In Re the Marriage of Jacobson

743 P.2d 1025, 228 Mont. 458, 44 State Rptr. 1678, 1987 Mont. LEXIS 1020
CourtMontana Supreme Court
DecidedOctober 6, 1987
Docket86-477
StatusPublished
Cited by28 cases

This text of 743 P.2d 1025 (In Re the Marriage of Jacobson) 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 the Marriage of Jacobson, 743 P.2d 1025, 228 Mont. 458, 44 State Rptr. 1678, 1987 Mont. LEXIS 1020 (Mo. 1987).

Opinion

MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Petitioner Larry D. Jacobson appeals a September 12, 1986, order of the Eighth Judicial District Court, Cascade County. The court awarded sole custody and $300 per month child support to Robin Rae Jacobson. We affirm.

Appellant Larry presents the following issues for our review:

1. Did the District Court abuse its discretion in granting sole custody to Robin?

2. Did the District Court abuse its discretion in setting child support at $300 per month?

3. Did the District Court abuse its discretion in establishing the visitation by Larry at one week every three months?

4. Did the District Court abuse its discretion in establishing the visitation by the paternal grandparents?

5. Did the District Court err in failing to hold Robin in contempt of court for disturbing Larry’s visitation?

6. Did the District Court err in denying discovery of Robin’s medical records?

7. Did the five-month period between trial and decree cause substantial prejudice to Larry?

8. Does substantial evidence support the District Court’s order?

Respondent Robin cross-appeals with a single issue:

9. Did the District Court err in failing to award attorney fees to Robin?

Larry and Robin Jacobson were married in Great Falls, Montana, on January 2, 1982. One child, Lexi, was born of the marriage on January 21, 1984. Two months later, Larry petitioned for dissolution.

Following settlement attempts and continuances the District Court awarded temporary custody and child support to Robin on August 1, 1985. In February 1986, Larry petitioned the Supreme Court for a writ of supervisory control on a custody issue. We dismissed the petition without prejudice. The hearing on the present issues was com *461 pleted on April 4, 1986. The District Court filed its decree on September 12, 1986, and Larry appeals.

Issue 1. Custody.

The District Court awarded sole custody to Robin, subject to reasonable visitation by Larry. Larry contends that the court did not consider all of the child’s “best interests” factors of Section 40-4-212, MCA.

In reviewing custody issues, we first determine if the factors of Section 40-4-212, MCA, were considered by the District Court in its findings. If properly considered by the court, the appellant must show both a clear preponderance of evidence against the findings and an abuse of discretion in the court’s conclusions. In Re Marriage of Manus (Mont. 1987), [225 Mont. 457,] 733 P.2d 1275, 1276, 44 St.Rep. 398, 400.

The court issued nine findings relating to the custody issue. The court cited Robin’s remarriage into a stable family environment, Robin’s continuous custody of Lexi, Larry’s sporadic visits, Larry’s home environment, and Lexi’s attitude toward each parent. The court touched upon all five factors of Section 40-4-212, MCA. The record supports the court’s findings and we see no abuse of discretion in its conclusions.

Larry further contends that joint custody is presumptively in the best interests of the child. Larry argues that joint custody is necessary because Robin has deprived Larry of adequate visitation.

Under Section 40-4-223, MCA, joint custody is presumed to be in the child’s best interests, unless the court finds under Section 40-4-212, MCA, that joint custody is not in the child’s best interests. If joint custody is not awarded, the court shall state the reasons in its decision.

The District Court specifically addressed the issue of joint custody. The court found that the parents were unable to communicate about Lexi, that Larry was inflexible, that Lexi had adjusted to Robin’s home environment and that Lexi’s interests were best served with sole custody to Robin. We have repeatedly recognized the propriety of a District Court’s refusal to implement joint custody when such an award would not be in the best interest of the child. Manus, 733 P.2d at 1277.

Larry has failed to overcome the presumption that the District Court’s judgment is correct. Parental cooperation is a key factor in *462 an award of joint custody. The District Court saw no cooperation. Absent an abuse discretion, we will not disturb its decision.

Issue 2. Child Support.

The District Court ordered Larry to pay. $300 per month child support and medical expenses. Larry contends that the court did not follow the formula of In Re Marriage of Carlson (Mont. 1984), [214 Mont. 209,] 693 P.2d 496, 500, 41 St.Rep. 2419, 2423. Larry argues that the support payments are excessive.

On appellate review, we will not overturn an award of child support unless there has been a clear abuse of discretion resulting in substantial injustice. In Re Marriage of Tonne (Mont. 1987), [226 Mont. 1,] 733 P.2d 1280, 1285, 44 St.Rep. 411, 416.

In determining child support, the District Court must consider the needs of the child and the financial resources of the parents. Section 40-4-204, MCA. In Carlson, we adopted an algebraic formula Marriage of Jacobson to calculate the amount of child support. However, we plainly stated that the Carlson formula is a guideline and not mandatory. Carlson, 693 P.2d at 499. Although the formula is recommended, the court can fashion support orders to fit the exigencies of the case. In Re Marriage of Goodman (Mont. 1986), [222 Mont. 446,] 723 P.2d 219, 222, 43 St.Rep. 1410, 1415.

In eight findings, the District Court evaluated Lexi’s needs and the ability of her parents to pay support. The court specifically stated why it did not apply the Carlson formula. The court found that Robin’s net pay is $738 per month, that Robin has expenditures of $993 per month, that Larry could earn $13.00 per hour as a construction worker and that Larry can meet his expenses while paying the support. The District Court noted: “Larry Jacobson has apparently chosen a lifestyle which may have resulted in him earning less money than he is capable of earning.”

If a parent chooses a lifestyle that results in diminished ability to pay child support, the court may consider that factor in establishing support payments. In Re Marriage of Rome (Mont. 1981), [190 Mont. 495,] 621 P.2d 1090, 1092, 38 St.Rep. 50, 52. The record upholds the court’s findings. We find neither abuse of discretion nor substantial injustice in the court’s conclusion.

Issue 3. Visitation by noncustodial father.

The court awarded visitation to Larry for one week every three months plus holidays and Lexi’s birthday.

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Bluebook (online)
743 P.2d 1025, 228 Mont. 458, 44 State Rptr. 1678, 1987 Mont. LEXIS 1020, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-jacobson-mont-1987.