In Re the Marriage of Rolfe

NO. 84-345

IN THE SUPREME COURT OF THE STATE OF MONTANA

1985

IN RE THE MARRIAGE OF

BEVERLY C. ROLFE,

Petitioner and Appellant,

and

OLIVER W. ROLFE,

Respondent and Respondent.

APPEAL FROM: District Court of the Fourth Judicial District,

In and for the County of Missoula,

The Honorable John S. Henson, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Datsopoulos, MacDonald & Lind; Dennis E. Lind,

Missoula, Montana

For Respondent:

Mulroney, Delaney & Scott; P. Mars Scott, Missoula,

Montana

Connell & B e e ~ s ;Thomas Beers, Missoula, Mohtana

- -- -

Submitted on Briefs: March 14, 1985

~ecided: May 2, 1985

Filed:

.. , <g$Ja

Mr. Justice John C. Sheehy delivered the Opinion of the

Court.

Beverly Rolfe appeals from a property settlement, a.nd a.

maintenance and. child custody award by the Fourth Judicial

District, Missoula County. The child custody is affirmed;

property settlement and maintenance are remanded.

Beverly Rolfe (hereinafter wife) and Oliver Rolfe

(hereinafter husband) were married in 1968 and divorced in

1983. They have two sons, a 14 year old and a 10 year old.

The husband, 46 years old and in good. physical health, is a

tenured professor at the University of Montana earning

$28,484 as a. full professor under contract for ten months.

He has a Ph.D. in Romance Linguistics, has taught at the

University since 1970, and intends to continue. The wife, 46

years old and in good. health except for periodic blackouts

for which she takes medication, was a homemaker throughout

the marriage. She did typing and occasional odd jobs,

earning $1,000 to $2,000 a year during the marriage. She has

a B.A. in education and taught for several years prior to

marriage but quit in 1968. The District Court found "It is

possible for [the wife] to earn approximately $17,000 per

year based on her previous experience, education and

training."

The parties fought bitterly over child custody; both

claiming the other was mentally ill and would physically and

mentally abuse the children. They introduced extensive

testimony and exhibits to bolster their claims. The court

listened to conflicting testimony for four days. A

psychiatrist, a psychologist, the husband's mother, the

wife's mother, the wife's brother, three friends and members

of their church, a foster-care parent, three university

colleagues of the husband, and the husband's former attorney

all testified. Sixteen exhibits were introduced into

evidence. Clearly the marriage was very unhappy and the

record raises questions about either parents' ability to

raise the children.

At first the children expressed a desire to live with

their mother, but later said they preferred to live with

their father. Both children, but particularly the older

child, vehemently expressed this preference by telephoning

school counselors, principals, attorneys and other

professionals, checking out library books, and emphatically

telling the judge their preference - camera.

in The children's

attorney, appointed by the court to represent their interest,

believed the children's best interest was to be placed with

their mother and, contrary to the children's wishes,

advocated this position. The attorney based his belief on

the psychiatrist's and psychologist's recommend-ationsand on

conversations with the children. The older chil-d complained

to the judge about the attorney.

The parties also fought over the division of the marital

estate. The marital estate was valued at $179,980.70. It

was divided as follows:

Wife Husband

Equity in family home

Equity in Rental units

Family cabin

Cars

Checking account

Certificate of Deposit

Investments

Retirement Fund

Tax Shelter Annuity

Life Insurance Withdrawal

Credits

Household items

Payments to wife

Less property brought

to the marriage 2,410 9,955

$85,476.50 $82,139.20

Less debts assumed

The wife valued the marital estate at approximately

$160,106. The major differences in the parties' va-lues were

in the rental units and the household. goods. He valued the

rental units, which he received, at $23,056 and she valued

them at $35,733. He valued the household goods at $221540

and she did not value them. She received household goods

valued at $17,660, while he received $4,880 of household

goods. With a few exceptions the husband's asset valuations

and his proposed distributions were used. The trial court

gave no reasons for this.

The wife raises five issues on appeal: error in

awarding child custody to the father, error in d.j.stributing

property of the marital estate, error in awarding her

maintenance for only one year, error in refusing to award

attorneys fees, and error in determining the husband was not

responsible for child support payments already incurred.

The children, through their attorney, also raise the

issue of error in child. custody. In addition, the children's

attorney asks this Court to address the ethical question of

the role of the attorney appointed for a child in a custody

dispute. Should the attorney zealously represent and

advocate the child's wishes or advocate what he determines is

the best interest of the child? This question is considered

at the end of the opinion.

Issue No. 1: Child Custody

The wife's first issue is that to determine the

children's best interests the District Court emphasized the

children's wishes and ignored the factors listed in §

40-4-212, MCA, giving greater weight to the husband's

evidence and refusing to follow the recommendation of the

children's attorney. She argues this is reversible error and

this Court should grant her custody of the children.

As this Court has iterated many times, the trial judge

in a divorce proceeding is in a better position than this

Court to resolve child custody. The district court's

decision is presumed correct and will be upheld unless clear

abuse of discretion is shown. The appealing party must show,

by clear error (Rule 52 (a), M.R.Civ.P. ) that the record does

not support the judgment of the district court. Lee V.

Gebhardt (1977), 173 Mont. 305, 309, 567 P.2d 466, 468.

In this case, both parties stockpiled an impressive

supply of ammunition for verbal warfare with each other. The

District Court heard testimony from a psychiatrist, a

psychologist, a school counselor, n.eighbors, relatives, and

colleagues. Much of the testimony conflicts and some of it

concerns the possibility of physical abuse of the children by

both parents. The record indicates that the judge's

paramount concern was the children's best interest, not

merely their wishes. The findings show the judge considered

all the factors listed in § 40-4-212, MCA.

The psychiatrist, the psychologist and the children's

attorney a11 recommended that the children be placed with

their mother. Undoubtedly, the wife presented credible

evidence supporting her custody claim, but the husband also

provided evidence from family friends and colleagues and the

District Court found this testimony more credible. It is the

District Court's determination of the children's best

interest, not the expert witnesses' opinion, that controls.

The factors set forth in $ 40-4-212, MCA, were considered,

appropriate findings were made, and sufficient evidence

supported those findings. The custody award is affirmed.

Issue - - 2:

No. Property Distribution

The wife argues that the property distribution is wrong

for the following reasons: the husband's values were adopted

nearly verbatim without the court indicating the basis of the

determination despite conflicting evidence from the wife's

experts and the husband; the husband overvalued property the

wife received and undervalued property he received; the

husband received more income producing property than the

wife; the value of personal property brought into the

marriage 15 years ago was set off; and., there are numerous

errors in the value of the marital estate caused by counting

some items twice and omitting others.

The standard of review of a property settlement has been

stated many times. In dividing property in a marriage

dissolution the district court has far reaching discretion

and its judgment will not be altered without a showing of

clear abuse of discretion. The test of abuse 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 Ma.rriage of Vert

(1984), 680 P.2d 587, 41 St.Rep. 895. Applying this

standard, the District Court abused its discretion and we

find four substantial injustices: the husband's values,

while not adopted absolutely verbatim, were almost always

accepted without explanation even though the record indicates

some of the husband's values are questionable; as her share

of the marital estate the wife received household goods with

inflated values while the husband received income producing

property such as stocks and an annuity; non-income producing

property brought into the marriage 15 years ago was "deducted

from the division of property" resulting in an inequitable

and unworkable property division; and, various

"credits"--payments on real property, withdrawals from

checking accounts, child support--appeared as distributions

of property hut it is unclear what a "credit" is in this

context.

Valuation. When conflicting valuation evidence is

presented the district court must indicate the basis for its

determination. If no explanation is made the court has

abused its discretion Larson v. Larson (Mont. 1982), 649 P.2d

1351, 39 St.Rep. 1628. In this case, for example, the wife

presented testimony from a real estate broker about the value

of rental property; the husband offered his opinion. The

District Court should give the reason for choosing the

husband's values.

The husband's pension was valued at the amount of his

contribution. It is well established in this state and other

states that retirements benefits are part of the marital

estate. Karr v. Karr (Mont. 1981), 628 P.2d 267, 38 St.Rep.

506 and see 94 A.L.R.3d 176. The question is what value to

assign to the pension. Valuing pensions presents several

problems; as the Supreme Court of California, en banc,

pointed out in Re Marriage of Brown (1976), 15 Cal.3d. 838,

544 P.2d 561, 126 Cal.Rptr. 633, one problem is what value,

if any, should be assigned to nonvested benefits.

Pension rights can be categorized into three classes:

(1) Matured--Participant has an unconditional right to

immediate payment.

(2) Vested but not matured--Participant's claim to the

pension rights would survive voluntary or involuntary

termination but funds are not presently payable.

(3) Nonvested--Participant has no claim to pension

rights in the event of termination.

In this case, there may be nonvested pension benefits in

the form of employers' future contribution. The value of

these benefits was not considered.

Nonincome-producing assets - -

to wife. More serious error

exists because the District Court adopted the husband's

values for household goods and then awarded most of this

property to the wife. The District Court considers the

husband's testimony to be the more credible for valuing but

this Court questions that credulity. One examp1.e is an item

called a "sterling set of twelve." The husband. valued it at

$3,500 and suggested that it be awarded to the wife. The

wife had it appraised and it was valued at $1,068. The

husband testified that many of these "assets" were acquired

very cheaply at rummage sales and their value comes from his

labor. He prepared detailed lists with such items as:

Waffle Iron $40.00

Bath Towels $75.00

Canning Jars $40.00

Iron $20.00

This makes up much of the wife's property award. while he

receives Montana Power Stock, tax annuities and his pension.

This is inequitable. This Court sympathizes with the

District Court because it was forced to referee two adults

using the court system to place a value on tea cups and ba.th

towels. On remand we suggest the court must reach a decision

about the division of household assets really having a market

value and the value of non-marketable items should not he

included in the marital estate.

Prenuptial property. Section 40-4-202 (1), MCA, allows

property acquired before the marriage to be considered in

equitably apportioning the marital estate. However, this

statute does not mandate that each party be returned the

value of all the property they brought into the marriage. In

this case because the length of the marriage, 15 years, the

District Court erred in returning the value of these assets

to the parties. This prenuptial property was also "valued"

by the husband. It consisted of:

Husband Wife

Equity in home $1,500

Furniture, etc. 1,555 $1,310

Car 1,800 400

Cash 5,000

Coffee Grinders 100

These assets have long since been consumed, just as the

capital assets of a business eventually are matched against

income as expenses.

It is not clear what the District Court intended in the

way it handled the prenuptial property of the parties. Its

computations indicate the District Court first determined the

values of the marital estate to be assigned to the parties,

and then subtracted the prenuptial values from each party's

share, instead of from the opposite party's share. This had

the effect of taking away from each party the value of the

property each party brought into the marriage.

Various credits. The wife contended that the District

Court has double counted assets. The District Court amended

its findings to correct a $1,000 error. The findings show

"credits" as assets, withdrawals as assets and payments as

assets. This Court suggests that the District Court

determine the value of the present estate, divide it, and

then consider whether prior distributions or payments should

be added or deducted fron one or the other of the parties.

Issue No. 3: Maintenance

The wife argues that the District Court relied too

heavily on the husband's assertion that the wife could. earn

$17,000 a year as an elementary school teacher. We agree.

It may he a fact that a kindergarten teacher in Mi-ssoula

earns $17,000 per year but there is nothing in the record to

support the finding that the v~ife in this case can earn that

amount. The wife is 46 years old, without a teaching

certificate at this time, and without teaching experience for

the last 16 years. The husband has continued to work

throughout their marriage and is now making $2,000 per month.

Awarding maintenance for one year simpl-y does not meet the

criteria of 40-4-203, MCA. It ignores the time necessary

to find employment, the standard of living of the marriage,

the duration of the marriage, the age and physical condition

of the wife, and the husband's ability to meet his needs.

Cromwell v. Cromwell (1979), 180 Mont. 40, 588 P.2d 1010.

In Bowman v. Bowman (Mont. 19811, 633 ~ . 2 d1198, 38

St.Rep. 1515, this Court held that in awarding maintenance

the district court must consider whether assets awarded to

the spouse seeking maintenance are income producing. On

remand, after reconsidering the distribution of the marital

estate, the District Court must reconsider the wife's salary

prospects and duration of maintenance.

Issue No. 4: Attorneys Fees

The wife argues that the District Court did not state

the reason for refusing to grant her attorneys fees,

therefore this Court should grant her attorneys fees. This

Court has held that in a divorce case a district court must

indicate its reasons for refusing to grant attorneys fees.

Ha.mmeren v. Harnrneren (Mont. 1982), 663 P.2d 1152, 1154, 39

St.Rep. 2222, 2223. In this case the District Court at

Finding no. 37, states "after considering the financial

resources of both parties, the Court finds that both parties

have the ability to pay their own attorney's fees and should

do so." This is a clear indication of the court's reasoning,

therefore the denial of attorneys fees is upheld.

Issue No. 5: Child Support Payments

In April 1983 the parties filed a stipul.ation with the

District Court that the husband would pay child support of

$400 per month. In June 1983, there was a hearing to

determine whether the children could go to Canada with the

husband, but no request to modify support was made. On July

6, 1985, Judge Henson issued. an order that sa.id nothing

specific about child support. The final sentence of that

order stated. "The provisions of the stipulation regarding

custody and visitation rights of the children shall remain in

force and effect in all respects except as specifically

amended by this order." In other words, on July 6, 1983, the

District Court ordered the husband to pay child support

during the summer. In the fall the husband sought to modify

the stipulation retroactive]-y so as not to pay support during

the time he had the children.

Section 40-4-208 (I), MCA, states, "Except as otherwise

provided in 40-4-201(6), a decree may be modified by a court

as to maintenance or support only as to installments accruing

subsequent to the motion for modification." The District

Court did not have the power on March 2, 1.984 to modify

payments resulting from a July 9, 1983 order. The District

Court is reversed on this issue and the husband is ordered to

make the child support payments due during the summer of

1983.

We do not address the issue of child support from the

noncustodial parent in compliance with In re the Marriage of

Carlson (Mont. 1984), 693 P.2d 496, 41 St.Rep. 2419 because

the husband does not raise it.

- -of Attorney Appointed

Role

- Represent Children - Custody Dispute

to in

The attorney appointed by the District Court to

represent the children has raised an important and difficult

ethical question--is the attorney appointed to represent a

child in a custody dispute ethically bound to advocate the

child's wishes or to advocate the child's best interests?

Our remarks on this question are prefaced with the comment

that we are a-ddressing only the very narrow question of

court-appointed representation of a child in a custody

dispute arising out of a divorce. Nothing is being said

about the representation of individuals suffering any

disability besides minority nor are we addressing the

representation of minors in adversary or quasi-adversary

proceedings. Clients under a disability are as entitled to

the protection of their due process rights a.s any other

client; if anything, these individuals have a greater need

for zealous representation.

Disciplinary Rule 7-101 (A) is the applicable rule under

the Code of Professional ethics.

"DR 7-101 Representing - Client Zealously.

a

" (A) A lawyer shall not intentionally:

" (1) Fail to seek the lawful objectives of his

client through reasonably available means permitted

by law and the Disciplinary Rules, except as

provided by DR 7-101(B). A lawyer does not violate

this Disciplinary Rule, however, by acceding to

reasonable requests of opposing counsel which do

not prejudice the rights of his client, by being

punctual in fulfilling al-1 professional

commitments, by avoiding offensive tactics, or by

treating with courtesy and consideration all

persons involved in the legal process.

" (B) In his representation of a client, a lawyer

may :

"(1) Where permissible, exercise his professional

judgment to waive or fail to assert a right or

position of his client.

Ethical Consideration 7-12 is also applicable:

"Any mental or physical condition of a client that

renders him incapable of making a considered

judgment on his own behalf casts additional

responsibilities upon his lawyer. Where an

incompetent is acting through a guardian or other

legal representative, a lawyer must look to such

representative for those decisions which are

normally the prerogative of the client to make. If

a client under disability has no legal

representative, his lawyer may be compel-led in

court proceedings to make decisions on behalf of

the client. If the client is capable of

understanding the matter in question or of

contributing to the advancement of his interests,

regardless of whether he is legally disqualified

from performing certain acts, the lawyer should

obtain from him all possible aid. If the

disability of a client and the lack of a legal

representative compel the lawyer to make decisions

for his client, the lawyer should consider all

circumstances then prevailing and act with care to

safeguard and advance the interests of his client.

But obviously a lawyer cannot perform any act or

make any decision which the law requires his client

to perform or make, either acting for himself if

competent, or by a duly constituted representative

if legally incompetent."

Under the presently proposed Rules of Professional

Conduct the applicable rule will be Rule 1.14.

"RULE 1.14 Client Under a Disability.

"(a) When a client's ability to make adequately

considered decisions in connection with the

representation is impaired, whether because of

minority, mental disability or for some other

reasons, the lawyer shall, as far as reasonably

possible, maintain a normal client-lawyer

relationship with the client.

" (b) A lawyer may seek the appointment of a

guardian or take other protective action with

respect to the client, only when the lawyer

reasonably believes that the client cannot

adequately act in the client's interest."

Ordinarily, a lawyer's relationship with a disabled

client should not differ from the normal client-lawyer

relationship. In a normal client-lawyer relationship the

lawyer's role is not to determine the client's interest, his

role is to advocate the client's interest.

The child custody dispute presents a unique situation

because the child, although not a party to the action, is the

person most affected by the action. The reason there is a

custody action is that the child is not yet mature enough to

be self-determining. In recognition of this the legislature

passed 5 40-4-205, MCA.

"The court may appoint an attorney to represent the

interests of a minor dependent child with respect

to his support, custody, and visitation. The

county attorney and the deputy county attorneys, if

any, may not be appointed for this purpose. The

court shall enter an order for costs and fees in

favor of the child's attorney. The order shall be

made against either or both parents, except that if

the responsible party is indigen.t, the costs shall

be waived."

The interest referred to in this statute is the child's

best interests, not the child's wishes. As this Court has

reiterated many times, in all matters relating to child

custody and visitation, the best interests of the child

controls.

We recognize that in Montana the attorney for the child

is not a guardian ad litem. Nevertheless his role in a

custody dispute is to advocate the child's best interest, not

the child's wishes. This is a difficult role, particularly

when the child's expressed wishes conflict with the

attorney's determination of his best interests. But, given

the immaturity of the client an.d the pressures that often

exist in a divorce situation, it is this Court's opinion that

the best interests of the child, the paramount concern in all

custody disputes, is best served by modifying the traditional

lawyer-client relationship.

As the Alaska Court stated in Veazey v. Veazey (Alaska

"[Ilt is equally plain that the guardian is not

required to advocate whatever placement might seem

preferable to a client of tender years. A young

child may well prefer the less disciplined

environment to the more disciplined one. He may

prefer the parent who takes him on outings for

recreational activities over the one who stays home

to prepare his meals a.nd keep the home clean. But

the guardian would be abdicating his responsibility

to his client and the court to use his best

professional judgment, were he to automatically

recommend that young child's preference without

further scrutiny. A child who has been living for

some time with one parent might understandably

select that parent, good or bad, because it

represents the only home the child has ever known.

This 'psychological parenthood,' while relevant, is

not conclusive concerning what is in the child's

best interests.

"A child may have his thinking consciously or

subconsciously colored by one parent against the

other. The guardian ad litem must try to delve

into this question and take all relevant factors

into account regardless of what the child may or

may not believe he 'ought' to say."

This Court is aware that determining a child's best

interests is difficult and is concerned about the child's

right to an advocate. We reiterate our position that a

child's wishes deserve serious consideration, In Re Marriage

of Kramer (1978), 177 Mont. 61, 69, 580 P.2d 439, 444. If

the court-appointed attorney concludes that the child's

expressed wishes are not in his best interest the attorney

must discl-ose this to the court. The district court must be

clearly informed of the child's wishes and the basis for the

attorney's determination that it is not in the child's best

interest to live with the preferred parent.

Reversed and remanded for further proceedings in

accordance with this opinion. Costs to the wife.

We Concur: