                                                                                           September 25 2012


                                          DA 12-0022

                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2012 MT 212



IN RE THE PARENTING OF:

C.W. and S.W.,

               Minor Children,

SARAH LOUISE WHEELDON,

               Petitioner and Appellee,

         and

COREY JAMES WHEELDON,

               Respondent and Appellant.


APPEAL FROM:           District Court of the Thirteenth Judicial District,
                       In and For the County of Yellowstone, Cause No. DR 09-0594
                       Honorable Susan P. Watters, Presiding Judge

COUNSEL OF RECORD:

                For Appellant:

                       Frederick W. Snodgrass; Snodgrass, Copenhaver & Yasenak, PLLC,
                       Billings, Montana

                For Appellee:

                       Linda L. Harris; Harris Law Firm, P.C., Billings, Montana


                                                    Submitted on Briefs: August 22, 2012

                                                               Decided: September 25, 2012

Filed:

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

¶1     Sarah Louise Wheeldon (Sarah) petitioned for dissolution of her marriage to

Corey James Wheeldon (Corey) in the Thirteenth Judicial District, Yellowstone County

on April 20, 2009. Following a bench trial, the District Court issued findings of fact,

conclusions of law, and a decree of dissolution that dissolved the parties’ marriage and

divided the remaining marital estate. Corey appeals the District Court’s division of assets

and the court’s order granting Sarah primary residential custody of the parties’ two

children. We affirm.

¶2     Corey presents the following issues for review:

¶3     Issue One: Whether the District Court erred by granting Sarah primary residential

custody of the children.

¶4     Issue Two: Whether the District Court erred in its division of the parties’ marital

assets and liabilities.

                   PROCEDURAL AND FACTUAL BACKGROUND

¶5     Corey is a deputy sheriff with the Yellowstone County Sheriff’s Department (the

Sheriff’s Department) and lives in Shepherd, Montana. Sarah is currently an agent for

the Federal Bureau of Investigation (FBI) with the Behavior Analysis Unit (BAU) and

lives near Boston, Massachusetts.      Before being hired by the FBI, Sarah lived in

Shepherd and worked as a therapist at the Mental Health Center in Billings. The parties

were married in July of 2001 and have two children together, C.W. and S.W. Sarah

petitioned for dissolution of their marriage on April 20, 2009.



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¶6       Corey and Sarah both continued to live in Shepherd and co-parent the children

until Sarah left to train for the FBI in February of 2011. The FBI training is a five-month

program conducted in Quantico, Virginia, so when Sarah left Shepherd C.W. and S.W.

moved in with Corey. Sarah completed her training in August of 2011 and was assigned

to the BAU in Boston.

¶7       The District Court held hearings on August 12, August 15, and September 28,

2011. Among the witnesses who testified at trial were the parties, a court services

evaluator who had conducted an extensive parenting plan study, and a psychologist who

had conducted psychological evaluations of the children. On October 11, 2011, the

District Court issued findings of fact and conclusions of law, and three days later it

entered a final decree of dissolution of marriage and issued a final parenting plan and

order.

¶8       Among other things, the court’s orders granted Sarah primary residential custody

of the children and divided the marital assets and liabilities. Specifically, the District

Court awarded Corey half of the proceeds from the sale of the parties’ marital home, a

2006 Dodge pickup truck, half of the marital portion of his defined benefit retirement

account through the Sheriff’s Department, and assigned him a debt that the parties

incurred to fix the roof of their home before they sold it. The court awarded Sarah half of

the proceeds from the sale of the marital home, a 2002 Hundai Sonata, the entire value of

her retirement account through the Mental Health Center, half of the marital portion of

Corey’s retirement account, and assigned her the entire marital portion of a student loan

debt in her name. The court also required Corey to pay Sarah $2,753 as an equalization

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payment so that each party received a net benefit of $15,200 plus half of the marital

portion of Corey’s retirement benefit when he retires.

¶9     After the trial Corey filed a motion to amend the final decree pursuant to M. R.

Civ. P. 59(g) or in the alternative to set it aside under M. R. Civ. P. 60(b). The District

Court partially granted Corey’s motion to amend the amount of child support that he must

pay, but it denied his motion in all other respects. Corey now appeals the final decree of

dissolution of marriage and the court’s partial denial of his post-trial motion.

                               STANDARD OF REVIEW

¶10    We review a district court’s factual findings regarding a parenting plan and the

division of marital assets to determine if they are clearly erroneous. In re Marriage of

Tummarello, 2012 MT 18, ¶ 21, 363 Mont 387, 270 P.3d 28. A finding is clearly

erroneous if it is not supported by substantial evidence, the district court misapprehended

the effect of the evidence, or our review convinces us that the district court made a

mistake. In re Marriage of Crilly, 2005 MT 311, ¶ 10, 329 Mont. 479, 124 P.3d 1151.

We will affirm the district court when the findings of fact are not clearly erroneous unless

the court abused its discretion. In re Marriage of Czapranski, 2003 MT 14, ¶ 10, 314

Mont. 55, 63 P.3d 499. A district court abuses its discretion in a dissolution proceeding if

it acts arbitrarily without employment of conscientious judgment or it exceeds the bounds

of reason resulting in a substantial injustice. Marriage of Tummarello, ¶ 21.

                                      DISCUSSION

¶11    Whether the District Court erred by granting Sarah primary residential custody of

the children.

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¶12    Corey argues on appeal that the District Court misapprehended the effect of the

evidence and abused its discretion when it granted Sarah primary residential custody of

the children. His argument is primarily based on the fact that living with Sarah means the

children will have to move from Shepherd, their life-long home, even though C.W. was

diagnosed with an adjustment disorder and all of the children’s friends and family live in

Montana. Corey essentially argues that the potentially detrimental effects moving to

another state might have on the children did not weigh heavily enough in the court’s

determination of what is in the children’s best interests.

¶13    We have routinely held that the district court is in the best position to evaluate the

best interests of the children. In re Parenting of N.S., 2011 MT 98, ¶ 18, 360 Mont. 288,

253 P.3d 863. Simply asserting that the district court misapprehended the effect of the

evidence will not cause us to abandon this principle. On appeal we will presume that the

district court carefully considered all of the evidence and made the correct decision.

Parenting of N.S., ¶ 18.

¶14    The District Court specifically addressed relevant parenting factors in its findings

of fact, including those listed in § 40-4-212, MCA. Relying heavily upon the parenting

plan study, the court found that although moving would require an adjustment, the benefit

of living with Sarah in Boston would far outweigh the detriment to the children. Based

on substantial evidence, the court found that Sarah has a better understanding of C.W.

and S.W.’s emotional needs, is more in-tune with the children, has more time to parent

during the school year, and is more likely to ensure both parents have frequent contact

with the children.      Conversely, the court found that Corey has a very limited

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understanding of the children’s developmental and emotional needs, has a controlling and

rigid parenting style, and isolated C.W. and S.W. from their friends and family when he

was the custodial parent.

¶15     After reviewing the record before us, we cannot say the District Court abused its

discretion or misapprehended the effect of the evidence. While moving to a new area

may be difficult for the children at first, all relevant factors must be considered when

determining the children’s best interests. Based on all of the evidence, the court acted

well within its discretion when it named Sarah as the primary residential parent.

¶16     Whether the District Court erred in its division of the parties’ marital assets and

liabilities.

¶17     Corey also alleges the District Court erred in a number of ways when it divided

the marital estate. First, he argues the court erred by assigning him the entire debt the

parties incurred to fix the roof of their home, which was necessary before they could sell

the house. Corey argues that because Sarah was awarded half of the proceeds from the

sale of the home, the roofing debt should have been included as part of the marital estate

and split evenly among the parties.

¶18     Section 40-4-202, MCA, vests the district court with broad discretion to equitably

divide the marital estate under the circumstances. In re Marriage of Funk, 2012 MT 14,

¶ 6, 363 Mont. 352, 270 P.3d 39. An equitable division does not require that every

marital asset or liability be split evenly. An equitable division does not even require that

the entire estate be split evenly, although the District Court chose to do just that. The

District Court awarded assets and assigned liabilities to both Sarah and Corey in a

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manner it deemed equitable. After all of the assets and liabilities were divided, both

Corey and Sarah received a net benefit of $15,200 and half of the marital portion of

Corey’s retirement account. The roofing debt was included in the court’s division of the

marital estate. The fact that the entire debt was ultimately assigned to Corey does not

mean it was not included as part of the marital estate. It was not error for the court to

assign the roofing debt to Corey.

¶19    Corey also argues that the District Court erred in its division of Sarah and Corey’s

retirement accounts. Sarah had a retirement account through her employment at the

Mental Health Center valued at $24,000. Sarah received a payout for that sum when she

quit to take her job with the FBI, which the court awarded to Sarah in its entirety. Corey

has a defined benefit retirement account through the Sheriff’s Department. At the time of

the hearings, Corey had contributed $21,251.82 to the account. The Sheriff’s Department

also contributed to his account, but he was not yet vested in those contributions. The

District Court applied the time rule to determine the marital portion of Corey’s account

and split that evenly between the parties. Corey contends that the District Court abused

its discretion when it awarded Sarah half of his retirement account while awarding her the

entire value of her retirement account, and additionally that the court erred by using the

time rule method to value his pension. We will address the court’s use of the time rule

method first.

¶20    It is well settled that pension plans are part of the marital estate. In re Marriage of

Spawn, 2011 MT 284, ¶ 10, 362 Mont. 457, 269 P.3d 887. We have recognized two

methods for valuing pension plans: the present value method, which requires a lump sum

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distribution; and the time rule method, which defers distribution and divides the marital

portion of the pension benefits when they are paid. Marriage of Spawn, ¶ 12 (citing In re

Marriage of Swanson, 2004 MT 124, ¶ 21, 321 Mont. 250, 90 P.3d 418). While we have

held that the present value method is generally the proper test, we have also routinely

recognized that the time rule method may be preferred if the present value of the pension

cannot be adequately valued or sufficient marital assets do not exist to offset the non-

employee spouse’s portion of the pension. See Marriage of Spawn, ¶ 12; In re David,

2009 MT 422, ¶ 14, 354 Mont. 44, 221 P.3d 1209; Momsen v. Momsen, 2006 MT 233, ¶

27, 333 Mont. 463, 143 P.3d 450; Marriage of Swanson, ¶¶ 22-24; In re Marriage of

Truax, 271 Mont. 122, 126, 894 P.2d 936, 938 (1995); Rolfe v. Rolfe, 234 Mont. 294,

297, 766 P.2d 223, 225 (1988).       Given the numerous contingencies that ultimately

determine the benefits received from a defined benefit plan when the employee spouse

has not yet retired, the time rule method will generally be the better approach for these

types of pensions.

¶21    The District Court found that part of Corey’s non-vested retirement account

through the Sheriff’s Department is marital property. What benefits will come from that

pension will be determined by a number of factors that cannot be known. If Corey quits

the Sheriff’s Department before he becomes vested, then he will only be entitled to the

amount that he personally contributed to the account. If he quits after he is vested but

before he is qualified for retirement, then he will be entitled to his contributions and the

employer contributions. If he stays with the Sheriff’s Department long enough to retire,

then he will receive a monthly benefit payment for the rest of his life. The amount of that

                                             8
monthly benefit would be determined by his length of service, highest average salary for

thirty-six consecutive months, and age when he retires. Sections 19-7-101 et seq., MCA.

Using the present value method to value Corey’s retirement account would require that

assumptions be made about all of these factors. Any assumption that does not prove true

may considerably undervalue or overvalue the account. Thus, using the present value

method would be pure conjecture and produce uncertain results, at best.

¶22    Instead, the District Court used the time rule method and found that the marital

portion of Corey’s benefits should be determined based on the following formula: “fifty

percent times [the] number of months during the marriage during which contributions

were made to [Corey’s] account divided by the total number of months used to calculate

[Corey’s] retirement benefit and any retirement benefit adjustments.” The formula will

be applied to each benefit payment, and it ensures both parties will receive an equitable

portion of the asset.

¶23    The District Court did not abuse its discretion by using the time rule method to

divide Corey’s defined benefit retirement account. The court properly applied the time

rule method formula first adopted in Rolfe to determine the marital portion of the

retirement account. The decision to use the time rule method was appropriate and well

within the court’s discretion.

¶24    With regards to Sarah’s retirement account, the time rule method was unnecessary

because Sarah had cashed-out and received a payout for its entire value. Thus, the

present value was not only readily ascertainable, it was already determined. Just as he

did with the roofing debt, however, Corey mistakenly takes the fact that Sarah was

                                           9
ultimately awarded the entire value of her account to mean that it was not part of the

court’s equitable division of marital assets. Corey misinterprets the District Court’s final

asset and debt division. Sarah’s retirement account was included as a marital asset, but

Corey was awarded other assets to offset the value of his portion of that account. The

District Court did not abuse its discretion.

¶25    Affirmed.


                                                    /S/ MIKE McGRATH


We concur:


/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ MICHAEL E WHEAT




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