                                                                                            October 22 2012


                                            DA 12-0073

                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                           2012 MT 233N



IN RE THE MARRIAGE OF:

RICKY STINDT,

               Petitioner and Appellant,

         and

MARSHA STINDT,

               Respondent and Appellee.


APPEAL FROM:           District Court of the Nineteenth Judicial District,
                       In and For the County of Lincoln, Cause No. DR 11-54
                       Honorable James B. Wheelis, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Peter Francis Carroll; Attorney at Law, Kalispell, Montana

                For Appellee:

                       Scott G. Hilderman; Attorney at Law, Kalispell, Montana



                                                    Submitted on Briefs: September 4, 2012

                                                                Decided: October 22, 2012


Filed:

                       __________________________________________
                                         Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1     Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court Internal

Operating Rules, this case is decided by memorandum opinion and shall not be cited and

does not serve as precedent.      Its case title, cause number, and disposition shall be

included in this Court’s quarterly list of noncitable cases published in the Pacific

Reporter and Montana Reports.

¶2     Ricky Stindt (Ricky) appeals from findings of fact, conclusions of law, and a final

order and decree of dissolution of his marriage to Marsha Stindt (Marsha) by the

Nineteenth Judicial District Court, Lincoln County. Ricky argues on appeal that the

District Court erred by granting Marsha custody of A.S., their minor child, and by

ordering Ricky to pay Marsha spousal maintenance. We affirm.

¶3     Ricky and Marsha were married on June 14, 1986. They moved to Troy, Montana

after Ricky retired from the military. Ricky works full time at the Troy Mine, and

Marsha works part time at local restaurants. The parties had three children together, but

only A.S., who is now seventeen years old, is a minor. Marsha and Ricky separated in

2006, and A.S. has lived with Marsha since the parties’ separation.

¶4     On April 20, 2011, Ricky petitioned for dissolution of his marriage to Marsha.

The parties were the only witnesses to testify during the bench trial that the District Court

held on November 10, 2011, but the court also interviewed A.S. in chambers on

November 15 pursuant to § 40-4-214, MCA.            The parties had already divided their

marital property and agreed to the child support calculations, so the only issues left for

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the court to decide were which parent would get primary custody of A.S. and whether

spousal maintenance would be awarded.

¶5     The District Court issued findings of fact, conclusions of law, a final decree of

dissolution of marriage, and an order for a parenting plan on December 27, 2011. The

court found that A.S. should continue living with Marsha and ordered Ricky to pay

Marsha $1,500 in spousal maintenance each month until she receives Social Security

Disability, Social Security Retirement, and health insurance through Medicare or

Medicaid. After Marsha qualifies for those benefits, the maintenance payments will be

reduced to $1,000 per month.

¶6     Ricky first argues on appeal that the District Court made a number of erroneous

findings that led it to incorrectly conclude that it was in A.S.’s best interests to primarily

reside with Marsha. We review findings of fact in a child custody matter to determine

whether they are clearly erroneous. In re Marriage of Everett, 2012 MT 8, ¶ 11, 363

Mont. 296, 268 P.3d 507. Because the trial judge as factfinder is in a better position to

weigh the evidence, we will not overturn a child custody award absent a clear abuse of

discretion. Everett, ¶ 11.

¶7     Upon review, we find substantial evidence in the record to support the District

Court’s finding that it is in A.S.’s best interests to continue living with Marsha. First,

Marsha has been A.S.’s custodial parent since the parties separated.            Additionally,

Marsha testified that prior to 2011, Ricky infrequently exercised visitation with A.S. and

would not always show up when he did make plans for visitation. Marsha also testified



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that A.S. was on probation at the time of trial and that one of the terms of his probation

was that he had to live with her.

¶8     While A.S. testified that he would rather live with Ricky, the court is charged with

reconciling conflicting evidence and making the ultimate determination of what is in the

child’s best interests. In re Parenting of N.S., 2011 MT 98, ¶ 20, 360 Mont. 288, 253

P.3d 863; In re Marriage of Kovash, 260 Mont. 44, 51, 858 P.2d 351, 355 (1993). We

specifically note that Marsha’s proposed parenting plan, which Ricky claims does not

exist, was attached to Marsha’s Proposed Findings of Fact and Decree of Dissolution of

Marriage filed on November 9, 2011. The court did not abuse its discretion by adopting

that proposed parenting plan and granting Marsha primary residential custody of A.S.

¶9     Ricky also argues that the District Court erred by awarding Marsha lifetime

spousal maintenance. He asserts that the court incorrectly determined that Marsha could

not support herself and failed to properly assess Marsha’s needs and Ricky’s ability to

pay maintenance. While a district court must consider the factors listed at § 40-4-203(2),

MCA, it does not have to make specific findings relating to each factor individually.

Rather, the court’s findings need only show that it considered the factors when making its

determination. In re Marriage of Jackson, 2008 MT 25, ¶ 23, 341 Mont. 227, 177 P.3d

474. Here, the District Court heard extensive testimony and made findings regarding

Marsha’s current and past employment as well as her numerous medical conditions and

related expenses. The court also heard testimony and made findings regarding Ricky’s

income and needs, as required by § 40-4-203, MCA. We hold that the District Court’s



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analysis was adequate and that after reviewing the record, we find sufficient evidence to

support the District Court’s maintenance award to Marsha.

¶10    We have determined to decide this case pursuant to Section I, Paragraph 3(d) of

our 1996 Internal Operating Rules, as amended in 2006, which provides for

memorandum opinions. There was not a clear abuse of discretion, and we find no reason

in fact or law to disturb the District Court’s order.

¶11    Affirmed.

                                                   /S/ MIKE McGRATH


We concur:


/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ JIM RICE
/S/ BRIAN MORRIS




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