No. 92-532
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
IN RE THE MARRIAGE OF
JAMES A. ANDERSON,
Petitioner and Appellant,
and
LINDA K. ANDERSON,
Respondent and Respondent.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Douglas G. Harkin, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
James C. Anderson, Pro se,
Salt Lake City, Utah
For Respondent:
Klaus D. Sitte, Montana Legal Services
Association, Missoula, Montana
Submitted on Briefs: March 25, 1993
Decided: August 31, 1993
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
James A. Anderson appeals from a custody decision of the
District Court for the Fourth Judicial District, Missoula County.
The court awarded the parties joint custody of their minor child
and designated Linda K. Anderson as the primary residential
custodian for two years. The court also granted James limited
visitation rights. Finally, the court ordered James to pay Linda
child care costs, in addition to existing child support payments.
We affirm in part and reverse in part.
There are three issues on appeal.
1. Did the District Court abuse its discretion when it
designated Linda as the primary residential custodian for two
years?
2. Did the District Court abuse its discretion when it
awarded James limited visitation rights?
3. Did the District Court err when it ordered James to pay
Linda child care costs in addition to existing child support
payments?
James and Linda Anderson were married in Billings, Montana, on
June 16, 1976. Their only child, Sari Nicole Anderson, was born on
July 31, 1987. The parties lived in Montana for approximately one
and one-half years after Sari was born. During their marriage,
James was employed as an equipment serviceman for Northwest
Airlines. Linda worked at home, but was not employed outside the
home. In February 1989, the parties separated and Linda moved with
Sari to Rigby, Idaho. The parties* employment situation remained
unchanged after their separation.
On March 15, 1989, James filed a petition for dissolution of
the parties' marriage. On February 12, 1990, the District Court
entered a decree of dissolution and reserved all other issues for
trial. Section 40-4-104(d), MCA, provides that a district court
shall enter a decree of dissolution if:
[Tlo the extent it has jurisdiction to do so, the
court has considered, approved, or made provision for
child custody, the support of any child entitled to
support, the maintenance of either spouse, and the
disposition of property.
The District Court acted contrary to this statute when it did not
make a determination about maintenance, property, child support,
and child custody at the time that it dissolved the marriage.
However, this is not an issue before the Court.
On June 6, 1991, following several days of hearings, the court
issued detailed findings, conclusions, and a judgment regarding
maintenance, property division, and the support, custody, and
visitation of the parties* child, Sari.
In the June 1991 order, the court found that both James and
Linda were fit parents and awarded them joint custody of Sari. The
court implemented a temporary custody plan in which Sari was to
alternate between living 60 days with her mother and 30 days with
her father. The court ordered the alternating custody plan to
commence on March 15, 1991, and continue until Sari entered school
in the fall of 1992. The court instructed the parties to either
submit a permanent plan for Sari's custody during her school-age
years by January 1992, or submit to a professional custody
evaluation which would be considered by the court during further
proceedings in the summer of 1992.
Additionally, in the June 1991 decree, the court awarded James
reasonable visitation with Sari: James was allowed to visit with
his daughter during the 1992 Christmas holidays, and on every
fourth weekend of the year during the 60-day periods that Sari was
living with her mother. The weekend visits were to occur in Idaho.
Finally, the court ordered James to pay Linda $236 a month for the
support, care, maintenance, and education of Sari.
In October 1991, James filed an affidavit with the court,
informing the court that he was being forced by his employer to
relocate from Missoula, Montana, to another location. This was the
beginning of a series of changes in residence by James. In
December 1991, James was transferred temporarily by his employer to
Phoenix, Arizona. That move was followed by a brief return to
Missoula and a subsequent and final move to Seattle, Washington.
On October 28, 1991, James filed a motion for an advance
custody determination. On November 25, 1991, the court granted
James' motion and directed Drs. Philip and Marcy Tepper Bornstein,
Ph.D., licensed clinical psychologists, to conduct a comprehensive
custody evaluation of James and Linda.
The Bornsteins performed the evaluation in December 1991. The
assessment involved diagnostic clinical interviews and the
administration of approximately eight objective psychological tests
to both parents and Sari. On February 18, 1992, the Bornsteins
submitted their evaluation report to the District Court. They
reported that James and Linda are both concerned and
well-intentioned parents; and although they exhibit hostility
toward one another, they both love Sari deeply. The Bornsteins
determined that **asense of stability [far Sari] with free access
to both parents would clearly be in Sari's best interest."
The Bornsteins recommended that the parties have joint custody
of Sari. They determined, however, that given Sari's age (four
years old) and her educational needs, her adjustment would be best
served by having a residential custodian. The Bornsteins
recommended that Linda be Sari's residential custodian for the
1992-93 school year because she has generally played that role for
Sari thus far. Further, they suggested that Sari have ample
visitation with her father on all major holidays, two months of the
summer, and extended weekends one time per month during the school
year, to continue the development of the positive relationship that
James shares with Sari.
The District Court held a hearing on June 2, 1992, to consider
James' motion for an early custody determination and to address
Jamesf request for court direction regarding where he should live
to best facilitate the eventual custody arrangement. Dr. Philip
Bornstein testified at the hearing that James1 lack of residential
or employment stability was "one of the primary considerationst*
in
making his recommendation that Linda have residential custody, but
not the only consideration. Bornstein also testified that if James
and Linda lived in the same community that the Bornsteins would
5
"have recommended a more shared custodial arrangement," which would
allow Sari to split her residency between households.
The court ordered the June 2, 1992, hearing to continue in
August 1992, and directed the parties to agree to a custody plan.
The court also ordered James to have summer visitation with Sari
from mid-June 1992 to mid-August 1992.
In the interim, Linda filed a motion with the District Court
on July 21, 1992, to amend the findings, conclusions, and judgment
entered on June 6, 1991. Specifically, Linda requested the court
to modify James1 child support payment to include child care
payments of $320 per month, to enable Linda to attend Career Beauty
College to retrain for future employment.
On August 20, 1992, the District Court resumed the June 2,
1992, hearing and addressed the issue of Sari's custody and Linda's
motion to amend the decree. The parties were unable to reach an
agreement regarding custody prior to the resumption of this
hearing. In an order entered on August 20, 1992, the court
concluded that both James and Linda were fit parents and awarded
them joint custody of Sari. The court designated Linda as the
primary residential custodian for the 1992-93 and 1993-94 school
years. The court awarded James visitation with Sari for 60 days
each summer, the 1992-93 and 1993-94 Christmas school holidays, and
unlimited, but reasonable, phone calls.
Additionally, the court ordered that a custody evaluation
shall be performed by Drs. Philip and Marcy Bornstein after the
1993-94 school year to determine if, ultimately, an
alternating-school-year custody arrangement would be in Sari's best
interest.
Finally, the court determined that it is in all parties* best
interests that Linda obtain marketable skills. Accordingly, the
court ordered James to pay Linda up to $50 per week to cover child
care costs to enable Linda to attend school. The court ordered the
original child support payments of $236 per month to continue as
previously ordered.
On September 21, 1992, the District Court denied a motion by
James for a new trial. James appeals.
I.
Did the District Court abuse its discretion when it designated
Linda as the primary residential custodian for two years?
On appeal, James argues for several reasons that the District
Court abused its discretion when it ordered Linda to have
residential custody of Sari for two years. First, he contends that
the court failed to adequately consider the best interest factors
set forth in 40-4-212, MCA. Second, James asserts that the
court's decision to award Linda residential custody of Sari for two
school years was not supported by the testimonial evidence of the
psychologists in this case. The Bornsteins recommended that Linda
have primary custody for cne school year.
Finally, James claims that Linda's past conduct has not been
in Sari's best interest and that her actions have prevented Sari
from bonding with her father. James contends that this lack of
bonding has been detrimental to Sari, and he urges this Court to
remedy the situation by reversing the District Court's custody
decision.
The standard of review in a child custody determination is
well settled in Montana. When evaluating a district court's
decision, this Court will consider whether substantial credible
evidence supports the court's findings. In re Maniage of Jenserz (1981),
192 Mont. 547, 552, 629 P.2d 765, 768. The findings will be
sustained unless they are clearly erroneous. In re Mammageof Susen
(1990), 242 Mont. 10, 13-14, 788 P.2d 332, 334. We will not
substitute our judgment for that of the trier of fact. That is
because the trial court is in a better position than the Supreme
Court to resolve child custody issues. We will only overturn a
lower court's custody decision when there is a clear showing of an
abuse of discretion. In re Marriage o Rove (1985), 216 Mont. 39, 44,
f
699 P.2d 79, 82.
Section 40-4-212, MCA, is central to child custody
determinations. This statute requires the district court to
determine custody in accordance with the best interest of the
child. Section 40-4-212, MCA, sets forth a list of best interest
factors for the district court to consider when determining
custody. Pursuant to the statute, the court shall consider the
parents' wishes; the child's wishes; the child's interaction with
the parents and others; the child's adjustment to home, school, and
the community; the mental and physical health of all individuals
involved; physical abuse or threatened physical abuse; and chemical
dependency.
The list of best interest factors set forth in 5 40-4-212,
MCA, is not exclusive. This Court has recognized that when a lower
court determines whether to award joint custody, as the court did
in this case, the parents' willingness to cooperate and the
geographical proximity of the parentsf residences should also be
considered. InreCustodyaizdSupportofB.~S. (1986), 219 Mont. 391,
395-96, 712 P.2d 1298, 1301.
The district court must consider all of the statutory factors
listed in 5 40-4-212, MCA. In re Marriage of Converse (1992), 252 Mont.
67, 71, 826 P.2d 937, 939. However, the trial court is not
required to make specific findings regarding each and every factor
listed in 5 40-4-212, MCA. Convi3rse, 826 P.2d at 939.
As we stated in Converse, 826 P.2d at 939:
The custody determination must be based on substantial
evidence relating to the statutory factors and [the
evidence] must be set forth explicitly in the findings.
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.It
[Citations omitted].
Based on our review of the record, we conclude that the
District Court acted in accordance with 5 40-4-212, MCA, and
considered Sari's best interest when it made its custody
determination.
The record reflects that the court (1) considered the
statutory factors set forth in 5 40-4-212, MCA, (2) addressed
unlisted best interest factors, (3) made appropriate findings that
are supported by substantial credible evidence, (4) set forth
findings that explained the basis of the court's decision, and (5)
entered an independent judgment regarding Sari's custody.
James argues that the District Court failed to consider Sari's
wishes regarding custody, as is required by 5 40-4-212, MCA. James
is correct that 5 40-4-212, MCA, requires the court to consider the
child's wishes; however, his assertion that the District Court did
not do so in this case is erroneous. Although the court's findings
do not specifically refer to Sari's wishes regarding custody, the
record reveals that the court did examine the Bornsteins' written
evaluation which included evidence that they inquired into Sari's
custody wishes. They found that the child enjoys time with both
parents; however she is 'konflicted and fearfulw about their
disputes and ''clearly uncomfortable in her perception that she must
choose between her parents." We conclude that the court did not
err when it consulted the evaluators1 report to ascertain the
child's wishes. Moveover, we hold that the court satisfied all
requirements of 5 40-4-212, MCA.
We also conclude that the court did not err when it awarded
Linda primary custody of Sari for two school years rather than the
- year
one recommended by the Bornsteins.
Because of uncertainty about the location of James' residence,
and the court's concern for offering Sari stability, the court
implemented a longer-term plan than the evaluators had recommended.
The court explained that it would award Linda primary residential
custody for two years: however, after such time the court would
automatically go into much more father-directed cust~dy.~'
The court in this case relied on both the evaluators'
assessment and the court" own independent analysis of the facts of
the case to make its custody decision. The record reflects that
the court's custody decision was supported by substantial credible
evidence and that Sari's best interest was at all times the court's
primary concern. We conclude that there was no abuse of
discretion.
II
Did the District Court abuse its discretion when it awarded
James limited visitation rights?
On appeal, James contends that the District Court abused its
discretion in its August 20, 1992, order when it limited his
visitation with Sari to the Christmas holidays and two months in
the summer. James points out that, according to the June 1991
order, he was allowed to visit with Sari on one weekend a month
during the time that she was in Linda's custody. This was in
addition to his having custody of Sari for one-third of the year
and his right to visit Sari during the Christmas holidays and
during two months of the summer.
James contends that the District Court did not act in
accordance with 5 40-4-217 ( 3 ) , MCA, when it denied him his existing
right to visit Sari one weekend per month. Moreover, he contends
that the court erroneously ignored the experts1 suggestion that
James have visitation with Sari on all major holidays and extended
weekends one time per month.
The effect of the District Court's August 1992 order is that
Linda will have primary custody of Sari for ten months of the year;
and although James will be allowed to visit with Sari during the
Christmas holidays and for two months of the summer, he will not be
allowed to visit his child from September through mid-December.
Nor will he be allowed visitation for the six months from January
through mid-June.
We conclude that the August 1992 order does restrict the
visitation rights that James was awarded in the June 1991 order.
Section 40-4-217(3), MCA, which pertains to visitation,
provides:
The court may modify an order granting or denying
visitation rights whenever modification would serve the
best interest of the child; but the court may not
restrict a parent's visitation rights unless it finds
that the visitation would endanger seriously the child's
physical, mental, moral, or emotional health ....
In the case of in reMarriageofFhnan (l98O), 187 Mont. 465, 610
P.2d 178, we held that the district court abused its discretion
when it restricted a parent's visitation rights without first
finding that the existing visitation arrangement seriously
endangered the child's physical, mental, moral, or emotional
health.
Similarly, the District Court in the present case did not make
a finding in its August 1992 order that the existing visitation
schedule, which was ordered in June 1991, seriously endangered
Sari's physical, mental, moral, or emotional health. In fact, the
court found to the contrary when it determined that Sari's and
James1 visitation with one another *'substantially improved their
relationship.'*
The District Court made only one finding which served as the
basis for its visitation decision in its August 1992 order. The
court explained that ls[b]ecauseof travel problems associated with
the distance between the Mother and the Father, Father's visitation
should occur in blocks of time such as the Christmas holiday and
summer visitation." While travel problems may be a practical
consideration, they are not a basis for the court's restriction of
visitation nor for its failure to comply with the requirements set
forth in 5 40-4-217(3), MCA.
We conclude that the District Court abused its discretion when
it denied James the weekend visitation that he was allowed under
the June 1991 order, particularly when the uncontroverted evidence
was that such visitation, when practically possible, would be in
Sari's best interest.
I11
Did the District Court err when it ordered James to pay Linda
child care costs in addition to existing child support payments?
On appeal, James asserts that the District Court erred when it
ordered him to supplement previously ordered child support payments
with a separate child care payment of up to $50 per week. He
claims that such an order was redundant. James asserts that he was
excessively assessed under both the old and new versions of the
Uniform Child Support Guidelines; and that there was no legal basis
for the child care payment.
The standard of review for child support awards is whether the
district court abused its discretion. IttreMam'ageofNash (1992), 254
Mont. 231, 235, 836 P.2d 598, 601. Section 40-4-204, MCA, sets
forth the factors a court must consider in setting support orders.
This statute also directs the court to apply the uniform child
support guidelines when determining support obligations.
Section 40-4-204(3)(a), MCA, provides in pertinent part:
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, MCA.
On June 6, 1991, the District Court ordered James to pay Linda
Sari; the court entered its order in accordance with the Uniform
Child Support Guidelines in effect in June 1991. The court did not
address child care at that time because Sari was not enrolled in
day care. The court specifically stated in its decree that Linda
was unemployed and the court reserved the right to determine
support issues with regard to both parties in the future.
Linda decided that once Sari started school, she would pursue
further employment training. On July 21, 1992, she requested the
court to amend its June 1991 decree regarding child support to
provide for child care costs so that she could return to school.
On August 20, 1992, the District Court granted Linda's request
and ordered James to supplement the previous child support payment
with a child care payment of up to $50 per week. The court acted
in accordance with the child support guidelines in effect at the
time of the court's original June 1991 child support decree. The
guidelines in effect in 1991 provided that the court should
consider child care costs a supplement to child support. Rule
46.30.1525(1) through (1)(b)(i), ARM, effective July 13, 1990.
In 1992, the child support guidelines were amended to combine
child care costs with child support. Rule 46.30.1525(2), ARM,
effective July 31, 1992. Under the new guidelines, when the
District Court awarded child care costs of up to $50 per week, it
effectively modified James' child support obligation. The
amendments became effective on July 31, 1992. The effective date
of the amended guidelines was after Linda's request for child care
costs but before the court issued its findings, conclusions, and
order regarding Linda's request.
This Court 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. Patentity o WL. (Mont. 1993),
f
50 St. Rep. 751, 752.
Therefore, we conclude that the District Court erred when it
did not apply the child support guidelines in effect on August 20,
1992, which was the date when the court made its decision regarding
Linda's request for child care costs. We remand this case to the
District Court to redetermine child support and child care costs in
15
accordance with the guidelines in effect on August 20, 1992, the
date of the court's decision.
We affirm the District Court's custody decision. However, we
reverse the District Court!s judgment regarding visitation and
child support and remand this case to the District Court for
modification of its decree in conformity with this decision.
We concur: --
Justice R. C. McDonouqh, retired, did not participate in this
opinion.
August 31, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
JAMES C. ANDERSON
1416 N. Mandalay Road
Salt Lake City, UT 84116
Klaus D, Sitte, Staff Attorney
Montana Legal Services Assc.
304 North Higgins Avenue
Missoula, MT 59802
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA