                              No.       94-493
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1996


IN RE THE MARRIAGE OF
MONICA ELAINE SMITH,
           Petitioner and Respondent,
     and
VAN EARL SMITH,
           Respondent and Appellant



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


COUNSEL OF RECORD:
           For Appellant:
                  Michael S. Smartt; Big Sky Law Center,
                  Great Falls, Montana
           For Respondent:
                  Joan E. Cook; Miller and Cook,
                  Great Falls, Montana


                                    Submitted on Briefs:    March 7, 1996
                                                 Decided:   May 6, 1996
Filed:


                                    /
                                    Clerk
Justice Karla M. Gray 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.
     Van Earl Smith (Van) appeals from the June 10, 1994, judgment
of the Eighth Judicial District Court, Cascade County, granting
Monica Elaine Smith (Monica) primary physical custody of the
couple's children and awarding child support in the amount of $310
per month.   We affirm.
     We address the following issues on appeal:
     1.  Did the District Court abuse its discretion in awarding
primary physical custody of the children to Monica?
     2. Did the District Court err in its application of the child
support guidelines?
     Monica and Van married on May 31, 1985.   They had two children
during their marriage.    The District Court entered a Final Decree
of Dissolution on November 14, 1990, adopting and incorporating the
parties' settlement agreement provisions regarding custody.   Under
the agreement, the parties would alternate actual physical custody
of the children every six months until the oldest child started
kindergarten,   at which time actual physical     custody would be
redetermined.   In incorporating the agreement's custody provisions
into the decree,   the District Court added that the standard for
redetermining custody would be the best interests of the children.
Neither party appealed.

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        The oldest child started kindergarten in 1992.            In January of
1993,    upon motions by both parties,        the District Court entered a
temporary     custody   order in which Monica was awarded physical
custody of the children for the rest of the school year and one-
half of the summer.         Van was granted physical custody for the
remainder of the summer and the beginning of the 1993-94 school
year.     The District Court stated that it would be necessary to
review the children's custody at a later date.
        In December of 1993, Monica petitioned the court to review the
children's    custody    arrangement.       On June 13, 1994, the District
Court entered its Findings of Fact, Conclusions of Law and Order
awarding Monica primary physical custody of the children; the court
gave Van secondary physical custody from one week after school
terminates in the summer until two weeks before school begins in
the fall. Van was required to provide child support in the amount
of $155 per month per child, for a total of $310 per month, for the
months Monica has physical custody of the children. Van appeals.
      1. Did the District Court abuse its discretion in awarding
primary physical custody of the children to Monica?
        The District Court made extensive findings of fact relating to
custody of the children,         concluded that the           "best interests"
standard contained in § 40-4-212(l),               MCA, applied and determined
that it was in the children's best interests to be placed in
Monica's primary physical custody.             We will overturn a district
court's      custody    determination       only     when   its   findings   and
conclusions clearly demonstrate an abuse of discretion.               & In re
Marriage of Hunt (19941, 264 Mont. 159, 164, 870 P.2d 720, 723



                                        3
(citation omitted); In re Marriage of Strizic (19941,               263 Mont.
193,   195, 867 P.2d 386, 387 (citation omitted).
     a.   Did the District Court err in applying § 40-4-212, MCA,
instead of § 40-4-219, MCA?
       Van argues that the District Court improperly relied on the
best interests standard contained in § 40-4-212, MCA, in deter-
mining    the    children's    physical    custody.      He contends that the
court's action was a modification of custody subject to the more
stringent requirements of § 40-4-219, MCA.                We review a district
court's     conclusions       of   law to determine whether the court's
interpretation of the law is correct.                 In re Marriage of Kovash
(1995) I 270 Mont. 517, 521, 893 P.2d 860, 863 (citation omitted).
       A district court making an original determination of child
custody applies the best interest of the child standard contained
in § 40-4-212, MCA. A modification of custody, on the other hand,
can be accomplished only under § 40-4-219, MCA.                The § 40-4-219,
MCA,   "change of circumstance" requirement and the requirement that
the court find that one of the subsection (a) through (f) factors
exists are jurisdictional prerequisites to modification of custody;
unless    the    prerequisites     are   satisfied,    a court may not modify
custody even if it finds that modification is in the child's best
interest.       Section 40-4-219, MCA; In re Marriage of Johnson (1994),
266 Mont. 158, 162-66, 879 P.2d 689, 692-94.                The more stringent
requirements of !$ 40-4-219, MCA, reflect the Legislature's recog-
nition of the importance of continuity and stability in children's
living    arrangements.       Marriase of Johnson, 879 P.2d at 694.
       We have held that a petition to modify child custody which has
the effect of         substantially changing the residential            living

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arrangements      of   a     child    must      satisfy      the      jurisdictional
requirements set forth in § 40-4-219,                 MCA.   Marriase of Johnson,
a79 P.2d at 694.       Monica and Van's motions in this case sought to
substantially    change     the    children's        residential    arrangements   by
terminating the alternating six-month custody schedule and having
themselves designated the children's primary physical custodian for
the entirety of the school year.               Thus,     pursuant to Marriaqe      of
Johnson, § 40-4-219, MCA, ordinarily would apply.
     The District Court, however, applied the terms of its original
decree under which custody was to be "redetermined in accordance
with the best interests of the children" when the oldest child
started    kindergarten.          The redetermination provision had been
agreed upon in Monica and Van's settlement agreement and incor-
porated into the original decree with the addition of the best
interest standard.         Neither party appealed the 1990 decree, which
predated   Marriase    of    Johnson.        Thus,     the decree reflected the
parties' voluntary      intentions      and    expectations        regarding   custody
redetermination and the standard under which redetermination would
be made.        Under these unique facts, it would be altogether
inequitable to permit Van to now reject his earlier agreement and
invoke § 40-4-219, MCA, in order to vary the express terms of the
1990 decree.     We conclude, therefore, that the District Court did
not err in determining the children's                    custody under the best
interest standard contained in § 40-4-212, MCA.
     b. Did the District Court abuse its discretion in determining
that it was in the children's best interests to award primary
physical custody to Monica?
     Van argues that the evidence supports his contention that it
is in the children's best interests that he be designated their
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primary residential custodian and challenges several of the court's
findings.       However, our standard in reviewing a district court's
underlying findings of fact in a child custody case is whether
those    findings    are clearly erroneous; we             review the ultimate
custody determination under a clear abuse of discretion standard.
In re Marriage of Dreesbach (1994), 265 Mont. 216, 220-21, 875 P.2d
1018,    1021   (citations    omitted).        Moreover,    it is particularly
important in custody modification cases that this Court defer to
the district court which personally evaluated the testimony and was
in the best position to determine the credibility and character of
the witnesses.       In re Marriage of Starks (1993), 259 Mont. 138,
143,    855 P.2d 527,        530   (citation    omitted).      In the face of
conflicting evidence, it is the trier of fact's function to resolve
the conflicts and we will not substitute our judgment for that of
the district court.      Marriase of Starks, 855 P.2d at 530.
        The evidence of record in this case regarding the parties' and
children's circumstances is substantial and often contradictory.
The District Court entered extensive findings relating to the
factors to be considered under § 40-4-212, MCA, in determining a
child's best interest.
        With regard to Monica, the court found that Monica appears to
have a strong marital relationship with her new husband, they have
attended parenting classes and the children enjoy normal play and
educational activities at her house; during the post-July 1993
period when Van had custody of the children, Monica maintained
regular telephone contact with them and traveled from North Dakota
to Great Falls to see them a number of times.                 The court further
found that Monica and her husband have a large house, Monica is
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currently a      housewife        and    one   child's   deficient     academic
performance    resulted    from    unsatisfactory    maturity    skills    rather
than poor schools near Monica's residence.
     Van asserts that certain of the District Court's findings
relating to Monica are not supported by the evidence.              He contends,
for example, that no evidence supports the findings that Monica's
psychological counseling was terminated at the suggestion of her
counselor and that Monica and her husband,               Joel,   have a strong
marital    relationship.       The record, however,       reflects   otherwise.
Monica testified that her counselor terminated her counseling
sessions and both Monica and Joel testified to the strength of
their marriage.
     Van also asserts that no evidence supports the District
Court's    finding that the         children     experienced     "educationally
related endeavors" while in Monica's custody.               Monica   testified,
however,    that she engages with the children in coloring, Sunday
school     and playing cars.            Given the   children's     ages,    these
activities fairly can be said to constitute educationally-related
endeavors.
     In addition, Van apparently contends that the District Court's
finding that Monica and Joel attend church, "although not every
Sunday,"     is exaggerated.       The finding is supported by Monica's
testimony that she and Joel attend church as often as they can and
that work obligations prevent them from attending church every
Sunday.
     Van's final argument regarding lack of evidence to support the
court's finding relates to one child's alleged breathing problem.
According to the District Court, Monica "testified that . there
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was no interruption in Jordan's breathing."          Van is correct that
the record does not contain testimony by Monica that the child's
breathing was not interrupted; her actual testimony was that she
was not sure that the child had stopped breathing.              Such a minor
variance from the record with regard to one portion of one sentence
in     a four-sentence finding relating to the child's breathing
problem does not, however, constitute a lack of evidence to support
the remainder of the finding.       The variance is, at best, harmless
error in the context of the extensive findings of fact relating to
the children's custody.
        Van's remaining challenges to the court's findings essentially
suggest that the District Court was required to make additional
findings.      We disagree.   The    court's   findings   are   sufficiently
comprehensive in light of the factors enumerated in § 40-4-212,
MCA.
        The District Court weighed the evidence before it and entered
extensive findings pursuant to § 40-4-212, MCA.           We conclude that
the findings are supported by substantial evidence and are not
otherwise clearly erroneous.        We hold that the District Court did
not abuse its discretion in awarding primary physical custody of
the children to Monica.
     2 . Did the District Court abuse its discretion in applying
the child support guidelines?
        The District Court awarded Monica a total of $310 per month
child support for the months that Monica has physical custody of
the children.     Our standard in reviewing a district court's child
support award is whether the court abused its discretion.              In re
Marriage of Noel (1994), 265 Mont. 249, 252, 875 P.2d 358, 359

                                      8
(citation omitted).       The district court must take into account the
parties' actual situation and apply its discretion in a realistic
manner.     Marriage of Noel, 875 P.2d at 359 (citation omitted).
     Under    Montana's    child   support    guidelines,   each parent is
required to contribute child support in an amount proportionate to
his or her share of the parents' combined resources after specific
allowable deductions are made from each parent's gross income.
Marriage of Noel, 875 P.2d at 359.           Van argues that the District
Court erred by including depreciation relating to his employment-
related equipment in his income and that, had the court properly
deducted the depreciation from his gross income, his total child
support obligation would have been only $133 per month.          According
to Van, the District Court thereby abused its discretion.
     Section 46.30.1508(l) (c), ARM, provides that depreciation for
vehicles, machinery and tangible assets may be deducted from the
gross income of a person who is self-employed upon a showing of
economic    necessity.     The   "may be"    in the guideline language is
discretionary on its face.         Indeed,   we previously have held that
although a district court may allow depreciation on a showing of
economic necessity under the guideline, the court is not required
to do so.     Pederson v. Nordahl (1993), 261 Mont. 284, 287-88, 862
P.2d 411, 413.
     Van contends that his testimony regarding the propriety of
deducting depreciation establishes "economic necessity" under
§ 46.30.1508(l) (c), ARM.          His argument ignores the discretion
vested in the District Court by the guideline itself and by
Pederson.    We conclude that Van has failed to establish an abuse of
discretion by the court with regard to its treatment of the
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depreciation and, on that basis, we hold that the District Court
did not abuse its discretion in applying the child support
guidelines.




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