NO. 89-411
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
IN RE THE MARRIAGE OF
CAROL ARBUCKLE ,
Petitioner and Respondent,
and
MERRILL ARBUCKLE,
Respondent and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Joseph Gary, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
1 --
Linda McNeil, Attorney at Law, Bozeman, Montana
( -
E, %or Respondent:
i Edmund P. ~edivy,Jr., Morrow, Sedivy & Bennett,
. - Bozeman, Montana
Submitted on Briefs: May 3 , 1990
Decided: June 7, 1990
it
Justice John Conway Harrison delivered the Opinion of the Court.
This case presents the father's appeal from a decision of the
Eighteenth Judicial ~istrict, Gallatin County, Montana, on the
father's motions for Modification of Child Support, Child
Visitation and Child Custody for the parties1 two minor daughters.
We affirm.
Appellant raises the following issues for review:
I. Did the District Court exercise proper discretion by
awarding custody of the minor child, Judi, to the mother?
11. Should the court consider the wishes of the children
regarding custody?
111. If the District Court elects to interview the minor
children involved in a custody dispute, must the court release the
transcript of the interview and make findings as to the wishes of
the children?
IV. Did the ~istrictCourt properly award attorney's fees
to the mother?
V. Did the District Court order the proper amount of child
support?
Prior to this decision, the parties had been before the
District Court frequently for over two years on various issues
arising out of the parties1 marriage dissolution. We will set
forth only those motions which directly affect this appeal.
On July 30, 1987, the District Court granted sole custody of
the parties1 three minor children, Terri, 17, Heidi, 12, and Judi,
8, to the mother. The District Court also ordered the father to
pay child support at $250/month per child while there were three
minor children and set support at $300/month per child when there
were two minor children. Pursuant to the father's motion, the
District Court amended its decision and granted the parties joint
custody of the minor children giving the mother primary physical
custody.
In early 1988, the father remarried. When Terri turned 18 she
moved in with her father and step-mother. In May of 1988, the
father filed a motion for Modification of Child Support, Child
Visitation and Child Custody to give him sole custody of Judi. He
amended that motion in June of 1988 to seek joint custody of Judi,
then age 9, and Heidi, then age 14, but granting primary physical
custody to him. The bases for the modification were that Judi
expressed a preference to live with him and that Heidi had moved
into his home and refused to return to her mother's home.
Prior to the December 1, 1988 hearing on the father's motion,
Dr. John Platt, by agreement of the parties, conducted a
psychological investigation of the family and submitted a report
to the District Court. The District Court interviewed the two
minor children in chambers. At the hearing the District Court
heard testimony from Dr. Platt, both parties, the father's wife,
a teacher at Judils school in Bozeman and three people who had
known the parties for many years.
Between the time Dr. Platt conducted his investigation and the
hearing, the mother had moved with Judi from the family home
several miles outside of Three Forks, Montana, into Bozeman.
On May 23, 1989, the District Court entered its Findings of
Fact and Conclusions of Law. The District Court continued joint
legal custody of the two minor daughters, but gave the father
primary physical custody of Heidi and the mother primary physical
custody of Judi. The father was also ordered to pay $300/month
child support for Judi for ten and one-half months of the year.
For the one and one-half months in summer when both daughters would
be with their mother, the court ordered the father to pay
$400/month for the full month and $350/month for the divided month.
Further, the District Court ordered the father to pay $1,000 of the
mother's attorney's fees. This appeal followed.
I.
Did the District Court exercise proper discretion by awarding
custody of the minor child, Judi, to the mother?
In pertinent part, § 40-4-219, MCA, provides:
) The court may in its discretion modify a
,ior custody decree if it finds, upon the
sis of facts that have arisen since the
prior decree or that were unknown to the court
at the time of entry of the prior decree, that
a change has occurred in the circumstances of
the child or his custodian and that the
modification is necessary to serve the best
interest of the child and if it further finds
that:
(a) the custodian agrees to the modification;
(b) the child has been integrated into the
family of the petitioner with consent of the
custodian;
(c) the child's present environment endangers
seriously his physical, mental, moral, or
emotional health and the harm likely to be
caused by a change of environment is
outweighed by its advantages to him;
(d) the child is 14 years of age or older and
desires the modification;
...
The District Court found that the father had not met the above
statutory requirements in Judils case. When reviewing a district
court's findings, this Court [w]ill not reverse a District Court 's
findings unless they are clearly erroneous. In re Marriage of
Johnson (Mont. 1989), 777 P.2d 305, 307, 46 St.Rep. 1164, 1167.
Appellant's main grounds for contesting the District Court's
findings come from Dr. Plattls testimony that both Judi and Heidi
should live with their father and that living with her mother would
seriously endanger Judi. However, the District Court was not
required to adopt Dr. Plattlsopinion. Upon review of the hearing
transcript, we note that the District Judge and counsel questioned
Dr. Platt extensively about how he had arrived at his opinion. The
record also discloses that at the time of the hearing Dr. Platt had
no current knowledge of how Judi was adjusting to the move to
Bozeman. However, the mother presented credible evidence that Judi
was well adjusted, was participating in activities outside of
school and was doing well academically. Further, evidence was
presented that the mother had always been a loving and caring
parent.
At most Dr. Plattls testimony creates conflicting evidence.
When the record contains conflicting evidence, I1[i]t is the
function of the District Court to resolve such conflicts. (Citation
omitted.)'' In re Marriage of Penning (Mont. 1989), 776 P.2d 1214,
1216, 46 St.Rep. 1103, 1105. Based on substantial credible
evidence, the District Court resolved the conflict in the mother's
favor. We hold that the District Court's Findings that the father
had not met the modification of custody criteria set forth in 9 40-
4-219, MCA, concerning the custody of Judi are not clearly
erroneous.
11.
Should the court consider the wishes of the children regarding
custody?
This issue has no merit. The District Court's Memorandum that
accompanies its Findings of Facts and Conclusions of Law clearly
demonstrates that it had considered both Heidi's and Judilswishes.
Regarding Judi, the District Court stated that it felt she had been
unduly influenced to express a preference to live with her father.
We note that Dr. Plattls report also stated that he felt that
Judils sisters, Heidi and Teri, had been influencing her to want
to live with her father. We reject appellant's contention.
111.
If the District Court.elects to interview the minor children
involved in a custody dispute, must the court release the
transcript of the interview and make findings as to the wishes of
the children?
Appellant argues that the District Court abused its discretion
by not releasing the transcript of its interview with Judi and
Heidi and by not making specific findings concerning the children's
wishes. Section 40-4-214, MCA, provides:
Interviews. (1) the court may interview the
child in chambers to ascertain the child's
wishes as to his custodian and as to
visitation . . . The court shall cause a
record of the interview to be made and to be
part of the record of the case . ..
(Emphasis added.)
We have discussed the purpose of 5 40-4-214, MCA, as follows:
[olnce such discretion is exercised the
statute ''mandates that a record of the
interview be made and that such record be part
of the case record. . . . Further, we have
held that a District Court must make a
specific finding stating the wishes of the
children as to their custodian . .
. Without
the record of the interview and without
specific findings as to the wishes of the
children, counsel and this Court do not know
with any degree of certainty the basis for the
District Court's conclusions on custody
matters. (Emphasis added; citations omitted.)
In re Marriage of Brown (1978), 179 Mont. 417, 425-26, 587 P.2d
361, 366, quoting Schiele v. Sager (1977), 174 Mont. 533, 538, 571
P.2d 1142, 1145. In this,case, our holding on Issue I1 renders
this issue moot. The record indicates that Heidi and Judilswishes
were known to all parties prior to the hearing. Further, the
District Court clearly set forth its reasons for awarding physical
custody of Heidi to the father and leaving physical custody of Judi
with the mother.
IV.
Did the District Court properly award attorney's fees to the
mother?
Appellant argues that the District Court erred in ordering the
father to pay $1,000 of the mother's attorney's fees. Section 40-
4-219 (4), MCA, provides:
(4) Attorney fees and costs shall be assessed
against a party seeking modification if the
court finds that the modification action is
vexatious and constitutes harassment.
This action was for a modification of custody, therefore, according
to appellant, no attorney's fees should have been assessed.
The record does not support appellant's contention that the
District Court awarded the attorney's fees pursuant to the
modification action. As mentioned, prior to the December 1, 1988
hearing, both parties had been before the District Court several
times on various issues. On September 19, 1988, the District Court
heard testimony on the mother's request for attorney's fees that
were necessitated by the father's actions. The District Court also
received an affidavit from the mother's attorney showing fees in
excess of $1,800. The record discloses that the attorney's fees
issue had yet to be decided and was still before the District Court
at the time of the December 1, 1988 hearing. The record also
discloses that other issues besides modification of custody were
heard during the December hearing but were not decided by the
District Court because the parties settled prior to the District
Court's decision.
Findings Nos. 12 and 13 from the court's May 23, 1989 Findings
8
of Fact, Conclusions of Law and Memorandum state:
12. That in the past, this Court has found
that the . . .[father] continually brought
these actions before the Court, found the . .
. [father] to be in contempt, and contemplated
assessing attorney's fees against the . . .
[father].
13. That the . . . [mother] has put into
evidence attorney's fees in excess of ONE
THOUSAND SEVEN HUNDRED DOLLARS ($1,700.00) and
the Court hereby apportions ONE THOUSAND
DOLLARS ($1,000.00) of that to be attributable
to the actions of the ... [father] and finds
h[e] is liable for ONE THOUSAND DOLLAR[S]
($1,000.00) attorney's fees on behalf of . .
. [mother's] attorney.
Clearly, the District Court awarded attorney's fees because of past
actions, and not because of the modification action. Section 40-
MCA , grants the District Court the authority award
attorney's fees. We hold that the District Court did not abuse its
discretion in awarding attorney's fees to the mother.
Did the District Court order the proper amount child
support?
Essentially, appellant argues that the District Court abused
its discretion in ordering him to pay $300/month child support for
Judi and in not requiring the mother to pay child support for
Heidi. We disagree.
The District Court s Findings of Fact specifically discuss the
parties' abilities to pay and Judi's needs. In the context of this
case, we find that the District Court satisfied the requirements
of 5 40-4-204, MCA, which details what a court must consider in
setting child support and we find that the ind dings are not clearly
erroneous. We hold that the District Court did not abuse its
discretion by ordering the father to pay $300/month child support
for Judi.
~f f irmed.