No. 81-258
I N THE SUPREME COURT O F THE S T A T E O F MONTANA
1 9 81
I N RE THE MARRIAGE O F
ROBIN R. CAMERON,
P e t i t i o n e r and A p p e l l a n t ,
-vs-
GRANT L . CAMERON,
R e s p o n d e n t and R e s p o n d e n t .
Appeal from: D i s t r i c t C o u r t of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of Y e l l o w s t o n e , T h e H o n o r a b l e
R o b e r t Wilson, Judge p r e s i d i n g .
C o u n s e l of R e c o r d :
For A p p e l l a n t :
Holmstrom, D u n a w a y & West, B i l l i n g s , Montana
For Respondent:
Berger, Sinclair & Nelson; C h r i s J. N e l s o n ,
B i l l i n g s , Montana
S u b m i t t e d on B r i e f s : D e c e m b e r 11, 1 9 8 1
Decided: March 3, 1982
Filed: MAR 3 - 1982
Mr. Justice Fred J. Weber delivered the Opinion of the
Court.
Appeal from a custody determination by the District
Court of the Thirteenth Judicial District, Yellowstone
County, in a proceeding for dissolution of marriage by
Appellant Wife against Respondent Husband, in which custody
of the three year old son was awarded to Husband. We remand
for further findings and conclusions.
The parties married on November 25, 1976. One child
was born to the marriage, a son who attained three years by
the time of marriage dissolution. Following a determination
that the marriage was irretrievably broken, the marriage was
dissolved by order of the District Court on January 9, 1981.
The issues on this appeal relate only to the custody of the
three year old son. No reference will be made to facts not
relevant to that issue.
During the separation and after the entry of the order
on January 9, 1981, the three year old son lived with Wife
and with the seven year old daughter of Wife, the half-
sister of the three year old son. The December 18, 1980,
findings of fact on the matter of custody are particularly
relevant. The court found:
"V.
"That both parties desire the care, control
and custody of the minor child Kristopher
L. Cameron [three year old son]; that the
parties hereto separated in June of 1980,
and since separation the said minor child
has resided with the petitioner and her
daughter from a previous marriage; that the
said minor child and his older sister are
extremely close, with the said minor child
being included in many of his older sister's
activities and the older sister being in-
cluded in the said minor child's activities
such as when he has visited with his father
during the period of separation, the said
older child has accompanied him; that the
home provided by the petitioner is adequate
for the minor child and the home that would
be provided by the respondent would be ade-
quate for the minor child if he were to ob-
tain custody and that both are fit and proper
parents for the custody of said child; that
although the respondent is a diabetic, his
medical condition is not such that would en-
danger the health and welfare of said child."
In the finding the District Court emphasized the significant
close relationship between the three year old boy and his
seven year old sister. The finding does indicate that both
Wife and Husband were proper parents to have the custody of
the three year old son. The court further stated:
"XIII.
"Both parties have a very close relationship
with the minor child of the marriage and res-
pondent has a close relationship as well with
the petitioner's child of a former marriage.
It is in the best interests of Kristopher L.
Cameron, minor child of the marriage, that
the petitioner and the respondent have joint
custody so that as close a relationship as
possible can be enjoyed by said child with
both parents."
The District Court then concluded that it was in the best
interests of the three year old son that his care, custody
and control be awarded jointly to the Wife and Husband. In
addition, the District Court ordered that the parties meet
with the Court Services personnel to assist them in working
out the details of the joint custody arrangements, with a
proviso that in the event the parties were unable to agree
on such arrangements within 30 days, the court would render
a decision on those issues.
Husband and Wife were unable to agree to the terms and
conditions of a joint custody agreement. A hearing was held
on February 20, 1981, at which Husband and Wife and Sally
Smith of the Child Crisis Center testified. By order dated
March 4, 1981, the court found that the parties on several
occasions met with Sally Smith in an effort to work out the
joint custodial arrangements and were unable to work out
mutually satisfactory arrangements; and that since the
decision the three year old son had continued to reside with
the Wife with the Husband enjoying visitation rights. The
trial court made further additional findings:
"That because of the inability of the parties
to agree upon the terms of the joint custody
and because of the controversy existing be-
tween them is affecting the child, it is in
the child's best interests that one or the
other of the said parties be designated as
the custodial parent with the other party en-
joying visitation rights.
"That it is in the best interests of the
minor child of the parties that the respon-
dent, Grant L. Cameron, be given his care,
control and custody subject to the right of
reasonable visitation on the part of the peti-
tioner, Robin R. Cameron, which shall include,
but not be limited to, the right to have the
said child with her on alternate weekends
from 7:00 p.m., Friday until 7:00 p.m. Sunday,
alternate holidays such as Easter, July 4,
Labor Day, Thanksgiving and Christmas and
for two two week periods during the summer
months when school is not in session, the
exact time of the said two two week periods
to be agreed upon by the parties."
Based upon the foregoing finding, the court awarded the
care, control and custody of the three year old son to the
Husband subject to the right of visitation as spelled out in
the finding.
The issues on appeal are:
(1) Were the findings and conclusions of the District
Court a sufficient basis for the award of custody to the
Husband?
(2) Was it error for the District Court to fail to
follow the clear legislative policy of custodial continuity
in awarding custody of the child to the Husband?
(3) Was the failure of the District Court to provide
Wife's counsel with investigator's report, coupled with the
court's reliance on witness's ex parte report to the court,
reversible error?
I.
The first issue questions the findings of fact and
conclusions upon which the court based its award of custody
to Husband. As previously set forth, the findings of December
18, 1980, indicate that both Wife and Husband are fit and
proper parents for custody, with an emphasis that the three
year old son and his seven year old sister are extremely
close. Next the court found that both Wife and Husband have
a very close relationship with the three year old son and
that the Husband has a close relationship with the seven
year old daughter of Wife. The court concluded that it was
in the best interests of the three year old son that the
Wife and Husband have "joint custody so that as close a
relationship as possible can be enjoyed by said child with
both parents." We have reviewed the transcript of the
testimony, and find that the evidence sustains the initial
findings of the court, from which the court concluded that
joint custody of the child was appropriate.
As previously noted, Wife and Husband were unable to
agree upon the details of a joint custody arrangement and
the additional hearing was held. In its order of March 4,
1981, the court found that it was in the three year old
son's best interests that one or the other of the parents be
designated as a custodial parent with the other enjoying
visitation rights. Under section 40-4-218, MCA, the custodian
may determine the child's upbringing, including his education,
health care and religious training, subject to control by
the court, so the matter of custodial determination is
quite significant in the present case.
The factors which the court is required to consider in
determining custody are set forth in section 40-4-212, MCA.
The March 4, 1981, order included the District Court's find-
ing that it was in the best interests of the three year old
child that the Husband be given his care, control and custody
with the Wife to have visitation rights. The finding was
in the form of a conclusory statement, unsupported by facts
explaining why Husband rather than Wife should have custody.
The evidence in the transcript would support an award of
custody to either Husband or Wife. The facts upon which the
court made a determination that custody should be awarded to
one parent rather than the other are required under the
holding of this Court in Bartmess v. Bartmess (1981), 631
P.2d 299, 300, 38 St.Rep. 1097, 1098, in which the Court
stated:
". . . the court's findings on the award of
custody contained only the child's name and
age and the conclusory statement that it
would be in the child's best interest that
she be placed in the permanent care, custody
-
and control of her mother. The findings on
custody - - record the essential and
did not
determining facts upon which the District
Court rested its conclusion on - custody
- the
issue. Therefore, the District Court's
-
judgment as to custody lacked support.
Marriage of Barron (1978), 177 Mont. 161,
580 P.2d 936." (Underscoring added.)
When the findings of December 18, 1980, are considered with
the findings of March 4, 1981, not only is there an absence
of a finding of the facts upon which the court determined
that custody should be awarded to Husband, but the facts as
determined by the court tend to support a conclusion to the
contrary because of the emphasis on the closeness of the
relationship between the boy and his sister. The findings
are not sufficient to allow this Court to approve the award
of custody to the Husband.
The next issue questions the failure of the District
Court to follow a legislative policy of custodial continuity.
Wife's counsel contends that section 40-4-219, MCA, is a
basis for the contention that the District Court should not
have modified the prior decree under which Wife was the
custodian. That section is not applicable as we are not
here faced with an attempt by the District Court to modify a
prior custody decree which would be the basis for the application
of section 40-4-219, MCA. While that code section is not
applicable, it is true that the continuity and stability of
the family relationship between the child and custodian is
important. Gilmore v. Boehm (1975), 166 Mont. 47, 530 P.2d
480. We, therefore, request the District Court in its
further consideration of this matter to address its prior
factual determination of the close relationship between the
three year old son and his seven year old sister, as it
relates to the question of custody.
Wife argues that the failure of the District Court to
provide a written copy of the Sally Smith report is reversible
error. Counsel refers to section 40-4-215(3), MCA, which
provides that the court shall mail the investigator's report
to counsel at least ten days prior to the hearing. That
section is not applicable to the present proceedings.
Section 40-4-215(1), MCA, provides:
"(1) In contested custody proceedings . . .
if a parent or the child's custodian so re-
quests, the court may order an investigation
and report concerning custodial arrangements
for the child .. ."
No request was made by either parent for such an investiga-
tion and the court did not order such an investigation. As
previously stated, in its December 18, 1980, order, the
court ordered the parties to meet with Court Services personnel
to assist them in working out the details of the joint
custody arrangements. That is within the power of the court
and does not bring section 40-4-215, MCA, into play. The
record shows that no written report by Sally Smith was
prepared. The District Court also specifically stated that
Sally Smith did not make any recommendation to the court.
Under these facts there is no requirement under section 40-
4-215, MCA, for the preparation and service of the written
report.
In addition, the transcript shows that Sally Smith
talked at least four or five times to Wife as well as to
Husband in addition to a number of telephone calls, and also
met with counsel for both Wife and Husband. Nothing in the
nature of concealment is shown by the record. Finally,
Sally Smith was present at the last hearing on February 20,
1981, and counsel for Wife had an adequate opportunity to
examine or cross-examine Sally Smith. We find a total
absence of any prejudice so far as Wife is concerned.
IV.
The order of March 4, 1981, of the District Court
determining the care, custody and control of the three year
old son is vacated, and the cause is remanded for the preparation
and entry of new findings, conclusions and order of custody,
together with such additional hearing, if any, as the District
Court determines to be necessary.
We Concur: