No. 91-292
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
IN RE THE MARRIAGE OF
MARCUS ULLAND,
Petitioner and Respondent,
and
JAN M. (ULLAND) GREGSON,
Respondent and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Dorothy McCarter Judge, presiding.
COUNSEL OF RECORD:
For Appellant:
John L. Hollow, Helena, Montana
For Respondent:
David N. Hull, Helena, Montana
Submitted on Briefs: September 24, 1991
Decided: December 30, 1991
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.
Jan (Ulland) Gregson appeals the order of the First Judicial
District Court, Lewis and Clark County, Montana, which modifies the
custody provision of a dissolution decree awarding the parties
joint custody of their daughter with physical custody retained by
the mother. While retaining the designation of joint custody, the
District Court’s modification transferred physical custody of the
child from the mother, Jan, to the father, Marcus. We affirm.
The parties present the following issues:
1. Did the District Court err in modifying the primary
physical custody of the minor child, Rian?
2. Did the District Court err in failing to follow the
child’s wishes concerning physical custody and primary residence?
3. Did the District Court err in failing to appoint
independent counsel to represent the child’s interests?
To appreciate the circumstances of this appeal, an overview of
the litigation involving this marriage dissolution is appropriate
at this point. Marcus and Jan Ulland were married on May 21, 1977.
They had one child, Rian Marie, born May 8, 1978. The couple
separated in September of 1979; the First Judicial District Court
entered a decree of dissolution on May 14, 1980. By stipulation of
the parties adopted in full by the court, the decree awarded the
parties joint custody of Rian naming Jan as the physical custodian
and awarding Marcus reasonable visitation. Further, the parties
stipulated that if either parent decided to permanently leave
Montana, the leaving party would give the other party fifteen days
2
prior written notice. In the event Jan wished to move from Montana
with Rian, the parties agreed to set up reasonable visitation to
allow Marcus an opportunity to participate in Rian’s upbringing.
On May 14, 1980, the day the District Court entered the
decree, Jan gave Marcus the requisite fifteen days written notice
that she and Rian were leaving Montana. Approximately three weeks
later, Jan and Rian left Montana and Jan remarried.
Upon receiving Jan’s notice, Marcus petitioned the court to
modify the visitation provisions in the original decree. The
District Court concluded that Jan’s intention to move from Montana
was a change in circumstances justifying alteration of the original
decree. Accordingly, the court set forth a specific visitation
schedule including unlimited reasonable visitation whenever Marcus
was in the geographic area of the child.
On August 23, 1985, Marcus petitioned the court a second time
to modify visitation claiming a change in circumstances. Marcus
based this petition on Jan’s constant moving with Rian to different
locations without keeping Marcus apprised of his daughter’s
whereabouts and phone number, thus making it difficult for him to
keep in contact with Rian. When Marcus received no response to his
August 23, 1985, petition, he filed a third petition to modify his
visitation.
The parties entered into a stipulation, filed with the court
November 6, 1985, resolving Marcus’ outstanding motions. They
agreed that a change in circumstances supported a change in
visitation. The stipulation provided a specific visitation
schedule and that the minor child would be known by her legal name
3
(Ulland) and she would be enrolled in school under her legal name.
The District Court gave this stipulation full force and effect.
On February 17, 1989, Marcus filed his fourth motion to modify
the custody provisions. Marcus asked the court to change primary
physical custody from Jan to him. Alternatively, Marcus asked the
court to order physical custody to alternate yearly between Marcus
and Jan or to set specific dates for visitation. Marcus based this
motion on his claim of Jan's continual interference with his
visitation rights.
The District Court held a hearing on May 18, 1989, concerning
Marcus' February 17, 1989, motion to modify custody. Both parties
were represented by counsel. The court verbally admonished Jan for
her past interference with Marcus' visitation. The court rejected
a change in primary physical custody at that time and awarded Jan
another opportunity to comply with court orders and prior
stipulations while retaining primary physical custody of Rian. The
court ordered Jan to refrain from interfering and to encourage Rian
to develop a relationship with Marcus. As a result of this
hearing, the court entered an interim order setting forth specific
dates that Rian would visit Marcus, including four weeks during the
summer in 1989 and the 1989 Christmas holiday. The court awarded
Marcus physical custody of Rian for Christmas break and spring
break on an alternating yearly basis beginning with Christmas of
1989. Additionally, the court awarded Marcus physical custody of
Rian for six weeks during the summers, beginning with the summer of
1990. The court stressed the importance of Jan's compliance with
this order. The court warned her that if she failed to comply it
4
would hold her in contempt and punish her to emphasize the severity
of her continual non-compliance.
Pursuant to the court's interim order, Rian spent four weeks
in the summer of 1989 with Marcus and his new wife. During this
visitation, Jan frequently contacted Rian via telephone calls and
letters. Jan and her husband refused to address letters to Rian by
her legal name, violating the court order and the parties' November
6, 1985, stipulation which provided that Rian would be known by her
legal name.
Following the May 1989 hearing, the parties entered into
another stipulation attempting to resolve the parties' difficulties
and vitiating the need for the court to issue a final order. This
stipulation, adopting the court's requirements concerning
visitation periods, was signed by the parties on December 5, 1989,
and filed with the court on December 12, 1989. Additionally, the
stipulation required that Marcus give Jan thirty days notice when
he intended to exercise his visitation rights.
Prior to filing this stipulation, Marcus notified Jan that he
intended to exercise his visitation rights for Rian's Christmas
break. Jan refused to allow Marcus to exercise his Christmas
visitation rights, as provided by the court and the December 12,
1989 stipulation, because he failed to give her thirty days notice.
Since the court awarded Marcus visitation for Christmas of 1989,
but not 1990, and Jan refused visitation in 1989, Marcus tried to
arrange his visitation to allow Rian to remain with Jan for
Christmas of 1989, but spend Christmas of 1990 with Marcus in
Washington. This agreement was reduced to writing but unexecuted
5
by Jan. It was not until January 31, 1990, that Jan's attorney
notified Marcus' attorney that Jan refused to trade Christmas of
1989 for Christmas of 1990. Needless to say, Marcus lost his court
ordered Christmas of 1989 visitation.
Pursuant to the December 12, 1989, stipulation, Marcus
notified Jan of his intent to exercise his visitation rights for
spring break of 1990. He sent advance purchased airline tickets to
fly Rian from Helena to Washington. Jan refused to allow Rian to
fly alone. Consequently, Marcus and Jan each drove to Spokane to
exchange Rian, thus reducing Rian's visit with Marcus by two of
seven days.
In May of 1990, Marcus notified Jan of his intent to exercise
his six week summer visitation. Jan notified Marcus that she was
filing a petition to modify visitation because Rian did not want to
spend the summer with Marcus. A hearing was scheduled in May but
was vacated until August. After the hearing was delayed, Jan
withdrew Rian from school one week early and moved to California
for the summer without notifying Marcus of the change of address,
violating the parties' December 12, 1989, stipulation.
Marcus responded to Jan's petition by requesting a change in
physical custody. After hearings conducted on both motions on
August 14, 1990, and September 20, 1990, the District Court granted
Marcus' motion, immediately transferring physical custody of Rian
from Jan to Marcus. The District Court denied Jan's motion to
reconsider. Jan appeals.
As noted from the record and as set forth above, this case has
a long and unsettling history. From the day the court entered the
6
final decree of dissolution, Marcus has had to continually fight
for contact with Rian. The record is replete with numerous
instances when Marcus attempted to exercise his visitation rights
only to be thwarted by Jan's actions.
While Jan retained physical custody of Rian, Marcus traveled
to and from Jan's home to visit Rian. On numerous occasions,
Marcus notified Jan that he would be in the area to visit Rian.
Jan would not object to visitation. When he arrived, he was either
greeted with resistance or he was not greeted at all. Initially,
either Jan and Rian would not be home or Jan would resist
visitation. Ultimately, when Marcus located Rian, Jan interfered
with visitation by not allowing it or restricting it.
As noted above, in addition to having reasonable visitation
when Marcus was in the geographic area, the court awarded Marcus
visitation for extended periods of time during certain holidays and
the summer. To obtain physical custody of Rian for these extended
visits required extensive travel. Since Jan refused to allow Rian
to fly alone, alternate transportation had to be arranged.
The parties have been before the district court on at least
five separate occasions regarding visitation and physical custody
of Rian. Each time, Marcus maintained that Jan interfered in his
visitation with Rian thereby precluding development of a meaningful
father/dauqhter relationship. Marcus acknowledges that Rian was
unwilling to spend time with him, attributing Rian's reluctance to
Jan's constant interference. Each time the parties were before the
court, the court attempted to structure visitation to facilitate a
relationship between Marcus and Rian.
7
I.
Did the District Court err in modifying the primary physical
custody of the minor child, Rian?
Marcus and Jan originally stipulated to and were awarded joint
custody of Rian. Joint custody is presumed to be in the best
interest of the child, 5 40-4-224 (1), MCA, and is awarded to assure
frequent and continual contact of the minor child with both
parents. In re Marriage of Bergner (1986), 222 Mont. 305, 307, 722
P.2d 1141, 1143. Physical custody should be arranged as equally as
practical between the parents to comply with the express purpose of
an award of joint custody, with the child's best interest as the
primary consideration. Section 40-4-224(2), MCA.
Modification of physical custody within a joint custody
arrangement is proper when the change is in the best interest of
the child. In re Marriage of Mitchell (Mont. 1991), 809 P.2d 582,
584, 48 St.Rep. 353, 354; citing In re Marriage of Keil (1990), 246
Mont. 344, 347, 805 P.2d 1334, 1336. A request to change the
physical custodian of the child requires an application of 9 40-4-
224(2), MCA, which states in part:
"[Jloint custody" 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: ....
The District Court must consider the factors set forth in
§ 40-4-212, MCA, when determining whether the modification of
8
physical custody is in the child's best interest. In re Marriage
of Stephenson (1988), 230 Mont. 439, 445, 750 P.2d 1073, 1077. The
court is under no obligation to consider the more stringent factors
set forth in 5 40-4-219, MCA, when faced with an action for
modification of physical custody rather than an action for
termination of joint custody. Marriaqe of Keil, 246 Mont. at 347,
805 P.2d at 1336.
In determining the child's best interest, the district court
must consider the following relevant factors:
(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 interrelationship 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
(9)chemical dependency, as defined in 53-24-103, or
chemical abuse on the part of either parent.
Section 40-4-212, MCA.
Jan contends that the District Court erred because it failed
to make specific findings concerning all of the best interest
factors listed in § 40-4-212, MCA. We disagree. All that the
statute requires is that the court consider the factors listed.
The court is not required to make specific findings concerning each
element of § 40-4-212, MCA, but must "express the 'essential and
9
determining' facts upon which its conclusions rest." Marriaae of
Mitchell, 809 P.2d at 584-85, 48 St.Rep. at 354; citing Cameron v.
Cameron (1982), 197 Mont. 226, 230-31, 641 P.2d 1057, 1060.
Examination of the record before us reveals that the District
Court considered the relevant factors. First, it is undisputed
that the court was well aware that both parents desired physical
custody of Rian. Second, after interviewing Rian in chambers to
determine her wishes concerning physical custody, the court
ascertained and entered findings pertaining to Rian's unwillingness
to spend time with Marcus. Third, the court made specific findings
concerning the interaction and interrelationship between Rian and
the Gregsons and Rian and the Ullands. In its Findings of Fact,
Conclusions of Law and Order, the court noted:
31. Jan, Glenn Gregson, and Rian have a close, loving
family relationship. ...
32. Marcus and his wife, Dawn Ulland, have a loving
relationship with Rian, and they get along well together.
Fourth, the court considered Rian's adjustment to her new home with
Marcus finding that Rian would show resistance to the change but
concluded that Rian's best interests would be fostered if Rian and
Marcus obtained professional counseling to help Rian adjust.
Neither party presented evidence and the District Court did
not make any findings concerning the last three factors listed in
5 40-4-212, MCA. As such, these factors are not relevant and the
District Court did not err in failing to consider them.
This Court will not overturn the district court's findings
unless they are clearly erroneous. Rule 52(a), M.R.Civ.P. In
custody modification cases, it is particularly important for this
10
Court to defer to the district court which personally evaluated the
testimony. In re Marriage of Anderson (1989), 240 Mont. 316, 320,
783 P.2d 1372, 1374-1375. The testimony presented by the parties
is diametrically opposed. However, resolving conflicts in
testimony is the trier of fact’s function. Marriase of Mitchell,
809 P.2d at 584, 48 St.Rep. at 354. The District Court listened to
the testimony, reviewed the exhibits, and was persuaded by the
evidence presented on behalf of Marcus. We will not substitute our
judgment for that of the district court unless the appellant shows
an abuse of the district court’s discretion. Marriase of Mitchell,
809 P.2d at 584, 48 St.Rep. at 354.
The District Court’s findings reveal that the court based its
decision on Rian’s best interest. The findings support the court’s
consideration of Rian’s best interest concluding that it was in
Rian’s best interest to change physical custody to enable Rian and
Marcus to form a meaningful relationship. Accordingly, we hold
that the District Court did not err in modifying custody by
transferring physical custody of Rian from Jan to Marcus.
11.
Did the District Court err in failing to follow the child’s
wishes as to her physical custody and primary residence?
As previously stated, the court was statutorily mandated to
consider Rian’s wishes when determining her best interest. Section
40-4-212, MCA. However, the court’s decision after considering the
child‘s wishes is within the court’s discretion.
Considering the court‘s conversation with Rian, it is clear
that the court did not err in failing to follow her wishes. The
11
trial judge is singularly equipped to assess a young child's
ability to formulate and articulate her custody wishes and weigh
that preference in light of the other evidence and factors
enumerated in 5 40-4-212, MCA. In re Marriage of Merriman (Mont.
1991), 807 P.2d 1351, 1354, 48 St.Rep. 275, 276. A child's
expressed wishes are not determinative of best interest. Marriaae
of Merriman, 807 P.2d at 1354, 48 St.Rep. at 276.
The District Court and all parties agree that Rian would
rather live with Jan: Rian clearly expressed to the court her
strong desire to live with Marcus. In spite of Rian's wishes
to remain with Jan, the District Court concluded that Rian's best
interests required the opportunity to have meaningful relationships
with both Jan and Marcus. Rian has been given the opportunity to
develop such a relationship with Jan. She has been deprived of the
opportunity to develop such a relationship with Marcus due to Jan's
continued interference and Jan's fostering and nurturing of the
father/daughter relationship between Rian and her step-father,
which has frustrated any chance for a relationship between Rian and
Marcus. Due to Rian's age, the court found that this would be the
last opportunity for Rian and Marcus to develop a strong and
lasting father/daughter relationship. Further, if Rian remained
with Jan, her contact with Marcus would only diminish and a healthy
father/daughter relationship would never develop.
A review of the record reveals that the District Court
considered Rian's wishes along with the other best interest factors
of 5 40-4-212, MCA, and weighed them accordingly. We hold that the
District Court did not err in modifying physical custody of Rian
12
despite Rian's expressed preference to remain with Jan.
111.
Did the District Court err in failing to appoint independent
counsel to represent Rian's interests?
Section 40-4-205, MCA, states "[tlhe court may appoint an
attorney to represent the interests of a minor dependent child with
respect to his support, custody, and visitation. .. .'I (Emphasis
added.) Neither party moved the District Court for independent
counsel to represent Rian's interests at the August 14, 1990, or
the September 20, 1990, hearings. This Court will not consider an
issue for the first time on appeal which the parties failed to
raise at the district court. Marriaqe of Merriman, 807 P.2d at
1354, 48 St.Rep. at 276.
Based on the foregoing discussion, we affirm the decision of
the District Court.
We concur:
Chief Justice
13
Justice Terry N. Trieweiler dissenting.
I dissent from the opinion of the majority.
The majority opinion is based almost exclusively on the
testimony of Marcus Ulland (the father) and representations made in
affidavits filed by his attorney.
There was other evidence in the record from the testimony of
Jan Gregson (the mother), several counselors, and Rian Ulland
herself which provide a different explanation for the deterioration
of relations among these three people.
Rian Ulland has lived with her mother for the first 12 years
of her life. She was a part of the family unit formed by her
mother and her stepfather for ten years immediately preceding the
District Court's decision which transferred custody to her father.
Rian had spent most of her formative years in Helena, and
enrolled in the Helena school system in kindergarten. By all
accounts, she had an active, successful, and happy life. She was
involved in her church youth group, taught swimming lessons at the
YMCA, had a role in the Middle School play immediately before the
District Court's decision, and had planned to be in the play for
the next semester. At the time of the District Court hearing, she
was about to try out for the swim team; she was a member of the
seventh grade basketball team, and she had successfully tried out
for a singing group at the Middle School known as "Celebrations."
In her interview with the District Judge, Rian explained that
it was she who requested that her mother ask the court to modify
the visitation provisions in her parents' divorce decree so that
14
she would not have to spend so much time with her father. She
pointed out that she loved her mother and stepfather very much and
enjoyed living and spending time with them, but did not feel that
her father had ever made much of an effort to get to know her. She
stated that her favorite activities, other than her athletic
interests in softball, swimming, and basketball, were spending time
with her friends, family, and maternal grandparents.
By all accounts, the family unit formed by the mother,
stepfather, and Rian was an extremely close, loving, and nurturing
family.
James Farrell is a counselor who specializes in working with
children and evaluating dysfunctional families. He evaluated Rian
prior to the most recent hearings held in the District Court. From
that evaluation he concluded the she was pleasant, had an
appropriate demeanor, was brighter than average, and assertive. He
reported that her living situation with her mother was a positive
one, and found no evidence that her mother had interfered with her
ability to form a positive relationship with her father.
The only counselors, in addition to James Farrell, who
provided opinions in this case were Jane S. Fisher, Ph.D., who
evaluated Rian subsequent to the court's decree, and Marcia K.
Wall, Rian's counselor at Helena Middle School.
Ms. Fisher concluded that Rian had an extremely close and
bonded relationship with her mother, butthat she was uncomfortable
with and did not trust her father. She concluded that the
responsibility for Rian's lack of a relationship with her father
15
was his. Following the District Court's decision, Rian was unable
to sleep, unable to eat, confused, frightened, and depressed.
Ms. Wall described Rian as a wonderful girl who was mature
beyond her years and academically very successful. During the
semester prior to the District Court's decision transferring
custody to her father, she had nearly an "A" average in school. It
was Ms. Wall's opinion that it was in Rian's best interest that she
be left in the custody of her mother and stepfather.
There was substantial evidence that Rian's estrangement from
her father was not primarily related to the recent disputes between
her mother and father regarding exercise of her father's visitation
rights.
There was evidence that during the first seven years of her
life, Rian's father made very little effort to communicate with
her, and that even in the most recent years prior to the District
Court's hearing, his efforts were sporadic and inconsistent. There
was substantial evidence that her father's unpredictable efforts to
spend time with her were a disruption to her very active life.
Many of the conflicts which arose between her mother and father
over visitation resulted from efforts by her mother to protect her
life from repeated disruption.
I provide this background information to point out that there
was more than one version of the events which led to the District
Court hearing to modify custody. However, even if one accepts the
version of events reported by the father, as did the District Court
and the majority, it appears to me that the result of the District
16
Court's decision is simply to punish Rian's mother for her lack of
cooperation, rather than provide for Rian's best interest.
In Fossv. Lever (1976), 170 Mont. 97, 550 P.2d 1309, we stated
that:
[Slection 48-339, R.C.M. 1947 [now 5 40-4-219, MCA],
... clearly provides district courts may not exercise
discretionary power to modify a prior custody decree
unless two basic elements are shown to exist: 1) new
facts or facts unknown to the court at the time the
initial decree was entered demonstrate that a change has
occurred in the circumstances of the child or those of
his custodian; and 2) this change is sufficient to
warrant a modification in order to promote the particular
child's best interests. This basic standard was applied
in this jurisdiction long before the enactment of the new
law, and a determination of which law would be applicable
under the facts presented would have no bearing on the
result. Jewett v. Jewett, 73 Mont. 591, 237 P. 702; Trudgen v.
Trudgen, 135 Mont. 174, 329 P.2d 225; Simon v. Simon, 154
Mont. 193, 461 P.2d 851.
....
It is elemental that the phrase "change in
circumstances" is a term of art which must not be
considered in a vacuum. No change in circumstances,
regardless of its substantiality, is legally sufficient
to support a modification order altering custody unless
the best interests and general welfare of the child will
be promoted. Altmaier v. Altmaier, 135 Mont. 404, 340 P.2d
829; Haynes v. Fillizer, 106 Mont. 59, 75 P.2d 8 0 2 . In all
cases, the lodestar of the district court in exercise of
its discretion is the welfare and best interests of the
child, and not the parent. Grantv. Grant, 166 Mont. 229,
531 P.2d 1007, 32 St.Rep. 191; In re Adoption of Biery, 164
Mont. 353, 522 P.2d 1377; Turkv. Turk, 164 Mont. 35, 518
P.2d 804.
Foss, 550 P.2d at 1311.
While the District Court's findings of fact make frequent
reference to the father's lack of relationship with his daughter
and the mother's role in adversely affecting that relationship,
17
there is absolutely no explanation of how the daughter's best
interest will be served by uprooting her from the only family she
has ever known and taking her from the primary community in which
she has lived and where she has prospered to send her to live with
a family that she dislikes in unfamiliar surroundings over 500
miles away.
Furthermore, the District Court made practically no findings
regarding those statutory factors which must be considered in
deciding what is in a child's best interest. Section 40-4-212,
MCA, provides in relevant part that:
(1) The court shall determine custody in accordance with
the best interest of the child. The court shall consider
all relevant factors, including but not limited to:
(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 interrelationship 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
( ) chemical dependency, as defined in 53-24-103,
9
or chemical abuse on the part of either parent.
The last of these two factors were not relevant in this case.
However, all of the first five factors, had they been considered,
compel a conclusion that the District Court abused its discretion
by transferring custody from the mother to the father. Although
the wishes of the child's parents were divided, it was the child's
specific request that she be allowed to remain in the only family
18
unit that she had ever known. At the age of 12, her preference
should have been given significant consideration.
The interaction of Rian with her family, her community, and
her maternal grandparents strongly favored allowing her to continue
living with her mother in Montana. The undisputed evidence was
that she was extremely well adjusted to her home, school, and
community, and that her mental and physical health were
exceptional.
Not only did the statutory factors strongly favor continued
custody with her mother, butthe District Court failed to consider
all but one of these factors in its findings of fact. In
considering Rian's interaction and interrelationship with her
parents, the District Court found:
31. Jan, Glenn Gregson, and Rian have a close,
loving family relationship. Rian is active in school and
extracurricular activities, including church, YMCA,
theater, sunday school, and swimming.
32. Marcus and his wife, Dawn Ulland have a loving
relationship with Rian, and they get along well together.
The District Court made no findings regarding any specific
element which would support a change of custody to Rian's father.
In the past, we have refused to affirm findings that were
deficient in this respect. In In re the Mam'age of Keatirig (1984), 2 1 2
Mont. 462, 689 P.2d 249, we held that:
An award of custody shall be determined in
accordance with the best interest of the child. In
determining custody in accordance with the best interest
of the child, the District Court is statutorily required
to consider all relevant factors including:
19
"(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 or 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." Section 40-4-212, MCA.
....
"The District Court need not make specific findings
on each of the elements. Speerv. Speer (Mont. 1982) ,
[201 Mont. 418,] 654 P.2d 1001, 1003, 39 St.Rep.
2204, 2206. However, the 'essential and
determining facts upon which the District Court
rested its conclusion' must be expressed. Cameroll v.
Cameron (1982), 197 Mont. 226, 231, 641 P.2d 1057,
1060.11 Hardy v. Hans (Mont. 1984), [212 Mont. 25,]
685 P.2d 372, 374, 41 St.Rep. 1566, 1569.
....
Hardy is distinguishable from this case in that here
there are no findings or other indications by the court
that it considered each of the factors set forth in
Section 40-4-212, MCA. Absent an indication that the
trial court considered all of the statutorily mandated
factors, the award of custody cannot be upheld.
Keatiiig, 689 P.2d at 251-52.
I would reverse the judgment of the District Court for several
reasons. First of all, there is no indication that the District
Court considered all of the statutorily mandated factors set forth
in 5 40-4-212, MCA, in modifying the award of Rian's custody.
Second, if the court had considered all of the statutorily
mandated factors, it would have been a clear abuse of its
discretion to change custody from Jan to Marcus. This decision did
20
not further Rian's best interest in any way. It uprooted her,
against her own wishes and the advice of every counselor she had
ever seen, from her community, her family, and all other reliable
relationships she had grown to depend on. By every factor which
the court was required to consider, it was in Rian's best interest
to continue in the environment and the family in which she had
prospered. The District Court's order was clearly to punish Rian's
mother and reward her father. However, there is very little, if
any, discussion about Rian's interests in this case.
Under these circumstances, it is difficult to conclude that
Rian's best interest was the District Court's primary
consideration. For that reason, I would reverse the judgment of
the District Court.
21
December 30, 1991
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
JOHN L. HOLLOW
Attorney at Law
44 West 6th Ave.
Helena, MT 59601
DAVID N. HULL
Attorney at Law
P.O. Box 534
Helena, MT 59624
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA