No. 92-365
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
IN RE THE CUSTODY OF J.M.D.,
A Minor Child
KEVIN J. FITZGERALD,
Petitioner and Respondent,
v.
EVA MARIE BROWN,
Respondent and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Dorothy McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Joan Meyer Nye, Nye & Meyer,
Billings, Montana
For Respondent:
John Bobinski, Attorney at Law,
Helena, Montana
Submitted on Briefs: February 4, 1993
Decided: July 29, 1993
Filed: JUL2 9 1993
Justice Terry N. Trieweiler delivered the opinion of the Court.
Eva Marie Brown appeals from two orders of the District Court
for the First Judicial District, Lewis and Clark County. In its
first order, entered on May 19, 1992, the court determined that it
was in the best interest of the parties' child to transfer custody
to the father, Kevin Fitzgerald. In its second order, entered on
July 13, 1992, the court denied Eva's motion to alter or amend the
May 19, 1992, order, and her motion for a new trial. We affirm.
There are five issues on appeal.
1. Did the District Court abuse its discretion when it
awarded custody in accordance with the partiesf written
stipulation?
2. Did the District Court err when it awarded sole custody
to Kevin?
3. Did the District Court err by not requiring sufficient
input from the child's court-appointed attorney?
4. Did the District Court err when it held the hearing on
Kevin's motion to compel on April 2, 1992?
5. Did the District Court err when it denied Eva's request
for a new trial after the May 19, 1992, order?
Eva Brown and Kevin Fitzgerald lived together in Helena,
Montana, for approximately four years. They gave birth to one son,
Joey, on December 22, 1989. Approximately four months after Joey's
birth, the parties separated. In September 1990, Eva and Joey
moved to Billings. In March 1991, ~ e v i n married Danette
Fitzgerald. They reside in Helena.
In May 1990, Kevin filed a petition for custody and visitation
and to determine child support. A trial was held before the
District Court on November 1, 9, and 13, 1990, to determine the
parties1 custody and visitation rights. On December 4, 1990, the
District Court made detailed findings of fact and conclusions of
law. The court determined that both Kevin and Eva were fit parents
and awarded them joint custody of Joey. Each parent was awarded
residential custody on an alternating six-month basis. The court
ordered Eva to have residential custody of Joey for the initial
six-month period from January 1, 1991, through June 30, 1991.
Shortly before June 30, 1991, Eva filed a motion for a new
trial or for an order modifying custody and visitation.
Additionally, she filed a motion to stay the transfer of
residential custody of Joey to Kevin. The District Court stayed
the visitation schedule set forth in the December 4, 1990,
decision, but ordered that Kevin be allowed visitation with Joey
for a five-day period every other week pending further order of the
court. At Eva's request, the court appointed an attorney, Randi
Hood, to represent Joey's interests.
On November 15, 1991, a scheduling conference was held, and
the District Court set a nonjury trial for March 5, 1992, to decide
Eva's petition to stay the visitation schedule. However, on
February 21, 1992, approximately two weeks prior to the scheduled
3
trial, the parties entered into a written agreement regarding
custody and visitation of Joey, which they filed with the court on
February 24, 1992.
In the written stipulation, the parties agreed to have Donna
Hale, a licensed clinical social worker, prepare a custody
evaluation to help determine what custody and visitation
arrangements were in the best interest of the parties1 child, Joey.
The parties agreed that they would be bound by Hale's evaluation
and recommendation, that the stipulation would settle all issues
regarding child custody and visitation, and that the trial set for
March 5, 1992, should be vacated.
The stipulation was drafted by Eva's attorney and signed by
both parties. The attorney representing Joey also signed the
stipulation. Pursuant to the parties' stipulation, the court
vacated the trial.
Hale conducted a comprehensive custody evaluation of Eva,
Kevin, and Kevin's wife, Danette. This assessment involved
clinical interviews and clinical observations of Eva, Kevin,
Danette, Joey, and Eva's and Kevin's step-children. Additionally,
Hale administered tests to the adults, including The Custody
Quotient and the Minnesota Multiphasic Personality Inventory. On
February 24, 1992, Hale recommended that custody be transferred to
Kevin and that Eva have liberal visitation. Hale recommended
against joint custody, based on her opinion that Eva would not
cooperate with joint custody responsibilities.
4
On March 23, 1992, ~ e v i nfiled a motion to compel and for
custody, in addition to a notice of hearing on the motion. In
response to Kevin's motion to compel, Eva filed a motion for
additional evaluation and trial date on April 1, 1992. She argued
that the court should not accept Hale's recommendation and enforce
the parties' stipulation without a trial-type evidentiary hearing.
A hearing on Kevin's motion to compel was held on April 2,
1992. The entire proceeding was transcribed by a court reporter.
The court first addressed Eva's request for an evidentiary hearing,
and after discussing the issue with the parties, the court ordered
Eva and Kevin to brief the legal issue of whether or not a
trial-type evidentiary hearing was required to determine whether
the stipulation was in the best interest of the child. The court
stated that it would decide Eva's motion at a future date.
The court next addressed Kevin's motion. The court reviewed
Hale's written evaluation and questioned Hale on the witness stand
about her professional qualifications, her involvement with the
case, her assessment of the parties, and her recommendation. The
court also questioned Hood, the court-appointed attorney. Hood
stated that she was aware that Hale had conducted an evaluation to
make a custody recommendation and that it was acceptable to her.
At the close of the hearing, the District Court entered a custody
award in accordance with Hale's recommendation and transferred
custody to Kevin.
After consideration of the parties' briefs and arguments on
Eva's motion, the District Court issued an order on May 19, 1992,
denying Eva's request for an evidentiary hearing. In that same
order, the court permanently adopted Hale's recommendation and
ordered, in writing, that custody of Joey be transferred to Kevin.
Eva subsequently filed a motion to alter or amend and a motion for
a new trial. On July 13, 1992, the District Court denied both of
these motions. Eva appeals.
I
Did the District Court abuse its discretion when it awarded
custody in accordance with the parties' written stipulation?
On appeal, Eva contends that it was error for the District
Court to award custody pursuant to the parties' stipulation without
conducting an evidentiary hearing to determine whether the written
agreement was in the best interest of the child. Eva asserts that
when the court adopted the custody recommendations of the
evaluator, Hale, and denied her request for a more comprehensive
evidentiary hearing, the court did not adequately consider the
"best interestw of the child.
Section 40-4-201(2), MCA, provides that in dissolution
proceedings, at least, stipulated terms regarding the custody,
support, and visitation of a child are not binding on the court.
I re Mam'age of Mitchell (l987), 229 Mont. 242, 248, 746 P.2d 598, 603.
n
While terms of a contract may be introduced as evidence in some
instances, the custody and support of children are never left to contract between the
parties. Mitchell, 746 P. 2d at 603 (quoting In re Mam'age of Carlson (1984) ,
693 P.2d 496, 500, 214 Mont. 209, 217). This is because in all
matters relating to children, the best interests of the children
control. Mitchell, 746 P.2d at 603. To provide for the best
interests of the children, courts must %arefully examine" the
terms of a written agreement concerning custody. Commissionerst
Note to 40-4-201(2), Montana Code Annotated, Vol. 7 , p. 90.
Although in this case we are not concerned with a dissolution, the
same considerations apply.
The court must consider the factors set forth in § 40-4-212,
MCA, to ensure that the best interest of the child is provided for.
The court is free to consider the parties' stipulation, however,
ultimately the court must make an independent judgment regarding
custody.
The standard of review in a child custody determination is
well settled in Montana. The district court's findings will be
sustained unless they are clearly erroneous. In re Mam'age of Susen
(lggo), 242 Mont. 10, 13-14, 788 P.2d 332, 334. The trial court is
in a better position than this Court to resolve child custody
issues. The district court's decision is presumed correct and will
be upheld unless a clear abuse of discretion is shown. In re Mam'age
ofRoIfe (1985), 216 Mont. 39, 44, 699 P.2d 79, 82.
Based on our review of the record, we conclude that the
District Court considered the best interest of the child when it
made its final determination regarding the custody of Joey. The
court "carefully examinedn the parties' stipulation. The court
determined that the parties knowingly and intelligently entered
into an uncomplicated contract in which they agreed to be bound by
Hale's recommendations. Furthermore, the court found that each
party was fully represented by counsel when they signed the
stipulation.
Next, the court considered Hale's evaluation and
recommendation. In its order, the court determined that Hale is
thoroughly familiar with the family, and has worked with
them since the commencement of this action. She is in
the best position, based on her profession, expertise,
and familiarity with the family, to recommend an
appropriate custodial arrangement that would be in the
child's best interest.
Finally, the court made its own independent judgment. The
District Court in this case had conducted a lengthy custody trial
in November 1990 in which the court considered the factors set
forth in 5 40-4-212, MCA, and made appropriate findings. It also
questioned Hale regarding her findings during the April 2, 1992,
hearing and satisfied itself, as set forth in its May 19, 1992,
order, that Hale's recommendation provided for Joeyvsbest interest
according to those factors to be considered under 5 40-4-212, MCA.
Eva asserts that it was error for the District Court to enter
an order determining custody based on the stipulation alone,
without an evidentiary hearing, without giving full consideration
to the statutory criteria set forth in 5 40-4-212, MCA, and without
explicitly stating the determinative facts upon which the court's
findings were based. Eva relies on our decision in in re Mam'age of
Conveme (l992), 252 Mont. 67, 826 P.2d 937, to support her
contention that she was entitled to an evidentiary hearing.
However, this case is distinguishable from Converse. In Converse,
there was no trial and the court did not make findings which
indicated the basis of the custody decision in relation to the
statutory factors set forth in 5 40-4-212, MCA. The parties agreed
to a stipulation immediately prior to trial; however, when the
agreement was finally reduced to writing, there was disagreement
regarding its terms. The district judge adopted the stipulation
anyway. On appeal, this Court reversed and remanded the case and
ordered the lower court to conduct an evidentiary hearing, to
consider the statutory factors required by 5 40-4-212, MCA, and to
make explicit findings which explained the basis of the court's
custody decision.
Unlike the situation in Converse, where no custody trial was
ever held and no explicit findings ever made by the court prior to
its acceptance of the stipulation, the court in this case conducted
a custody trial in November 1990. Following that trial, the court
issued detailed findings of fact and conclusions of law which
indicated that the lower court had considered the factors set out
in 5 40-4-212, MCA. Unlike the court in Converse, the court in this
case was in a position, based on the prior trial, to put Hale's
custody evaluation in context and to make an independent judgment
that the transfer of custody to Kevin was in the best interest of
the child. Furthermore, there was no dispute regarding the
parties' stipulation in this case. And finally, Hale was carefully
questioned so that the District Court could independently determine
that her recommendation satisfied the statutory criteria.
We hold that the District Court did not abuse its discretion
when it entered a custody determination that was in accord with the
stipulation and Hale's recommendation.
II
Did the District Court err when it awarded sole custody to
Kevin?
Eva argues that the District Court did not make any finding
pursuant to § 40-4-224(1), MCA, that joint custody was not in the
best interest of Joey, and therefore, the court erred when it
awarded sole custody to Kevin. We disagree with Eva that the court
did not make the requisite finding.
First, the court considered the evaluation and recommendations
of the licensed clinical social worker, Hale. Hale determined that
she could not recommend joint custody because: (1) the test she
administered rated Eva's parenting skills as tvdefective'' in
numerous areas; (2) Eva made statements during the evaluation that
"she would not ever allow Joey to reside with Kevin;'' and (3) it
was Hale's opinion that Eva would not cooperate in joint custody
responsibilities.
Then, after considering Hale's recommendation, the court made
its own determination that it was in Joey's best interest to place
him in his father's sole custody, giving Eva liberal visitation.
We conclude that in its order entered on May 19, 1992, the District
Court made the requisite finding, pursuant to 40-4-224 (1), MCA,
that joint custody was not in the best interest of Joey.
Moreover, S 40-4-224(3), MCA, provides that "[alny order for
joint custody may be modified pursuant to S 40-4-219 to terminate
the joint c ~ s t o d y . ~ ~
Section 40-4-219(1), MCA, authorizes the
district court to modify a prior custody decree if
it finds, 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 modification ....
Subsequent to the original custody decree, the parties engaged
in a prolonged dispute regarding custody and were unable to settle
their differences. They finally stipulated in a signed agreement
that they would be bound by the recommendations of Hale. In doing
so, each party consented to modify the original decree.
Accordingly, the court did not err when it modified the prior joint
custody decree to award sole custody to Kevin. The court acted in
accordance with 5 40-4-219 (1)(a), MCA.
111
Did the District Court err by not requiring sufficient input
from the child's court-appointed attorney?
Eva asserts that pursuant to 5 40-6-110, MCA, the court was
required to appoint a guardian ad litem to represent Joey's
interests. Moreover, Eva contends that 5 41-3-303(2), MCA,
requires the guardian to conduct an investigation, to produce a
report, and to provide a custody recommendation. Eva argues that
Randi Hood, the attorney representing Joey in this case, did not
conduct an investigation or produce the information required by
5 41-3-303, MCA. She asserts that the court erred when it awarded
custody without such information from the guardian ad litem.
Section 40-6-110, MCA, applies when paternity is at issue.
This case is not a paternity action; it is a custody dispute.
Neither does 5 41-3-303 (2), MCA, apply to this case. It applies to
situations where a child has been alleged to be abused or
neglected, and requires that a guardian be appointed to represent
such a child. Section 40-4-205, MCA, governs this case. It is not
a mandatory statute. It provides that the court may appoint an
attorney to represent the interests of a minor child with respect
to his support, custody, and visitation.
The court appointed Randi Hood as the attorney to represent
Joey in this custody dispute. The parties and the court throughout
12
the custody proceedings in this case have referred to Hood as the
guardian ad litem; however, as we pointed out in Rolfe, 699 P.2d at
86, in Montana, the attorney for the child in a custody dispute is
not a guardian ad litem. As the child's attorney, Hood had a duty
to represent Joey's best interest. Rolfe, 699 P.2d at 86.
Hood was present at the April 2, 1992, hearing. After the
custody evaluator, Hale, testified, the court asked Hood if she had
anything to offer concerning Hale's recommendation that custody be
transferred to Kevin. Hood explained to the court that she was
aware that Hale was conducting a custody assessment and
recommendation, and that because of her previous experience with
the expert, Hale, that was "fine" with her. Hood acknowledged to
the court that she signed the parties' stipulation.
We conclude from the record that Hood fulfilled her legal duty
to represent Joey's best interest. There was no statutory
requirement that Hood, as Joey's attorney, conduct an
investigation, produce a report, and provide a custody
recommendation. Accordingly, we find that the court did not abuse
its discretion when it made its award of custody without such
specific information from Hood.
IV
Did the District Court err when it held the hearing on Kevin's
motion to compel on April 2, 1992?
Kevin served his motion to compel on March 20, 1992, and
pursuant to Rule 6(d), M.R.Civ.P., he filed an affidavit in support
of his motion on the same date. Additionally, Kevin served a
notice of hearing on March 20, 1992. All three of Kevin's
documents were filed with the court on March 23, 1992.
Eva contends that she received Kevin's motion to compel on
March 23, 1992, and therefore, according to Uniform District Court
Rule 2(a), she had ten days to file a responsive brief. She
contends that she had until April 6, 1992, to file her brief and
that when Kevin set his motion for hearing on April 2, 1992, he set
the hearing before Eva's time to respond expired. Eva asserts that
she was provided with insufficient notice of the hearing on Kevin's
motion, and therefore, it was error for the court to hold the
hearing on April 2, 1992.
Eva concedes that Kevin satisfied the time requirements of
Rule 6(d), M.R.Civ.P., but asserts that Rule 6(d) conflicts with
Uniform District Court Rule 2 (a), which allows the responding party
ten days to submit a responsive brief.
According to Uniform District Court Rule 2 (e), in the event of
a conflict regarding the filing of motions and briefs, the Montana
Rules of Civil Procedure shall control. Therefore, Rule 6(d)
controls. Rule 6 (d), M.R. Civ.P., provides that "[a] written motion
. . . and notice of the hearing thereof shall be served not later
than 5 days before the time specified for the hearing . . . . " We
conclude that when Kevin filed his motion and supporting affidavit
14
and notice on March 23, 1992, he complied with Rule 6(d),
M.R.Civ.P. He provided Eva with at least five days notice of the
hearing. Furthermore, both parties were given additional time for
briefing following the hearing and no prejudice to Eva has been
demonstrated from the shortness of notice.
v
Did the District Court err when it denied Eva's request for a
new trial after the May 19, 1992, order?
Eva claims that the District Court should have allowed a new
trial because Eva was "surprised1'by Hale's recommendation. She
asserts that Hale told her before the recommendation was written
that she intended to recommend that Eva retain custody of Joey, and
based on Hale's alleged comments, Eva claims that she signed the
stipulation. Eva reasserts that Converse is applicable and that the
District Court erred when it would not allow Eva the opportunity to
present expert testimony and evidence to contradict Hale's
evaluation and recommendation.
We reiterate that Convene is not applicable to this case. We
conclude that the District Court did not abuse its discretion when
it determined that it was in Joey's best interest to transfer
custody to Kevin. The record reveals that the court listened to
the parties' arguments, considered the parties' briefs, examined
the stipulation, and gave serious consideration to the evaluation
and recommendation of Hale. The record reveals that the court
exercised its independent judgement in its final custody
determination, taking into consideration numerous factors,
including evidence previously presented to the court over the
course of three days in November 1990. Accordingly, we conclude
that the District Court did not err when it denied Eva's request
for a new trial after its May 19, 1992, order.
The judgment of the District Court is affirmed.
We concur:
Chief Justice
n
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Joan Meyer Nye
NYE & MEYER, P.C.
3317 Third Ave. North
Billings, MT 59101
John Bobinski
Attorney at Law
P.O. Box 5117
HeIena, MT 59604-5117
ED SMITH
C I X K OF THE SUPREME COURT
S T A q OF MONTANA