. '
.,
"
No. 94-019
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
IN RE THE MARRIAGE OF
CAROL J. ALLISON, n/k/a CAROL L. AMICK,
Petitioner and Respondent,
and
BRUCE E. ALLISON,
Respondent and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Ted O. Lympus, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Randall S. Ogle, Ogle & Worm,
Kalispell, Montana
For Respondent:
Bruce McEvoy, Warden, Christiansen,
Johnson & Berg, Kalispell, Montana
FILEO Submitted on Briefs: September 22, 1994
DEC 2:3 1994 Decided: December 23, 1994
Filed:
· \
Justice William E. Hunt, Sr., delivered the opinion of the Court.
On July 29, 1991, Bruce Allison filed an ex parte motion to
change residential custody of the parties' children from Carol
Amick to himself, alleging that the Department of Family Services
confirmed that the children had been abused and neglected by Carol.
The Eleventh Judicial District Court, Flathead County, granted
temporary residential custody to Bruce during the pendency of the
instant proceedings. A number of hearings were conducted over the
course of two years: October 16, 1991, June 4, 1992, July 13,
1992, March 30, 1993, and July 29, 1993. At the close of the July
29, 1993, proceedings, the District Court ordered the parties to
submit proposed findings and conclusions by August 13, 1993. On
December 9, 1993, the District Court issued findings, conclusion,
and judgment returning residential custody of the parties' two
children to Carol. Bruce appeals. We affirm.
We frame the issues on appeal as follows:
1. Was there sufficient evidence to support the District
Court's findings of fact and conclusions of law maintaining Carol
as primary residential custodian of the parties' children?
2. Did the District Court err by adopting findings and
conclusions substantially similar to Carol's proposed findings and
conclusions?
3. Did the District Court properly conclude that the
July 29, 1991, ex parte order changing residential custody was
improperly issued, and therefore, should be vacated?
2
"
The parties' marriage was dissolved on November 9, 1990. The
parties were awarded joint custody of their two children, J.A. and
C.A., with Carol designated as residential custodian. At the time
of the dissolution, Carol's two children from a previous marriage,
R.E. and T.E., also resided with the parties. Following the
dissolution, the parties resided together until late January or
early February 1991, when Carol and the children moved out.
On February 5, 1991, the Kalispell office of the Montana
Department of Family Services (DFS) received an abuse and neglect
referral from a school counselor at R.E. and T.E. 's school. DFS
opened an investigation into the matter on February 13. The school
counselor felt that Carol required counseling. A social worker
attempted to contact Carol, and left several messages for her to
call the DFS office.
On March 19, Carol called and set up an appointment to meet
with a social worker the following day. Later that day, DFS
received a call from the school counselor reporting that R.E. had
appeared in school with a bruise on his face. Brad Custer, a DFS
social worker, interviewed T.E. and R.E. R.E. reported that he had
been slapped on the head by his mother for no apparent reason.
On March 20, Carol came to the DFS office for her appointment.
According to Custer, Carol admitted slapping R.E. 's face because
she was frustrated with his uncontrollable behavior. Carol
testified at trial that R. E. was cussing at her, "calling [her]
every name in the book," and she slapped him across the face.
Carol also told Custer that she had been the victim of physical,
3
· ,
sexual, and emotional abuse both as a child and during her marriage
to Bruce, and that she was co-dependent. Carol agreed to work with
the school counselor and with a family counselor, and she agreed to
participate in a co-dependency treatment program.
On March 28, Carol and a friend returned to the DFS office.
Custer reiterated that Carol must seek counseling. Custer advised
Carol that her slapping of R.E. had been substantiated as physical
abuse. Custer recommended that Carol refrain from physically
disciplining her children, and that she contact a local program for
parenting education and alternatives to physical discipline. Carol
and Custer developed a treatment plan and agreed that Carol would
undergo a mental health evaluation and would follow through with
the recommendations made following the evaluation.
In early April, Carol sent R. E. to live with his natural
father in Canada. On April 9, Bruce telephoned the DFS and stated
that he would go to court, if needed, to resolve what he felt was
a worsening situation.
In early May, Carol went to psychologist Herman Androes for a
mental health evaluation. Androes reported to DFS that Carol was
following through with the process, and that the results of the
evaluation looked very good for her.
A DFS intake referral form dated June la, 1991, completed and
initialed by Eva Jo Burrington, states that Bruce's live-in
girlfriend, Barbara Dietz, called the DFS office. Barbara stated
that she thought that the school had reported Carol for abuse and
neglect. She expressed concerned about J.A. 's increasingly
4
,.
sexualized behavior--including open-mouthed kissing, unzipping
other people's clothing, and attempting to touch other people's
genital areas--during his visitation with Bruce, Barbara, and
Barbara's two teenage sons. Burrington noted that Barbara was
"very concerned that we understand this is not a custody dispute
[but] are real concerns."
On June 18, Custer transferred Carol's case to Ann Anderson,
another DFS social worker. He noted that the investigation was
closed, that the reported abuse--the slapping of R.E.--had been
substantiated, and that he estimated the future risk of abuse at an
intermediate level.
On or about July 1, Bruce moved the District Court to order
DFS to disclose its confidential reports regarding Carol. The
motion was granted without notice to Carol and without a hearing.
Anderson complied with the order, and on July 9, provided the
District Court with copies of DFS records regarding Carol. In her
cover letter, Anderson informed the court that the DFS
investigation into the matter was ongoing and that she would
provide copies of any updates.
On July 17, Anderson visited J.A. and C.A. 's daycare center.
The daycare workers stated that they had not noticed any aggressive
or sexual behavior on J.A. 's part. Anderson returned on July 30 to
interview J.A. She reported that: "He was a little nervous when
asked about secrets and the secret seems to relate to his brother
[R.E]. He did not show any changes in affect when questioned about
private parts or secret touching."
5
On July 29, 1991, Bruce filed an ex parte motion to change
residential custody from Carol to himself, alleging that DFS had
confirmed that the children had been abused and neglected by Carol.
The court granted temporary residential custody to Bruce.
On September 4, 1991, Anderson wrote the District Court to
update the record. Her letter stated that DFS had completed its
investigation into the allegations of sexual abuse and that the
allegations had not been substantiated. She told the court that
Carol had been psychologically evaluated, and she recommended that
Bruce also be evaluated "before decisions are made regarding
custody of the children." The record reveals that, to date, Bruce
has not undergone a full psychological evaluation.
On September 24, Carol moved the District Court to refer the
matter to Family Court Services (FCS) of the Eleventh Judicial
District for further investigation. The court granted the motion
and ordered FCS to investigate and submit a report by November 1.
On October 10, Bruce filed a motion for the production of
Carol's psychological evaluation. In response, Carol moved the
court to order Bruce to submit to a psychological evaluation. A
hearing on the motions was held on October 16, and the court issued
an order on October 25 granting both motions.
On November 1, Thomas Best, the current director of FCS,
submitted a report to the court. He stated:
It appears the single parenting stress of raising four
children overwhelmed CAROL ALLISON. My conference with
BRUCE ALLISON did not reveal a[n] angry father waiting on
the sidelines to grab [the] children at the first
6
"
opportuni ty. He appears to have genuine concerns for the
welfare of [J.A.] and [C.A.]
I would recommend the continuation of the joint custody
. but the residential responsibility for the children
. be with their father.
On November 6, 1991, the parties stipulated that Bruce would
maintain temporary residential custody for an additional six months
while Carol and the children received counselling. In December,
FCS made arrangements for the children's visitation exchange to
take place at the FCS offices. FCS made the arrangements because
Bruce's girlfriend had expressed fear at meeting with Carol to
exchange the children.
In early January 1992, Bruce and his girlfriend continued to
phone DFS, insisting that they reopen the sexual abuse
investigation. On January 23, Bruce refused to allow Carol
visitation, and the Sheriff's Department intervened and assisted
Carol in obtaining the children. Jolie Arnold, the new director of
FCS, advised Bruce to contact Maxine Lamb at the Sheriff's
Department and file a report if he had serious concerns regarding
abuse. Arnold later contacted Lamb to discuss the situation, and
Lamb said that Bruce stated he would not come in to see her because
he could not get off work.
On January 27, Anderson petitioned the court for temporary
investigative authority of J.A. and C.A. Anderson thought that if
the DFS personnel could observe J.A. and C.A. for one week in a
neutral environment, they could determine if the children were
exhibiting signs of abuse. Bruce protested. Rosemary McKinnon,
7
, .
J.A. and C.A. 's counselor, phoned Anderson. McKinnon stated that
she had been seeing the children every three to four weeks since
August 1991 and that she felt they were doing better with Bruce.
While she had not been able to substantiate any sexual abuse t
McKinnon stated that Bruce and his girlfriend were reporting an
increase in sexualized behavior. She felt that removing the
children would be traumatic for them. Neva Yourman, the children's
daycare supervisor t also contacted Anderson. Yourman reported that
J.A. and C.A. were at the daycare center full-time and that t
although Bruce's girlfriend reported that the children had been
inappropriately touching others, they had not displayed any
inappropriate behavior while at the daycare.
The District Court denied DFS's petition for temporary
investigative authority. Anderson requested that Bruce come into
the office without his mother or girlfriend. Anderson outlined to
Bruce three options for pursuing the investigation of the
allegations of sexual abuse: (1) Have the children continue
counselling with Rosemary McKinnon "with the idea that she would
elicit some disclosure" of sexual abuse from the children; (2) have
a law enforcement official interview the children and attempt to
elicit a disclosure; or (3) allow the DFS to observe the children
in a neutral setting. Anderson explained to Bruce that she did not
believe t based on her ongoing investigation, that the children had
been sexually abused in their mother's home. Anderson reported
that "Bruce said Carol's on-going sexual abuse as a child is the
reason for his concern about sexual abuse of his children."
8
On February 7, 1992, Anderson closed her investigation into
the allegations of sexual abuse. She concluded that the
allegations were not substantiated and that the risk of future
abuse was low.
On March 9, 1992, Bruce and his girlfriend took C.A. and J.A.
to the Kalispell Police Department and filed a report of suspected
child abuse with Sergeant Lanfear and Officer Bardwell. The
officers observed faint bruising on both children I s necks, but
reported that the bruising was faint enough that they did not
attempt to take photographs. The children would not speak to the
officers, but Bruce informed them that the children had stated that
their mother had choked them. Bruce and his girlfriend both gave
written statements implicating Carol.
DFS received the police report on March 10 and a new
investigation was opened. Anderson contacted Arnold at FCS.
Arnold reported that, on the morning of March 9, when Carol brought
the children to the FCS office to make the exchange following their
weekend visitation, she had checked the children and had not
noticed any bruising. Anderson also called Neva Yourman at the
daycare center. Yourman reported that the children did not have
any bruising when they were brought to the daycare by Bruce I s
girlfriend.
Anderson called the police department. Sergeant Lanfear told
her that Carol had given a statement and had denied the
allegations. Carol asked to be given a polygraph examination. The
test subsequently was administered, and the results were in her
9
favor. DFS closed the investigation into the March 9 allegations
of abuse, concluding that abuse had not been substantiated and
rating the risk of future abuse as being low.
On May 14, 1992, Carol moved the District Court to modify or
clarify the custodial, residential, visitation, and financial
arrangements related to the parties' children.
About the same time, McKinnon sent a letter to Arnold.
McKinnon stated that she was writing at Bruce's request. She
explained that she had seen the children 13 times since August
1991. She recommended that Carol be limited to supervised
visitation. On May 20, McKinnon sent Arnold a follow-up letter
which stated in pertinent part:
Since my letter to you on May 12, [J.A.]
spontaneously reported to his father and subsequently to
me that when his mother is angry with him she squeezes
his penis. This new finding is, of course, a very
serious one, which will be reported to Social Services
for further investigation. It underscores my concern for
the welfare of both children when they are in the care of
their mother and I hope that you will give serious
consideration to my recommendations as outlined in my
May 12 letter.
On June 2, 1991, Anderson opened a new investigation into the
penis squeezing allegations. According to the DFS records, Bruce
had complained to Warren Wright, western regional director of DFS,
about the local DFS office's handling of the case. Wright
contacted the local office and informed them of the latest
allegations. Although Bruce believed that Wright would remove
Anderson from the case, Wright contacted Anderson by phone and
10
· .
informed her that she would, in fact, continue to facilitate the
investigation.
On June 3, 1992, Bruce moved the District Court to require
that Carol's visitations with the children be supervised. The
District Court granted the motion for supervised visitation. That
same day, Anderson requested that the Kalispell Police Department
investigate the penis squeezing allegations. Carol volunteered to
submit to a polygraph test, and the results were in her favor.
Interviews with the children were arranged to take place at the
daycare center, but when Bruce learned that Anderson was involved
in the investigation, he refused to allow anyone to interview the
children. Detective Steve Klingler, who investigated on behalf of
the Kalispell Police Department, stated to Arnold that "if J.A. is
being sexually abused, it is his belief that the perpetrator is
someone other than Carol Allison." Arnold submitted the findings
of the police department, as well as Detective Klingler's
statement, to the District Court in a report dated July 9, 1992.
Arnold wrote:
Although I am sure BRUCE ALLISON feels he has acted
in good faith on his children's behalf, I do not believe
that BRUCE has acted in the best interests of [J.A.] and
[C.A.]. I believe he has over-reacted, which has caused
the children to be confused and scared. He has not
followed the procedure suggested by Family Court Services
or by the local Department of Family Services. BRUCE has
made false accusations regarding my involvement in this
mat ter. Al though it may have been unintentional, I
believe BRUCE's allegations against CAROL ALLISON to be
false.
Hearing on all outstanding motions was held, but not
concluded, on July 13, 1992. The District Court issued an order on
11
July 22, 1992, providing that the hearing be continued at a later
date upon the motion of either party and that temporary residential
custody continue with Bruce. The District Court further ordered
that a social worker conduct an evaluation of the parties and their
children and make recommendations to the court regarding the
custody issues. On December 30, 1992, Carol requested that the
court continue the hearing.
The hearing continued on March 30, 1993. Seven witnesses
testified and a total of fourteen exhibits were admitted into
evidence. The District Court took the matter under advisement and
ordered that the hearing continue at a later date. The final
hearing was held on July 29, 1993. During the July 29 hearing,
five additional exhibits and three depositions were admitted into
evidence. Carol, Bruce, and Rosemary McKinnon testified.
On December 9, 1993, the District Court issued findings,
conclusions, and judgment returning residential custody of the
parties' two children to Carol. Bruce appeals.
STANDARD OF REVIEW
This Court recently clarified the standard by which we review
child custody modification cases:
Motions or petitions to modify a sole custody
provision or terminate a joint custody provision must
satisfy the jurisdictional prerequisites set forth in
§ 40-4-219, MCA. Likewise, a motion or petition to
modify child custody provisions in a dissolution decree
which ha [s] the effect of substantially changing the
primary residence of the parties' children, even though
the formal designation of "joint custody" is retained,
are to be construed as motions or petitions to terminate
joint custody and must satisfy the jurisdictional
requirements set forth in § 40-4-219, MCA. Any effort to
12
modify the physical custody, which does not seek a
substantial change in the children's primary residence,
may be considered by the district court according to the
best interest standard set forth in § 40-4-212, MCA.
In re Marriage of Johnson (Mont. 1994), 879 P.2d 689, 694, 51 St.
Rep. 703, 706.
In this case, the parties' were awarded joint custody of their
children, J.A. and C.A., by decree of dissolution, and Carol was
awarded primary residential custody. Bruce's July 29, 1991, motion
sought to change the primary residence of the children to himself
and to restrict Carol to visitation "on alternate weekends from
Friday at 5:00 p.m. until Sunday at 7:00 p.m." We conclude that
Bruce's motion sought a substantial change in the primary residence
of the parties' children while retaining the formal designation of
"j oint custody." We, therefore, construe the motion as one to
terminate joint custody and review the record to determine if the
jurisdictional requirements set forth in § 40-4-219, MCA, are
satisfied.
ISSUE 1
Was there sufficient evidence to support the District Court's
findings of fact and conclusions of law maintaining Carol as
primary residential custodian of the parties' children?
" [T]he party requesting modification under § 40-4-219, MCA,
bears a heavy burden because the statute's policy is to 'preserve
stability and continuity of custody for the children. '" Johnson,
(1994), 879 P.2d at 694 (citing In re Marriage of Stephenson
(1988), 230 Mont. 439, 447, 750 P.2d 1073, 1075; In re Marriage of
13
Gahm (1986), 222 Mont. 300, 303, 722 P.2d 1138, 1140). In a child
custody case, this Court will review the district court1s findings
to determine whether those findings are clearly erroneous.
Johnson, 879 P.2d at 694; In re Marriage of Dreesbach (Mont. 1994),
875 P.2d 1018, 1021, 51 St. Rep. 374, 375. A finding is clearly
erroneous only if: (1) the finding is not supported by
substantial, credible evidence; (2 ) the district court
misapprehended the effect of the evidence; or (3) after reviewing
the record, this Court is left with a definite and firm conviction
that a mistake has been committed. Johnson, 879 P. 2d at 694
(citing In re Marriage of McClain (1993), 257 Mont. 371, 374, 849
P.2d 194, 196).
Section 40-4-212, MCA, requires the court to determine custody
in accordance with the best interest of the child. To modify
custody, § 40-4-219(1), MCA, requires the court to make each of the
following determinations: (1) that a change has occurred in the
circumstances of the child or custodian; (2) that modification is
in the best interest of the child; and (3) that one of six
enumerated circumstances exists. The best interest test of
§ 40-4-212, MCA, is, therefore, one of the three prongs under
§ 40-4-219(1), MCA.
After hearing all of the testimony in this case, the District
Court made the following conclusions of law: that there had been
"no significant change in circumstances of either child or of the
residential custodial parent"; that under § 40-4-212, MeA, it was
in the best interest of the children to return them to the physical
14
custody of their mother pursuant to the original decree of
dissolution; and that none of the six factors under § 40-4-219(1),
MCA, merited a permanent change in residential custody. Each of
the three determinations required by § 40-4-219, MCA, were made by
the District Court. Moreover, the District Court concluded that
Bruce "has and likely would continue in the future to deny and
frustrate contact between the children and [their mother]," and
cited § 40-4-219(3), MCA, which provides that" [t]he court shall
presume the custodian is not acting in the child's best interest if
the custodian does any of the acts specified in subsection (1) (e)
" Section 40-4-219 (1) (e), MCA, provides for modification of
custody if the court finds that the custodial parent willfully and
consistently refuses to allow contact between the children and the
noncustodial parent or attempts to frustrate or deny the
noncustodial parent's visitation rights.
Bruce mischaracterizes the DFS reports when he asserts that
"[o]n March 19, 1991, DFS confirmed that Carol had beaten R.E. on
the face with a belt." (Emphasis added.) The DFS report merely
states that DFS received a telephone call from a school counselor
who stated that R.E. was in school with bruises on his face and
that R.E. claimed that his mother had beat him with a belt. The
DFS records show that a social worker went to the school and talked
to both R.E. and T.E. The social worker discovered "some light
redness" to the left side of R.E. 's face. R.E. told the social
worker that his mother had slapped his face. According to R. E., he
was slapped for fighting with T.E. Carol came to the DFS office
15
the following day to keep a previously scheduled appointment with
the social worker, and she freely admitted that she slapped R.E. 's
face. According to Carol's sworn testimony at trial, R.E. was
cussing at her, "calling [her] every name in the book," and she
slapped him across the face.
Similarly, Bruce mischaracterizes the DFS records by asserting
that more than one incident of substantiated abuse occurred:
"Carol continued to discipline R. E. by beating him and leaving
bruises on his face. "(Emphasis added.) A careful review
of the DFS records and the testimony of the DFS social workers who
thoroughly investigated Carol shows that only a single incident of
substantiated abuse occurred: The slapping of R.E. on March 19,
1991. Bruce points to an entry in the DFS records dated April 23,
1991, to support his assertion of continuing abuse. The record
clearly shows, however, that the social worker's entry referred to
the March 19 slapping, and that on April 23 a discussion about that
slapping took place between Carol and the social worker.
Bruce argues "that the record is overwhelming that it was in
the best interests of the Allison children that Bruce continue as
residential custodian." While there is some evidence in the record
supporting Bruce's position, we conclude that the District Court's
findings and conclusions are supported by substantial, credible
evidence.
The record is filled with the testimony of the DFS
investigators who were unable to confirm any physical or sexual
abuse of J.A. and C.A., despite Bruce and his girlfriend's repeated
16
allegations. Arnold, who observed the children on a number of
occasions after their visitation with Carol, testified that she
never saw any evidence of abuse. Anderson, who investigated the
allegations of sexual abuse, determined that abuse was not
substantiated. Anderson also testified that" [i]t is uncommon for
there to be that many unsubstantiated referrals coming from the
same source."
Despite his recommendation that the children remain in the
residential custody of Bruce, Wright conceded that no
substantiation of abuse existed. Wright testified that his
recommendation was not based on whether Bruce would make a better
parent. Instead, his recommendation was
based on the fact that the kids are in his custody now,
and I believe it should be the Department's policy, and
in fact it is our practice, to work with parents who have
custody of the children and try to make sure they
maintain that family relationship.
Custer, who investigated the slapping incident, testified that
he "did not see reason to remove the children at that point in
time" even though he had confirmed that Carol had slapped R.E.
Custer testified that the emotional abuse of T.E., J.A., and C.A.
was not substantiated. Custer testified that he investigated the
allegation that Carol had pinched J.A. 's penis and concluded that
such abuse was unsubstantiated. Custer also testified that he
worked with Detective Brown of the Kalispell Police Department on
the penis pinching allegations, and that Brown, likewise, concluded
that the alleged abuse was unsubstantiated.
17
•
Burrington, who investigated the allegations of sexual abuse
in conjunction with Custer, testified that DFS had no information
which would have warranted the children's supervised visitations
with Carol. She further testified that DFS had no evidence which
substantiated the allegations of sexual abuse.
In addition to Wright, only three other non-party witnesses
testified favorably on behalf of Bruce. Police Chief Dale Stone of
the Columbia Falls Police Department testified that in February
1993 Bruce's mother called him and asked him to talk to J .A.
According to Stone, Bruce's mother told him that J.A. had been
acting out and inappropriately touching his sister. Bruce and his
mother wanted Stone to tell J.A. that such behavior was
inappropriate. Stone testified that J.A. told him that when Carol
is mad at him, she would touch his private areas. Stone reported
his findings to DFS, but did not conduct any investigation beyond
the single interview with J.A.
Carol Lee testified that she interviewed J.A. in September
1992, and he spontaneously disclosed to her that his mother touched
his private parts. She also interviewed Carol, Bruce, and the
other children. Following her investigation, she recommended that
Bruce continue as the residential custodian and that Carol have
supervised visitations while she received counseling. She also
testified that children may suffer stress and other difficulties
following the divorce of their parents. In 1992, she determined
that Bruce needed counseling for his need to be controlling. Lee
further testified that, after her recommendation in the fall of
18
•
1992, she was no longer involved in the matter and had virtually no
other contact with the parties. At trial, she refused to make any
further recommendations due to her lack of current involvement.
McKinnon testified that her role in this matter was
exclusively as J.A. and C.A. 's counselor. She began counseling the
children in August 1991. She testified that, during one of their
sessions, J.A. reported that his mother pinched his penis when she
was mad at him. The disclosure came after Bruce contacted McKinnon
and told her that J.A. had been caught touching other peoples'
genitals. Bruce told McKinnon that he had asked J.A. where he
learned to do that, and J.A. responded that his mother had done it
to him. J.A. also reported to McKinnon that his aunt, his uncle,
and a friend of his mother's also touched him in the same manner.
However, in a letter dated May 12, 1992, following the disclosure,
McKinnon stated that" [n]either of the children have given direct
and unequivocal evidence of either physical or sexual abuse. This
does not, of course, mean that it has not occurred. J.A. lS
protective of his mother." Regarding J.A. 's disclosure, McKinnon
also wrote: "He was able to tell me this same information [that
Bruce had reported] but was clearly acutely uncomfortable and
remained vague as to the nature of this touching and unable to give
any further details." Based on her involvement, McKinnon
recommended at trial that Bruce remain custodian, that C.A. be
moved to unsupervised visitation with Carol, and that J.A. remain
with supervised visitation. She testified that she was not an
investigator, but strictly a counselor.
19
When Arnold spoke to J.A. about his statement that his mother
pinches his penis when she is angry, all that J. A. would tell
Arnold is "Daddy told me." Arnold reported her conversation with
J.A. to the District Court in a written statement dated June 4,
1992. She also reported that she had concerns about the emotional
trauma the children suffered from repeated questioning and
examination by FCS, DFS, and a variety of law enforcement
officials. She stated that Bruce's anger toward Carol was apparent
and that he had talked negatively about Carol in the presence of
the children.
Androes also testified at trial. He stated that Carol's
psychological tests "came out very well in all areas" and were not
outside the normal psychological bounds. He determined that Carol
was under a great deal of stress at the time of his initial
examination of her. Carol began regular counseling with him in the
fall of 1991. Androes testified that he found it significant that
the allegations of sexual abuse against Carol "began at the very
time that DFS was preparing to close the case in the physical abuse
charge and to leave residential care with the mother . " In
his experience, he had found that" [w]hen somebody wants to change
a custodial situation, that's when they make new charges
The outside parent frequently will look for other reasons to make
charges to try to see if they can't reverse the way things are."
Androes testified that a pattern of complaints existed in this case
and that the complaints emanated from Bruce, Bruce's girlfriend,
and Bruce's mother. He stated that the repeated allegations did
20
not surprise him due to the established pattern. Because Carol's
only contact with the children occurred during supervised
visitation, he found the allegations of sexual abuse incredible.
Androes further testified that, based on his evaluation and
ongoing counselling, he had no reason to deny Carol full custody of
her children, or alternatively, to have normal visitation
privileges.
Carol and Bruce also testified during the final hearing on
July 29, 1993. Carol stated that her testimony that day was the
first testimony or sworn statement that she had given during the
entire matter. She confirmed that she had received no notice of
Bruce's July 29, 1991, motion to modify custody and that she was
not allowed to testify prior to the removal of her children from
her home. She confirmed that she had been extensively investigated
by DFS and the Kalispell Police Department and that she had
submitted herself to two separate polygraph examinations. She
stated that she had never been accused of abusing or neglecting her
daughter T.E., who continued to reside with her during all of the
instant proceedings.
Carol's attorney called Bruce to testify. The attorney asked
Bruce if his testimony that day was the first sworn statement he
had made in the custody proceedings. Bruce stated, "Yes, it is."
He explained that his primary concern was for the well-being of his
children. He testified that when Anderson concluded that the
alleged abuse was unsubstantiated, he was dissatisfied and went
over her head to Wright. He also complained about the local DFS
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r
office to the Governor's office and to the Flathead County
Attorney. Bruce conceded, however, that the claims that the County
Attorney's office reviewed were rejected. Additionally, when Bruce
was dissatisfied with Arnold's conclusion that there was no
substantiated abuse, he went over her head to her boss at Family
Court Services. Bruce acknowledged that Carol Lee had recommended
that he needed counseling for his control and anger issues and that
he needed to be evaluated for chemical dependency. He testified
that he had at tended some sexual addiction group meetings, had
attended some Adult Children of Alcoholics meetings, and had seen
Carol Lee twice for counseling, but that "affordabili ty kind of
comes into play" in his seeking any additional counseling.
Because its findings and conclusions are supported by
substantial, credible evidence, we conclude that the District Court
did not err in returning residential custody of the parties'
children to Carol.
ISSUE 2
Did the District Court err by issuing findings and conclusions
substantially similar to Carol's proposed findings and conclusions?
The District Court issued over 21 pages of findings of fact
and conclusions of law. Bruce argues that the District Court
"abused its discretion by its abrupt, 'wholesale adoption' of"
Carol's proposed findings and conclusions, which were submitted on
computer disk as the court had requested both parties do. Bruce
asserts:
22
A careful review of Findings of Fact, Conclusions of Law
and Judgment entered by the Court reveals very little
change from the proposed Findings of Fact, Conclusions of
Law, and Judgment submitted by Carol's counsel, other
than to change the names from Carol and Bruce to
Respondent and Petitioner, and other minor changes of
style in the text. There were no substantive changes by
the District Court.
In support of his position, Bruce cites In re Marriage of Wolfe
(1983), 202 Mont. 454, 457-58, 659 P.2d 259, 261, in which this
Court stated:
[W]e [have] voiced our disapproval of trial courts
relying "too heavily on the proposed findings and
conclusions submitted by the winning party." A trial
judge relies "too heavily" upon proposed findings when
they are used "to the exclusion of a consideration of the
facts and the exercise of his own judgment."
While we discourage the verbatim adoption of proposed findings
and conclusions, "the practice does not constitute error per se."
In re Marriage of Nikolaisen (1993), 257 Mont. 1, 5, 847 P.2d 287,
289. In Nikolaisen, we set forth the following test:
When reviewing the adequacy of the findings of fact and
conclusions of law, we examine whether they are
sufficiently comprehensive and pertinent to provide a
basis for a decision, and whether they are supported by
substantial evidence.
Nikolaisen, 847 P.2d at 289i Wolfe, 659 P.2d at 261. We conclude
that the District Court's findings and conclusions meet the above
test. Although the findings and conclusions are substantially
similar to those proposed by Carol, they are comprehensive,
pertinent, and are supported by substantial evidence contained in
the record. The District Court, therefore, did not err by issuing
findings and conclusions substantially similar to those proposed by
Carol.
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•
ISSUE 3
Did the District Court properly conclude that the July 29,
1991, ex parte order changing residential custody was improperly
issued, and therefore, should be vacated?
The District Court's finding of fact NO.8 states:
No Affidavit was submitted or filed in support of
Respondent's [July 29, 1991,] Motion [to Change Custodial
Parent], contrary to the requirements of Section
40-4-220, Montana Code Annotated, which provides in
relevant part:
"A. Party seeking a temporary custody order
or modification of a custody decree shall
submit, together with moving papers, an
affidavit setting forth facts supporting the
requested order or modification . "
The District Court concluded as a matter of law that because the
July 29, 1991, order was entered pursuant to a motion without a
supporting affidavit, the order was issued contrary to
§§ 40-4-220 (1), -220 (2) (a), and -213 (1) and should be vacated.
Bruce argues that
it was impossible for him to file an Affidavit in support
of his Motion to Change Residential Custodian because DFS
would not allow him to review its records regarding
Carol, and therefore Bruce did not know the content of
the DFS records regarding Carol and her children when he
filed his Motion.
However, on July I, 1991, pursuant to Bruce's motion, the District
Court ordered DFS to produce its confidential files pertaining to
Carol. The order, which was granted without a hearing and without
notice to Carol, stated that
[t]he information and materials in said files may only be
disclosed as follows:
a. To the court;
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•
b. To counsel of record for the respective parties
in this action .
The record reveals that the District Court received the
confidential information on July 9. Twenty days later, Bruce filed
his ex parte motion to change custodial parent, stating:
This Motion is made on the grounds and for the reasons
that the records of the Department of Family Services
confirm that the children have been abused and neglected
by Carol J. Allison. . and that therefore the best
interests of the children necessitates modification of
the residential custodian .
(Emphasis added.) Bruce clearly knew the contents of the DFS
records at the time he filed his motion for change of custodial
parent on July 29. However, the record shows that Bruce did not
file an affidavit in support of his motion.
The statutory mandate of § 40-4-220(2), MCA, is clear:
(a) A party seeking a temporary custody order may
request that the court grant a temporary assignment of
custody ex parte. He shall so request in his moving
papers and shall submit an affidavit showing that:
(ii) although a previous determination of custody
has been made, the child's present environment endangers
his physical or emotional health and an immediate change
of custody would serve to protect the child's physical or
emotional health.
(b) If the court finds from the affidavits
submitted by the moving party that a temporary assignment
of custody would be in the child's best interest under
the standards of 40-4-212 or that the child's physical or
emotional health is endangered and would be protected by
a temporary assignment of custody, the court shall make
an order placing temporary custody with the person
designated by the moving party. . and shall require
all parties to appear and show cause within 20 days from
the execution of the order why. . in the case of a
temporary order issued under subsection (2) (a) (ii), the
court should not restore the child to the custodian from
whom the child was removed by the temporary order.
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• •
(Emphasis added.) The Code Commissioners' Note to § 40-4-220, MCA,
further provides:
This section establishes a procedure for seeking
temporary custody or a modification of a custody decree
by motion supported with affidavits. The procedure is
designed to result in denial of the motion without a
hearing unless the court finds that the affidavits
establish adequate cause for holding a hearing. The
procedure will thus tend to discourage contests over
temporary custody and prevent repeated or insubstantial
motions for modification.
(Emphas i s added.) The statute provides no exception to the
affidavit requirement, and we refuse to create one.
We conclude that, because Bruce failed to file a supporting
affidavit with his motion to change custodial parent, the District
Court's order of July 29, 1991, improperly granted that motion.
The District Court did not err by subsequently vacating that order.
Affirmed.
We concur:
26
• II
Justice Karla M. Gray, specially concurring.
I join in the Court's opinion on issues 1 and 3 and specially
concur on issue 2, relating to whether the District Court erred in
issuing findings and conclusions substantially similar to those
proposed by Carol. As to that issue, I agree with the result
reached by the Court, but not with all that is said therein. I
write separately to clarify that, while I have serious concerns
about the extent to which district courts are adopting verbatim, or
nearly so, a party's proposed findings and conclusions, this case
does not reflect such a wholesale adoption of findings.
Over the past decade, we have discouraged, and disapproved of,
trial courts relying too heavily on the proposed findings submitted
by a "winning party;" in that regard, we began with a principle
that adopted findings must reflect the judge's own consideration of
the facts and the exercise of the judge's own judgment. See, ~,
In re Marriage of Wolfe (1983), 202 Mont. 454, 659 P.2d 259. We
continue to voice similar sentiments, while concurrently stating
that "the practice does not constitute error per se." In re
Marriage of Nikolaisen (1993), 257 Mont. 1, 5, 847 P.2d 287, 289.
Indeed, our current approach seems to be that if the findings are
comprehensive and are supported by substantial evidence, that is
sufficient. Nikolaisen, 847 P.2d at 289. If we are no longer
requiring that a judge's work reflect the judge's consideration of
the record and exercise of his or her own conscientious judgment,
the judicial system has been turned over to the lawyers to a degree
I cannot support.
I understand better than most what trial judges are up against
27
".
"
with regard to juggling a back-breaking work load with inadequate
time, staff and other resources. But we can go too far in
permitting judges to rely on the advocates before them in trying to
keep their dockets current. It is my view that we must require
that a judge's findings and conclusions reflect independent
judgment by the court (see In re Marriage of Kukes (1993), 258
Mont. 324, 328, 852 P.2d 655, 657) and that combing the record for
substantial evidence to support those findings is not sufficient.
Here, the Court is correct that the District Court's findings
and conclusions are comprehensive, pertinent and supported by the
record. More importantly, they reflect the exercise of the court's
independent judgment. They are not verbatim adoptions and, indeed,
testimony of witnesses included at length in Carol's proposed
findings was not included at all in the District Court's findings,
presumably because the court did not give it the weight Carol
thought was appropriate or any weight at all. Other findings were
revised, added to, and deleted from in significant ways given the
facts of the case.
Based on the record and the District Court's findings and
conclusions before us, I join the Court in affirming.
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