No. 92-035
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
IN RE THE MARRIAGE OF
TAMMIE LYNN CLINGINGSMITH,
1
Petitioner and Respondent,
I
1 and
LARRY EDWARD CLINGINGSMITH,
Respondent and Appellant.
APPEAL FROM: District Court of the Sixteenth Judicial District,
In and for the County of Dawson,
The Honorable Dale Cox, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
J. Dennis Corbin, Brown, Huss & Corbin,
Miles City, Montana
For Respondent:
Marvin L. Howe, Simonton, Howe & Schneider,
Glendive, Montana
Submitted on Briefs: May 28, 1992
Decided: September 1, 1992
Justice William E Hunt, Sr., delivered the opinion of the Court.
.
This is an appeal by the husband from the findings of fact,
conclusions of law, and decree of dissolution entered in the
Seventh Judicial District Court, Dawson County, Montana. We
affirm.
We frame the issues before this Court as follows:
1. Did the District Court err in failing to comply with the
requirements of 5 40-4-215, MCA, which relate to investigations and
reports used in the determination of custody disputes?
2. Were the District Court's findings of fact, conclusions
of law, and decree of dissolution concerning the custody
determination sufficiently comprehensive and based upon substantial
evidence?
3. Was it an abuse of discretion for the District Court to
establish child support in accordance with the current guidelines
without considering the unique financial circumstances of the
appellant?
Appellant Larry Edward Clingingsmith and respondent Tammie
Lynn Clingingsmith were married in Glendive, Montana, on
September 10, 1983. The parties are the parents of two minor
children. Respondent is the mother of another minor child from a
previous marriage. The parties resided in Glendive throughout
their marriage. Appellant was a farmer who leased land upon which
he grew crops, as well as assisting in his family's ranching
operation. In late 1988, appellant enrolled his leased property in
the Conservation Reserve Program (CRP) and went to work for
2
Crisifulli Pump Company of Glendive. During the marriage,
respondent occasionally worked outside the home, but primarily took
care of the children.
Respondent filed for a dissolution of marriage on June 6,
1990. After filing for dissolution, respondent and the children
moved to Dickinson, North Dakota. Initially, respondent had
exclusive custody of the children while in Dickinson. However, the
parties later agreed to a temporary shared custody arrangement
pending the trial of the matter. The trial was originally
scheduled for December 13, 1990. At the request of the parties,
that trial date was vacated and reset for April 25, 1991.
Prior to trial, the District Court appointed counsel to
represent the interests of the children. Counsel for the children
moved the court for an order directing the parties to obtain home
studies pursuant to 5 40-4-215, MCA. The District Court ordered
that "each of the parties arrange for custodial home studies to
assist in determining which custody arrangement would best serve
the interests of the minor ~hildren.~~
A two day trial began on April 25, 1991. In her petition for
dissolution, respondent requested that she be granted sole custody
of the children with reasonable visitation rights to appellant.
Appellant sought a joint custody arrangement, with primary
residency being with him. At the conclusion of trial, the District
Court ordered the parties to submit amended proposed findings of
fact and conclusions of law. Following the trial, counsel for the
children filed proposed findings of fact and conclusions of law in
which he recommended joint custody with primary residency to
appellant. The court also permitted additional time for appellant
to supplement the record with a home study, since appellant had
been unable to obtain a home study prior to trial.
On August 16, 1991, the District Court entered it findings of
fact, conclusions of law, and decree of dissolution. The court
awarded the parties joint custody of the minor children, and
granted primary physical residential custody to respondent and
secondary rights to appellant. The court ordered appellant to pay
child support in the amount of $515.64 per month. The court made
a division of the marital property which is not contested on
appeal. Appellant failed to supplement the record with a home
study, as allowed by the court, prior to the decision of August 16,
1991. Following the decision of the court, appellant made several
motions for a new trial, or in the alternative to alter or amend
the court's judgment. These motions were denied by the court on
November 1, 1991, and this appeal followed.
On appeal, the attorney ordered by the District Court to
represent the children filed a brief in support of his position.
Respondent then filed a motion to strike the brief of the children.
Respondent characterized the brief filed by the children's attorney
as an amicus curiae brief which could only be filed upon the
written consent of all parties, or by leave of this Court. The
attorney for the children responded to the motion to strike,
pointing out that he was appointed as counsel for the children and
was not an amicus curiae. However, in light of our decision in
this case, respondent's motion to strike the brief need not be
addressed.
I
Did the District Court err in failing to comply with the
requirements of 5 40-4-215, MCA, which relate to investigations and
reports used in the determination of custody disputes?
The first issue raised by respondent involves a question of
law. Our standard of review of questions of law is simply whether
the District Court's interpretation of the law is correct. Schaub
v. Vita Rich Dairy (1989), 236 Mont. 389, 770 P.2d 522. The basis
for this standard of review is that no discretion is involved when
a tribunal arrives at a conclusion of law. The tribunal either
correctly or incorrectly applies the law. Steer, Inc. v.
Department of Revenue (1990), 245 Mont. 470, 803 P.2d 601.
On March 20, 1991, approximately one month prior to the
scheduled trial date, the District Court, pursuant to a motion by
the attorney for the children, entered an order directing that each
of the parties arrange for custodial home studies to assist in
determining which custody arrangement would best serve the
interests of the minor children. On appeal, appellant argues that
the District Court erred by failing to follow the requirement in
5 40-4-215, MCA, that the report be provided to all counsel ten
days prior to the trial. Appellant contends that he did not
receive a written copy of the home study report until the morning
of trial. The individual who prepared the home study testified at
trial concerning the information contained in the home study.
While the report itself was not allowed into evidence by the
District Court, appellant contends the testimony by the author of
the report was inappropriate and is grounds for reversal of the
custody determination made by the District Court.
It is apparent from the record that both parties experienced
difficulties in attempting to have home studies completed in such
a short time period. Respondent was able to obtain a home study
shortly before trial, while appellant was not. Respondent alleges
on appeal that prior to trial the parties stipulated that the trial
should proceed with only respondent's home study and that appellant
should be able to supplement the record with a home study obtained
at a later date. Respondent further contends that this stipulation
waives any right appellant may have had to object to the home
study. Appellant denies that any stipulation occurred. The record
is inconclusive as to whether the parties actually entered into the
alleged stipulation.
Regardless of any stipulation, appellant has waived his right
to allege error on appeal by failing to make a timely and specific
objection at the time of trial. Rule 103, M.R.Evid. provides in
part that:
(a) Effect of erroneous ruling. Error may not be
predicated upon a ruling which admits or excludes
evidence unless a substantial right of the party is
affected, and
(1) Objection. In case the ruling is one admitting
evidence, a timely objection or motion to strike appears
of record, stating the specific ground of objection, if
the specific ground was not apparent from the context
....
Upon reviewing the transcript of the testimony of the
individual who prepared the report, it is evident that appellant
did not object until the witness was well into her testimony. When
appellant did make objections later in the testimony, it was
primarily on the basis that particular questions were leading or
that the answers would constitute hearsay. Most of these
objections were sustained. Appellant objected to the introduction
of the report into evidence on the basis that it was cumulative of
the oral testimony presented. The District Court did not allow the
report in on the basis that it contained improper hearsay. At no
point did appellant object on the basis that he had not received
the home study report in a timely fashion pursuant to 5 40-4-215,
MCA. Appellant's objections were neither timely nor based on the
correct grounds, and as such will not be considered by this Court
on appeal. Rule 103, M.R.Evid.; Linden v. Huestis (lggl), 247
Mont. 383, 807 P.2d 185.
I1
Were the District Court's findings of fact, conclusions of
law, and decree of dissolution concerningthe custody determination
sufficiently comprehensive and based upon substantial evidence?
Appellant contends the District Court erred in awarding the
parties joint custody of the children with primary physical
residential custody with respondent and liberal visitation rights
to appellant. Appellant had requested joint custody with primary
residency with him. Appellant argues that the findings of the
District Court were insufficiently comprehensive and that the
7
findings and conclusions were not based on substantial evidence.
Appellant presented as a separate issue the question of whether the
District Court's failure to refer to the recommendation of the
children's attorney is grounds for reversal of the custody
determination. The attorney for the children had recommended
primary residency should be with appellant.
Section 40-4-212, MCA, requires custody determinations be made
in accordance with the best interests of the children as determined
by the District Court after considering the following criteria:
(a) [Tlhe 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
(g) chemical dependency, as defined in 53-24-103,
or chemical abuse on the part of either parent.
This list is not all inclusive. This Court has suggested that the
parents' ability to cooperate in their parental roles and the
geographical proximity of the parents' residences are at least two
additional factors which should be considered. In re Custody and
Support of B.T.S. (1986), 219 Mont. 391, 395-96, 712 P.2d 1298,
When reviewing custody issues, this Court must first determine
if the factors set out in 5 40-4-212, MCA, were considered by the
district court. In re Marriage of Jacobson (1987), 228 Mont. 458,
743 P.2d 1025. While it is encouraged, the trial court need not
make specific findings on each of the factors. However, failure to
at least consider all of the statutorily mandated factors is error.
In re Marriage of Speer (1982), 201 Mont. 418, 654 P.2d 1001. The
custody determination must be based on substantial evidence
relating to the statutory factors and must be set forth explicitly
in the findings. In re Marriage of J.J.C. and P.R.C. (1987), 227
Mont. 264, 739 P.2d 465. The findings should, at a minimum, set
forth the "essential and determining facts upon which the District
Court rested its conclusion on the custody issue." In re Marriage
of Cameron (1982), 197 Mont. 226, 231, 641 P.2d 1057, 1060.
Upon reviewing the District Court's extensive findings of fact
concerning the custody issue, it is clear the District Court
considered all of the required statutory criteria and based the
custody decision on the best interests of the children. The
court's findings of fact explicitly set forth the essential and
determining facts upon which it based its conclusions. The
findings and conclusions were based on substantial evidence.
Appellant is correct that the District Court failed to mention
the recommendation of the children's attorney that primary
residency be with appellant. However, the failure to discuss why
this recommendation was not followed is not grounds for reversal.
While some discussion of the recommendation of the children's
attorney would have been appropriate, specific reference to the
recommendation was not required. Appellant has presented no
authority for his position that the recommendation of the
children's attorney must be specifically discussed. The
requirement is that the findings explicitly state the essential and
determining facts upon which the conclusion rests. The findings in
this case clearly satisfy that requirement.
Was it an abuse of discretion for the District Court to
establish child support in accordance with the current guidelines
without considering the unique financial circumstances of the
appellant?
Our standard of review in reviewing child support is that a
presumption exists in favor of the district court's determination,
and this Court will reverse the district court's determination only
if there was an abuse of discretion. In re Marriage of Sacry
(Mont. 1992), - P.2d -, 49 St. Rep. 452.
Section 40-4-204(3)(a), MCA, provides in part that:
Whenever a court issues ...
an order concerning
child support, the court shall determine the child
support obligation by applying the standards in this
section and the uniform child support guidelines adopted
by the department of social and rehabilitative services
... unless the court finds by clear and convincing
evidence that the application of the standards and
guidelines is unjust to the child or to any of the
parties or is inappropriate in that particular case.
Appellant alleges that the District Court abused its
discretion in this instance by calculating his child support
obligation without first deducting from his income certain alleged
business expenses. The District Court followed the applicable
standards and guidelines in determining child support in this case
and did not abuse its discretion in not deducting the alleged
business expenses.
Affirmed.
-
Justice-
We concur:
4 hie£ Justice
September 1, 1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
J. Dennis Corbin
BROWN, HUSS & CORBIN
P.O. Box 128
Miles City, MT 59301
Marvin L. Howe
SIMONTON, HOWE & SCHNEIDER, P.C.
P.O. Box 1250
Glendive, MT 59330
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA