                               No. 87-147
               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                   1987



IN RE THE MARRIAGE OF
JANATHAN LEA ALLEN, fka
JANATHAN L. WAGNER,
                 Petitioner and Appellant,
         and
WILLIAM T. WAGNER,
                 Petitioner and Respondent.



APPEAL FROM:     District Court of the Fourth Judicial District,
                 In and for the County of Missoula,
                 The Honorable Douglas Harkin, Judge presiding.
COUNSEL OF RECORD:
         For Appellant:
                 Thomas W. Trigg, Missoula, Montana
         For Respondent :
                 Garlington, Lohn & Robinson; Larry E. Riley,
                 Missoula, Montana


                                   Submitted on Briefs:   July 14, 1987
                                    Decided:   Auqust 20, 1987
Filed:
         AUG 2 0 1987",


                 -
                 .
                                  Clerk
Mr. Justice R. C. McDonough delivered the Opinion of the
Court.


     Janathan Lea Allen, appellant-petitioner (wife) appeals
the judgment of the District Court of the Fourth Judicial
District, Missoula, County. We remand on the joint custody
plan raised by issue number one and affirm all other issues.
     The issues on appeal are:
      (1) Did substantial evidence support the District
Court's decision to require the eight-year-old son Joseph to
move annually between his mother's home in San Diego and his
father's home in Missoula?
      (2) Did substantial evidence support the court's child
support determination?
     (3) Did substantial evidence support the court's
refusal to award the wife short-term maintenance to obtain
employment-related education?
     (4) Did substantial evidence support the court's
decision to require the wife to shoulder her attorney fees
and expenses in this case?
     Jan Allen (wife) and Bill Wagner (husband) were married
on December 27, 1975, in Roundup, Montana.     They have one
child, Joseph, now eight years old. Husband is an attorney
at law and during the marriage he worked at a law firm in
Billings, was a partner in his own firm in Missoula, and is
now an associate in a large law firm in Missoula, Montana.
Wife has an accounting degree, obtained in 1975, from the
University of Montana, however, she is not a CPA, and pursued
her accounting career as a staff accountant for three years
until the birth of Joseph. Upon the birth of Joseph, it was
agreed between the parties that she would be principally the
mother and homemaker of the family, and she would no longer
pursue her professional career. This continued until their
separation on September 15, 1984.         Subsequent to the
separation, wife has worked as a real estate sales person but
has earned no income. She has been a member of the City
Council of the City of Missoula and received a salary of
approximately $400 a month.     The nine and one-half year
marriage was dissolved on June 10, 1985 and the issues of
physical custody, property division, child support and
attorney fees were reserved. These issues were resolved by
the District Court in a judgment of December 19, 1986. It is
from this judgment, and the order denying the motion for
reconsideration of the judgment, that this appeal lies.
     The first issue concerns physical custody of Joseph.
The court in its original judgment of June 10, 1985 granting
the divorce, awarded the parents joint custody of the minor
son Joseph and reserved the physical custody question,
directing   that Joseph reside with        his mother, with
visitations by the father.    The court's final judgment of
December 19, 1986, ratified the decision of June 10, 1985 as
to joint custody, and directed that Joseph would reside with
the wife until July 15, 1987, with the exception of some
holiday visitations. The court also held that Joseph would
spend a month after that date with the husband and that in
the interim period the husband, the husband's present wife,
and Joseph would be interviewed by Dr. Stratford, a
psychiatrist who testified at the hearing concerning the wife
and Joseph.    The court directed that a hearing be held in
1987 to determine whether Joseph should spend the 1987-1988
school year with the husband.           The court basically
established an annually alternating living arrangement for
Joseph between the wife's residence, which .is now in San
Diego, and the husband's residence in Missoula.
     The court also ordered as follows:
           A rebuttable presumption will exist as to
           the change in residency being in Joseph's
           best interest, which presumption can be
           overcome by competent evidence, including
           expert testimony by Dr. Stratford, who
           will be furnished Joseph's school and
           medical records from San Diego.
     Two days before the final hearing on this matter, the
wife informed the husband that she was moving to San Diego.
However, the decision was made by the parties to hold the
hearing relative to the custody of Joseph on the short notice
of a change in residency. At the hearing the father then
testified and recommended the arrangement of alternating
school years with Joseph.     The wife's and Dr. Strafford's
testimony revealed that Joseph has a somewhat extreme
asthmatic condition, which was being treated by medical
personnel.    In the past, due to the wife's being the
homemaker, Joseph relied heavily on his mother to assist him
in these asthmatic situations and be an early warning person.
The husband during the time of the marriage and when the
family lived together, was compelled to work long hours. The
husband admitted his actual contact with his son was not as
much as it should have been because of his hours.      Joseph
indicated to the court he wished to be with his mother. The
wife opposed the idea of alternating the physical custody of
the child.   She did propose at the hearing, however, that
physical custody be with her during the school year and with
the husband during school vacations.
     Dr. Stratford had evaluated the wife and Joseph and
testified as to the results, which were generally favorable.
It is noted that the court provided in its order for the same
type of evaluations of the husband, his present wife and
Joseph to be done in 1987, since there was not sufficient
time for an evaluation before the hearings.
     We cannot decide whether or not substantial evidence
supports the court's order of annual alternating custody, for
the court's order and judgment were premature. The court, at
the time, did not have all of the contemplated evidence
before it.   The court should have the opportunity of having
this evidence before it before deciding the issue and
creating a rebuttable presumption in the future.
     We are aware that § 40-4-224 (2), MCA, provides in part
"The allotment of time between parties shall be as equal as
possible; however, each case shall be determined according to
its own practicalities with the best interests of the child
as the primary consideration." We have stated as recently as
In Re the Marriage of Symka and Dayton (Mont, 1987),
P.2d      , 44 St.Rep. 1188, that this statute requiring an
equal time recommendation be balanced by the practicalities
of providing for the best interests of the child.         The
child's best interest is the primary consideration.
     The order of the District Court concerning physical
custody of Joseph is set aside and this issue is remanded for
the introduction of further relevant evidence and the
rebuttable presumption will not exist.
     As to the second issue, does substantial evidence
support the court's child support determination, the court
did not abuse its discretion.    The appellant contends that
the child support, using the Carson case guidelines would
amount to $440 per month. These are only guidelines and the
court did set child support at $400 per month.     In view of
the decrease in the lifestyle of both parties by reason of
this divorce and their lack of financial acumen, this amount
is not unreasonable.
     The third issue concerns whether substantial evidence
supports the court's refusal to award the wife short-term
maintenance to obtain employment-related education. The wife
wished to have short-term maintenance to enable her to obtain
an MBA, or attend some other type of graduate school, which
would take one or more years. The court, in order to raise
her employment opportunities said that if she wished to go to
school the husband would pay educational costs as follows:
$3,000 a year for tuition, books and fees between January 1,
1987 and December 31, 1991, subject to a maximum of three
years while the wife attends graduate school, college, or
other career related training program. The court found that
considering the maintenance previously paid to her during the
time of the divorce and custody proceedings, the fact that
the husband was insolvent and the debt liability distribution
as between the husband and the wife for the debts incurred
during the marriage, the payment of educational maintenance
as ordered was reasonable.   Substantial evidence backs this
decision and we will not disturb.
     The last issue is whether substantial evidence supports
the court's decision that each party shall pay their own
attorney fees.     Attorney fees are largely within the
discretion of the lower court and considering all the facts
there has been no abuse of discretion.
     We affirm issues two, three and four and remand this
case to the District Court for determination of a physical
custody plan determined to be in the best interests of the
child with no rebuttal presumption as provided in the court's
previous judgment.



                                  @*-
                                   @P/    Justice

We Concur:
<e/~&&
 Chief Justice
