per month in child support and set a visitation schedule for Dennis and Matthew.

The District Court concluded that the value of Martha’s home at the time of the marriage was $15,000, noting that a $27,000 home improvement loan the parties received was not determinative as such loans typically include the value of the remodeling efforts. The District Court found that if the house were to be sold for fair market value the first $15,000 of value after payment of outstanding debt should go to Martha with the balance of the sale proceeds shared equally between the parties.

The District Court determined that with respect to Dennis’s mountain property, the increase in value from the date of marriage to the date of divorce ($8,000 to $21,500) should be equally divided between the parties. While the District Court did not specifically address the separate funds Dennis brought into the marriage, it ordered the parties to equally divide the Franklin Money Market account.

On December 2, 1994, Dennis filed a notice of appeal and a motion for stay of judgment pending appeal. On December 6,1994, Martha and Matthew left Montana for Oregon. On December 21, 1994, the District Court denied the motion for stay of judgment and this appeal followed.

ISSUE 1

Did the District Court err in designating Martha the primary custodial parent for Matthew?

The standard of review in a child custody case is whether the district court’s findings are clearly erroneous. In re Marriage of Dreesbach (1994), 265 Mont. 216, 220-21, 875 P.2d 1018, 1021. The findings of fact must be based on substantial credible evidence and the court’s decision will be upheld unless a clear abuse of discretion is shown. Dreesbach, 875 P.2d at 1021; In re Marriage of Hunt (1994), 264 Mont. 159, 164, 870 P.2d 720, 723.

Dennis argues that he has a very close relationship with his son and that it was not in Matthew’s best interest for the District Court to designate Martha the primary custodial parent and allow her to move to Oregon with Matthew. He contends that the District Court *495 should have given greater consideration to the fact that Matthew was well integrated into the Livingston community and his school and day care environments.

Martha argues that the District Court is in the best position to resolve custody disputes and that the District Court’s determination that she should have physical custody of Matthew was supported by the evidence. Martha relies on the custodial evaluation performed by Dr. Kelly and Ms. Saltiel which indicates that Martha has been Matthew’s primary caretaker and that it is in Matthew’s best interest to have that arrangement continue. She notes that Dennis and the evaluators were aware of her intent to move to Oregon with Matthew and that the District Court addressed Matthew’s ability to adjust to a new community in its custody determination.

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Bluebook (online)
914 P.2d 584, 275 Mont. 489, 53 State Rptr. 257, 1996 Mont. LEXIS 53, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-hogstad-mont-1996.