No. 86-590
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
IN RE THE MARRIAGE OF
ROSEANNE BLOOM-HIGHAM,
Petitioner and Respondent,
THOMAS MICHAEL HIGHAM,
Respondent and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Carbon,
Honorable G. Todd Baugh, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Roseanne Bloom-Higham, Pro Se.
For Respondent:
Thomas Micheal Higham, Pro Se.
Submitted on Briefs: April 3, 1987
Decided: June 17, 1987
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
Appellant brings this appeal pro se from a preliminary
decree of dissolution of the District Court of the Thirteenth
Judicial District in and for Carbon County, Montana, denying
him custody of his son. We remand.
Respondent Roseanne Bloom-Higham filed for dissolution
of marriage in November 1984. She and appellant, Thomas
Higham, are parents of a boy, then age six, and a girl, then
age four. Thomas had custody of a son from a previous
marriage. Roseanne petitioned for sole custody of both
children of her marriage to Thomas. Thomas resisted her
motion for custody of their son. The District Court ordered
the court's domestic relations department to make a custody
investigation. Subsequent to the order, Thomas filed an
amended answer stating he did not oppose Roseanne's demand
for custody of both children, although he did not believe
"such custody of the children is the best solution for them
per se ... [and he] is willing and much desires to care for
the children in part or in whole, at anytime." The children
were at that time spending equal time with both parents.
A hearing on the dissolution was held May 8, 1985, at
which Roseanne was represented by counsel and Thomas appeared
pro se. The hearing was bifurcated, the dissolution was
granted awarding custody of both children to Roseanne, with
reasonable visitation granted Thomas. The parties and
Roseanne's attorney were instructed to attempt to work out a
property settlement and the amount of child support payments.
A preliminary decree of dissolution was filed June 10, but
Thomas did not receive a copy.
Roseanne's counsel apparently notified Thomas by
telephone in July that the court desired an "in-chambers"
meeting the following day. Thomas attended the meeting and
claims it was at that meeting he first learned that the
preliminary decree of dissolution granted custody of both
children to Roseanne. On advice of the District Judge, he
immediately obtained counsel who moved the court to set aside
the custody portion of the preliminary decree of dissolution.
A hearing was held in August to set aside the custody
portion of the preliminary decree and to set temporary child
support. The court ordered Thomas to pay temporary child
support of $100 per month per child to Roseanne. In February
1986, the court denied Thomas' motion to set aside the
custody decree. His motion to reconsider, filed pro se, was
denied. An appeal to this Court filed pro se April 22, 1986,
was dismissed as being premature, because the property
settlement had not yet been agreed to and no final order had
been entered. All issues were settled in September 1986.
This appeal was filed pro se on the issue of custody.
"In child custody matters the primary factor to be
considered is the best interest of the child. Section
40-4-212, MCA, Malcomb v. Malcomb (1982), Mont. 640 P.2d 450,
39 St.Rep. 262." Meyer v. Meyer (Mont. 1982), 663 P.2d 328,
330, 40 St.Rep. 753, 755.
The relevant factors to be considered as set forth in
5 40-4-212, MCA, include:
(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
interrelationship of the child with his
parent, parents, his siblings, and any
other person who may significantly affect
the child's best interest;
(4) the child's adjustment to his home,
school, and community; and
(5) the mental and physical health of
all individuals involved.
While the District Court is not required to make
specific findings on each of the five elements in the
statute, the "essential and determining facts upon which the
District Court rested its conclusion" must be expressed.
[Citing cases.] In Re Marriage of Keating (Mont. 1984), 689
P.2d 249, 251-252, 41 St.Rep. 1865, 1868. In the preliminary
decree of dissolution in the instant case, the District Court
found " [tlhat it is in the best interests of the minor
children of the parties to be placed in the care, custody and.
control of the petitioner, with reasonable visitation granted
to the respondent." The District Court then concluded
" [t]hat the care, custody and control of the minor children
of the parties should be with the petitioner, with reasonable
visitation to the respondent." The preliminary decree of
dissolution lacks the "essential and determining facts" on
which custody was based.
When custody is contested, at the request of a parent
the court may order an investigation and report concerning
custodial arrangements for the child. Section 40-4-215, MCA.
The statute also mandates the District Court to mail the
report to counsel and any party not represented by counsel at
least ten days prior to the hearing. Roseanne made such a
request and the court ordered an investigation. There is no
evidence in the record, however, that a report was received
by the court, or that it was mailed to counsel, or that the
court considered the report before issuing its preliminary
decree. No testimony relative to the investigation was
received at any hearing.
Not only did the trial court fail to send
copies of the report, but no hearing was
held to permit testimony on the
issues.. . If the trial court found it
appropriate to order the custody
investigation, it abused its discretion
by not considering the report in the
process of reaching its final custody
decision.
In Re Marriage of Ziegler (Mont. 1985), 696 P.2d 983, 986, 42
St.Rep. 298, 300-301. It is clear the court in the case at
bar similarly abused its discretion.
We are reluctant to overturn the District Court in
custody matters and will do so only when we find a clear
abuse of discretion. Rule 52 (a) M.R.Civ.P. In this case we
find such abuse. Therefore we vacate the order as to
custody, and remand the case to the District Court for
appropriate action.
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Justic,