                                         No. 01-289

                IN THE SUPREME COURT OF THE STATE OF MONTANA

                                       2002 MT 128N


IN RE THE MARRIAGE OF

RANDALL E. MAGILL,

               Petitioner/Counter Respondent and Appellant,

         and

JARI L. MAGILL,

               Respondent/Counter Petitioner and Respondent.



APPEAL FROM:          District Court of the First Judicial District,
                      In and for the County of Lewis and Clark,
                      The Honorable Dorothy McCarter, Judge presiding.


COUNSEL OF RECORD:

               For Appellant:

                      Charles A. Smith, Attorney at Law, Helena, Montana

               For Respondent:

                      Timothy J. McKittrick, Attorney at Law, Great Falls, Montana


                                                       Submitted on Briefs: November 8, 2001

                                                                  Decided:    June 13, 2002

Filed:

                      __________________________________________
                                        Clerk
Justice Terry N. Trieweiler 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 but 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     Randall E. Magill (Randy) appeals from the Findings of Fact,

Conclusions of Law and Decree of Dissolution of the District Court

for the First Judicial District in Lewis & Clark County dissolving

the marriage of Randy and Jari L. Magill, equitably dividing the

marital estate, adopting a parenting plan for their two minor

children,      and    adopting      appropriate        child     support     and    medical

support provisions.             We affirm in part, reverse in part, and

remand.

¶3     The following issues are presented on appeal:

¶4     1.    Did the District Court err when it excluded the testimony

and market analysis of a realtor who valued the house Randy

acquired prior to the marriage?

¶5     2.    Did the District Court err when it awarded Jari one-half

of the equity in the house Randy acquired prior to the marriage?

¶6     3.    Did the District Court err when it ordered Randy to pay

child support to Jari?

¶7     4.    Did the District Court err when it rescinded the ex parte

order which amended the original parenting plan?



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                     FACTUAL AND PROCEDURAL BACKGROUND

¶8    Randy and Jari Magill married on March 20, 1994, and separated in June of 2000.

The parties have two daughters whose ages are seven and three years.

¶9    Four months prior to getting married, Randy purchased a house

located at 1404 Madison Avenue in Helena, Montana, for $51,000.

The parties lived in that house from the time it was purchased

until their separation.             On his Income and Expense Disclosure

Statement filed with the District Court, Randy stated that the

current value of the house was $85,000, however, the house was

encumbered by a mortgage in the amount of $70,000.                     During the time

the    parties     lived     together      and    were    married,        only   minor

improvements were made to the house, most notably painting and

wallpapering the bathroom.            From the time of the birth of their

first child in 1994, Jari was a homemaker and cared for the

parties' children while Randy worked outside the home at Allen's

Super Store.      After the parties separated, Jari obtained part-time,

nighttime employment at UPS.            Her evening job enabled her to avoid

daycare expenses and spend time with the children.                            It also

provided health insurance for the children.

¶10   In July 2000, Randy petitioned the District Court to dissolve

their marriage, to adopt a proposed parenting plan, to equitably

distribute the marital estate, to order Jari to pay child support,

to award neither party maintenance, and to award both children as

his dependents for state and federal tax purposes.                      Jari counter-

petitioned that Randy should be ordered to pay child support and




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maintenance, and that each parent should be permitted to claim one

of the two children for tax purposes.

¶11   Following a hearing on January 4, 2001, the District Court

entered its Findings of Fact, Conclusions of Law and Decree of

Dissolution on February 8, 2001.          The Court dissolved the marriage

and   adopted   the   parenting    plan    agreed   upon   by   the   parties.

Furthermore, the Court ordered Randy to pay Jari $259 per month for

child support and awarded Jari one-half of the equity in the house

acquired by Randy prior to the marriage.               No maintenance was

awarded.   Randy filed a Notice of Appeal of the District Court's

judgment on February 14, 2001.
¶12   After filing his appeal, Randy filed an ex parte motion to

amend the parenting plan pursuant to § 40-4-202(2)(a)(ii), MCA.             On

April 4, 2001, the District Court issued an order amending the

parenting plan adopted in the February 8, 2001, Decree, and made

Randy the primary custodian and residential care provider for the

two children until a show cause hearing could be held on April 30,

2001.   Jari filed a motion to vacate the order on April 25, 2001,

based on her contention that Randy's Notice of Appeal divested the

District Court of jurisdiction to amend the judgment.             Apparently

agreeing with Jari, the District Court telephoned both counsel of

record and rescinded its April 4, 2001, Order.             The parties have

since followed the parenting plan set forth in the February 8,

2001, Decree.
                                  DISCUSSION

                                   ISSUE 1



                                      4
¶13   Did the District Court err when it excluded the testimony and market analysis of a

realtor who valued the house Randy acquired prior to the marriage?

¶14   Two weeks prior to the hearing, Randy amended his witness and

exhibit list to include Parker Heller, a Helena realtor, and a

market analysis using recent comparable sales to arrive at a market

value for the home Randy acquired prior to the marriage.                          Jari

filed a Motion in Limine to exclude Heller and his exhibit, arguing

that the value that Randy included in his Income and Expense

Disclosure Statement could not be amended.                    The District Court

agreed and refused to allow Heller to testify.                          In Heller's

opinion, the actual market value of the house was between $67,000

and $72,500.      In his disclosure statement, Randy indicated that the

value was $85,000.

¶15   The standard of review for evidentiary rulings is whether the

district court abused its discretion.              Evert v. Swick, 2000 MT 191,

¶ 11, 300 Mont. 427, ¶ 11, 8 P.3d 773, ¶ 11. The district court has

broad discretion to determine whether or not evidence is relevant

and admissible, and absent a showing of an abuse of discretion, the

trial court's determination will not be overturned.                         State v.

Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257, 1263; State v.

Crist (1992), 253 Mont. 442, 445, 833 P.2d 1052, 1054.

¶16   Here, Randy represented in his Income and Expense Disclosure

Statement filed with the District Court that the house located at

1404 Madison Avenue was worth $85,000.                Immediately preceding the

signature     line,     the   Income     and   Expense     Disclosure      Statement

included the following language:


                                           5
      THIS STATEMENT IS A FULL DISCLOSURE OF ALL ASSETS AND
      LIABILITIES AS REQUIRED BY LAW. FAILURE TO PROVIDE A
      COMPLETE DISCLOSURE MAY CONSTITUTE PERJURY. I DECLARE
      UNDER THE PENALTY OF PERJURY THAT THE FOREGOING,
      INCLUDING ANY SCHEDULES OR ATTACHMENTS, IS TRUE, CORRECT,
      AND COMPLETE.

The Income and Expense Disclosure Statement was signed by Randy,

and notarized by his attorney.                      Jari did not contest Randy's

$85,000 valuation of the house.

¶17   Randy's purpose for adding Heller as a witness and including

his exhibit was to repudiate the value he had previously assigned

to the house – a value on which Jari relied in her preparation for

the hearing.      However, it was Randy's obligation to correctly value

the   house     before    filing        his       Income   and   Expense   Disclosure

Statement.      We conclude that the District Court did not abuse its

discretion when it granted Jari's Motion in Limine.
                                         ISSUE 2

¶18   Did the District Court err when it awarded Jari one-half of the equity in the house

Randy acquired prior to the marriage?

¶19   Randy contends that the home he purchased four months prior to

his marriage with Jari should not have been included in the marital

estate.       The District Court included the home in the marital

estate.     Because the present value of the house was $85,000, and

the outstanding debt on the house was $70,000, the District Court

ordered Randy to pay Jari one-half of the equity in the house, or

$7,500.

¶20   We review a district court's division of marital property to

determine whether the findings on which it relied are clearly



                                              6
erroneous.   In re Marriage of Engen, 1998 MT 153, ¶ 26, 289 Mont.

299, ¶ 26, 961 P.2d 738, ¶ 26.        If the findings are not clearly

erroneous, we will affirm the division of property unless the

district court abused its discretion.      Engen, ¶ 26.   The test for

abuse of discretion is "whether the trial court acted arbitrarily

without employment of conscientious judgment or exceeded the bounds

of reason resulting in substantial injustice."       In re Marriage of

Meeks (1996), 276 Mont. 237, 242, 915 P.2d 831, 834 (citation

omitted).    The court is free to adopt any reasonable valuation of

marital property which is supported by the record.         Meeks, 276

Mont. at 242-43, 915 P.2d at 835.
¶21   Section 40-4-202, MCA, controls the division of property as

part of a marriage dissolution, and provides in relevant part as

follows:

           (1) In a proceeding for dissolution of marriage . .
      . the court . . . shall . . . finally equitably apportion
      between the parties the property and assets belonging to
      either or both, however and whenever acquired and whether
      the title thereto is in the name of the husband or wife
      or both. . . . In dividing property acquired prior to
      marriage . . . the court shall consider those
      contributions of the other spouse to the marriage,
      including:
           (a) the nonmonetary contribution of a homemaker;
           (b) the extent to which such contributions have
      facilitated the maintenance of the property; and
           (c) whether or not the property division serves as
      an alternative to maintenance arrangements. [Emphasis
      added.]

¶22   We have construed § 40-4-202, MCA, to mean that pre-acquired

property should not be included in the marital estate unless the

non-acquiring    spouse   contributed     to   its   appreciation   or

preservation.    Engen, ¶ 29.    In that event, the non-acquiring



                                  7
spouse is entitled to an equitable share of the appreciated or

preserved value which is attributable to his or her efforts.          See

Engen, ¶ 29; Stoneman v. Drollinger, 2000 MT 274, ¶ 18, 302 Mont.

107, ¶ 18, 14 P.3d 12, ¶ 18; In re Marriage of Smith (1995), 270

Mont. 263, 268-69, 891 P.2d 522, 525; Bradshaw v. Bradshaw (1995),

270 Mont. 222, 230, 891 P.2d 506, 511; In re Marriage of Smith

(1994), 264 Mont. 306, 312, 871 P.2d 884, 888.     Therefore, for Jari

to claim an interest in the home, she must prove that the property

value had appreciated or been preserved during the marriage and

that she somehow contributed to that appreciation or preservation

in value.
¶23   Here, the reason for the house's appreciation and what role,

if any, Jari played is unclear from the record.        Randy and Jari

lived together in the house from the date it was purchased in

November 1993 until the couple separated in June of 2000.           Randy

and Jari worked together to paint and wallpaper the bathroom but

otherwise did little to improve the house.    Jari testified that she

performed the duties of a homemaker and mother, such as cleaning,

cooking, doing laundry, and caring for the children.     Randy asserts

that the increase in value from 1993 to the present is due to

market factors alone and not to any contributions made by Jari.

¶24   The District Court awarded Jari one-half of the appreciated

value of the home, or $7,500, and found that "since both parties

contributed to the mortgage payments on it during the marriage and

to improvements on the house," the house should be included in the

marital   estate.    However,   there   is   no   evidence   that    Jari



                                  8
contributed   to   the   mortgage       payments.    Furthermore,   the

improvements to the home were not of a magnitude sufficient to

account for a $15,000 increase in property value.        Therefore, we

conclude that the District Court abused its discretion when it

awarded Jari one-half of the equity in the house and reverse that

part of the District Court's Decree.         We remand to the District

Court for a determination of an equitable share of the appreciated

value of the house which is attributable to Jari's efforts and

consistent with the factors set forth in § 40-4-202(1), MCA.




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                                       ISSUE 3

¶25   Did the District Court err when it ordered Randy to pay child support to Jari?

¶26   The standard of review of a district court's award of child

support is whether the district court abused its discretion.                       In re

Marriage of Craib (1994), 266 Mont. 483, 490, 880 P.2d 1379, 1384.

 However,     "a   district      court    must    apply     its    discretion      in   a

realistic manner, taking into account the actual situation of the

parties."     In re Marriage of Noel (1994), 265 Mont. 249, 252, 875

P.2d 358, 359.       We conclude that the District Court did not abuse

its discretion.

¶27   The District Court found that the children are cared for by

Jari for 182.5 days during each year and by Randy for 182.5 days.

The Court ordered Randy to pay Jari $259 per month for child

support.    The Court considered Randy's gross income of $33,724 and

Jari's gross income of $11,243, and found that for purposes of

child support, the parties share custody of the children equally

"based on the actual hours the children spend with each parent and

the number of meals each parent provides to the children."
¶28   Randy contends that the District Court abused its discretion.

 Based on the parenting plan agreed to by the parties, Randy

asserts that he cares for the children for the majority of a 24-

hour period for five days a week, or at least 260 days a year.                          He

contends that Jari cares for the children only 52 days per year, or

one out of every seven days during the week.                      The parenting plan

provides as follows:




                                           10
      1. Jari has the children from 8:45 a.m. to 6:15 p.m., and
         Randy has the children from 6:15 p.m. to 8:45 a.m. on
         Monday, Thursday, and Friday.
      2. Randy has the children from Tuesday at 6:30 p.m. until
         8:30 a.m. on Thursday.
      3. Jari has the children from 8:30 a.m. on Saturday until
         noon on Sunday.
      4. Randy has the children from noon on Sunday until 8:30

          a.m. on Monday.

¶29   Paragraph 25 of the Montana Child Support Guidelines indicates

that a parent who cares for their children 110 days or less has an

obligation to pay support to the other parent.                      Therefore, Randy

contends that Jari should be paying him monthly child support, and

that he owes none.
¶30   However, for practical purposes, the parents do share custody

of the children equally.             The children are exchanged on a daily

basis with the exception of Wednesday, and to strictly apply the

child support guidelines because the children spend five more hours

a day with Randy during the middle of the night would create an

unjust result.       While we agree that Randy cares for the children

during     the    night     while     they      sleep,     the    District       Court's

determination that custody is shared equally was not an abuse of

discretion.       The District Court took into account the actual

situation of the parties, and on that basis ordered Randy to pay

child support.       We conclude that the District Court did not err in

doing so.
                                       ISSUE 4

¶31   Did the District Court properly rescind the ex parte order which amended the original

parenting plan?



                                           11
¶32   After the Notice of Appeal was filed, Randy filed a motion to

amend the parenting plan pursuant to § 40-4-220(2)(a)(ii), MCA,

based on facts and matters which occurred after the entry of the

Decree.   On April 4, 2001, the District Court issued an ex parte

order which amended the parenting plan and designated Randy as the

primary custodian and residential care provider until a hearing

could be held on April 30, 2001.    Jari filed a motion to vacate the

order, and claimed the District Court lost jurisdiction when Randy

filed his Notice of Appeal.      The District Court then contacted

counsel for both parties by telephone and verbally rescinded the

order.    Following   the   rescission,   the   parties    have   operated

pursuant to the original parenting plan.
¶33   It is well established in Montana that the district court's

jurisdiction in matters of child custody is of a continuing nature.

 Foss v. Leifer (1976), 170 Mont. 97, 100, 550 P.2d 1309, 1311;

Libra v. Libra (1969), 154 Mont. 222, 229, 462 P.2d 178, 181;

Barbour v. Barbour (1958), 134 Mont. 317, 320, 330 P.2d 1093, 1095.

 Jurisdictional    questions    emphasize   first    and     foremost   a

determination consistent with and supportive of the best interests

of the child.     In re Marriage of Skillen, 1998 MT 43, ¶ 21, 287

Mont. 399, ¶ 21, 956 P.2d 1, ¶ 21.

¶34   A party may seek an ex parte order amending a parenting plan,

even though a previous parenting plan has been adopted, if "an

emergency situation has arisen in the child's present environment

that endangers the child's physical, mental, or emotional health




                                   12
and an immediate change in the parenting plan is necessary to

protect the child."     § 40-4-220(2)(a)(ii), MCA.

¶35   Here, the District Court amended the original parenting plan

and ordered Jari to show cause, at a hearing on April 30, 2001, why

Randy should not be awarded primary custody of the children.

Because Randy had met all relevant statutory criteria to seek

temporary custody pursuant to § 40-4-220, MCA, the District Court

had jurisdiction to issue such an order.

¶36   However, on April 27, 2001, the District Court rescinded its

order during telephone calls with the parties' counsel.               The

precise reason for the District Court's action is not reflected by

any subsequent order in the District Court file.        However, Jari's

counsel states in a memo included as an appendix to Randy's brief

that the District Court indicated in its phone call that it lacked

jurisdiction to issue the order.           With no reason to believe

otherwise, we will proceed on the assumption that the District

Court rescinded the order on that basis.          If so, the District

Court's rescission of the ex parte order was in error.
¶37   However, the practical effect of our determination is minimal.

 By the time the District Court learns of our decision that it

always had jurisdiction, this case will have been clearly returned

to    the   District   Court   for   the   complete   exercise   of   its

jurisdiction.    Whether there is cause to amend the parenting plan

will depend on the circumstances at that time.         Therefore, since

the District Court's ex parte order was interim and could not have

been made final until a hearing was held at which both parties were


                                     13
represented, and a hearing will still be necessary if Randy pursues

modification following remand, we conclude that it is in the

children's best interests to maintain the status quo until that

hearing can be held.

¶38   Therefore, this case is remanded to the District Court for

further considerations required by this Opinion.

                                              /S/     TERRY     N.
TRIEWEILER

We Concur:

/S/   KARLA M. GRAY
/S/   JAMES C. NELSON
/S/   JIM REGNIER
/S/   W. WILLIAM LEAPHART




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