No. 92-565
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
IN RE THE MARRIAGE OF
D.F.D.,
Petitioner and Respondent,
and
D.G.D.,
Respondent and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Thomas M. McKittrick, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Antonia P. Marra, Bell & Marra, Great Falls, Montana
For Respondent:
Don A. LaBar, Church, Harris, Johnson & Williams,
Great Falls, Montana
Guardian Ad Litem:
Darcy Crum, James, Gray & McCafferty,
Great Falls, Montana
Submitted on Briefs: August 10, 1993
D "P-
f 1 n
Decided: October 21, 1993
Justice Terry N. Trieweiler delivered the opinion of the Court.
The petitioner and wife, D.F.D., petitioned the District Court
of the Eighth Judicial District in Cascade County for dissolution
of her marriage to her husband, D.G.C., on May 23, 1931. On
August 14, 1332, following numerous hearings and a trial on all
issues, the District Court entered its decree dissolving the
couple's marriage, awarding sole custody of their only child to the
wife, restricting husband's visitation rights, and ordering that
husband pay child support and maintenance. Husband appeals from
che juagmenc of the District Court. We reverse and remand for
further proceedings.
The issues are:
1. Did the District Court err when it awarded sole custody
of the couple's son to the wife and restricted husband to
supervised visitation?
2. Did the District Court err when it ordered the husband to
pay maintenance to the wife in the amount of $150 per month for two
years?
3. Did the District Court err in its calculation of child
support and in its award of day care expenses?
FACTUAL BACKGROUND
D.F.D (wife) and D.G.D. (husband) were married on June 18,
1988, and separated on May 23, 1991. They had one son, J.E.D.,
born during their marriage on April 30, 1930.
In her petition, the wife requested dissolution of the
couple's marriage, division of their property, sole custody of
their minor son, reasonable support, maintenance, and attorney
fees. In his responsive pleading, the husband joined in her
request for dissolution of their marriage, but asked that the court
award joint custody of their son, and that he receive primary
physical custody. He also objected to the wife's request for
maintenance.
After the couple's separation, the husband filed a motion with
the District Court on June 21, 1991, for temporary custody of the
couple's child. He alleged that his wife had moved with their son
to Lincoln, Montana, and would not allow reasonable visitation.
The wife responded with her own motion for temporary custody.
Although she offered no affidavit or other evidence in support of
her motion, her attorney alleged in his written argument that the
husband had, in the past, cross-dressed or worn women's
undergarments. The wife's attorney alleged that this conduct was
a form of sexual deviation which would be harmful to the couple's
son if he was exposed to it.
On August 1, 1991, the District Court held a hearing to
resolve the conflicting claims to temporary custody of the couple's
son. As a result of that hearing, the District Court issued an
order on October 30, 1991, granting the wife's motion and denying
the husband's motion, The court also ordered psychological
evaluations of both parents and granted visitation rights to the
husband, but limited them to Saturdays and Sundays, and then only
during the daytime. By then, the wife had moved to Missoula and
the husband was living in Great Falls. The District Court ordered
that the husband could bring his son to Great Falls for visitation,
so long as he was back in Missoula by that evening. Overnight
visitation was denied.
Pursuant to suggestions of the court, further evaluations of
the husband were performed, additional consultations regarding the
possible detriment to the couple's son from the father's former
behavior were obtained, and an additional pretrial hearing
reqardinq custody and visitation was held. However, the
court-ordered arrangements for custody and visitation were
maintained until the court's final decree was entered.
This case was tried before the District Court on April 22,
1992, and May 13, 1992. On August 14, 1992, the District Court
entered the findings of fact, conclusions of law, and decree from
which the husband now appeals.
In findings which are not disputed on appeal, the District
court found that at the time of trial the wife was 31 years old,
and had a high school education with additional training from
Kinman Business School. At the time of trial, she was employed as
a word processor at the University of Montana with a yearly gross
income of $14,500 from her employment, and net income (including
$300 per month temporary child support) equal to $1212 per month.
The District Court found that her monthly living expenses were
$1531.80, leaving a net deficit of $369.80.
The District Court found that the husband was 34 years old,
had a degree in engineering from Montana State University, and was
employed as an engineer. His annual gross income was $29,000.
However, his net income was $1882.09 per month, and his monthly
living expenses were found to be $988.50. The District Court's
finding regarding the husband's living expenses did not include
monthly payments for attorney fees, travel to and from Missoula to
exercise visitation, payments for expert witness fees and
counseling, nor any allowance for housing since at the time of
trial he was living with his mother in order to meet his other
expenses.
Findings of Fact No. 14, 15, and 16 are vigorously contested
by the husband on appeal. In Finding No. 14, the District Court
found that he was an admitted transvestite and that if exposed to
such conduct, his son would be irreparably harmed. The court found
that transvestism was compulsive and secretive and that the
couple's son could not be protected during unsupervised visitation
with his father. The court found that a transvestite father cannot
be entrusted with such a tender young child.
In Finding No. 15, the District Court found that the mental
health of the couple's son was potentially at risk if his father
deliberately or inadvertently cross-dressed in front of the child,
because the child would face irreparable sexual misidentification
if he saw his father as both a man and a woman. The District Court
found that there was a need to protect this two-year-old from
irreparable damage.
In Finding No. 16, the court found that while the wife was a
fit and proper person to have custody, there was potential for harm
to the son if her husband inadvertently, casually, or carelessly
exhibited deviate sexual behavior in the presence of the son.
As a result of these findings, the District Court awarded sole
custody to the wife, and allowed visitation for the husband during
two weekends per month. Visitation was allowed for one hour on
Friday nights, and from 8 a.m. to 9 p.m. on Saturdays and Sundays.
However, the District Court ordered that visitation had to be
supervised, and in its original decree provided that supervision
would be handled by the wife. The husband was to travel to
Missoula on the first weekend of each month, and the wife was to
travel to Great Falls on the third weekend of each month, to
accommodate visitation. However, the husband was to reimburse her
for gasoline expense for trips to Great Falls.
The husband was ordered to pay $49.08 per month as his
proportionate share for providing insurance coverage for the
couple's son, 50 percent of any uninsured medical expenses, $300 a
month for child support, and $250 a month for temporary
maintenance. He was also ordered to pay 65 percent of the expense
already incurred for child care, and was ordered to pay 65 percent
of future child care costs. Each of the parties was ordered to pay
his and her own attorney fees.
Both parties moved to alter or amend the District Court's
judgment. The wife wanted to change the hours of visitation, and
the husband objected to maintenance, the amount ordered for child
support and child care, and the District Court's findings regarding
child custody and visitation. As a result of the parties'
post-trial motions, maintenance was reduced to $150 per month, and
the court allowed visitation to be supervised by either the wife or
an adult "non-transvestite memberw of the husband's family.
Otherwise, the court's original decree was unchanged.
I
Did the District Court err when it awarded sole custody of the
couple's son to the wife and restricted husband to supervised
visitation?
When we review a district court's findings which pertain to
issues of child custody and visitation, those findings wiii be
sustained unless they are clearly erroneous. fit re iifalriage of Srrsnt
(1990), 242 Mont. 10, 13-14, 788 P.2d 332, 334. Findings which are
not supported by substantial credible evidence are clearly
erroneous. Iittmtate Production Credit Associutiott v DeSaye (1991), 250 ~ o n t
. .
320, 323, 820 P.2d 1285, 1287. If the district court's findings
upon which it bases its award of custody and visitation are not
clearly erroneous, the trial court's decision will be upheld unless
there is a clear showing of an abuse of discretion. In reMammuge
of
Rebliq$cr~ts (1991), 250 Mont. 86, 817 P.2d 1159. However, the
district court's discretion must be consistent with the statutory
framework for child custody. In that regard, we must consider
5 40-4-212(1), MCA, which provides that "[tlhe court shall
determine custody in accordance with the best interest of the
child,'' and § 40-4-224(1), MCA, which provides that:
Upon application of either parent or both parents
for joint custody, the court shall presume joint custody
is in the best interest of a minor child unless the court
finds, under the factors set forth in 40-4-212, that
joint custody is not in the best interest of the minor
child. If the court declines to enter an order awarding
joint custody, the court shall state in its decision the
reasons for denial of an award of joint custody.
Objection to joint custody by a parent seeking sole
custody is not a sufficient basis for a finding that
joint custody is not in the best interest of a child, nor
is a finding chat the parents are hostile to each other.
It is clear, in this case, that the District Court based its
denial of joint custody on its Findings of Fact No. 14, 15, and 16
where it found, among other things, that the husband was a
transvestite, his behavior was compulsive, he could not be trusted
with his son, and that if exposed to cross-dressing it would be
irreparably harmful to his son. If, as argued by the husband,
these findings are unsupported by any evidence, then the District
Court's denial of joint custody and severe restrictions on the
husband's rights to visitation were an abuse of discretion.
After a thorough review of the complete record in this case,
we conclude that there was no credible evidence to support the
District Court's findings which formed the basis for its denial of
joint custody. However, because of the significant interests at
stake for the husband, the wife, and the child in this case, we
offer the following lengthy review of the evidence which leads us
to that conclusion.
At the hearing held on August 1, 1991, to determine temporary
custody of this couple's son, both parents testified. Also called
as witnesses were Rich Kuka, a professional counselor, and the
husband's mother and brother-in-law. Kuka testified that he
originally counseled the husband because of problems with his
marital relationship, butthat during the course of the counseling
they had also discussed the husband's prior history of cross-
dressing. As part of his evaluation of the husband, Kuka
administered a battery of psychological tests, including a
parenting evaluation. On the basis of those tests, his interviews,
and the counseling he had done with the husband, Kuka testified
that he had no concern about the husband's ability as a parent
being affected by his interest in cross-dressing because it had, in
the past, been a very private matter and he did not believe that
the husband would ever purposely expose his son to that behavior.
Duringthe course of his testimony, the following exchange occurred
with the District Court:
THE COURT: Before you start, just tell me more about the
cross-dressing. What significance does that have, if
any, to this whole situation? Does that cause any
problems at all or is that --
what does that signify to
you?
THE WITNESS: I personally believe that it is not an issue
in regard to [D.G.D.lls ability to parent at this time.
THE COURT: It doesn't mean that he is a molester, or he
is a homosexual, or he is a danger to the child?
THE WITNESS: No. Absolutely not. To me it means that
he has a sexual preference that involves wearing female's
clothing and that's basically it.
When further asked whether or not the couplets child would be
harmed if he inadvertently observed his father cross-dressing,
Kukats answer was that children could be harmed by inadvertently
observing a whole range of sexual activities that normal adults
engage in, but that he thought the risk was minimal.
Other than Kuka's testimony, there was no other expert
testimony provided at the August 1 hearing. The husband testified
that he had sought counseling from a number of people in Montana,
but had been unable to find a counselor with prior experience with
his problem. He testified that he had every intention of getting
counseling and getting his problem resolved. When asked if he
thought he could discontinue the behavior, which he conceded was
abnormal, he testified that he thought he could. He had never
publicly cross-dressed, and felt very strongly that he did not want
his son to do what he had done and experience the pain that had
resulted from his problem. However, neither did he want his son to
grow up feeling that he had been abandoned by his father since,
when the husband was four years old, his own father had died and he
felt a serious void in his life without a father-son relationship.
The husband's mother testified that, even though he had grown
up in her home, she had first learned that he engaged in
cross-dressing in May 1991 when this dissolution proceeding was
commenced. She only learned then because the husband told her.
The husband's brother-in-law testified that he had known him
for 21 years, and over that time had had a lot of contact with him
and considered him a good role model for children. He first became
aware of the husband's prior history of cross-dressing one week
before the hearing.
The wife testified that she had been married to her husband
for three years and had never personally observed him in women's
clothing. She only learned of it because he acknowledged the
10
problem to her after she discovered some of the clothing he had
worn, which had been stored at various places in the family home.
She also testified that, other than her concern with his
cross-dressing, she had no concern with his parenting skills.
At the conclusion of the August 1 hearing, the husband asked
for extended visitation rights. The wife objected on the grounds
that there had not been a sufficient psychological evaluation to
know whether extended visitation would be harmful to the couple's
child. She requested further psychological evaluation and agreed
if that evaluation snowed that there was no risk of harm to the
child, she would have no objection to extended visitation.
After the August 1 hearing, the District Judge observed that
he had no personal knowledge about the subject they had been
discussing, and would have to rely on the experts. He issued a
temporary order disallowing any overnight visitation, and further
stated that as soon as he saw some expert opinion telling him he
had no reason to be concerned, he would have no reason to
disbelieve that expert. That kind of expert advice was soon
presented.
On November 6, 1991, the husband was evaluated by Julia R.
Heiman, Ph.D., a psychologist and professor of psychiatry and
behavioral sciences at the University of Washington Medical School.
Her specialty is sexual disorders. She was asked to evaluate the
husband for the purpose of determining whether his sexual pattern
created any risk for his son.
Dr. Heiman interviewed the husband, reviewed the battery of
psychological tests administered in Great Falls, and did some
testing of her own. She concluded that while he had cross-dressed
in the past, he did not fit into the medical diagnosis of
transvestite, based on the fact that he had not engaged in that
activity for over six months prior to the time that she had seen
him. She concluded that his past conduct would not be detrimental
to his son if the husband acted as a co-parent, and that based on
the objective testing that was done, she believed the husband to be
truthful in the history that he reported to her.
Based on what she had learned, Dr. Heiman expressed the
opinion that the husband was not a compulsive cross-dresser and had
a good chance of changing his behavior through treatment or therapy
because he was highly motivated to do so. However, she also
expressed the opinion that even if this couple's son were to
observe a public exhibition of transvestism, it would be highly
unusual for the child to imitate that conduct. She said that
transvestism is usually learned through experimentation, rather
than imitation of someone else.
Based upon this evaluation, and counseling that the husband
had undergone with Dr. Monty Kuka, the brother of Rich Kuka, on
December 27, 1991, the husband moved to modify the District Court's
temporary custody and visitation order based on what the District
Court had told him about expert opinions, and for the further
reason that the wife had moved to Missoula and it was very
difficult for him to travel back and forth for visitation for only
a few hours during the day. In response to that motion, a second
hearing was held on February 19 and 20, 1992.
At that hearing, Dr. Heiman's report and deposition were
submitted and Dr. Monty Kuka was also called to testify. Dr. Kuka
testified that he is a licensed clinical psychologist who did a
psychological evaluation of the husband in July 1991, and had seen
him in weekly sessions of psychotherapy since November 1991. He
found nothing in the husband's psychological test results to
concern him about the husband's effectiveness as a parent or the
role model that he would provide to his son. To the contrary, he
testified that he found the husband skilled in a lot of areas of
parenting to a degree that is well above average. Dr. Kuka
reviewed Dr. Heiman's deposition and report and found nothing that
was contradictory with his own conclusion.
Dr. Kuka testified that the psychotherapy the husband had
undergone went very well, the husband was highly motivated and
cooperative, and followed all of Dr. Kuka's instructions. He
testified that in conducting his evaluation, his primary concern
was for the well-being of the couple's child, but that he felt the
husband would be a truly effective parent who has the qualities
that are basic to establishing a good relationship with the child.
He concluded that, as a result of the counseling the husband had
undergone, the husband was no longer involved in cross-dressing.
He did not consider the husband a compulsive cross-dresser, and
when asked by the court about the risk to the child from observing
his parent dressed in female undergarments, Dr. Kuka testified
that, in the very unlikely event that the husband was observed by
his son, any damages could be dealt with in a way that would
minimize the impact on him. He further testified that, in his
opinion, the positive experiences from a normal father-son
relationship far outweighed the minimal negative impact about which
he was asked to speculate. He testified:
Q. So what you are telling us is that it's more
valuable for him to grow up with a parent that
appears to have the skills that [D.G.D.] has
compared to the risk that this child may turn out
to be a transvestite?
A. Yea. Because I don't see that that is a real risk.
And I do see the real value.
Dr. Kuka testified that to deprive a child of a relationship
with a parent is extremely destructive to their development, while
the unlikely event of the same child inadvertently observing his
father in inappropriate garments would be no worse than children
seeing their parents engage in sex, or physical violence, or
fighting within the home. He explained that, although he felt that
eventuality was unlikely, any traumatic effect could be minimized
with proper communication and explanation.
The husband testified that at the time of the hearing he had
not had any items of women's clothing in his possession since
November 1990, and had no intention of ever possessing any again.
In spite of this evidence, with which the wife said she would
be satisfied, and in spite of her acknowledgement that she had
never even seen her husband cross-dress, the wife objected to
expanded visitation privileges until a further report could be
obtained from a psychologist of her choice who specialized in child
development.
At the conclusion of the hearing, the District Court observed
that both parents appeared to be good parents and that if it were
not for the issue of transvestism (even though Dr. Heiman had
testified that the husband was not a transvestite), he would not
have any concerns. The judge acknowledged that he was having
difficulty with the issue, largely out of ignorance, because he did
not understand transvestism.
The Dlstrict Court accepted Dr. Kuka's testimony, but
expressed reservation that Dr. Kuka was an expert in child
development with very limited experience in transvestism. The wife
and her attorney, on the other hand, objected to Dr. Heiman's
testimony because she was an expert in transvestism with very
little experience in child development.
For these seemingly contradictory reasons, the District Court
decided to maintain the status quo pending further expert
consultation. On February 24, 1992, the District Court entered an
order denying the husband extended visitation.
Because of the wife's concerns, her attorney requested an
opinion from Richard Green, M.D., a psychiatrist from the staff of
the UCLA Medical School. Dr. Green submitted a report to the
wife's attorney on February 20, 1992. Although a portion of that
report is referred to in the District Court's findings, when the
entire text of the report is considered, it is totally consistent
with the prior expert testimony. In fact, the report was offered
at the parties' April 22, 1992, trial by the husband1 attorney and
s
admitted by the District Court over the objection of the wife.
Some of the more significant points in Dr. Green's report are that,
in his study of children with sexually atypical parents, he has
found no evidence of a sexual identity conflict. He advised that
no cross-dressing by the husband take place in the boy's presence
for the next few formative years. However, there was not much
chance of that since the husband had never cross-dressed in
anyone's presence in the previous 20 years that he had engaged in
the activity.
Dr. Green also pointed out that to the extent the husband
could provide assurance that cross-dressing would not occur, he
should have the same visitation opportunity as any father where
cross-dressing is not an issue. In terms of supervision of
visitation, he said he would defer to the clinician who was seeing
the father for therapy. That clinician was Dr. Monty Kuka.
Importantly, Dr. Green also concluded that the more time a boy
can spend with his father, the more available will be a male for
appropriate sexual identification. He concluded that there was no
evidence that transvestism by a father affects parenting qualities,
nor was there any evidence that fathers who cross-dress are
inclined to sexually abuse children, any more than any other adult
male.
With this fourth expert opinion in the husband's favor, the
final trial in this matter was held on April 22, 1992. At that
trial, Dr. Monty Kuka was again called as a witness. He testified
16
that by the time of trial he had discontinued his therapy sessions
with the husband because he felt the husband had identified and
dealt with his problem of cross-dressing. In his opinion, there
was not a risk that the husband would cross-dress in the future.
He testified that in all the custody evaluations he had done, the
husband was one of the most qualified parents, whether being
considered for shared custody or sole custody, thac Dr. Kuka had
ever encountered. He testified that even if the husband
cross-dressed again, which he felt was unlikely, and even if his
son observed it, which he felt was even more unlikely, he did not
think that observation presented a significant risk of a negative
impact on the behavior of his child. He pointed out that based on
Dr. Green's studies, even radical changes in the sex role of a
parent had not had a major impact on children who had been studied.
At the time of trial, the husband testified that he had not
cross-dressed for a year and a half, and was able to assure the
court that he would never do something like that in the presence of
his son.
Raymond Kelly testified that he had been a friend of the
husband since the third grade, and they were roommates in college.
They had stayed in touch ever since. Kelly stated that he was not
aware that the husband had engaged in cross-dressing until the
trial, and he only knew then because the husband had told him.
On January 30, 1992, dt the husband's request, the court had
appointed a guardian ad litem to represent the interests of the
couple's son. On April 22, 1992, she filed her report to the
court. In her report, she indicated that she had conducted her own
independent investigation and found nothing from that investigation
which would indicate that the husband's past dressing habits should
disqualify him as a custodial parent. She pointed out that no one
had ever seen him cross-dress, and that he appeared to be able to
control the behavior. She recommended joint custody, with physical
custody to the wife during the week, and custody for the husband on
alternating weekends. She also recommended that the parties share
physical custody of their son during summer months.
Other than those experts whose testimony is sunmarized in this
opinion, no other expert was called as a witness in this case, nor
were reports from any other experts submitted to the District
Court. In spite of the overwhelming evidence that the husband
presented no risk to his son, and that the only real risk to this
child's normal development was by limiting him from a normal
relationship with his father, the District Court entered the
findings and decree which are the subject of this appeal.
The court found that the husband was an admitted transvestite.
The husband was not an admitted transvestite and was not qualified
to make that diagnosis. Dr. Heiman, who was qualified, testified
that the husband was not a transvestite.
The court found that if the parties' son was exposed to such
role modeling (cross-dressing), he would be irreparably harmed.
There was no such evidence. That was the contention of the wife
and her attorney. However, every one of the four experts who
expressed an opinion in this case opined to the contrary.
18
The District Court found that transvestism is obviously
compulsive and secretive. All of the experts who were asked
testified to the contrary. The husband did not feel that his
conduct was compulsive, and in fact, had not engaged in it for two
years at the time of the hearing on his motion to amend the
District Court's findings.
The District Court found that the child's mental health is
potentially at risk and that the child faced irreparable sexual
misidentification if he saw his father cross-dress. This finding
was directly contrary to all of the competent evidence in tinis
case. This was the concern repeatedly expressed by the District
Court because this was the position repeatedly argued by the wife
and her attorney. However, everyone qualified to draw such an
opinion disagreed with that conclusion.
At the September 18 hearing to consider the parties' motions
to amend, Dr. Kuka was again called as a witness to address the
kind of supervised visitation that the District Court had provided
for in its decree. He testified that based on his familiarity with
the husband, and his familiarity with the opinions of the other
experts who had been involved in this case, there was no reason to
have supervision of visitation and that that kind of limitation
would have a negative affect on the child by limiting natural
interactions with his parent. Dr. Kuka felt in this case that it
would create tension, disharmony, and a discomfort which limited
the spontaneity and enjoyment of the visitation. He reviewed the
District Court's decree and expressed the opinion that Dr. Green's
19
statement had been taken out of context and specifically disagreed
with the District Court's conclusion that any potential danger to
the couple's son had been established.
Dr. Kuka expressed the opinion that Dr. Green's letter was
very clear in its conclusion that there was not a risk of gender
confusion, even in the families of transsexuals and homosexuals.
He said that the situation in this case was significantly less
confusing.
Dr. Kuka's testimony was interrupted by the District Court and
he was dsked ::[w]hat if the boy walked in the room and saw his isold
man" dressed up in panties and bra?" Dr. Kuka's response was that
he did not think there was any risk that that would happen, but
that, even if it did happen, it would be confusing to the son but
not traumatic. He unequivocally stated that kids are able to
understand the difference between cross-dressing and normal
behavior. He testified that while he understood the court's
concern about the welfare of this child, his concern was for the
welfare of a child who is not allowed to see his father on a
natural basis.
The husband admittedly engaged in private behavior which most
people would find offensive. He, himself, found his conduct so
offensive that he put off seeking help for years out of fear that
he would be publicly ridiculed and humiliated. However, out of
commitment to a normal relationship with his son, he has now gotten
the help that he needs. He no longer engages in the conduct which
the District Court finds offensive, and everyone who is qualified
20
to express an opinion has advised the District Court that any
remote risk to his son is far less that the risk caused by the
unnatural restrictions that have been placed by the District Court
on his relationship with his son.
By statute in Montana, custody is to be based on a child's
best interest, and joint custody is favored unless there is some
compelling reason to order otherwise. In this case, we conclude
that the custody and visitation arrangement ordered by the District
Court was contrary to the child's best interest and there was no
evidence, other tinan the District Court's unfounded fears, to deny
joint custody.
The uncontroverted evidence was that, although the husband had
begun privately cross-dressing as a teenager, no one had ever seen
him cross-dress. Not his mother, nor his sisters with whom he was
raised; not his childhood friend who lived with him for four years
as a college roommate; and not even his wife with whom he lived
until this dissolution proceeding was commenced.
There was further evidence that the husband despised the fact
that he had cross-dressed in the past, but was afraid to
acknowledge his problem until he had no choice. Once he did so, he
entered intensive therapy, which, according to his counselor, had
been successful to the point that he had not cross-dressed, even
privately, for two years prior to the trial which led to the
court's decree.
The husband's counselor, whose testimony was undisputed,
expressed the unequivocal opinion that this man would not
21
cross-dress in the future, that even if he did, it would be a very
private matter as it had been in the past, and that there was no
risk of observation by his son. However, even assuming that,
contrary to the counselor's expectation, the husband did
cross-dress, and further assuming, contrary to all prior behavior,
his cross-dressing was observed by his son, every counselor who
testified in this case testified that the negative impact on the
son would be less than the impact from not having a normal
relationship with his father. The uncontroverted evidence was that
supervised visitation during the daytime on alternate weekends was
not conducive to a normal relationship between this child and his
father.
We conclude, based on the above discussion, that the District
Court erred by awarding sole custody of this couplets son to the
wife and by requiring that the husband's visitation with his son be
supervised. We reverse that part of the District Court judgment
and remand to the District Court for a determination of custody and
visitation consistent with the recommendation by the child's
guardian ad litem, based on our conclusion that there is no
substantial evidence which indicates that a custody or visitation
arrangement, other than as suggested by the guardian ad litem,
would be in the best interest of this couple's minor child.
II
Did the District Court err when it ordered the husband to pay
naintenance to the wife in the amount of $150 per month for two
years?
Awards of maintenance are authorized pursuant to B 40-4-203,
MCA, under the following circumstances:
(1) In a proceeding for dissolution of marriage... the
court may grant a maintenance order for either spouse
only if it finds that the spouse seeking maintenance:
(a) lacks sufficient property to provide for his
reasonable needs; and
(b) is unable to support himself through
appropriate employment or is the custodian of a child
whose condition or circumstances make it appropriate that
the custodian not be required to seek employment outside
the home.
(2) The maintenance order shall be in such amounts
and for such periods of time as the court deems just,
without regard to marital misconduct, and after
considering all relevant facts including:
(a) the financial resources of the party seeking
maintenance, including marital property apportioned to
him, and his ability to meet his needs independently,
including the extent to which a provision for support of
a child living with the party includes a sum for that
party as custodian;
(b) the time necessary to acquire sufficient
education or training to enable the party seeking
maintenance to find appropriate employment:
(c) the standard of living established during the
marriage ;
(d) the duration of the marriage;
(e) the age and the physical and emotional
condition of the spouse seeking maintenance; and
(E) the ability of the spouse from whom maintenance
is sought to meet his needs while meeting those of the
spouse seeking maintenance.
The standard of review for a maintenance award is whether the
District Court's findings are clearly erroneous. in re Mammageof
Esclzenhacher (lW2), 253 Mont. 139, 142, 831 P.2d 1353, 1355.
The District Court made three findings critical to its
maintenance award. In Finding No. 12, the court found that the
wife had greater expenses than income each month by an amount of
$369.80. In Finding No. 13, the court found that the husband had
$988.50 more income each month than he had expenses. And in
Finding No. 24, the court found that while the wife did not have
sufficient income or property to meet her needs, the husband did
have sufficient income after expenses to pay the wife $250 per
month for maintenance for two years. In its post-trial amendment
to its decree, the District Court reduced that amount to $150 per
month.
On appeal, the husband does not dispute that the wife has
insufficient income or property to meet her needs. He does,
however, argue that the evidence did not support the District
Court's finding that he had disposable income after paying his
monthly expenses, and therefore, the District Court's award of
maintenance was an abuse of discretion because it did not properly
consider his ability to pay, as required by § 40-4-203(2) (f), MCA.
The husband's specific argument is that the District Court's
findings regarding his disposable income did not take into
cohsideration the amount of money that he had to spend each month
for travel expense to exercise his visitation rights: the amount of
debt he had incurred for attorney fees and expert witness fees, the
cost of counseling, and the cost of housing. He contends that
after consideration of these expenses, he had no disposable income
at the end of each month, and therefore, had no ability to pay
maintenance.
During trial on April 22, 1992, the husband testified that he
had spent approximateiy $ 3 0 0 0 on travel expenses to exercise his
visitation rights since he and his wife had separated and she had
moved to Missoula. He explained that in addition to the expense of
driving to and from Missoula, he had to pay the cost of a motel
room for three nights per weekend in order to have a place to stay
and to take his child.
He testified that at the time of trial the total amount he
owed for attorney fees, expert witness fees, and counseling fees
was $9916, and that he was attempting to pay off a $ 5 0 0 debt to his
therapist at the rate of $100 to $ 1 5 0 per month.
In addition, the husband testified that he was living with his
mother because he was unable to afford housing and still pay for
his travel expenses and legal expenses. However, he hoped to be
able to move into his own apartment or home in the future, and
estimated that a reasonable cost for rent or a house payment would
be $450 a month.
The husband testified that even while living with his mother
and having no expense for housing, his monthly living expenses,
without repayment of his debts, were $1700.
None of the husband's testimony regarding the expense of his
travel to exercise visitation, the amounts owed to his attorneys,
expertwitnesses, and conselors, or the reasonable cost of housing,
were contested by the wife. However, none of these expenses are
mentioned in the District Court's Findings No. 12, 13, or 24.
Therefore, we are unable to conclude whether the District Court
considered these expenses or whether, after consideration of these
expenses and a reasonable allowance for repayment of these debts,
the husband has the financial ability to meet his needs and still
pay maintenance. If, after consideration of all his expenses, he
has no money left at the end of each month, it is an abuse of
discretion to require that he pay maintenance. Therefore, we
vacate the District Court's maintenance award and remand to the
District Court for further findings regarding the husband's ability
to make maintenance payments after consideration of all of his
monthly expenses and needs.
I11
Did the District Court err in its calculation of child support
and in its award of day care expenses?
The standard of review for a child support award is whether
the district court abused its discretion. Ziz reMammagef Naslz (1992),
o
254 Mont. 231, 235, 836 P.2d 598, 601. In resolving that issue, we
need consider S 40-4-204, MCA (1991), which provides, in relevant
part, that:
(3)(a) Whenever a court issues or modifies 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 rehabilitation
services pursuant to 40-5-209, 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.
This case originally went to trial on April 22, 1992. Both
parties submitted proposals for child support based upon the child
support guidelines in effect at that time. Their proposals are
summarized, as follows, in the District Court's Finding No. 19:
That each party presented calculations with respect
to child support based on the Montana Child Support
Guidelines. Those child supp~rtcalculations varied from
$291.00, as computed by petitioner, to $313.83, as
computed by respondent.
Based upon these calculations, the District Court ordered that
the husband pay child support in the amount of $300 per month.
On July 31, 1992, subsequent to trial but prior to the
District Court's entry of its decree, new child support guidelines
were enacted. These were not available to the parties, nor the
court, when they submitted their proposed findings, conclusions,
and judgment. Neither did the District Court have reason to know
that they would apply to its decision. However, we have recently
held that district courts are to determine child support
obligations according to guidelines in effect at the time that the
court makes its decision. Palernilyof%!,. (Mont. 1993), 855 P.2d 521,
50 St. Rep. 751.
Among the changes in the new child support guidelines is an
amendment to Rule 46.30.1543, ARM, which provides that the amount
of child support set forth in the guidelines may be varied, based
27
on a number of factors, including the cost of exercising long
distance visitation.
For these reasons, both parties submitted revised child
support work sheets to the District Court in support of, and in
opposition to, the husband's motion to alter or amend the District
Court's decree.
In her amended work sheet, the wife proposed a child support
obligation of $271 with maintenance, and $331 without maintenance.
The husband proposed support in the amount of $193.89 with
maintenance, and $225.47 without maintenance. However, he argued
that the amount should be further reduced due to his travel
expenses which are necessarily incurred to exercise visitation. At
that time, he alleged that that amount was $220 per month.
The husband also objected to the District Court's finding that
he was obligated to pay a proportionate share of the child care
expenses incurred from the date on which the parties separated
until the date of judgment.
In its order entered in response to the partiesz post-trial
motions, the District Court did not address the new child support
guidelines, nor did it address what allowance, if any, should be
made for the expenses incurred by the husband to exercise his
visitation rights. Both parties agree that the husband's child
support obligation will also be affected by the District Court's
resolution of the maintenance issue which we have instructed it to
revisit on remand. Therefore, we vacate the District Court's award
of child support and remand to the District Court for further
consideration of the husband's child support obligation under the
new child support guidelines, and consideration of what effect, if
any, should be given to the fact that the husband necessarily
incurs expense each month in order to exercise his visitation
rights.
We conclude, however, that the District Court did not err by
providing in its decree for payment by the husband of his
proportionate share of child care expenses incurred subsequent to
the parties' separation and prior to the date of the District
Court's decree. Apportionment of expenses for child care is
specifically authorized by the new child support guidelines.
The judgment of the District Court is reversed and remanded
for further proceedings consistent with this opinion.
We concur:
Chief Justice
Chief Justice J. A. Turnage dissenting:
For the following three reasons, I respectfully dissent: 1)
the highly unusual nature of D.G.D.*s past behaviors and practices,
not all of which are described in the majority opinion; 2) the
impossibility of guaranteeing that such behaviors and practices
will not occur again and will not affect the minor child; and 3)
the District Court's responsibility to protect the best interests
of the child.
I would affirm the court's discretion in ordering supervised
visitation while the child is at a particularly vulnerable stage of
his development.
October 21, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Anionia P. Marra, Esq.
Bell & Marra
9 Third St. No., Ste. 201
Great Falls. MT 59401
Don A. LaBar, Esq.
Church, Harris, Johnson & Williams
P.O. Box 1645
Great Falls, MT 59403
Darcy Crum, Esq.
James, Gray & McCafferty
P.O. Box 2885
Great Falls, MT 59403
ED SMITH
CLERK OF THE SUPREME COURT
STATF OF MONTANA