                                            No. 03-628

                IN THE SUPREME COURT OF THE STATE OF MONTANA

                                       2004 MT 110N



IN RE THE MARRIAGE OF
MARY BETH CLAYTON,

               Petitioner and Respondent,

         and

STEPHEN LLOYD CLAYTON,

               Respondent and Appellant.




APPEAL FROM:          District Court of the Thirteenth Judicial District,
                      In and For the County of Yellowstone, Cause No. DR02-0705
                      Honorable Diane G. Barz, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Lee Rindal; Rindal Law Firm, Billings, Montana

               For Respondent:

                      Tony Alback; Alback & Boschert, Billings, Montana




                                                    Submitted on Briefs: March 30, 2004

                                                              Decided: April 27, 2004


Filed:

                      __________________________________________
                                        Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.


¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal

Operating Rules, the following decision shall not be cited as precedent. It shall be filed as

a public document with the Clerk of the Supreme Court and shall be reported by case title,

Supreme Court cause number and result to the State Reporter Publishing Company and to

West Group in the quarterly table of noncitable cases issued by this Court.

¶2     Stephen Lloyd Clayton (Steve) appeals from the judgment entered by the Thirteenth

Judicial District Court, Yellowstone County, on its findings of fact, conclusions of law, and

decree of dissolution. We affirm.

¶3     Steve raises the following issues:

¶4     1.     Did the District Court abuse its discretion in adopting a final parenting plan

that did not grant Steve a “right of first refusal” to care for his child?

¶5     2.     Did the District Court abuse its discretion in failing to exclude the $20,000

given by Steve’s parents for a down payment on the marital home from the marital estate?

¶6     3.     Did the District Court abuse its discretion in failing to allocate to Mary Beth

half of a loan from Steve’s parents for the purchase of a truck?

                                      BACKGROUND

¶7     Mary Beth and Steve Clayton were married in 1995 and had a daughter, Grace, in

1999. Mary Beth worked full-time throughout the marriage. Steve worked full-time until

he lost his job, after which he was primarily a student who worked periodically. Steve’s

                                               2
parents provided $20,000 for a down payment on the marital home and loaned approximately

$19,000 for the purchase of a truck.

¶8     Mary Beth petitioned to dissolve the marriage in 2002. Both parties submitted

proposed interim parenting plans. Steve requested that both parents have “the right of first

refusal to provide care for their child if the other parent is unable to provide care.” After a

hearing, the District Court adopted Mary Beth’s proposal, modified to give Steve an

additional evening of visitation per week. The interim parenting plan did not include a “right

of first refusal.”

¶9     In their proposed asset and debt distributions, both parties proposed dividing the value

of the marital home equally, but Steve also requested that he be credited for the $20,000

down payment from his parents. Both parties acknowledged the existence of the truck loan

from Steve’s parents, with an estimated balance of approximately $17,000. Steve requested

the truck loan debt be allocated equally between the parties; Mary Beth requested it be

allocated entirely to Steve.

¶10    After the hearing, the District Court entered its findings of fact, conclusions of law

and final decree of dissolution. It adopted the interim parenting plan as the permanent

parenting plan. It divided the value of the marital home equally, without excluding the

$20,000 down payment, and determined Steve was solely responsible for the truck loan.

Steve appeals.




                                              3
                                STANDARD OF REVIEW

¶11    In reviewing parenting issues and the division of marital property in dissolution cases,

we initially determine whether a district court’s findings of fact are clearly erroneous. If the

findings are not clearly erroneous, we will affirm unless the district court abused its

discretion. In re Marriage of Hedges, 2002 MT 204, ¶¶ 12-13, 311 Mont. 230, ¶¶ 12-13, 53

P.3d 1273, ¶¶ 12-13 (citations omitted).

                                        DISCUSSION

¶12 1.       Did the District Court abuse its discretion in adopting a final parenting
plan that did not grant Steve a “right of first refusal” to care for his child?

¶13    Steve contends the District Court improperly failed to grant him a “right of first

refusal” to care for Grace instead of her daycare provider when Mary Beth is working and

he is not. He advances Firman v. Firman (1980), 187 Mont. 465, 469, 610 P.2d 178, 180,

as authority for the proposition that a “noncustodial parent is entitled to a fair opportunity

to share in the child’s love and affection . . . .” He contends that, in determining Grace’s best

interests, the District Court failed to consider whether she has frequent and continuing

contact with both parents and, specifically, failed to take into account the absence of any

physical abuse or threat of physical abuse against Grace or Mary Beth.

¶14    Under § 40-4-212(1)(l), MCA, frequent and continuing contact with both parents is

in the child’s best interests unless such contact would be detrimental to the child. A district

court must consider physical abuse and threat of physical abuse in determining whether such

contact would be detrimental. While requiring consideration of those factors in determining


                                               4
whether contact would be detrimental, § 40-4-212(1)(l), MCA, does not limit the court’s

consideration to those factors. Here, the District Court specified that, “[u]ntil such time as

[Steve] ceases to make negative, inflammatory and derogatory references about the mother

to the child, visitation will be rigid and limited.” After reviewing the record, we conclude

the District Court did not abuse its discretion in failing to grant Steve a “right of first refusal”

regarding Grace’s care.

¶15 2.       Did the District Court abuse its discretion in failing to exclude the $20,000
given by Steve’s parents for a down payment on the marital home from the marital
estate?

¶16    Steve contends the District Court abused its discretion in failing to exclude from the

marital estate the $20,000 given by his parents for a down payment on the marital home. He

argues the District Court ignored testimony that Steve’s father Art had transferred $20,000

directly to the bank handling the home purchase as a gift to Steve alone, as well as a letter

submitted to the IRS which identified Steve as the sole recipient. He relies on Siefke v.

Siefke, 2000 MT 281, 302 Mont. 167, 13 P.3d 937, and In re Marriage of Eklund (1989),

236 Mont. 77, 768 P.2d 340, for the proposition that equity in a marital home is properly

excluded from a marital estate if the equity arises from a gift or advance on an inheritance

made solely to one spouse.

¶17    The District Court heard conflicting testimony about whether Steve was the sole

recipient of the down payment or whether the gift was to both Steve and Mary Beth. The

trial court is in the best position to judge witness credibility and weigh conflicting evidence.



                                                 5
Marriage of Hedges, ¶ 22 (citation omitted). Therefore, we conclude the District Court did

not abuse its discretion by including the $20,000 in the marital estate.

¶18 3.        Did the District Court abuse its discretion in failing to allocate to Mary
Beth half of a loan from Steve’s parents for the purchase of a truck?

¶19    Steve contends the District Court improperly allocated the entire truck loan from his

parents solely to him. He asserts the District Court determined the debt did not exist due to

the statute of frauds, but then “assign[ed] the judicially-determined non-existent debt wholly

to [Steve].” Relying on In re Marriage of Stewart (1988), 232 Mont. 40, 757 P.2d 765, he

also argues the debt should be partially allocated to Mary Beth because she benefitted from

the loan when the truck was sold and the couple used the proceeds. Finally, he contends

Mary Beth indicated her responsibility for the debt by writing checks to Art.

¶20    The District Court did comment on the statute of frauds during the hearing, but

subsequently listed the truck loan as a debt and allocated it to Steve. If the debt does not

exist, Steve cannot be heard to complain. With regard to the allocation of the debt, the

District Court heard conflicting testimony about whether Mary Beth benefitted from the loan

and assumed responsibility for the debt by writing checks to Art. Determining witness

credibility and resolving conflicting evidence are within the province of the district court.

See Marriage of Hedges, ¶ 22 (citation omitted). We conclude, therefore, that the District

Court did not abuse its discretion in allocating the truck loan debt to Steve.

¶21    Affirmed.


                                                         /S/ KARLA M. GRAY



                                              6
We concur:


/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA O. COTTER
/S/ JIM REGNIER




                          7
