                                            NO.       95-174

                  IN THE SUPREME COURT OF THE STATE OF MONTANA
                                                  1996


IN RE MARRIAGE OF
DOROTHY M. EVANS,
                 Petitioner          and Respondent,
         and
WILLIAM        M. EVANS,      SR.,
                 Respondent          and Appellant.



APPEAL     FROM:         District  Court of the Eighth     Judicial                     District,
                         In and for the County of Cascade,
                         The Honorable   John M. McCarvel,     Judge                    presiding.


COUNSEL OF RECORD:
                 For   Appellant:
                         Robert M. Kampfer,   Attorney                 at   Law,
                         Great Falls, Montana
                 For   Respondent:
                         Brenda       R. Cole,     Swandal,        Douglass,
                         Frazier       & Cole,     Livingston,        Montana


                                             Submitted         on Briefs:          February         1,    1996
                                                                 Decided:       February            27,    1996
Filed:



                                                  Clerk
Justice             Charles             E.     Erdmann               delivered                the        opinion          of      the         Court.
              Pursuant            to        Section            I,      Paragraph                3(c),           Montana           Supreme              Court

1995 Internal                    Operating                Rules,             the        following               decision               shall      not      be

cited          as precedent                   and shall                be published                      by its         filing          as a public

document                with     the         Clerk        of        the     Supreme             Court           and by a report                    of     its

result             to     State             Reporter                Publishing                Company             and       West          Publishing

Company.

           This          is     an appeal               of      an order             of       the        Eighth          Judicial              District

Court,             Cascade            County,           granting              Dorothy               Evans          (Dolly)              half      of      the

net      value            of    all         marital            party,             awarding                her      sole          custody          of      the

parties'                children,              awarding               her     $500 per               child         in     monthly              support,

and      $500           per     month           in      maintenance,                      and denying                   William              M. Evans'

(Bill)             motion         for         a new trial.                        We affirm                in     part           and     reverse           in

part.
           We restate                   the      issues              as follows:

              1.         Did        the        District                   Court         err         in      adopting               the         proposed

findings                and conclusions                        of     one party?

              2.         Did          the       District                  Court          err         in      dividing                  the      marital

estate?

              3.         Did     the         District               Court     err         in awarding                Dolly          maintenance?

           4.            Did     the         District               Court      err        in awarding                   Dolly          sole     custody

of      the        parties'             children?

              5.         Did      the        District                Court        err      in       entering             a temporary                   order

for      support               and maintenance?
              6.         Did        the        District                Court       err         in not            granting                   Bill's            motion
for      a new trial?

                                                                              FACTS

          Dolly               and           Bill           were          married              in          September                    1990.              A       son,
Michael,             was born                 to them              six       months           prior            to the         marriage.                       During

their           marriage,                    Bill          adopted              Luke,          Dolly's                son         from             a previous

marriage.                   At      the        time          of     trial,            Luke         was ten             years                old.
          Bill           is      employed                  as an air             traffic              controller                       in Great               Falls.

Bill       is       also         a retired                   Master           Sergeant                from        the        United                  States        Air

Force              and           receives                   disability                  payments                      from              the           Veterans'

Administration.                              Dolly          attended             school              through               the         ninth          grade        and

is      currently                 working                  on her         G.E.D.               While             married,                   she primarily

remained              at      home with                    the      children.

          The         home and two                          cars         comprised                 the         majority                of      the       marital

property              which          was valued                    by the          court             at     $92,719.                    Bill          testified

to making                significant                       contributions                   to the              marital             estate--$50,000

of      inheritance                    and $27,000                     from      the       sale           of     a house                he owned prior

to      the        marriage.

          At         trial,             Dolly              testified               that            during             their              marriage                Bill

physically                  and verbally                      abused            her      in        front         of        the         children.                 Bill

admitted               to        one        incident               of        violence.                    Bill         claimed                 Dolly           had       a

chemical              dependency                     problem,             had been violent                            toward                the       children,

and had             improperly                      left         the      children              in        the     care            of        others.

           Bill             filed            a petition                   for      dissolution                        of      marriage                   in       Park

County             on July             2,      1992.              Dolly         filed          a petition                   for         dissolution                     of


                                                                                  3
marriage            in      Cascade             County             on June               28,         1994.            In July            1994,       the      two
actions          were           consolidated                   in        the        Cascade                County          District              Court.             A

hearing          regarding                   the      temporary                 orders                was held             on August              1,        1994.

A final             hearing                  was     held          on      December                       14,      1994,          from         which          the
District              Court             entered              its         decree                on         December               29,       1994.              The

District              Court             granted             Dolly          one-half                       of      the      net         value           of     the

marital          property,                    sole        custody              of        the         children,              $500 per              child         in

monthly          support,                    and     $500          per     month                maintenance                  for         three         years.

Bill        moved          to      amend the                decree             or,            in      the        alternative,                  for          a new

trial.        The court                  denied           Bill's          motion                under           Rule       59(d),          M.R.Civ.P.,

by          failing               to         rule.             From            the            District                  Court's            order,             its

temporary                order,              and      its      denial               of         Bill's             motion           for      new trial,

Bill       appeals.

                                                                         ISSUE            1
           Did      the          District             Court          err        in        adopting                 the      proposed              findings

and conclusions                         of     one party?

           The         District                    Court           requested                        and         was       provided                proposed

findings              of        fact         and      conclusions                        of        law         from       both         parties.               The

court        subsequently                     adopted              verbatim                   those            findings          and conclusions

proposed            by Dolly.                       For     that         reason,                   Bill         claims        the        court         failed

to       exercise           independent                     judgment.

           We have              held         that         adoption             of a party's                        proposed              findings             and

conclusions                 is         not     in     itself            grounds                for         reversal.                In     re Marriage

of       Purdy        (1988),                234 Mont.              502,        764 P.2d                    857.

             [I]t   is          not      error    for a court                            to adopt               a party's      proposed
            findings                   and     conclusions                          if       they                are    sufficiently

                                                                                4
           comprehensive                    and pertinent    to the issues   to provide                                                             a
           basis  for the                  decision   and are supported  by the evidence.

Purdv,           764 P.2d           at      858          (citing            In     re Marriage                        of        Jacobson           (X987),

228 Mont.            458,       743 P.2d                  1025).

           Proposed            findings                  of     fact        and conclusions                                of      law        adopted         by

the      district             court           are         henceforth                   the            court's               own       findings               and

conclusions                and shall              be reviewed                    the       same--for                    clear        error         of     fact

and     correctness                   of     law.              See         Daines           v.        Knight                (1995),             269 Mont.

320,       324,       888 P.2d               904,             906;     Kreger              v.        Francis                (Mont.            1995),         898

P.2d       672,       674,       52 St.                 Rep.         493,        494.                In     this           case,          the     court's

findings             and        conclusions                          were         sufficiently                             comprehensive                     and

pertinent             to       the          issues              and         we      will              not          reverse               the      court's

decision             so      long           as      the          evidence                supports                     those          findings                and

conclusions.

                                                                       ISSUE         2

           Did      the      District               Court            err     in     dividing                    the        marital              estate?

           In the          District              Court's              decree,              Dolly            was awarded                   a car          worth

$5,300       and Bill            received                 a truck            worth              $13,700.                   The marital              estate

totaled           $92,719             and        Bill          was ordered                      to        pay       $40,000              to      Dolly        in

order       to      equalize               the        division.                   The       court               did        not      divide          Bill's

military            retirement                nor         his        disability                  benefits.
           We review            a district                      court's            division                 of        marital             property            to

determine             if      the          district                court's             findings                    of       fact         are       clearly

erroneous.                 In re Marriage                       of     Smith           (1995),               270 Mont.                   263,      267-68,

891 P.2d            522,      525.           In         Interstate                Production                     Credit            Association                v.



                                                                             5
D&aye            (1991),               250          Mont.          320,         820         P.2d             1285,             we        adopted                a

three-part              test        to       determine              if      a finding                  is     clearly              erroneous

          First,     the Court        will        review      the record        to see if        the
          findings       are supported           by substantial          evidence.         Second,
          if the findings         are supported             by substantial         evidence,       we
          will    determine      if the trial             court has misapprehended               the
          effect      of evidence.                 Third,      if    substantial         evidence
          exists      and the        effect         of the evidence              has not        been
          misapprehended,            the       Court       may still        find      that      1’[al
          finding      is   'clearly          erroneous'         when, although         there      is
          evidence       to support        it,     a review       of the record       leaves     the
          court     with     the     definite           and firm        conviction         that       a
          mistake      has been committed."

DeSave,          820 P.2d               at     1287          (citations                 omitted).

          Bill         contends               that         the      District               Court's              award              to     Dolly           was

inequitable               considering                  the         length         of      their             marriage,               her       award            of

maintenance,               and Bill's                   financial                contribution                       to     the          estate.                In

apportioning                   a       marital               estate            between                 spouses,                a        court           must

consider               factors               that       include                the        duration                  of         the        marriage,

occupation              and         employability,                       the      needs           of        each         party,            custodial

and       maintenance                    arrangements,                      and          the        opportunity                         for       future

acquisitions.                       Section            40-4-202(l),                     MCA.            In     addition,                   the         court

must      consider               the         contribution                 of      the       respective                     estates              and       the

contribution                   of      a spouse               as      a homemaker                      or      to        the       family              unit.

Section          40-4-202(l),                       MCA.
          The      fact          remains              that         the      court          is      empowered                   by        statute               to

divide           the      marital               property                 however            and             whenever               acquired               and

irrespective               of which                 party        holds         title.             Section                40-4-202(l),                    MCA.

We have           said           that          inheritance                  property               may         be         included                in      the

marital          estate             so long            as the            district               court           applies                 the      factors


                                                                            6
set      forth             in        5 40-4-202,                  MCA.             In re Marriage                           of     Smith          (19941,        264
Mont.          306,             312,        871 P.2d                 884,         887-88.

             In      dividing                the        parties'               equity           equally,                    the        court       found        that

Dolly          had not                 worked             outside             the        home during                        the        marriage          and had

no      assets              of         which           to       speak.               The        court             further                considered              the

parties'                  opportunities                        for      acquisition                    of        future                assets        and found

that         to      be in             favor           of      Bill.              The court                also             found        that       Dolly        had

an      educational                         disadvantage                       since            she         only                 had     a      ninth         grade

education.                       There            is    substantial                   evidence               in         the        record          to    support

the          court's                 findings                  and       the         court            did             not         misapprehend                  this

evidence.                   We have no conviction                                    that       the         court                committed           a mistake

in     its        decision.                   Therefore,                    we conclude                    the        District               Court        did    not

err      in         its         division               of      the      marital             estate.

                                                                              ISSUE         3

             Did          the        District               Court           err      in     awarding                   Dolly            maintenance?

             The District                         Court         ordered             Bill        to pay maintenance                                to Dolly          in

the      amount             of         $500 per             month           for      three        years.                    We review              a district
court's               award            of    maintenance                      to     determine                   if         the        findings          of     fact

are      clearly                 erroneous.                     In re Marriage                        of     Eschenbacher                         (1992),        253

Mont.          139,             142,        831 P.2d                 1353,          1355.         As stated                        above,         we use         the
three-part                      test        set        forth           in DeSave,               820 P.2d                at        1287,         to determine

if      the         court's             findings                 are        clearly             erroneous.

             Bill           claims                 that          Dolly             has       sufficient                          property               and     work

background                      to      support                herself,              and        the         children                    have      no      special

needs          which             would            preclude              her        from      working.                       Section            40-4-203(l),


                                                                                      7
MCA, provides              that         an award of maintenance                      is appropriate                only      if
the    spouse seeking                   maintenance
                  (a) lacks sufficient    property  to provide  for his
           reasonable    needs; and
                  (b) is unable to support himself through appropriate
           employment or is the custodian of a child whose condition
           or circumstances     make it appropriate  that the custodian
           not be required     to seek employment outside the home.
         We have disallowed                     an award of maintenance                     where the spouse is
able       to support            himself         through         adequate          employment.             Marriacre         of
Smith,       891 P.2d at 526.                    However,            in that       case,     the spouse had two
college        degrees          he obtained            prior         to the marriage,              was talented            and
well-respected                 in the fishing              industry,           and was currently                  employed
with       a yearly            salary      of    $18,000.              In the present              case,         the court
found that             Dolly     was unemployed and had not worked outside                                        the home
during       marriage            at Bill's            request.          In addition,            she was currently
working           on     her      G.E.D.,             needed         retraining,           and      had      the     added
responsibility                 of attending              to the children.
           Substantial             evidence            was presented               to      support         the     court's
award        of    maintenance                  and     the      court      did      not     misapprehend                 that
evidence.               We conclude              no mistake              was made, and therefore,                          the
District          Court        did not err             in its          award of maintenance.
                                                          ISSUE 4
           Did the District                 Court        err     in awarding            Dolly       sole    custody          of
the parties'              children?
           The District            Court         granted         sole    legal      and physical             custody         of
the        parties'             minor        children             to     Dolly.             Bill       was         awarded
unsupervised             visitation             on alternate             weekends,         extended        weekends in

                                                                 8
the      summer,               and        one-half                    of         all       other            school              vacations.                       Bill
claims             the       court          erred                in         awarding                sole           custody               because             joint

custody             is      presumed              in        Montana               to       be in           the      best             interests             of      the

children.

          The         standard              of        review               for         a district                  court's              award        of      child

custody              is      whether                  the         district                   court's                findings                  are         clearly

erroneous.                    In     re         Marriage                    of         Dreesbach                  (1994),              265       Mont.           216,

220-21,             875 P.2d              1018,         1021.                We determine                     clear            error          by using             the

three-part                  test         adopted              in        DeSave,                  820       P.2d           at     1287,           and       stated

above.

          1n custody                 disputes,                        the        court           shall           award          custody             according

to      the        best       interest                 of     the            child.                Section                40-4-223,                 MCA.          The

court         must          consider              the        wishes               of       the          child's           parents,                the      wishes

of      the        child,          the      interaction                           and       interrelationship                              of       the      child

with      his        parent          or parents,                        his            siblings,             and any other                        person          who

may significantly                           affect                the         child's               best          interest,                and physical

abuse         or      threat         of         physical                   abuse           by one parent                        against             the      other

parent.              Section             40-4-213             (l),           MCA.           Section               40-4-224,               MCA, provides

that,         upon          application                     of         either              party,            the          court          shall            presume

joint           custody              is          in         the         best              interest                 of          the       child.                  That

presumption                  may be rebutted,                               however,               if      the      court            finds,         under          the

factors             set      forth         in         § 40-4-212,                       MCA, that                 joint         custody             is     not          in

the      child's             best          interest.                        The          statute            further              provides                 that          "a

finding             that       one parent                    physically                      abused              the       other         parent            or      the
child          is      a sufficient                     basis           for          finding             that         joint       custody              is        not

in      the      best         interest                of     the        child."                  Section             40-4-224(l),                 MCA.

           On August                    16,      1994,              the         District                 Court          issued            a temporary

order,           finding               that      Bill            had a history                         of     violent            outbursts,                     both

physical                and verbal,                    directed                 at        Dolly.              The        court          made      further

findings               regarding               Dolly's                caretaking                  abilities               and the           children's

needs.                There       was sufficient                           evidence               in        the      record        to     support                the

court's               findings               and the         court              did       not      misapprehend                    that         evidence.

However,               in     the        transcript                   of      the         proceedings                  the       court          responded

to      Bill's              request             for         joint             custody              as        follows:                   "There             is     no

question                there           is     going             to        be      granted               joint          custody,                and        legal

custody,                 no       question                  about               it."               No         evidence              was          produced

subsequent                  to that            statement                   to which              the        court       manifested               a change

of      opinion.
           While            we in            no way condone                            Bill's           abusive               behavior,           we find

significant                      contradictions                        in          the          record            regarding               the     court's

intentions                  in     the        matter          of       custody.                   Accordingly,                   a review              of        the

record              leaves          us        with          the        definite                   and         firm        conviction                  that             a

mistake               has        been          committed,                       and        we      vacate               and       remand              to         the

District               Court           for      further               proceedings                      on the          issue        of      custody.

                                                                            ISSUE           5

           Did         the       District               Court           err          in     entering                a temporary                 order            for

support               and maintenance?

              On June            28,         1994,         Dolly           filed          a motion                requesting              a temporary

order            of      maintenance                       and        support.                     The        District             Court          granted


                                                                                   10
Dolly's       motion          and set            a hearing               for    August         1 so that            Bill     could
show cause,             if     any,        why the            temporary              order      should        not       continue
through       pendency              of     the      trial.               Dolly's         motion         and the            court's
temporary         order         and order                to     show cause               were      served          on Bill           on
June 29, 1994.                 Bill        failed        to comply with                  the order            requiring           him
to pay support               and maintenance.                       At the hearing                 and on appeal,                Bill
contends         his     due process                was violated                  because          he did         not      receive
notice      of     Dolly's               motion       prior           to       the     court's          issuance            of    the
temporary         order.
          In In re Marriage                   of Houtchens                     (1979),        181 Mont.           70, 75, 592
P.2d 158,         161, we stated                    that       "a motion              is but       an application                 for
an   order.             A motion              is      not        a pleading                  and      does        not      require
responsive             pleadings."                  Dolly           moved for                an order         granting            her
temporary         maintenance                and child               support           pursuant          to       § 40-4-121,
MCA.       Her motion               was accompanied                      by an affidavit,                as required                 by
5 40-4-121(l),                MCA, setting               forth           the factual            basis     for       the motion
and the       amounts           requested.                    In a previous                  decision        of     this     Court
where no notice                was given            prior           to the district                court's          grant        of a
motion,      we concluded                 "the court's               action           caused no prejudice                   to the
defendants             and      therefore,               we shall               not      address         the        question."
Knoepke v.             Southwestern                Ry.        Co.     (1980),           190 Mont.            238,       246,      620
P.2d 1185,         1189.
          An attorney's                   certification                    was       filed       along        with         Dolly's
motion      noting           that     Bill       had not been given                          notice      and had not yet
retained         counsel.                The court             granted           Dolly's        motion        based on its


                                                                    11
content           and the             accompanying                   affidavit                 as required                    by statute.                       We

further            note             that          5      40-4-121(l),                      MCA,         does            not           set         forth              a

requirement                   that           notice             be        given              for        a        temporary                       order          of

maintenance                  and support.                    Bill         was notified                      of        the     issuance               of        the

court's           temporary                order         and the hearing                        set     approximately                            one month

later       where            Bill          was provided                   with         the        opportunity                    to     contest                the

order.            We conclude                     Bill       was not              prejudiced                     by     a lack              of      notice,

and therefore,                       the     District               Court         did         not      err        in        granting                Dolly's
motion           for      temporary                   support        and maintenance.

                                                                     ISSUE             6

          Did          the     District                Court        err      in        not        granting              Bill's              motion             for

a new trial?

          Bill          moved the                court       for     a new trial                     or amendment                      of     findings.

The court               failed            to reply          and so the                 motion           was deemed denied                                after

the      passage              of      forty-five                days.              See Rule                 59(d),            M.R.Civ.P.                        We

review           a district                 court's             denial            of       a motion               for        new trial                   for         a

manifest               abuse         of     discretion.                     Baxter              v.     Archie               Cochrane                Motors,

Inc.       (Mont.            1995),              893 P.2d           337,         339,          52 St.            Rep.         444,           444.

          Bill          argues            that        one of his            witnesses                  was not              available                during

the     hearing              because             she had been hospitalized                                       at the          time            of trial.

Bill      did          not       submit           any       evidence              of        her       testimony                at       trial.                 The

witness's                affidavit                was       filed          with            Bill's           motion            for           new      trial.

The witness                  stated          in       her    affidavit                 that          she did            not           smell         alcohol

when       she          observed              Dolly's              unusual              appearance                     and       behavior.                       He

claims           that         her          testimony               would          concern              a new                area        of        chemical


                                                                            12
abuse       on the             part         of    Dolly        and would              provide              further               evidence        of

Dolly's          physical               abuse         toward        the        children.

          At     trial,              Bill        presented           testimony                 of         the         alleged        chemical

dependency                and        physical             abusiveness.                     The        proposed                   evidence         is

therefore            cumulative                    and       the     District              Court                did        not     abuse        its

discretion                in    denying            a new trial.                     We conclude                   that       the     District

Court      did     not         err      in       refusing          to grant           Bill's          motion               for     new trial.

          In     summary,               we vacate              and remand                to         the         District           Court        for
further          proceedings                     on    the     issue           of     custody,                  and        we affirm            the

remainder.



                                                                           -
                                                                                           Justice




     ~~
     ,
We concur:



 . ‘T-
IT4            ief'Justice




                                                                      13
