No. 91-037
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
IN RE THE MARRIAGE OF
SHERYL ANN REININGHAUS,
Petitioner and Respondent,
and
HAROLD E. REININGHAUS,
Respondent and Appellant
APPEAL FROM: District Court of the ~hirteenthJudicial District,
In and for the County of Yellowstone,
The Honorable G. Todd Baugh, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Harold E. Reininghaus, Pro Se, Billings, Montana
For Respondent:
W. Corbin Howard, Billings, Montana
Submitted on Briefs: July 11, 1991
Decided: September 24, 1991
Filed:
r
Clerk
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Appellant Harold E. Reininghaus appeals the findings and
decree of dissolution of marriage from the Thirteenth Judicial
District Court, Yellowstone County, granting sole custody to
petitioner Sheryl Ann Reininghaus, and granting appellant
reasonable visitation rights.
We affirm.
Appellant appears pro se and raises three issues:
1. Did the District Court err in granting petitioner sole
custody of the children?
2. Did the District Court err in granting appellant
reasonable visitation rights?
3. Did the District Court err in dividing the net worth of
the parties?
Petitioner and appellant were married on August 12, 1972, in
Glendive. Two sets of twins were born to the couple. Their ages
are 4 and 7. Since the birth of her children, petitioner has
mainly devoted herself to motherhood. Since the couple's
separation, the petitioner has been attending college to become a
teacher.
Throughout the marriage, appellant has been the sole source
of income for the family. He has held 17 jobs in the past 17 years
working as a chef. Appellant was last employed at the Billings
Sheraton Hotel as a chef in 1989. He and his girlfriend have
opened a restaurant. Until the separation, the appellant
essentially remained uninvolved with his children.
Since February 1990, petitioner has not received any child
support. She manages to support herself and the children by
borrowing money from her mother. By obtaining grants and student
loans, she is able to continue her eduction.
The District Court found that appellant was not a credible
witness. For example, he explained to his wife that he was dying
of cancer in order to cover up an affair with his girlfriend. He
has portrayed himself as a Vietnam war hero to his friends, family,
and to Sally Holden, the Court Services evaluator. He claimed his
brother was in medical school.
The case was tried on March 2, 7, and 28, 1990. Appellant
appeared pro se in District Court. On August 2, 1990, post-trial
proceedings were held. On October 3, 1990, the District Court
issued its decree of dissolution of marriage wherein it granted
petitioner sole custody of the children and granted appellant
reasonable visitation rights, dependent upon him having a mental
health evaluation, and discussing with Dr. Bredehoft (psychologist)
and Judy Starr (professional counselor and school psychologist) how
to begin creating a positive, nondestructive relationship with his
children. The appellant appeals pro se from the decree and
findings.
Appellant argues that the evidence fails to support the
granting of sole custody of the children to the petitioner and that
5 5 40-4-223 and -224, MCA, mandate the award of joint custody. We
disagree.
While it is true that the legislature prefers the awarding of
j o i n t custody to the parents, it also grants the D i s t r i c t Court
broad discretion in determining what is in the best interests of
the children. Section 40-4-222, MCA. Sections 40-4-223 and -212,
MCA, establish the basic guidelines for the District Court to
determine what is in the best i n t e r e s t s of the c h i l d r e n . I n order
to decide custody arrangements, the court shall consider, but is
n o t limited t o , the following factors:
(a) [T]he wishes of t h e child's parent o r parents as t o
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
(g) chemical dependency, as defined in 53-24-103, or
chemical abuse on the part of either parent.
Section 40-4-212, MCA.
The District Court must also consider which parent is more
likely to allow the child frequent and continuing contact with the
noncustodial parent and may not render its decision on the basis
of the custodial parent's sex. Section 40-4-223 (b), MCA.
Therefore, the District Court is required to presume that joint
custody is in the best interest of the child unless the factors set
out in 5 40-4-212, MCA, warrant an opposite conclusion. If joint
custody is not awarded, the District Court shall state the reasons
for its decision. In Re Marriage of Jacobson (1987), 228 Mont.
458, 461, 743 P.2d 1025, 1027. It is the best interests of the
children, not the parents, that are of paramount consideration of
this Court. In Re Marriage of Mager (1990), 241 Mont. 7 8 , 81, 7 8 5
In its findings, the District Court specifically addressedthe
issue of joint custody and made several findings.
1. The petitioner is a good mother and her relationship
w i t h her children is normal.
2. Respondent is manipulative and not credible, uses
poor judgment, and lives in a fantasy world.
3. He places his interests above the children's
interest.
4. His work history is unstable.
5. Respondent is sometimes irrational.
6. There is a damaged relationship between the
respondent and at least one child.
7. The professionals involved in the case, Dr.
Bredehoft, a psychologist; Judy Starr, a professional
counselor and school psychologist; Sally Holden, fromthe
Court Services' office recommended that the mother be
granted sole custody of the children.
8. The District Court's observations and conclusions
concur with Dr. Bredehoftl provisional diagnosis that
s
respondent suffers from a narcissistic personality
disorder.
9. Respondent has lied about tobacco and drug use.
The District Court properly considered the factors set out in
fj 40-4-212, MCA. The evidence supports the District Court findings
and we find no abuse of discretion in its conclusions. Absent an
abuse of discretion, we will not overturn the District Court's
conclusions.
Next, the appellant claims that the court did not find that
normal, reasonable visitation would endanger seriously the
children's physical, mental, moral, or emotional health, thereby
not supporting the District Court's order for supervised
visitation. Although 5 40-4-217(1), MCA, requires a showing of
endangerment, we will not so narrowly interpret the statute so that
the court is unable to design visitation that reflects the child's
best interests. State ex rel. Sorenson v. Roske (1987), 229 Mont.
151, 156-57, 745 P.2d 365, 369. To determine what constitutes
reasonable visitation depends on the best interests of the
children. Jacobson, 743 P.2d at 1028. We note in this case that
contrary to the recommendation of Dr. Bredehoft, Judy Starr, and
Sally Holden, the court did not order supervised visitation.
Instead, the court ordered that visitation be reasonable and placed
the burden upon the petitioner to determine what is in the best
interests of the children. The District Court has wide latitude
when determining visitation because it is in the unique position
of observing the demeanor of the parties and hearing the testimony.
Jacobson, 743 P.2d at 1028.
In addition to what has been stated previously, there is ample
evidence to support the District Court's conclusion of reasonable
visitation. The children have not bonded well with their father.
The father had so crammed previous visitation days with activities,
that the children came home hyperactive, exhausted, and
overwrought. He has placed the children in the middle of the
marital conflict and he has continuously misled his children
throughout this episode. The court concluded that these actions
were not in the best interests of the children and we agree.
Appellant attached a letter written by a guidance counselor
to his reply brief to refute the other expertst recommendations.
We will. not consider material outside the record that was not
introduced at trial. Cruikshank v. Cruikshank (1986), 222 Mont.
152, 154, 720 P.2d 1191, 1193. We hold that the visitation
provisions are reasonable and proper.
Finally, appellant claims that the marital property was not
divided equally. This Court will not disturb a District Court's
division of property unless there has been a clear abuse of
discretion. In Re Marriage of Banard (1990), 241 Mont. 147, 151,
785 P . 2 d 1387, 1390. It appears appellant is asking that a 1981
car, student loans, loans from petitioner's mother, and proceeds
from a life insurance not be included in the division of property.
We note that the car was an asset granted to appellant. The
student loans and loans from petitioner's mother were properly
allocated to the petitioner. Proceeds from the life insurance were
not included in the division of property, but instead were ordered
to go toward back child support, which appellant has failed to do.
We hold there was no abuse of discretion by the District Court.
Af finned.
We concur:
September 24, 1991
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Harold E. Reininghaus
1442 Prickley Pear Dr.
Billings, MT 59105
W. Corbin Howard
Attorney at Law
P.O. Box 7177
Billings, MT 59103-7177
ED SMITH
C L E R W F T H E SUPREME COURT