No. 91-503
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
IN RE THE MARRIAGE OF
JAMES WARREN MOSEMAN,
Petitioner and Appellant,
-vs-
BERNICE LUCILLE MOSEMAN,
Respondent and Respondent.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Russell K. Fillner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Robin A. Wolff, CALTON, HAMMAN and WOLFF;
Billings, Montana
For Respondent:
Victoria L. Frances, HENDRICKSON, EVERSON and
NOENNIG; Billings, Montana
APR 1 7 1992
Submitted on Briefs: January 23, 1992
Zd S ? ei d
CLERK OF SUPWE5lE COURT Decided: April 17, 1992
FfI$TJ.OF MOIWANA
Justice R. C. McDonough delivered the Opinion of the Court.
This is an appeal from an order of the Thirteenth Judicial
District, Yellowstone County. The respondent, Bernice ~ucille
Moseman (Bernice) petitioned the court for modification of custody
after learning the appellant, James Warren Moseman (James),
intended to move the parties1 children out of state. The District
Court terminated joint custody and awarded sole custody to ern ice.
We remand for further factfinding.
The following issues are raised on appeal:
I. Did the District Court err in not considering the report
and recommendations of Court Services after ordering Court Services
to conduct an investigation?
11. Did the ~istrictCourt err by terminating joint custody
and awarding sole custody of the partiesq children to the
respondent?
This case involves a petition for modification of an order for
joint custody, originally issued December 15, 1989. The December
15, 1989 order found it to be in the best interest of the parties1
minor children, Cody (age 8) and Shane (age 6 ) , to be placed in the
joint care and custody of the parties. James was awarded primary
physical custody and Bernice was awarded liberal visitation.
During the f o l l o w i n g y e a r t h e r e w e r e difficulties involving
arrangements for visitations, especially surrounding holidays and
vacations. The parties are in dispute regarding the nature and the
cause of these difficulties. On January 17, 1991, James, in
compliance with § 40-4-217, MCA, sent Bernice notice of his intent
2
to change the children's residence to Richmond, Virginia. Bernice
filed a petition to modify the original decree and to grant primary
physical custody to her. Later, in a post-hearing brief to the
District Court, Bernice asked the court to modify her petition to
include a request for termination of joint custody and that she be
awarded sole custody.
Following a hearing, held February 8, 1991, the court ordered
Court Services to conduct a custody investigation and to submit a
report containing recommendations. Court Services recommended that
the children stay with Bernice for the summer and join James in
Virginia for the school year. The trial court found that James had
continually and willfully attempted to deny or frustrate visitation
and despite James' objection, terminated joint custody pursuant to
5 40-4-219 (1)(e)(ii), MCA, and awarded sole custody to Bernice.
The court made no findings in regard to the Court Services
investigation and recommendations.
Section 40-4-215, MCA, provides in part:
(1) In contested custody proceedings and in other
custody proceedings if a parent or the child's custodian
so requests, the court may order an investigation and
report concerning custodial arrangements for the child.
...
( 3 ) The Court shall mail the investigator's report
to counsel . .. at least 10 days prior to the hearing.
...
James contends that the court abused its discretion by failing to
provide a hearing where testimony regarding the investigation could
be heard and by failing to note consideration of the report in its
findings of fact and conclusions of law.
We have reviewed the requirements of 5 40-4-215, MCA, on
several occasions. In re Marriage of Maxwell (1991), 248 Mont.
189, 810 P.2d 311; In re Marriage of Bloom-Higham (l987), 227 Mont.
217, 738 P.2d 114; In re Marriage of Ziegler (1985), 215 Mont. 208,
696 P.2d 983. In Zieqler, after a custody investigation was
ordered, the district court failed to distribute the report to
counsel as mandated by the statute. In addition, the court entered
its final order before it even received the report. We held that:
If the trial court found it appropriate to order the
custody investigation, it abused its discretion by not
considering the report in the process of reaching its
final custody decision.
Zieqler, 215 Mont. at 212.
In Bloom-Hiqham, the trial court ordered an investigation and
again there was no record of the court having received the report,
the report was not mailed to counsel, and no testimony relative to
the investigation was received at any hearing. Following Zieqler,
we held, despite a stated reluctance to overturn custody decisions,
this was an abuse of discretion.
We recently cited Bloom-Hiqham, with support, to find an abuse
of discretion where a court again failed to consider a social
worker's report and recommendations. In re Marriage of Maxwell
(lggl), 248 Mont. 189, 810 P.2d 311. In Maxwell, the court ordered
a Home and Family Assessment and although the findings of fact and
conclusions of law mentioned that the home study was ordered, it
failed to specifically address it.
In the instant case, the order for the investigation was made
4
after the hearing for modification of custody was held. The report
was mailed to counsel and neither requested that an additional
hearing be provided to take testimony relative to the
investigation. The report was received prior to the District
Court's issue of findings of fact and conclusions of law. However,
the District Court, in its findings and conclusions, failed to
mention the investigation.
As a general rule, the district court is not required to make
a specific finding as to each item of evidence, but only of the
essential and determining factors upon which the court's
conclusions rest. In re Marriage of Keating (1984), 212 Mont. 462,
689 P.2d 249. However, Zieciler and its progeny require that a
specific finding of fact is required regarding a custody
investigation ordered by the court. The District Court is not
bound by the investigation: however, we are not able to determine
if the District Court even considered the report. Therefore, we
conclude that the matter must be remanded to the District Court to
make a finding that the Court Services investigation was
considered.
We do not rule here that James was entitled to an additional
bearing. In the instant case, there were no requests for
additional hearings.
II
Section 40-4-219, MCA, governs the court's decision to modify
a prior custody decree. It provides:
40-4-219. Modification. (1) The court may in its
discretion modify a prior custody decree if it finds,
5
upon the basis 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;
(e) the custodian willfully and consistently:
(i) refuses to allow the child to have any contact
with the non-custodial parent; or
(ii) attempts to frustrate or deny the noncustodial
parent's exercise of visitation rights; or
(f) the custodial parent has changed or intends to
change the child's residence to another state. ...
When reviewing a district court's findings regarding the
modification of custody and whether a party has met the criteria of
9 40-4-219, MCA, we will not reverse the findings unless they are
clearly erroneous. In re Marriage of Johnson (1989), 238 Mont.
153, 777 P.2d 305. In Johnson, 238 Mont. at 156, 777 P.2d at 307,
we held:
As stated in Rule 52(a), M.R.Civ.P.:
Findings of fact shall not be set aside unless
clearly erroneous, and due regard shall be given to the
opportunity of the trial court to judge of the
credibility of the witnesses.
The District Court's decision to modify custody was based on
evidence received from which it concluded that James "willfully and
continuously attempted to frustrate or deny Bernice's exercise of
visitation right. 540-4-219 (1) (e)(ii), MCA." (Conclusion of Law
No. 4.) There is substantial evidence that James denied visitation
on consecutive Christmases requiring Bernice to contact the court
and her attorney to receive her rightful visitation. Evidence was
presented that supports the fact that James obstructed Bernice's
ability to have telephone contact with the children including an
admission by James that he refused to give Bernice his telephone
number. On another occasion, James failed to communicate to
Bernice that Shane was being hospitalized for an operation
requiring general anesthesia.
The record also provides additional examples of disagreement
on scheduling visitation. James contends that while he and Bernice
clearly had disagreements about visitation, disagreements of this
sort do not entitle a parent to a change in custody. Furthermore,
he contends that the record reflects that Bernice has never been
consistently denied or frustrated visitation. There is evidence to
support James' contentions. This evidence and the custody report
would provide substantial evidence to support a District Court
finding to maintain joint custody and physical custody with James.
However, regardless of the custody report, the record does provide
substantial evidence for the court's conclusion that James
willfully and continuously attempted to frustrate or deny Bernice's
exercise of visitation rights within the meaning of 40-4-
219 (1)(e) (ii), MCA.
In addition to meeting the jurisdictional requirements of 5
40-4-219(a) - (f), MCA, the court must also find that a change in
circumstances has occurred and that modification is necessary to
serve the best interests of the child. Section 40-4-219(3), MCA,
provides that:
The court shall presume the custodian is not acting in
the child's best interest if the custodian does any of
the acts specified in subsection (l)(e). . .
If, on remand, the District Court concludes that James willfully
and continually frustrated Bernice's exercise of visitation rights,
it must, pursuant to 5 40-4-219(3), MCA, presume that James is not
acting in the children's best interest. Therefore the requirement
of 5 40-4-219(1), MCA, that modification be allowed only when
necessary to meet the best interest of the child, would be
fulfilled.
The decision of the District Court to terminate joint custody
is not clearly erroneous as it is supported by substantial
evidence, adheres to and does not misapprehend the evidence
relative to the guidelines of 5 40-4-219, MCA, and does not leave
us with a definite and firm conviction that a mistake has been
committed. Interstate v. DeSaye (Mont. 1991), 820 P.2d 1285, 48
St.Rep. 986.
However, the District Court is required to consider the
custody investigation report it ordered and failed to do so. We
remand to the District Court with instructions to make findings
relative to such report, and amend the conclusions of law and the
judgment, if so warranted.
We Concur:
Chief Justice
8
Justices
Justice Terry N. Trieweiler specially concurring in part and
dissenting in part.
I concur with the majority's conclusion that the District
Court abused its discretion by failing to consider the social
worker's report and recommendations. The impact of that failure is
apparent from the District Court's Finding of Fact No. 4 to the
effect that the children stated no preference for whom they would
like to have as the primary custodian. Sarah Seiler, the social
worker, apparently discussed this question at length with both
children. As a result of her conversations, she was able to state
in her report the following finding:
Cody was interviewed twice and Shane once at Sandstone
School. Both boys state that they want to continue to
live with their father and are not concerned about
changing schools. Cody and Shane love their mother and
want to visit with her, but had criticism of her care for
them. They both say that their mother sleeps a great
deal while they visit and that she does not supervise
them or set boundaries when they play outside. Cody even
went so far as to say his mother was "acting weird
lately1'. Despite repeated attempts to play "devil's
advocate1' with the boys, they were steadfast in their
desire to stay with their father.
I dissent from that part of the majority opinion which
concludes that the District Court's decision to terminate joint
custody was supported by substantial evidence.
Under 5 40-4-219, MCA, the District Court's prior custody
decree could only be modified if it found that: (1) a change in the
child's or his custodian's circumstances had occurred since the
prior decree: (2) modification is necessary to serve the best
interests of the child; and ( 3 ) the custodial parent willfully and
consistently frustrated the noncustodial parent's visitation
rights; or the custodial parent intended to change residence to
another state.
As pointed out by the majority, if the court finds that the
custodial parent willfully and consistently attempted to frustrate
the other parent's visitation right, then there is a presumption
that that parent is not acting in the child's best interest under
5 40-4-219 ( 3 ) , MCA.
I believe the District Court was clearly erroneous when it
found that James Nconsistently" attempted to frustrate Bernice's
visitation rights.
James was awarded primary custody of the children on
December 15, 1989. The District Court's hearing on Bernice's
motion to modify custody was held on February 8, 1991, some 14
months later. During that period, Bernice complained of three
incidents where the parties had disagreements about visitation:
1. During Christmas of 1989 a dispute arose over visitation
which was resolved when Bernice was allowed to have the children on
Christmas Eve.
2. During Christmas of 1990, another dispute arose which was
resolved when Bernice was allowed to have the children on
December 24, 26, and 28. The evidence was that Bernice worked
during the Christmas holiday that year and did not have time
available for additional visitation.
11
3. A misunderstanding occurred regarding visitation during
the Fourth of July holiday in 1989. Bernice was supposed to have
the children. James misunderstood and scheduled a vacation with
the children. After some discussion, Bernice exchanged visitation
during that period for visitation later on in the summer.
The above three incidents are the only examples offered by
Bernice where the parties had disagreements over visitation. The
other examples relied upon by the court were James' failure to
notify Bernice of one of the children's tonsillectomy, failure to
communicate regarding the children's progress in school, and the
fact that James had an unlisted telephone number for a period of
time. However, none of these additional examples constituted
willful attempts to frustrate visitation, and the original three
examples hardly amount to consistent frustration of Bernice's
visitation rights.
Without a finding that James willfully and consistently
frustrated Bernice's visitation rights, there was no substantial
evidence to support the District Court's finding that the
children's best interests would be served by modifying the prior
custody arrangement.
This Court recently explained the application of the "clearly
erroneousu test in the context of reviewing the findings of a trial
court sitting without a jury:
We adopt the following three-part test to determine
if a finding is clearly erroneous. First, the Court will
review the record to see if the findings are supported by
substantial evidence. Second, if the findings are
supported by substantial evidence, we will determine if
the trial court has misapprehended the effect of
.
evidence. Western Cottonoil Co. v. Hodges (C A. 5th 1954) , 218
F. 2d 158 ; Narragansett Improvement Company v United States (C.A. 1st
.
1961), 290 F.2d 577. Third, if substantial evidence
exists and the effect of the evidence has not been
misapprehended, the Court may still find that "[A]
finding is 'clearly erroneous' when, although there is
evidence to support it, a review of the record leaves the
court with the definite and firm conviction that a
mistake has been committed. U[nired] S[tates] v. U S . Gypsum Co.
(1948), 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746.
Interstate Production Credit Ass 1 it. v. DeSaye (Mont. 1991) , 820 P. 2d 1285,
According to the above standard, I conclude that the District
Court's finding that the children's best interests were served by
terminating joint custody and awarding sole custody of the parties1 -
children was clearly erroneous. I would, therefore, reverse the
judgment of the District Court, reinstate joint custody, and return
primary custody of the children to James with liberal visitation
April 17, 1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Robin A. Wolif
CALTON, HAMMAN & WOLFF
2075 Central Avenue
Billings, MT 59102
Victoria L. Frances
HENDRICKSON, EVERSON & NOENNIG
324 Hart-Albin Building
208 North 28th Street
Billings, MT 59101
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA
BY:
Deputy