No. 87-555
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
IN RE THE MARRIAGE OF
ROSEMARY HOUTCHENS,
Petitioner and &ppeil*rrt,
and Re 5?cx1ckr-d-
ROCKY J. HOUTCHENS,
Respondent and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable James B. Wheelis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Noel K. Larrivee; Larrivee Law Offices, Missoula,
Montana
For Respondent:
Martha McClain; Geizler, Taylor, Newcomer & McClain,
Missoula, Montana
Submitted on Briefs: June 22, 1988
Decided: August 18, 1988
Filed:
RUG 1 8 1988'
Clerk
Mr. Justice Fred J.Weber delivered the Opinion of the Court.
In this action for dissolution of the parties' marriage,
the District Court for the Fourth Judicial District, Missoula
County, awarded custody of the minor child to the mother and
ordered the father to pay child support. The father appeals.
We affirm.
The father raises two issues:
1. Did the District Court abuse its discretion in
denying the father's request for joint custody of the child
and awarding sole custody to the mother?
2. Did the District Court abuse its discretion in
setting the amount of child support?
The parties were married in January 1 9 8 1 and separated
in 1 9 8 3 . Their one living child of the marriage has been in
the mother's temporary custody since May 1 9 8 4 . Under the
temporary custody order, the father had visitation for ten
days each month. The child, a boy, is now of school age.
The parties stipulated that he would enroll in school in Deer
Lodge, where the mother lives, pending trial on the issue of
permanent child custody.
At trial, the father argued for joint custody of the
boy. The mother requested sole custody. She presented
testimony that the father had physically abused her during
the marriage. The court awarded custody to the mother, with
visitation to the father on alternate weekends and holidays
and for six weeks each summer. It ordered the father to pay
child support in the amount of $235 per month, except during
his summer visitation, when he was ordered to pay $ 1 4 5 per
month.
Did the District Court abuse its discretion in denying
the father's request for joint custody of the child and
awarding sole custody to the mother?
The father argues that the most logical custodial plan
would be to grant custody of the child to him during the
winter months and to the mother during the summer months,
because of their work schedules. He is a construction worker
and she is a teacher. In the alternative, he proposes joint
custody with primary physical custody in the mother until the
boy is 9 years of age and primary physical custody in himself
for the remainder of the boy's minority. The father also
argues that the District Court abused its discretion in
denying his request for joint custody because of the mother's
claim that he battered her during their marriage. The father
argues that until the 1987 legislature amended S 40-4-224,
MCA, physical abuse of one spouse by the other was not a
factor for consideration in child custody determinations. He
further maintains that prior to that 1987 amendment, allega-
tions of spousal abuse were not sufficient to overcome the
presumption in favor of joint custody.
At the time of trial, the statute establishing the
presumption in favor of joint custody, S 40-4-224, MCA
(1985), read, in relevant part:
(1) Upon application of either parent or both
parents for joint custody, the court shall presume
joint custody is in the best interests of a minor
child unless the court finds, under the factors set
forth in 40-4-212, that joint custody is not in the
best interests of the minor child. If the court
declines to enter an order awarding joint custody,
the court shall state in its decision the reasons
for denial of an award of joint custody. Objection
to joint custody by a parent seeking sole custody
is not a sufficient basis for a finding that joint
custody is not in the best. interests of a child,
nor is a finding that the parents are hostile to
each other.
The lower court made detailed findings, several of
which relate to the continuing effects of the physical abuse
which occurred during the parties' marriage. These include
the following:
42. Petitioner has not been alone with Re-
spondent since October, 1 9 8 3 . She continues to
fear him.
43. Petitioner testified that she and Respon-
dent are unable to communicate about the minor
child. She believes that they are unable to commu-
nicate because Respondent insists on total control
of their relationship and is unable to share
decision-making authority. Further, her fear of
him interferes with her ability to communicate with
him.
44. Respondent denies that he assaulted
Petitioner. Petitioner's testimony concerning the
assaults was credible.
45. Respondent testified that he was not
aware of any problems relating to visitation or
transportation of the child but related several
occasions when he and Petitioner quarreled over
issues relating to the minor child.
4 6 . Myra Deschame was qualified to testify as
an expert in the field of social work and domestic
violence. Ms. Deschame identified the Petitioner
as a battered spouse and testified that batterers
have certain personality traits in common, includ-
ing low self-esteem and an inability to control
their anger.
4 7 . Ms. Deschame testified that children are
at risk living with men who batter, both because of
the likelihood that the child will be battered and
the likelihood that the child will rely on that
person as a role model.
We have reviewed the transcript and conclude that the above
findings are not clearly erroneous. See Rule 52 (a)
In its conclusions, the court stated:
Joint custody of the minor child is not in his
best interest due to the violent behavior manifest-
ed by [Respondent] towards [Petitioner] during the
marriage and the risk posed to the child as a
result of such behavior.
While spousal abuse was not listed as a factor to be
considered in awarding custody under 5 40-4-224, MCA (1985),
the evidence at trial clearly related the history of abuse to
the best interests of the child. Specifically, the evidence
related to 40-4-212(l) and (5), MCA, the wishes of the
child's parents as to his custody and the mental and physical
health of all individuals involved. The father's arguments
do not dispose of these legitimate concerns. Regardless of
the plan of physical custody, joint legal custody would
require a sharing of decision-making and responsibility
between the parents. We hold that there was no abuse of
discretion in the lower court's conclusion that joint custody
is not in the child's best interest.
Did the District Court abuse its discretion in setting
the amount of child support?
The father argues that the record does not support the
award of $235 in child support per month. He asserts that
this amount does not take into account his expenses, his
fluctuating income, or his in-kind contributions to his son's
support.
Our standard of review is whether the district court
abused its discretion. In re Marriage of Tonne (Mont. 19871,
733 P.2d 1280, 1284, 44 St.Rep. 411, 416. Exhibit 2, intro-
duced into evidence by the mother without objection, used
the formula suggested in the Uniform District Court Rule on
Guidelines for Determinating Child Support to calculate the
father's monthly child support obligation at $246. The
mot.herls Exhibit 3 , which was also admitted into evidence
without objection, calculates the father's child support
obligation at $228 per month, based on the formula set forth
by this Court in In re Marriage of Carlson (Mont. 1984), 693
P.2d 496, 41 St.Rep. 2419, rev'd on other grounds after
remand, 714 P.2d 119. The District Court's child support
award is in the range between those two calculations. The
court reduced child support to $145 per month during the two
months which include the father's summer visitation. We
conclude that the court's setting of child support is not an
abuse of discretion.
Affirmed.
We concur:
Justice John C. Sheehy, dissenting:
If we accept in full the findings of fact made by the
District Court, particularly including those relating to
battery, the conclusions and order derived therefrom do not
make sense. Granting the father full visitation custody of
the boy for six weeks during the summer, and on every
alternate major holiday, belies the findings that the chi1.d
would suffer battery himself, or have an improper role model.
It would make more sense, and be cheaper for the
parties, if the father were granted custody of the child
during the winter months when he was not working and the
mother is working, and conversely, that the mother be given
complete custody during the summer months when she is not
working and the father is working. The reversal of their
times of custody to their employment can only complicate the
lives of the boy and his parents. This arrangement could
have been worked out while still maintaining custody in the
mother. It is certainly far better for the interests of the
child that he spend as much time as possible with his
parents, and not with habysitters or in daycare. Therefore I
dissent.
7 7
Mr. Justice William E. Hunt, Sr.:
L
I concur in the foregoing dissent.