NO. 91-194
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
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IN RE THE MARRIAGE OF SANDY JO CONVERSE,
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Petitioner and Appellant,
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APPEAL FROM: District Court of the Twelfth Judicial District,
In and for the County of Hill,
The Honorable John Warner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Susan Gecho Gobbs, Attorney at Law, Havre, Montana.
For Respondent:
Cregg W. Coughlin, Altman & Boucher, Havre, Montana.
Submitted on Briefs: September 5, 1991
Filed:
Justice William E. Hunt, Sr., delivered the opinion of the Court.
This is an appeal by the wife from a decree of dissolution
entered in the Twelfth Judicial District Court, Hill County,
Montana. Both parties stipulated to all of the contested issues
associated with the dissolution and the decree was then entered.
The wife then made a motion to alter or amend the judgment in
regard to the custody provisions on the grounds that said
provisions did not accurately reflect the stipulation of the
parties. The District Court denied this motion and the wife
appeals. We reverse.
We phrase the issue before this Court as follows:
Did the District Court err in determining custody without
first considering the mandatory statutory guidelines for making
custody determinations found at 5 40-4-212, MCA?
Appellant Sandy Converse and respondent Edwin Converse were
married in July 1977. The parties separated in October 1989, and
the wife filed a petition for dissolution in April 1990. The
parties are the parents of four minor children. A temporary
custody order was issued with the wife as the custodial parent. A
restraining order was also issued ordering the husband to not have
any contact with either the wife or the four minor children.
A trial date was set for August 1990. The wife's petition for
dissolution included a prayer for joint custody of the four
children. Prior to trial, the parties stipulated that the wife
could amend the petition to request sole custody. The August 1990
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trial date was continued until October 29, 1990. Prior to trial,
the parties had mutually agreed on many of the issues relating to
the dissolution. On the morning of the trial, the parties met with
the District Court Judge in chambers, at the request of the Judge,
to determine if the remaining contested issues could be settled to
the satisfaction of the parties without a trial. While in chambers
and off the record, the attorneys apparently reached a settlement
agreement. After taking the agreement to their clients, the
stipulated terms of the decree were reiterated for the record.
The District Court instructed the wife's counsel to draft a
decree of dissolution reflecting the stipulations of the parties.
On November 27, 1990, the proposed decree was submitted to the
court. Counsel for the husband objected to the terms relating to
custody of the children, alleging these terms did not accurately
reflect the agreement that had been reached by the parties. The
court agreed with counsel for the husband that the proposed decree
did not reflect the agreement of the parties and instructed counsel
for the wife to draft another proposed decree with custody
provisions in line with the stipulation.
Eventually the court drafted the decree which was entered on
January 4, 1991, along with the court's findings of fact and
conclusions of law. The custody provision of the decree reflected
the understanding of both the husband's counsel and the court as to
the terms of the stipulation. The wife filed a motion pursuant to
Rule 59, M.R.Civ.P., to delete the portion of the decree concerning
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custody to which the wife alleges she did not agree. It is from
the District Court’s denial of this motion that the wife appeals.
Did the District Court err in determining custody without
first considering the mandatory statutory guidelines for making
custody determinations found at 5 40-4-212, MCA?
Written agreements in which parties to a dissolution stipulate
to the terms of the dissolution are encouraged in this state, both
for purposes of judicial economy and to promote the “amicable
settlement of disputes between parties to a marriage attendant upon
their separation or the dissolution of their marriage . . . . II
Section 40-4-201, MCA. In the present case, it was an in-court
oral stipulation by the parties and not a formal written separation
agreement, but the distinction is unimportant. In re Marriage of
Mager (1990), 241 Mont. 78, 785 P.2d 198. However, while
encouraged, these agreements are not binding upon the district
court judge as to support, custody, or visitation. Section
40-4-201, MCA. Even if both husband and wife stipulate to custody,
the judge is not bound by that stipulation, but may instead order
a different custody arrangement in accord with the best interests
of the children. Maqer, 785 P.2d at 200. Section 40-4-212, MCA,
mandates that custody determinations must be based on the best
interests of the children. The rationale underlying this policy
was set out by this Court in In re Marriage of Neiss (1987), 228
Mont. 479, 743 P.2d 1022. In Neiss, we stated that “[i]t is the
children, not the parents, who are beneficiaries of child support
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decrees," and "the custody and support of children are never left
to contract between the parties." Neiss, 743 P.2d at 1024.
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
( ) chemical dependency, as defined in 53-24-103,
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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,
1301. Section 40-4-223, MCA, also provides that in awarding joint
custody consideration must be given to which parent is more likely
to allow the child frequent and continuing contact with the
noncustodial parent.
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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 by
the trial court 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 (quoting In re Marriage of Barron (1978),
171 Mont. 161, 580 P.2d 936). This Court has refused to uphold an
award of custody when the district court’s findings indicated that
not all of the statutory factors had been considered, even though
the extensive record in the case indicated that the district court
had received substantial evidence on each of the factors. In re
Marriage of Keating (1984), 212 Mont. 462, 689 P.2d 249.
In the present case, there is nothing in the record before
this Court demonstrating that the statutory criteria for making
custody determinations were considered by the trial court. If some
or all of the factors were considered during the off the record
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conference between the trial judge and counsel for the parties,
this is not reflected in the record. Even if the relevant factors
had been considered, there was nothing in the trial court's
findings indicating the basis for the custody decision in relation
to the factors. The findings of the District Court simply
indicated that the custody decision was in the "best interest of
the children" without elaborating further.
It is clear that the District Court Judge attempted to bring
the parties together in order to encourage an amicable settlement
to their disputes without having to resort to a trial. While the
District Court*s effort to bring the parties together is laudable,
we hold that the District Court erred in not giving consideration
to the statutory criteria found at § 40-4-212, MCA, and in failing
to explicitly state the basis for the custody decision in the
findings.
We remand this case to the District Court to receive evidence
relative to the statutory factors necessary f o r a determination of
custody and for explicit findings setting forth at least the
"essential and determining facts" upon which the District Court
rests its conclusion on custody.
Reversed and remanded.
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We concur:
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February 21, 1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Susan Gecho Gobbs
MONTANA LEGAL SERVICES
208 Masonic Temple
P.O. Box 548
Havre, MT 59501
Cregg W. Coughlin
ALTMAN & BOUCHER
P.O. Box 268
Havre. Montana 59501
ED SMITH
CLERK OF THE SUPREME COURT