NO. 89-587
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
IN RE THE MARRIAGE OF
SALLA MARIE KEIL,
f/k/a SALLA MARIE FERGUSON,
Petitioner and Appellant,
RICHARD A. FERGUSON,
Respondent and Respondent.
APPEAL FROM: District Court of the Fifteenth Judicial District,
In and for the County of Roosevelt,
The Honorable M. James Sorte, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Robert G. Olson; Frisbee, Moore, Stufft & Olson, Cut
Bank, Montana
For Respondent:
Laura Christofferson; Gallagher, Archambeault &
Knierim, Wolf Point, Montana
Submitted on Briefs: October 19, 1 9 9 0
N6V2 0 1998 Decided: November 20, 1990
Justice John Conway ~arrisondelivered the Opinion of the Court.
Salla Marie Keil appeals from an August 22, 1989, order of the
District Court of the Fifteenth Judicial District, County of
Roosevelt, denying her motion to modify the joint custody of her
three children with her former husband, Richard A. Ferguson. Keil
also appeals the order of the District Court modifying the original
dissolution decree with respect to child support payments. We
affirm.
The parties present the following issues:
1. Did the District Court abuse its discretion by refusing
to modify the joint custody arrangement of the dissolution decree?
2. Did the District Court abuse its discretion by ordering
the parties to pay child support "for each full month1' that the
children are in the other parent's custody?
The marriage of Salla Marie Keil and Richard A. Ferguson was
dissolved on June 17, 1986. The parties were granted joint custody
of their three children, now ages 14, 8, and 6. Ferguson was
awarded physical custody of the three children. In January 1988,
Ferguson requested that Keil take custody of the children while he
attempted to resolve difficulties between him and his second wife,
whose children were also living with the couple. The Ferguson
children resided in Shelby, Montana, with Keil and her current
husband from that time until the end of the school year. The
children returned to live with Keil during the 1988-89 school year.
Keil wanted the children to continue to live with her for the
1989-90 school year and filed a petition to modify child support
2
and the joint custody arrangement to give her primary physical
custody. Ferguson cross-petitioned for modification of child
support provisions of the dissolution decree. After a hearing held
August 2, 1989, the court ordered that the children remain with
Ferguson pursuant to joint custody provisions of the dissolution
decree. The court modified child support and required Keil to pay
$171 per month "for each full month that the children are in the
custody of the Respondent," as well as ordering Ferguson to pay
$651 per month "for each full month that the children are in the
custody of the Petitioner."
From this order, Keil appeals.
I
Modification of primary custody without termination of ioint
custody.
Keil argues that the District Court erred in applying the
criteria of 5 40-4-219 (I), MCA, which governs termination of joint
custody where custody has been granted to one party. She asserts
that the court's application of the factors of 5 40-4-219 (1), MCA,
in determining whether modification of custody can be allowed,
rather than using the child's "best interesttt
standard as required
by 5 40-4-224, MCA, constitutes reversible error.
We have previously addressed the standard for review of
custody issues in Bier v. Sherrard (Mont. 1981), 623 P.2d 550, 551,
38 St.Rep. 158, 159:
In order to prevail, [the appellant] must show
an abuse of discretion by the judge, must
demonstrate that there is a clear
preponderance of evidence against the
findings, and must overcome the presumption
that the judgment of the trial court is
correct.
This Court will not substitute its judgment for that of the trier
of fact concerning the "delicatettissue of child custody because
the trial court is in the best position to observe witnesses and
determine their credibility and character. In re the Marriage of
Syljuberget (1988), 234 ~ o n t .178, 183, 763 P.2d 323, 326. With
this standard in mind, we review the findings of the court in this
case.
Keil is correct in her statement of which statutory provision
applies to a change of primary physical custody without termination
of joint custody. In resolving whether modification of custody
will be allowed, the court need merely make a "best interest"
determination pursuant to 5 40-4-224(2), MCA, rather than deciding
whether the more stringent requirements of 5 40-4-219 are
satisfied. In re Marriage of Stephenson (1988), 230 Mont. 439,
445, 750 P.2d 1073, 1077. The section governing joint custody and
modification of physical custody arrangements without terminating
the decree of joint custody provides:
[ J]oint custodytt means an order awarding
custody of the minor child to both parents and
providing that the physical custody and
residency of the child shall be allotted
between the parents in such a way as to assure
the child frequent and continuing contact with
both parents. The allotment of time between
the parents must be as equal as possible;
however:
(a) each case shall be determined
according to its own practicalities, with the
best interest of the child as the primary
consideration; and
(b) when allotting time between the
parents, the court shall consider the effect
of the time allotment on the stability and
continuity of the child's education.
Section 40-4-224 (2), MCA (emphasis added). In determining the
child's best interest, the court must consider "all relevant
factorsw pursuant to 5 40-4-212, MCA, including:
(a) the wishes of the child's parent or
parents as to his custody;
(b) the wishes of the child as to his
custodian;
(c) the interaction and interrela-
tionship of the child with his parent or
parents, his siblings, and any other person
who may significantly affect the child's best
interest;
(d) the child's adjustment to his home,
school, and community;
(e) the mental and physical health of
all individuals involved;
(f) physical abuse or threat of physical
abuse by one parent against the other parent
or the child; and
(g) chemical dependency, as defined in
53-24-103, or chemical abuse on the part of
either parent.
~xamination of the court's findings reveals that the court
addressed each of the mandatory factors.
Keil claims that the District Court did not take into account
a ''potentially volatile and dangerous situationw existing in
Fergusonls home, referring to the difficulties which prompted
Ferguson to ask Keil to take the children in 1988. We have
reviewed the record and find no support for this allegation. In
fact, the record reflects quite the opposite; Ferguson appears to
be a stable, responsible parent, interested in his children and
their activities. Both parties testified that the other parent was
an able parent. Keil agreed in her testimony that Ferguson was a
good father who took good care of his children. The children
appear to be well-integrated into the family and into the community
of Wolf Point, Montana. On the other hand, Keil has recently moved
to Thompson Falls, Montana, and the children would need to make
adjustments to new schools and a different community.
One of the goals of the custody provisions of the Uniform
Marriage and Divorce Act as enacted in Montana, is to maximize
finality to assure continuity and stability for the child. Keil
did not overcome the presumption that the judgment of the trial
court is correct. We find that the court did not abuse its
discretion in refusing to modify primary physical custody of the
children.
Moreover, we find mo merit in Keil Is claim that the court's
consideration of 5 40-4-219, MCA, rather than 5 40-4-224, MCA,
constitutes reversible error. Keil cites no authority for this
proposition. More importantly, although the District Court did not
specifically refer to 5 40-4-224, MCA, in its findings, the court
did comply with its provisions by making a determination of the
children's best interest pursuant to 5 40-4-212, MCA. Erroneous
findings of fact that are not necessary to support the judgment of
the trial court are not grounds for reversal. Eaton v. Morse
(1984), 212 Mont. 233, 244, 687 P.2d 1004, 1010. As long as the
District Court correctly complied with the provisions of 5 40-4-
224, MCA, its error in considering 5 40-4-219, MCA, is harmless.
Modification of child support.
Keil claims that the District Court erred in modifying child
support by providing in its order that child support be paid !!for
each full monthu that the children are in the custody of the other
parent. The court's order provides:
That Petitioner is hereby ordered to pay
$57.00 per month per child to the Respondent
as and for the support of the minor children
of the parties for each full month that the
children are in the custody of the Respondent.
That Respondent is hereby ordered to pay
$217.00 per month per child to the Petitioner
as and for the support of the minor children
of the parties for each full month that the
children are in the custody of the Petitioner.
(Emphasis added.)
Keil argues that the "full restriction unworkable and
unsupported by the Uniform Child Support Guidelines. She claims
that under the order, the children could stay with one parent for
29 days, but not receive child support because that would not
constitute a full month. We have examined the Uniform Child
Support ~uidelinesand find that payments are determined llmonthlyll
or Itpermonth. "' See Uniform Child Support Guidelines (1987), 44
'pursuantto 5 40-5-209, MCA, the Montana Department of Social
and Rehabilitation Services has promulgated new Uniform Child
Support Guidelines, effective July 13, 1990, to be published this
fall at 5 46.30.1501 - .1549, ARM. See 1990 Montana Administrative
Register 1337-1366 (Issue No. 13, July 12, 1990).
St.Rep. 828; also see Desk Book published annually by the State Bar
of Montana. No guidelines exist regarding pro rating payments when
a child lives less than a full month with a parent.
The literal interpretation of the court's order given by Keil
is unnecessary. The District Court reviewed the Uniform Child
Support Guidelines and used the Guidelines in its calculation of
support payments. We find that the District Court intended that
normal methods of collection of support according to the Guidelines
be used. The District Court did not abuse its discretion.
The District Court's judgment is affirmed.
'chief Justice