No. 84-93
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
IN RE THE MARRIAGE OF
SHARON A. HICKEY,
Petitioner and Respondent,
and
ROBERT H. HICKEY,
Respondent and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable J. M. Salansky, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Terry A. Wallace, Missoula, Montana
For Respondent :
Warden, Christiansen, Johnson & Berg; Stephen C.
Berg, Kalispell, Montana
Submitted on Briefs: July 19, 1984
Decided: October 18, 1984
Filed: O@T : * I984
Clerk
Mr. .Justice John Conway Harrison delivered the Opinion of
the Court.
Robert Hickey, appeals from an order of the District
Court of the Eleventh Judicial District, Flathead County, in
favor of his former wife, Sharon A. Hickey, granting custody
of the minor children to respondent with reasonable rights
of visitation remaining with the appellant, under the
supervision of the Director of Family Court Services.
The parties were married on March 3, 1962. Five
children were born of the marriage, two of whom were minors
at the time of the trial, namely Kimberly Ann, born April
15, 1969 and Marie Ann, born July 7, 1976. On August 25,
1982, the wife petitioned for divorce. Sharon filed a
motion for temporary custody of the three minor children,
temporary child support, separate maintenance and a
restraining order preventing Robert from contact with her
except as necessary in exercise of child visitation rights.
On September 17, 1982, the District Court heard the motion.
The parties were awarded joint custody of Kimberly Ann and
Tracy Lynn, who were granted their preferences as to their
residences. Kimberly Ann resided with Robert from the date
of the order September 21, 1983 until March, 1983. She then
elected to change her residence to that of Sharon. Sharon
was awarded temporary custody of the youngest child.
Temporary child support and maintenance were ordered. The
restaining order was granted. On September 29, 1983, the
District Court issued its findings of fact and conclusions
of law and final decree of dissolution. Robert was ordered
to pay the sum of $110 per month for the support of each
minor child. He was also ordered to pay respondent
maintenance i n t h e sum of $100 p e r month. The c o u r t , upon
the advice and recommendation of the Director of Family
Cour t S e r v i c e s of t h e E l e v e n t h J u d i c i a l D i s t r i c t , ruled t h a t
the best i n t e r e s t of the p a r t i e s ' two m i n o r c h i l d r e n would
be s e r v e d by a n award of c u s t o d y t o S h a r o n w i t h r e a s o n a b l e
r i g h t s of v i s i t a t i o n t o R o b e r t u n d e r t h e s u p e r v i s i o n o f t h e
D i r e c t o r of Family C o u r t S e r v i c e s . S h a r o n was awarded t h e
r i g h t t o o c c u p y t h e f a m i l y home.
On May 5, 1983, Sharon filed a motion in District
Court to c i t e Robert for contempt for his f a i l u r e t o pay
$160 in delinquent child support. A t the time of the
hearing, R o b e r t was employed by Plum C r e e k Lumber Company,
e a r n i n g a p p r o x i m a t e l y $9.60 per hour w i t h an a n n u a l s a l a r y
o f $15,000 p e r y e a r . S h a r o n a l s o moved f o r a n o r d e r b a r r i n g
R o b e r t f r o m t h e f a m i l y borne and p r e v e n t i n g him f r o m b e a r i n g
firearms. On t h e same d a y , Robert f i l e d a motion t o a l t e r
o r amend t h e c o u r t ' s f i n a l d e c r e e b a s e d upon t h e amount o f
child support, child visitation and t h e p o s s e s s i o n of the
f a m i l y home. The c o u r t found t h a t R o b e r t had t h e a b i l i t y t o
pay the maintenance and child support amounts and that
R o b e r t ' s w i l l f u l d e l i n q u e n c y c o n s t i t u t e d a c o n t e m p t of the
court. H e was s e n t e n c e d t o serve ten days i n t h e Flathead
County J a i l . The c o u r t f u r t h e r o r d e r e d t h a t n e i t h e r p a r t y
s h a l l bear or use firearms, k n i v e s o r o t h e r weapons i n t h e
p r e s e n c e of t h e o t h e r p a r t y and n e i t h e r have t h i r d p a r t i e s
a s s i s t them u s e s u c h weapons. A p p e l l a n t was r e s t r a i n e d f r o m
e n t e r i n g t h e home of t h e p a r t i e s e x c e p t a t times and d a t e s
mutually agreed t o .
It is from t h e f i n a l judgment and c o n s o l i d a t e d o r d e r
o f t h e D i s t r i c t C o u r t which t h e h u s b a n d a p p e a l s .
The i s s u e s r a i s e d on a p p e a l a r e a s f o l l o w s :
(1) Whether t h e D i s t r i c t Court abused its d i s c r e t i o n
i n a w a r d i n g c u s t o d y of t h e minor c h i l d r e n t o r e s p o n d e n t w i t h
reasonable rights of visitation remaining with appellant,
under the supervision of the Director of Family Court
Services.
(2) Whether the District Court erred by awarding
respondent the exclusive right to occupy the family
residence.
( 3 ) Whether t h e D i s t r i c t C o u r t b a s e d t h e f i n a l d e c r e e
upon m a r i t a l m i s c o n d u c t .
I t h a s been t h e p o l i c y of t h i s Court to not disturb
t h e f i n d i n g s and c o n c l u s i o n s of t h e D i s t r i c t Court i f they
a r e s u p p o r t e d by s u b s t a n t i a l , c r e d i b l e e v i d e n c e . Sarsfield
v. Sarsfield (Mont. 1 9 8 3 ) , 6 7 1 P.2d 595, 40 S t . R e p . 1736;
Sawyer-Adecor Intern., I n c . v . A n g l i n (Mont. 1 9 8 2 ) , 646 P.2d
Appellant's first issue for review goes to the
a d e q u a c y of t h e D i s t r i c t C o u r t ' s f i n d i n g s c o n c e r n i n g s e c t i o n
40-4-212, MCA which sets forth the relevant factors the
c o u r t s h a l l use t o determine custody i n accordance w i t h t h e
b e s t i n t e r e s t of t h e c h i l d . S e c t i o n 40-4-212, MCA p r o v i d e s :
". . . The c o u r t s h a l l c o n s i d e r
relevant factors including:
all
" ( 1 ) t h e w i s h e s of t h e c h i l d ' s p a r e n t o r
parents a s t o h i s custody;
" ( 2 ) t h e wishes of the child as to his
custodian;
" ( 3 ) t h e i n t e r a c t i o n of t h e c h i l d with
h i s p a r e n t o r p a r e n t s , h i s s i b l i n g s , and
any o t h e r p e r s o n who may s i g n i f i c a n t l y
affect the child's best interest;
"(4) t h e c h i l d ' s a d j u s t m e n t t o h i s home,
s c h o o l and community; and
" ( 5 ) t h e m e n t a l and p h y s i c a l health of
a l l i n d i v i d u a l s involved."
A p p e l l a n t c o n t e n d s t h e r e w e r e no f i n d i n g s r e g a r d i n g any of
these factors. Nor w e r e f i n d i n g s made r e g a r d i n g t h e w i s h e s
of t h e c h i l d r e n a s t o c u s t o d y a s r e q u i r e d by I n Re M a r r i a g e
of Kramer ( 1 9 7 8 ) , 177 Mont. 6 1 , 580 P.2d 439.
W disagree.
e The h o l d i n g i n Kramer i s l i m i t e d o n l y t o
those situations where t h e D i s t r i c t Court has interviewed
t h e c h i l d r e n who a r e t h e s u b j e c t s of t h e custody dispute.
Neither of t h e two c h i l d r e n were interviewed in t h i s case.
Nor was t h e D i s t r i c t Court compelled to i n t e r v i e w them by
s e c t i o n 40-4-214, MCA, which provides in part, "the court
may i n t e r v i e w t h e c h i l d i n c h a m b e r s t o a s c e r t a i n t h e c h i l d ' s
w i s h e s a s t o h i s c u s t o d i a n and a s t o v i s i t a t i o n .. . I' We
f i n d t h e p r e f e r e n c e s of t h e c h i l d r e n were c o n s i d e r e d . The
y o u n g e s t c h i l d , M a r i e , r e f u s e d t o see h e r f a t h e r b e c a u s e s h e
was aware of his violence and e x p r e s s e d much fear. The
older daughter, Kim, terminated the joint custody
a r r a n g e m e n t upon h e r own v o l i t i o n and c h o s e t o r e s i d e w i t h
her mother. The t r i a l c o u r t a p p o i n t e d an a t t o r n e y f o r t h e
minor c h i l d r e n . The attorney actively participated in the
hearings. We believe the children's interests were
adequatedly represented. The c o u r t went t o g r e a t l e n g t h s t o
justify the visitation rights of appellant under the
s u p e r v i s i o n of the Director of Family Court S e r v i c e s . The
court made extensive findings of appellant's current
bitterness towards respondent and held that the best
interest of the two minor children would be s e r v e d by a n
award o f t h e i r c u s t o d y t o r e s p o n d e n t w i t h r e a s o n a b l e r i g h t s
of s u p e r v i s e d v i s i t a t i o n r e m a i n i n g w i t h a p p e l l a n t .
Appellant submits t h a t t h e D i s t r i c t Court improperly
limited his visitation without s finding that reasonable
visitation would seriously endanger the physical, mental,
moral or emotional health of the children. In support of
his contention, appellant cites this Court to Firman v.
Firman (1980), 187 Mont. 465, 610 P.2d 178. In Firman, the
District Court restricted the noncustodial father's right to
visitation from three months to one month each summer. We
reversed the District Court, holding that "no specific
finding or conclusion was made that the existing arrangement
seriously endangered the children's health." The statute in
question as well as Firman, refer to the situation where the
amount of visitation time is reduced. In the instant case,
appellant's visitation time has not been reduced, it is
merely to be exercised under the guidance and supervision of
Family Court Services.
A central factor in the District Court's decision to
permit visitation only under supervision, was that appellant
possessed hostility and bitterness toward the marriage.
Substantial, credible evidence suggested a potentially
serious situation existed with respect to appellant's
association with respondent and the parties1 ability to
arrange visitation. The District Court specifically found
in its findings of fact and conclusions of law that:
"During the period of separation,
respondent [husband] has attended a
series of counseling sessions as an aid
in controlling aggressive tendencies
which he has displayed during the period
of separation. Various incidents
involved respondent tearing out a
telephone, throwing a beer keg, loading
and brandishing a revolver, and
assaulting a deputy sheriff. BY
observing respondent's demeanor at
various court hearings, the court feels
that some of this hostility remains. .I1 .
The record supports a modification of the custody decree.
The husband's violent behavior interferes with an open-ended
visitation arrangement and seriously endangers the physical,
mental and emotional health of the children.
We will not interpret section 40-4-217, MCA, so
narrowly as to prevent the trial court from overseeing the
visitation arrangements between the parties who exhibit
emotions of aggression, anger and violence. The parties'
welfare and the moral, physical and emotional well-being of
the two minor children must remain the primary consideration
of the court. We hold the District Court did not abuse its
discretion by awarding custody to respondent with reasonable
rights of visitation remaining with appellant under the
supervision of the Director of Family Court Services.
Appellant next challenges the District Court's
determination of respondent's right to exclusively occupy
the family residence. Appellant contends the District Court
made no findings regarding the parties' financial needs, nor
findings regarding respondent's contribution to the marital
estate. We disagree.
In entering the decree in this case, the District
Court made detailed findings of each parties' financial
status. The court carefully weighed the parties'
expenditures and past arrearages versus their projected
income. The findings of fact and conclusions of law clearly
reveal the District Court's consideration of section
40-4-202, MCA:
"The parties had been married for 21
years . . .During the marriage the
wife's primary obligation concerned the
care and development of the parties' five
children. The wife was unemployed during
this period and developed no marketable
employment s k i l l s . . . The h u s b a n d i s
e m p l o y e d b y Plum C r e e k Lumber Company f o r
t h e p a s t 11 y e a r s , e a r n s a p p r o x i m a t e l y
$9.70 p e r hour. . . t h e husband h a s
m e d i c a l , d e n t a l and o p t i c a l i n s u r a n c e . .
. The h u s b a n d ' s o p p o r t u n i t y f o r f u t u r e
a c q u i s i t i o n o f c a p i t a l a s s e t s was g r e a t e r
than the wife's. .. "
Contrary t o appellant's contention, the D i s t r i c t Court
did f o l l o w t h e p o l i c y e s t a b l i s h e d by t h i s C o u r t i n V e r t v.
Vert (Mont. 1980), 613 P.2d 1020, 37 St.Rep. 1282. As
stated in Vert, the trial c o u r t may n o t s i m p l y r e c i t e t h e
factors listed in the statute, but rather, the t r i a l court
must a p p l y t h e s e f a c t o r s t o t h e evidence p r e s e n t e d . W find
e
the trial court's apportionment of the property to be
equitable.
The f i n a l i s s u e a p p e l l a n t r a i s e s f o r r e v i e w i s w h e t h e r
the District Court based the final decree upon marital
misconduct. Appellant lists several instances which he
believes illustrates the trial court judge's intent to
punish appellant for perceived marital misconduct.
Appellant contends that the District Court's order which
required him to pay child support was an abuse of
d i s c r e t i o n and t h a t r e s p o n d e n t h a d n o l e g a l r i g h t t o r e c e i v e
child support because s h e was currently receiving Aid to
F a m i l i e s w i t h Dependent C h i l d r e n (ADC) Funds. However, w h a t
a p p e l l a n t f a i l s t o r e c o g n i z e is t h a t h e , as the father of
lnis children, and not the S t a t e of Montana, has a legal
o b l i g a t i o n t o s u p p o r t them. S e c t i o n 40-5-221, MCA, p r o v i d e s
in part, ". . . a n y p a y m e n t o f p u b l i c a s s i s t a n c e money made
to or for the benefit of any dependant child or children
c r e a t e s a d e b t d u e and o w i n g t o t h e S t a t e o f Montana b y t h e
responsible parent or parents in an amount equal to the
amount of public assistance money so paid. . ." Also
section 53-4-248, MCA. This Court has long recognized the
moral obligation of parents, particularly fathers, to
support their children. Woolverton v. Woolverton (1976),
169 Mont. 490, 549 P.2d 458; State ex.re1. Lay v. District
Court (1948), 122 Mont. 61, 198 P.2d 761; Refer v. Refer
(1936), 102 Mont. 121, 56 P.2d 750. In Fitzgerald v.
Fitzgerald (Mont. 1980), 618 P.2d 867, 37 St.Rep. 1350, this
Court noted:
"Respondent (husband) fails to take into
account the well-settled principle that
the law imposes upon civilized men--the
duty to provide food and shelter
arrangements for his own. It is one of
the conditions upon which Adam was
bounced out of the garden, and it has
Seen the law ever since. Courts have an
inherent jurisdiction to protect infants.
They are wards of the government, and the
courts are to protect their bread and
butter. When doing so, they do not take
their clue from Elijah and the ravens,
but draw it from the earnings of the
father. . . " 618 P.2d at 868, 37 St.
Rep. at 1352.
We therefore hold, it is the legal as well as moral
duty of appellant to support his minor children. Appellant
is not absolved from this duty by public assistance provided
to his children by a state agency.
Appellant's failure to pay the court-ordered child
support resulted in a citation for contempt of court. The
District Court in its contempt order stated: "There has been
an overabundance of hostility in this case and in spite of
advice and recommendations from the Court the parties
continue a course of conduct that is highly aggressive,
somewhat defiant and uncooperative. . ." We find such
conduct on appellant's behalf an abuse of the District
Court's dignity. Such defiance in a court of law will not
be tolerated. The remaining instances wherein appellant
alleges the District Court sought to punish him for
perceived m a r t i a l m i s c o n d u c t m u s t l i k e w i s e be d i s p o s e d o f .
We find no abuse of judicial discretion in the court's
d e t e r m i n a t i o n of child s u p p o r t and m a i n t e n a n c e award. We
a f f i r m t h e District C o u r t ' s judgment.
W e concur:
Chief J u s t i c \.
P;
- A b