No. 90-541
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
IN RE THE MARRIAGE OF
NANCY J. MITCHELL (GRAVELY),
Joint Petitioner and Appellant,
and
APR 1 6 1991
WIIJIJIIU'I GRAVELY,
S.
Joint Petitioner and Respondent. ATE OF MONTANA
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John M. McCarvel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Michael S. Smartt, Esq., Great Falls, Montana
For Respondent:
Elizabeth A. Best, Esq., Great Falls, Montana
Submitted on Briefs: March 22, 1991
~ecided: April 16, 1991
Filed: "I
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Nancy J. Mitchell appeals from an order modifying child
custody in this dissolution of marriage. The case was tried in the
District Court of the Eighth Judicial District, in and for the
County of Cascade. We affirm.
The issues are:
1. Did the District Court abuse its discretion or otherwise
commit reversible error in modifying the primary physical custody
of the minor child K.L.G.?
2. Did the District Court abuse its discretion or otherwise
commit reversible error in modifying the primary physical custody
of the minor child J.P.E.M.?
3. Did the District Court err in awarding costs and attorney
fees to Gravely?
The marriage of Nancy J. Mitchell and William S. Gravely was
dissolved in September of 1989. The decree of dissolution
established joint custody of the minor children of the parties,
K.L.G. and J.P.E.M., with primary physical custody in Mitchell.
A February 1990 order based upon a stipulation of the parties
clarified Gravely's visitation rights with the children.
In June 1990, a hearing was held on Gravely's motion that he
be granted primary physical custody of the children. Gravely
testified that Mitchell refused to allow him visitation with the
children, that she had been Itprettydrunk1'a number of times when
he had spoken with her on the phone, and that he had heard Mitchell
repeatedly use profane language toward K.L.G. He testified that
K.L.G., then age four, told him she had seen Mitchell and her
fiance Itonthe couch [without clothes] making some weird movement.
He testified that one evening Mitchell had asked him to come to her
home and that when he arrived she was passed out on the living room
floor. He also presented testimony by a Department of Family
Services social worker who had received abuse and neglect referrals
regarding Mitchell's care of the children from J.P.E.M.'s doctor,
from the WIC federal nutrition program, and from J.P.E.M.'s day-
care provider.
Mitchell and her fiance testified in her behalf. Mitchell
made a number of allegations against Gravely. She also testified
that there is a "98 percent1'likelihood that J.P.E.M. , who was born
in December 1989, is the son of her fiance.
Based on the evidence at the hearing, the court ordered that
Gravely immediately be given primary custody of K. L.G. ; that the
Department of Family Services immediately initiate home studies of
both Gravely's and Mitchell's homes; that Gravely's child support
obligation for K.L.G. immediately cease; and thatMitchelllsfiance
and Gravely participate in blood testing to determine the paternity
of J.P.E.M.
In July 1990, the court entered findings and conclusions based
on the June hearing. The court found that Mitchell had willfully
and consistently attempted to frustrate or deny Gravely's exercise
of visitation rights. Further, it found that Mitchell had engaged
in inappropriate behavior with her fiance in front of the minor
children, that she repeatedly and consistently had used abusive
language with the children, that she had made repeated telephone
calls to Gravely at which time she was clearly heavily intoxicated,
and that she had been found lying on the living room floor
unconscious at a time during which she was in full custody of the
children. The court ordered that if it is established that
J.P.E.M. is not Gravely's natural child, Gravely's child support
obligation shall immediately cease, but that if it is established
that J.P.E.M. is the natural child of Gravely, custody of J.P.E.M.
shall immediately be placed in Gravely, with visitation rights to
Mitchell. It ordered Mitchell to pay Gravely's reasonable attorney
fees and costs.
On August 24, 1990, a second hearing was held. The report on
the home studies had been filed with the court, but the blood test
results had not yet been filed. The court entered an order
amending its July findings and conclusions by adding findings that
Mitchell had made numerous unsubstantiated complaints of abuse and
neglect of K.L.G. by Gravely. It ordered Mitchell to cease and
desist from making such unsubstantiated claims.
I
Did the District Court abuse its discretion or otherwise
commit reversible error in modifying the primary physical custody
of the minor child K.L.G.?
Mitchell argues that the evidence in support of Gravely's
allegations and the District Court's findings was neither substan-
tial nor credible. She also asserts that the court failed t o
consider or otherwise adhere to statutory and regulatory require-
ments before changing the custody of K.L.G.
There is no question that there was substantial conflict in
the testimony presented in this case, on almost every point.
Clearly, the court believed the testimony presented by Gravely over
that of itche ell and her fiance. Resolution of conflicts in
testimony is the function of a trier of fact. In re Marriage of
Penning (1989), 238 Mont. 75, 78, 776 P.2d 1214, 1216. This
applies to the testimony about Mitchell's use of profane or abusive
language, her drinking, her actions with her fiance in the presence
of the children, and all of her allegations against Gravely.
Modification of physical custody within a joint custody
situation is proper when the change is in the best interest of the
child under § 40-4-224 (2), MCA. Marriage of Keil (Mont. 1990) ,
805 P.2d 1334, 1336, 47 St.Rep. 2142, 2143. In matters of child
custody, this Court will not substitute its judgment for that of
the district court unless there has been an abuse of discretion by
the district judge and there is a clear preponderance of evidence
against the findings. Bier v. Sherrard (Mont. 1981), 623 P.2d 550,
551, 38 St.Rep. 158, 159. A district court need not make specific
findings on each factor listed under the definition of "best
interestw in 8 40-4-212, MCA, but must express the "essential and
determiningfffacts upon which its conclusions rest. Cameron v.
Cameron (1982), 197 Mont. 226, 230-31, 641 P.2d 1057, 1060.
As Gravely points out, evidence as to each factor listed in
8 40-4-212, MCA, was presented to the District Court. The courtfs
findings relate primarily to subsections (c) and (g) of 9 40-4-
212, MCA, concerning the interaction of Mitchell with the children
and Mitchell's chemical abuse.
Mitchell objects to admission of the social worker's testimony
about the contents of tape-recorded phone conversations between
Gravely and Mitchell. The tape recordings were given to the social
worker by Gravely. The social worker testified that, based on
listening to those tapes, it was her opinion that Mitchell had
verbally abused K.L.G. An expert witness is entitled to testify
about the basis for her opinions. Rule 703, M.R.Evid. In addition
to testifying about the tape recordings, the social worker
testifiedthat Mitchellwas uncooperative in arranging a home study
and that she had received referrals for investigation of child
abuse or neglect by Mitchell from three sources.
Mitchell also objects to the District Court's refusal to admit
evidence about a videotape she claims Gravely took of her during
their marriage. Mitchell argues that the tape showed deviate
sexual conduct not known to the court at the time of dissolution
of the marriage, and is therefore relevant here. The court heard
Mitchell's offer of proof but rejected the testimony.
Mitchell did not offer the videotape as evidence. She did
not report it at the time the parties' marriage was dissolved. She
stated that Gravely had possession of the tape. He denied that
such a tape existed. We conclude that the court's refusal to
consider Mitchell's testimony about the tape was justified on
grounds that it was irrelevant, speculative, and remote.
We hold that the District Court did not abuse its discretion
or otherwise commit reversible error in modifying the physical
custody of K.L.G.
I1
Did the District Court abuse its discretion or otherwise
commit reversible error in modifying the primary physical custody
of the minor child J . P . E . M . ?
Mitchell argues that there is an absence of evidence and of
findings on the issue of the custody of J . P . E . M . But as Gravely
points out, most of the court's findings relate to J. P.E.M. as well
as to K. L.G. These findings include that Mitchell engaged in inap-
propriate behavior in front of the children, that she has repeated-
ly and consistently used abusive language with the minor children,
that she has been clearly heavily intoxicated during repeated
telephone calls to Gravely, and that she was found lying on the
living room floor unconscious and incapable of being awakened
during a time when she was in full custody of the children. All
of these findings relate to behavior which would affect J.P.E.M.
as much as K.L.G.
We conclude that there is sufficient evidence to support the
modification of primary physical custody of J.P.E.M., should the
blood tests indicate that he is Gravely's son.
Did the District Court err in awarding costs and attorney fees
to Gravely?
Mitchell argues that Gravely's motion for an award of costs
and attorney fees should have been denied because the court failed
to consider the parties' financial resources, pursuant to 5 40-4-
110, MCA. The court heard evidence on both Mitchell's and
Gravely's employment and living arrangements at the June hearing.
The court indicated that it would hold a separate later hearing on
the amount of attorney fees. We hold that there was no error in
the award of costs and attorney fees.
Af f inned.
We concur: