No. 84-357
IN THE SUPAPEI'4.E COURT O F THE S T A T E O F MONTANA
1985
IN E THE CUSTODY O F
C.C., K.C., and B.C.
APPEAL FROM: D i s t r i c t C o u r t of t h e N i n e 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 L i n c o l n ,
T h e H o n o r a b l e R o b e r t H o l t e r , Judge p r e s i d i n g .
COUNSEL O F RECORD:
For Appellant:
Susan L o e h n , E u r e k a , Montana
For Respondent :
D a v i d W. Harman, Libby, Montana
S u b m i t t e d on B r i e f s : Nov. 2, 1984
Decided: February 4 , 1985
Filed:
Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion 01 the
Court.
This is an appeal from an order of the District Court
of the Nineteenth Judicial District, Lincoln County, Montana,
the Honorable Robert M. Holter, presiding. Petitioner ap-
peals both the denial of a motion to continue and the award
of custody of the three minor children to respondent.
Appellant (petitioner below) was not present at the
non-jury trial held on June 7, 1984. The court denied her
attorney's motion for a continuance because of her absence
and subsequently qranted custody to respondent on June 19,
1984. On July 13, 1984, appellant filed a notice of appeal
and later filed several motions. The motion to stay judgment
was denied, the motion for relief from judgment was dismissed
for lack of jurisdiction, and the motion to proceed without
pre-payment of costs was qranted. We affirm in part and
reverse in part.
D.W.C. (respondent), currently twenty-seven years old,
and N.M.V.A. (appellant), currently twenty years old, were
married on February 14, 1980, in Eureka, Montana and made
Eureka their h0m.e during marriage. C.C. was born on April
16, 1979. According to an affidavit by appellant and testi-
mony by both respondent and his mother, respondent was not
the natural father of C.C. However, respondent was listed as
the father on the birth certificate at appellant's request
and appellant and respondent were living together at the time
of C.C.'s birth. C.C. was never adopted by respondent. K.C.
and B.C., twins, were born during the marriage of the
parties.
The parties separated early in 1984 when appellant
moved the three children with her to a new residence in
Eureka. The petition for dissolution of the marriage, filed
March 8, 1984 by appellant, alleged all three children were
issue of the marriage and asked that custody be awarded to
appellant. The response and counter-petition also alleged
all three children were issue of the marriage and asked that
custody be awarded to respondent.
The trial date of June 7, 1984 was set by the court on
April 26, 1984. Both parties were informed of that date.
Appellant left Montana, taking the children with her, about
two and one-half weeks before the trial and did not return
to appear at the trial.. Affidavits by appellant filed in
July of 1984, stated that the reason for her failure to
appezr was her lack of funds to travel and that she wanted to
appear to present her case.
At trial, A.M.C., one of the grandparents, testified
regarding the living conditions of the children during the
marriage. They lived in poverty and filth. They had sores
when they were in diapers and were not changed an a regular
basis. They wore dirty clothes and slept in dirty beds. The
grandparents purchased a lot and constructed a home to afford
the grandchildren adequate shelter and purchased substantial-
ly all their clothing. The grandparents also took the chil-
dren into their home for visits and would bathe and feed
them.
Respondent is unemployed and a slow learner. He has
graduated from high school and is seeking employment. In
Eureka, the children would live in the house constructed by
the grandparents and be cared for by respondent, the grand-
parents or a babv-sitter, and their situation would be moni-
tored by the appropriate county agency.
Appel-lant's residence was somewhere in the state of
Washington at the time of the court's order with her exact
location and plans for the children unlcnown.
G.A.C. and A.M.C. petitioned for visitation rights as
grandparents and were allowed to intervene by stipulation of
the parties. They were awarded visitation rights of one
weekend per month and two weeks during the summer. The
visitation rights of the grandparents are not an issue in
this appeal.
The two main issues presented for appeal are:
(1) Was it prejudicial error by the District Court to
deny appellant's motion for a continuance?
(2) Was the District Court's award of custody proper?
As to the first issue, section 25-4-501, MCA provides
that a motion to postpone a trial because of absence of
evidence shall be made only upon an affidavit showing materi-
ality of the expected evidence and that due diligence has
been used to procure it. Here, appellant's counsel did not
submit an affidavit to the District Court. In view of the
mandatory language of the statute the District Court did not
err in denying the motion. State v. Harvey (1979), 184 Mont.
423, 603 P.2d 661 and State v. Pascgo (1977), 173 Mont. 121,
566 P.2d 802.
Section 25-4-503, MCA, states that the court may use
its discretion in granting a postponement if on grounds other
than absence of evidence and upon a showing of good cause and
in the furtherance of justice. There is no indication of
other grounds for a postponement and no indication there
would have been good cause if there had been other grounds.
Appellant was aware of the trial date and the purpose of the
trial and indicated no good reason for her voluntary a-bsence.
We therefore hold that the trial court did not err in denying
appellant's motion for a continuance.
The second issue begins with a determination of whether
or not respondent is a parent of C.C. under section 40-6-1.05,
MCA, for the purpose of determining custody.
Section 40-6-105 (1), MCA states there is a presumption
of paternity under a number of circumstances, one of which
occurs when the man and the mother are married after the
child's birth and the man, with his consent, is named as the
child's father on the birth certificat-e. That is exactly
what occurred in the present case. However, section
40-6-105(2), MCA states that this is a rebuttable presump-
tion. Both parties have acknowledged under oath that respon-
dent is not C.C.'s natural father. His name appeared on the
birth certificate because the parties mistakenly assumed this
would constitute an adoption. This is sufficiently clear and
convincing evidence to rebut the presumption of paternity.
Therefore respondent may be granted custody of C.C. only as a
non-parent.
A parent may not be deprived of custody unless there
has been a finding of unfitness, abuse or neglect. Korol v.
Korol (Mont. 1980), 613 P.2d 1016 at 1019, 37 St.Rep. 1215 at
1218, citing Matter of Doney (1977), 174 Mont. 282, 570 ~ . 2 d
575. Here the trial court's findings indicate appellant's
unfitness and inability to care for minor children. In In re
the Marriage of Concepcion (Mont. 1984), 687 P.2d 718 at 720,
41 St.Rep. 1675, at 1677, we stated:
"Under Rule 52 (a), M.R.Civ.P., findings
of fa.ct shall not be set aside unless
clearly erroneous. This Court's standard
of review was stated in Jensen - Jensen
v.
(Mont. 1981), 629 P.2d 765, 768, 38
St.Rep. 927, 930 and recently cited with
approval in - - - Marriage - Beitz
In re the of
(Mont. 1984), 683 P.2d 485, 41 St. Rep.
1247, 1249:
"'This Court will not substitute its
judgment for that of the trier of fact.
We will consider only whether substantial
credible evidence supports the findings
and. conclusions. Findings will not be
overturned unless there is a clear pre-
ponderance of evidence against them,
recognizing that evidence may be weak or
conflicting, yet still support the
findings. ' "
Appellant did not indicate, nor could we locate any finding
of fact not supported by the record. Thus the findings will
not be overturned and respondent, even though he is a
non-parent, may be considered as a potential custodian for
C.C.
Custody is determined in accordance with the best
interests of the child. As stated in section 40-4-212, MCA:
"The court shall consider - relevant
all
factors including:
" (1) the wishes of the child's parent or
parents as to his custody;
" (2) the wishes of the child as to his
custodian;
"(3) the interaction and interrelatian-
ship of the child with his parent or
parents, his siblings, and any other
person who may significantly affect the
child's best interest;
" (4) the child's adjustment to his hone,
school, and community; and
" (5) the mental and physical health of
all individuals involved." (Emphasis
added. )
"Prior decisions of this Court have established that district
courts must consider the wishes of the children regarding
custody and ma.ke findings as to their wishes or why they were
not followed." (Emphasis added.) In re the ~arriage of
Murphy (Mont. 1983), 666 P . 2 d 755 at 757, 40 St.Rep. 1188 at
1190, citing Milanovich v. Milanovich (Mont. 1982), 655 P.2d
961, 39 Sl~.~ep.1554; Kaasa v. Kaasa (1979), 181 Mont. 18,
591 P.2d 1110; and In re Marriage of Kramer (1978), 177 Mont.
61, 580 P.2d 439. While the award of custody is obviously
within the District Court's discretion, it has no discretion
to not consider the criteria in the statute. Markegard v.
Markegard (1980), 616 P.2d 323, 37 St.Rep. 1539 and Tomaskie
v. Tomaskie (Mont. 1981), 625 P.2d 536, 38 St.Rep. 416. The
District Court here did not make any findings regarding the
wishes of the children and the effect of those wishes because
there was no evidence on this point. We have recognized that
the wishes of four-year olds (the approximate age of the
twins, C.C. was five at the time of trial) may have little
weight. Murphy, 666 P.2d at 757. Even though a new trial
may not change the result, we remand in order to include
evidence regarding the children's wishes and for a custody
determination in accordance with section 40-4-212, MCA.
Affirmed in part and reversed and remanded for proceed-
ings consistent with this opinion.
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